In China, a woman’s custody battle spotlights challenges of same-sex couples

It’s been more than four years since Zhang Peiyi last saw her son, one of two children from her former marriage.

Denied custody of both kids, Zhang finally settled in June for visitations with her daughter. But after seeing her only once, Zhang’s ex-wife called the meetings off indefinitely. What Zhang thought was the end of a years-long legal battle is facing yet another hurdle, as she has to go through court again to ask them to enforce her visitation rights.

“These types of disputes are not well protected in our country,” said Gao Mingyue, the lawyer representing Zhang. “This is a reminder that we have to be self-sufficient.”

LGBTQ families like Zhang’s have no law to cite when faced with situations like custody or divorce, as same-sex marriage is not recognised in China, meaning the outcome of each case is uncertain and inconsistent.

For straight couples – regardless of marriage status – both are recognised as custodians by law. If the two split, the court decides who gets custody based on factors like the parent’s financial resources, the child’s desire and the home environment – operating from the principle of making the best decision for the child.

But for same-sex couples who have children via surrogacy or in vitro fertilisation, nothing is guaranteed.

Zhang, a Shanghai resident, knows this first-hand. She’s been fighting to see her children since 2020, after a difficult separation.

The two women went to the United States to be legally married and give birth to their children. Zhang’s ex provided the eggs, and Zhang gave birth to a girl and her ex birthed a boy. Back in China, a few years later when the relationship ended, Zhang’s ex took both children and cut off all communication.

When Zhang turned to the law, she discovered just how little protections there were for LGBTQ couples in China, where there’s no legal standard for two mothers or two fathers. The law around families is written exclusively for cases of a mother and a father.

While surrogacy is not illegal, hospitals are forbidden from selling eggs or sperm, so laws do not address issues of parentage where surrogacy is involved. And the courts have so far avoided making any legal precedent; Zhang’s court granted custody to the biological mother, while another court in another case denied custody to the biological mother.

Gao represented both cases.

Zhang’s case, which landed in a Beijing court, granted her ex custody and Zhang visitation of the child she birthed. But because the outcome was reached through a settlement, there is no legal precedent set. Although China is not a precedent-dependent country in the way the US is, legal judgments can still have an impact that lawyers and academics cite.

In the other case, in the southern coastal city of Xiamen, the court’s 2020 ruling said the woman suing, who provided the egg that her partner carried, “had no legal basis” for her argument and that it could not affirm that she was the child’s mother. Further, it said, “the defendant and plaintiff are same-sex partners, and this is not regulated by our country’s marriage law or any other civil laws”.

No DNA testing was done for the case, but Gao wanted to prove that his client was the genetic mother. They provided medical evidence and the opposing side admitted it was his client’s egg, but the court did not want to make a ruling, he said.

“They just said there’s no way to prove you’re the genetic mother, but even if you had no way to affirm the parent-child relationship, the law actually allows the court to make this judgment,” he said.

“It’s quite messy, and different courts at different times and different places have come to different solutions,” said Darius Longarino, a senior fellow at the Paul Tsai China Center at Yale Law School.

The case drew criticism from one of China’s top legal experts on civil law.

“We can put aside the issue of surrogacy or same-sex couples, when a child is born, that’s a human being,” Yang Lixin, a professor at Renmin University’s law school in Beijing said in an online commentary when the Xiamen case issued a first judgment in 2020.

He said that the court’s decision was basically “nonsense”, adding that the child’s “rights and his position must be protected”.

Some LGBTQ couples are trying to stave off the legal ambiguities with a legal agreement, similar to how a prenup works, outlining what would happen to their children if they broke up.

“For same-sex partners, when they decide to have kids, we advise them to sign an agreement on the births,” said Gao. He said some 30 couples have come to his practice inquiring abut drafting agreements that establish the identity of the parents, their mutual agreement to have children, and the responsibility, financial and otherwise, to raise the kids.

He has drafted eight or nine, but none have had a chance to be tested yet, so it’s unclear how the courts will receive them.

In July, when Zhang got her first legally guaranteed visit to see her daughter for the first time in more than four years, it was a subdued occasion.

“I felt very calm, in those four hours,” she said. “I couldn’t cry then. I did not even have time to have a happy reaction, but I was satisfied that at least in those four hours, I was in the same space as her.”

The People’s Court in Beijing’s Fengtai district granted Zhang the right to see her daughter once a month, four hours per visit, which is common in cases with young children. Zhang travelled up from Shanghai and then drove to Hebei province, two hours outside Beijing, to a home that her ex-partner owns.

Her ex-partner, the only other person present during the visit, required their daughter to wear a face mask, and the girl spent the time doing homework, Zhang recalled. But there were moments when the little girl would sneak looks at the woman sitting with her in the quiet house. They did not talk at all, Zhang said, partly because she did not know what to say.

It was only after Zhang walked out of the house, she said, that she burst into tears.

Now, Zhang does not know when she will see her daughter again. Her ex-partner is denying visitation on the claim that Zhang violated the children’s privacy. The woman’s lawyer, Tian Yuanyuan, said his client would not give any interviews as the court requested that both sides refrain from talking to media. He also said The Associated Press was violating their privacy by calling.

“We’ll be telling the court about this,” he said.

With few options left, Zhang says she will keep fighting by recording all that has happened to her, while taking what precautions she can such as keeping the children’s names and ages private.

“The children have the right to know what happened. And so I wanted to give my greatest effort. One day, maybe after they know, they know, ‘Our mom really tried her best and gave it her all,’” Zhang said.

“I want to take 99 steps forward, and the children, after they see I’ve taken these 99 steps, they can take one step toward me.”