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2019-08-13 11:57:54 Voices

Imagine your partner and the love of your life experiences an incapacitating medical emergency and needs immediate surgery. Now imagine that, because your relationship isn’t legally recognized, you lack the power to authorize the procedure. You can only watch, helpless, as the doctors try to contact a blood relative.

The above scenario is a very real concern for many same-sex couples in places where same-sex marriage remains illegal. The desire for legal recognition isn’t always about publicly affirming your love for another person; for many — especially those who aren’t on good terms with their biological families — it can make all the difference in an emergency.

Despite a growing chorus in support of same-sex marriage rights, the Chinese mainland is one of the places where it remains illegal. But simply ignoring the issue doesn’t mean the country’s same-sex couples don’t need or want the same rights as their heterosexual peers. In an effort to secure them, some have opted for a relatively new form of recognition: legal guardianship.

Known as yiding jianhu in Chinese, legal guardianship allows any fully cognizant and consenting adult to plan for the possibility of becoming mentally or physically incapacitated. In such an event, their legally designated guardian becomes responsible for decisions regarding their care and personal property. In 2017, China expanded access to legal guardianship rights from either individuals over 60 or those with a mental illness to all eligible adults. In the two years since, a small but growing number of same-sex couples have decided to become each other’s legal guardians.

My wife Eva and I count ourselves among them. This May, we signed a mutual legal guardianship agreement in the southwestern city of Chengdu.

Eva and I met in university, meaning we’ve been together for almost 11 years. We were open about our relationship at school, and once we were financially secure, we both came out to our families. Last year we even held an unofficial marriage ceremony, which Eva’s mom attended.

We first grew interested in something like legal guardianship when we started talking about having kids.

We first grew interested in something like legal guardianship when we started talking about having kids. Eva has always wanted to get pregnant and have a baby, but the thought that I wouldn’t have the right to make decisions regarding her care if something went wrong during labor always seemed wrong to us. So we were curious if there was a way to add legal force to our relationship.

Sometime in 2017, we heard about the expansion of guardianship agreements to the whole adult population. Last year, after a lawyer with a Chengdu-based group that provides legal advice to sexual minorities explained the concept to us, we decided to give it a shot.

The lawyer helped us find a notary office willing to process a legal guardianship application for a lesbian couple. Organizations like Rainbow Lawyers work hard to make this kind of information publicly accessible. To the best of my knowledge, Chengdu has three public notary offices that will approve guardianship agreements for same-sex couples.

While most offices still reject such applications, this is slowly changing. Some even advertise the service: This summer, notary offices in Beijing and the eastern city of Nanjing publicly announced they had approved same-sex guardianship agreements, making them members of a select but growing group.

Eva and I made our first trip to the notary office this April. We were open and direct when it came to our relationship status, and the notary we spoke with was very encouraging. She walked us through the process and helped us think through all the potential scenarios that might crop up in a very professional manner. For example, how guardianship could help us secure rights like medical power of attorney, how we could use it to dispose of our assets should one of us pass away, or what to do if one of us hadn’t come out to our families.

When we finished drafting a rough version of the agreement, we sat on it for a few weeks. Then, on May 28, we returned to the notary office to make it official. After we had filled out all the forms, signed along all the dotted lines, and pressed our fingerprints onto the final document, we each had to have a one-on-one recorded conversation with the notary.

The idea is to provide proof that both parties entered into the agreement of their own free will. I can still remember what I said: “I’ve known Eva for many years. We live together and she is an extremely trustworthy person. I believe that, if I were to encounter any problems, she would choose what is best for me. I hope my relatives will respect my choice.”

The wind was blowing hard when we stepped out of the office, whipping the rain through the air. As soon as we were outside, I posted to my social media account: “Eva’s and my relationship is finally legally recognized!” In that moment, I felt a sense of certainty deep down — no matter how fierce the storm got, I knew I would be safely anchored.

A legal guardianship agreement isn’t something that immediately changes your life in some profound way. It’s more like taking out an insurance policy. From this point on, if either of us has to be hospitalized, or if something terrible were to happen, the other has something more than their word to show we’re in a relationship and that we trust each other to make the necessary choices.

Of course, we still have our fears. One activist recommended that we write into the agreement that we’re in a relationship, hoping that this would help promote same-sex rights. We thought about it for a while, but ultimately decided against it. First, a mutual guardianship agreement is not the same thing as a marriage license — even if we did write that we were a couple, it wouldn’t have changed our legal status. And second, there is as yet no clear legal consensus in China about whether same-sex relationships constitute a violation of what the state terms “public order and good morals.” 

There are still a lot of unknowns regarding legal guardianship arrangements made by same-sex couples, both for the couples themselves and for the notary offices that issue them. According to Ding Yaqing, a lawyer involved in the first known case in which a notary office used the new regulations to process a legal guardianship application from a same sex couple, the office debated for a full six hours before granting the request. Their primary concern? That allowing same-sex couples to apply for legal guardianship could be seen as damaging to the above-mentioned public order and good morals.

Although we were aware of the risks and potential problems, we felt that having a mutual guardianship agreement was still better than nothing.

As for Eva and I, although we were aware of the risks and potential problems, we felt that having a mutual guardianship agreement was still better than nothing. And at any rate, someone has to take the chance and see what happens, if only so others can have a better idea of what to expect in the future.

Notary offices are not the only organizations that couples must deal with when setting up a legal guardianship agreement. If the arrangements involve property or assets, the notary must work with the bank. If it involves medical power of attorney, then sooner or later the hospital will have to be involved. And their stances toward same-sex relationships cannot always be determined in advance.

Each couple’s circumstances are also unique. For example, some same-sex couples enter into paper marriages with individuals of the opposite sex but still want to designate their same-sex partners as their legal guardians. This must be spelled out clearly in the agreement.

Ultimately, the only way to identify and work out these kinks or raise awareness of the issue is for more people to enter into guardianship agreements. Only then will legal guardianship go from an on-paper proviso to a real law.

Legal guardianship is not the same thing as marriage. It represents only the legal recognition of an individual’s wishes in case of an emergency. My wife and I both see it as a way to improve the lives of China’s sexual minorities, but we also look forward to the day when we can supplement it with what we really want: a marriage license.

As told to Sixth Tone’s Qiu Yihan.

Translator: Kilian O’Donnell; editors: Lu Hua and Kilian O’Donnell.

(Header image: Wu Huiyuan/Sixth Tone)