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Lesbian couple’s custody battle exposes gaping flaw in China’s inaction over same-sex marriage

Lily Wakefield April 26, 2020
China custody battle

Zhang is planning to fight for custody of the child she gave birth to, and visitation rights for her other child. (Envato)

A landmark custody battle between a lesbian couple in China is highlighting the legal problems caused by the country’s lack of same-sex marriage legislation.

Zhang Peiyi, from Shanghai, and her former partner travelled to America when they were together for fertility treatment to conceive their two children, according to Reuters.

Zhang’s partner provided the eggs, and they both carried and then gave birth to one baby each. The couple also got married in the US, but when they returned to China their marriage was no longer recognised. 

The couple split up a year ago, and afterwards Zhang’s former partner took their two toddlers to an unknown location and broke off all contact.

Zhang said: “Even if I can find them, I won’t be able to see them. I thought who else can help me? I could only find a lawyer.”

She and her lawyer filed the case in the eastern province of Zhejiang this month, though hearings have yet to begin.

Zhang is planning to fight for custody of the child she gave birth to, and visitation rights for her other child.

Yang Yi, a programme officer at LGBT Rights Advocacy China, told Reuters that although there had been custody battles between same-sex couples in the country, they had until now been settled out of court.

Custody disputes in China usually favour the birth parent, but in the case of the child that Zhang gave birth to, the case is more complicated – while she is technically the birth mother, the baby is genetically related to her former partner.

The case will also raise the question of whether parents who have raised their children but have no biological link can claim custodial rights.

Zhang is clear that the legalisation of same-sex marriage in China would have made their case much simpler.

She said: “The focal point is how can you determine who is a child’s mother. But if you consider that there are two mothers, then it will return to the issue of same-sex marriage.”

Although marriage equality doesn’t seem to be on the horizon yet, she said that isn’t a reason to stop fighting.

“You may feel like it wouldn’t happen very quickly, but that doesn’t mean we shouldn’t do anything,” she said.

“So you need to, bit by bit, make it happen.”

More: Children, China, custody battle, lesbian couple, same sex marriage

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