2017.01.09
Emily Chueh
The Ministry of Justice issued the Fa-Lu-10603500120 Circular of January 9, 2017 (hereinafter, the “Circular”) to communicate that except as otherwise stipulated by law, the original names of foster children shall be reverted to their original registered names at the time of birth when the foster relationship is terminated.
According to the Circular, Article 1059 of the Civil Code provides that since a child can only assume the surname of his/her father or mother out of the consideration that identity law is characterized by public interest, the Family Law of the Civil Code contains compulsory provisions concerning the marital and family systems. This is different from the principle of private law autonomy under property law, which basically gives legal effects to decisions made by the parties of their own accord. If the principle that “the surname of a child should not be any surname other than those of his/her parents (including the surnames of grandparents other than those of his/her parents)” is permitted to be disrupted according to the individual needs of the parties, the legal regime may become chaotic.
It was further pointed out in this Circular that the last part of Article 1 of the Law for the Implementation of the Family Law of the Civil Code and Article 1083 of the Civil Code both specifically stipulate that the surname of a foster child shall be reverted to his/her original surname upon termination of the foster relationship. Therefore, when the foster relationship for a foster child is completely terminated, his/her original surname should be restored. Unless otherwise stipulated by law, the determination shall be made pursuant to the Civil Code effective at the time of birth.