The Child Custody Case Giving Hope to China’s LGBT Parents
Betty Zhang still remembers the day she realized a lawsuit might be her only hope of seeing her children again.
This past November, her partner of nine years had asked her to move out of their Beijing apartment and told her to leave their two 2-year-olds behind. Then, she’d cut off all contact with Zhang, ignoring her repeated requests to visit the toddlers.
Desperate, the 35-year-old returned to her former home on a freezing December afternoon to beg her partner to relent. Her pleas went unanswered.
“I went crazy that day,” Zhang tells Sixth Tone. “I cried outside the front door, asking her to allow me to see my children. But she didn’t let me.”
The final blow came when Zhang called the police and explained she was being denied access to her children. The officers not only told her they could do nothing to help her; they also said they’d arrest her for disturbing the peace if she didn’t leave. They suggested she go to court to resolve the situation.
Nearly six months later, that’s exactly what Zhang is doing.
Zhang filed a child custody suit early this year, and the case was accepted by a court in Zhoushan — her partner’s hometown in eastern China — in March. It’s China’s first child custody dispute involving a same-sex couple.
The case has sparked heated discussion on Chinese social media, with many hailing the trial as a milestone and expressing hope it will raise public awareness of the difficulties faced by LGBT couples with children.
Thousands of LGBT people have started families in China in recent years, assisted by a growing underground network of surrogacy agencies. Industry insiders tell Sixth Tone there are now dozens of such agencies nationwide, and demand for their services is rapidly rising. In total, around 100,000 children are being raised by LGBT couples in China, estimates Hu Zhijun, director of PFLAG, the country’s largest LGBT organization.
But China’s LGBT families remain stuck in a legal gray area. Though social attitudes toward same-sex couples have become more tolerant, surrogacy still hasn’t been legalized, forcing couples to use unlicensed agencies or go abroad. Same-sex marriages, meanwhile, aren’t recognized under Chinese law, which puts many gay parents in a weak legal position.
China’s marriage law guarantees both parents the rights to retain their parental status and see their children after a divorce, but same-sex couples are excluded from this guarantee, says Gao Mingyue, an attorney at Shanghai-based Guantao Law Firm who is representing Zhang in her custody case.
For Zhang, the legal ambiguity surrounding her status as a parent could have lifelong consequences.
She and her partner got married in the United States in 2016 and underwent in vitro fertilization the same year. Two of her partner’s eggs were successfully fertilized during the procedure, and doctors placed one embryo in each woman’s uterus. Nine months later, Zhang gave birth to a baby girl and her partner to a boy.
For the next two and a half years, the pair raised the children together in Beijing, just like many other married couples. The toddlers call Zhang “Mommy” and her partner “Mama.”
Yet according to the letter of the law, Zhang has no relations to her son. She’s not biologically his parent, nor is she his birth mother. Her marriage, moreover, has no legal validity in a Chinese court.
Because of this, Zhang has little chance of securing custody of her son in a trial and could even be denied visitation rights, according to Gao. “The chance of my client getting custody of the girl — to whom she’s mother by birth — is high,” says Gao. “But it’s hard to secure custody of the boy.”
Zhang has sued for custody of both children, but says her top priority is making sure she and her partner can maintain regular contact with both kids. “What I want is just what any heterosexual family would have,” she says. “Even if we ended up having one child each, we still want visitation rights.”
The lack of recognition of same-sex marriage is a reality every LGBT couple wishing to have children must confront. Ding Yaqing, a Guangzhou-based lawyer specializing in LGBT issues, says she’s regularly consulted with lesbian couples on how to handle the legal challenges associated with starting a family, but there isn’t an ideal solution.
“It’s not new to see same-sex couples divide up property in court, but custody cases like this (where one partner is the birth mother and the other is the biological parent) are too new for China’s existing legal system,” says Ding. “No one knows how best to handle it or how things will end up.”
