Same sex couple’s Court battle over children exposes a gap in China’s laws on LGBTQ+ rights

A lesbian couple’s Court case in respect of their children, which commentators are saying will lead to a landmark decision, has highlighted a real issue facing same sex couples in China.

A vacuum has been created for parents in same sex relationships due to the fact that China does recognise same sex marriage.

The Applicant in the proceedings is Ms Zhang Peiyi, who originates from Shanghai. She and her partner ended their relationship a year ago. After the event her partner has broken off all communication with her and refused to allow their two young children to return to her care and has refused to inform Ms Zhang Peiyi of her location.

The application before the Chinese Court is for one of the children, the child which Ms Zhang Peiyi gave birth to, to be returned to her and for her to have sole custody of this child. Ms Zhang Peiyi is seeking formal visitation rights to the parties’ other child which she did not give birth to.

The case has attracted a lot of media attention in China and throughout the world and it is the first of its kind to be heard in the Chinese courts. Marriage in China is defined as union between a man and a woman.

The background to the case is that each of the women gave birth to one of the children, however it was Ms Zhang Peiyi partner’s egg that was used for the embryos. The parties undertook fertility treatment in America before returning to home to raise the children. While in America the parties also got married, however their union is not currently recognised in China.

Another key element to this case is that in China, despite having carried the embryo to full term, Ms Zhang Peiyi has no claim in law to the custody of the children. She can claim that she gave birth to one of the children, however her partner can claim the same but also argue that she is the “blood parent”.

Should Ms Zhang Peiyi be successful in her application it will set a new precedent for other LGBTQ+ parents living in China, especially if she is able to achieve visitation rights to the child she did not physically give birth to. This will set an important precedent as to whether LGBTQ+ parents can have rights over a child they raised but have no actual biological link to.

Whatever the outcome of the case, it has resulted in important discussions taking place both in China and globally about marriage equality.

In the UK The Law Commission of England and Wales and the Scottish Law Commission announced in June 2019 that the laws around surrogacy are outdated and should be improved to better support the child, surrogates and intended parents.

Surrogacy is where a woman bears a child on behalf of someone else or a couple, who then intend to become the child’s parents (the intended parents). Surrogacy is legal in the UK, and is recognised by the Government as a legitimate form of building a family.

However, change is needed to make sure the law works for everyone involved. To reflect the wishes of surrogates and intended parents, the Law Commissions are proposing to allow intended parents to become legal parents when the child is born, subject to the surrogate retaining a right to object for a short period after the birth.

This would replace the current system where the intended parents must make an application to the court after the child has been born, and do not become legal parents until the court grants them a parental order. The process can take many months to complete.

Surrogacy is often the route used by many LGBTQ+ people when wishing to start a family. In UK law, the procedure in respect of surrogacy can be complicated and it is strongly recommended that expert legal advice is taken very early on in the process.

If you need advice or support relating to any of these matters, don’t hesitate to get in touch.

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