Ding says the advice she normally offers couples is for each partner to only carry babies developed from her own eggs, to avoid potential legal disputes in the future.
In most cases, however, lesbian couples prefer to impregnate one partner with the other’s egg, so that both feel involved in the process, according to Eros Li, sales director at a Guangzhou-based surrogacy and assisted reproduction agency.
“At that moment they feel their love is unbreakable, and they don’t need to think about legal disputes,” says Li. He estimates around 20% of his lesbian clients eventually split up and have to confront the same challenges as Zhang, with most couples choosing to “settle privately.”
Other couples are trying to find legal workarounds to guarantee themselves the same rights as straight parents, but the process is painfully long and complex.
Fo Ge, a 37-year-old lesbian who’s preparing to have two babies with her partner through assisted reproduction, tells Sixth Tone she’s spent nearly two years filing piles of legal documents. So far, she’s submitted applications to grant each partner guardianship of one baby, requiring the sperm donor to give up custody rights, and assigning guardianship to the other partner in the event one of them is incapacitated or dies, among other rights for the couple.
“We want to acquire all the rights heterosexual couples have,” says Fo, adding she’s encouraging others to do the same. “If we don’t talk about rules in advance, one of us would be in a weaker position, and eventually our relationship might not last.”
Fo, however, recognizes most couples aren’t in a position to follow her example. Not only are many reluctant to envision breaking up; they also lack the legal knowledge to complete the necessary paperwork.
“To access such information is hard: One needs to have professional legal training,” says Fo, who has a law degree. “Couples usually don’t know there are regulations that could guarantee their rights, let alone how to search for the required documents.”
Zhang and her partner never discussed what would happen to their children in the event their marriage broke down. “Back then, I never thought we’d break up,” she says. “We’d been together all those years and experienced so many things together.”
Now, Zhang can’t help thinking about how things could have turned out differently. The U.S. clinic fertilized eggs from both Zhang and her partner, but only her partner’s embryos survived. If the situation had been reversed, Zhang — rather than her partner — would have the upper hand in the upcoming trial.
The court has yet to set a date for the hearing. Gao, Zhang’s lawyer, originally expected the trial to take place in May, but Zhang’s partner — who declined Sixth Tone’s interview request earlier this month — has applied to move the trial to a court in Beijing, which could delay proceedings further.
The trial’s outcome is likely to depend on the attitude of the judge, according to Gao. In China, judges usually consider three factors when ruling on child custody cases: genetics, gestation, and the best interests of the child. Whether Zhang receives visitation rights with her son could hinge on whether the judge takes this third issue into account, says Gao.
LGBT rights groups like PFLAG hope the public attention Zhang’s case has received will convince policymakers to pay more attention to the needs of LGBT families.
“The most difficult thing isn’t to amend the law, but to break the prejudice, because biased legislators narrow the law,” says Hu. “We need to change people’s minds, which requires more people like Zhang to go out and influence people around us.”
The case has already led many Weibo microblog users to make renewed calls for the government to legalize same-sex marriage. For Gao, such a move would be the “best way” to guarantee equal treatment for same-sex couples, but is unlikely to happen any time soon.
A more realistic solution, Gao says, could be the passage of a separate law or regulation specifically addressing the issue of same-sex couples. Ding, meanwhile, says legal provisions to protect the interests of children born from assisted reproductive technology are urgently needed and could be quickly enacted.
“The custody and other rights of these children are currently very vaguely defined,” says Ding. “It should be clear who their legal guardians are and who’s obligated to support them. … Regardless of whether China permits surrogacy or not, the children are innocent.”
Zhang can only wait and hope the court recognizes her relationship with her children.
“We’re also a family, even if we don’t have a blood relationship,” she says. “We’ve been together all these years. Just because we broke up, does that mean our family never existed?”
Additional reporting: Luo Meihan; editor: Dominic Morgan.
(Header image: Daniel Holmes and Ding Yining/Sixth Tone)