The Legal Challenges Faced by Same-Sex Couples in China
Zhang Peiyi, a resident of Shanghai, has been involved in a protracted custody battle for more than four years in an effort to obtain custody of her two children from a previous marriage.
The case arose when Zhang’s former partner refused to grant her custody of both children. In June, Zhang finally reached an agreement for visitations with her daughter, but after just one visit, her ex-wife called off the meetings indefinitely. Now, Zhang must once again bring her case before the court to enforce her visitation rights.
Gao Mingyue, the attorney representing Zhang, expressed how these types of disputes are severely underprotected in China. He stressed the need for self-sufficiency in such legal battles.
The lack of formal recognition of same-sex marriage in China leaves LGBTQ+ families like Zhang’s in legal limbo when it comes to issues like custody or divorce. While heterosexual couples, irrespective of marital status, are considered legal custodians, same-sex couples who have children through surrogacy face a myriad of uncertainties due to the lack of legal provisions.
Zhang’s personal experience with this lack of legal protection came after facing a challenging separation from her ex-partner, who took both children and cut off all communication. Although Zhang sought legal recourse, she found the dearth of legal safeguards for LGBTQ+ couples in China exacerbating her struggle for custody.
The absence of legal precedent in China’s courts further complicates the complexity of custody cases involving same-sex couples, as demonstrated by Zhang’s case and others. In one instance, Zhang’s ex was granted custody, while in another case, a court outright denied custody to one of the child’s biological mothers.
Darius Longarino, a senior fellow at the Paul Tsai China Center at Yale Law School, noted that the inconsistent decisions from courts at different locations have further convoluted the legal landscape for same-sex couples seeking recognition of their parental rights.
Zhang’s case exemplifies the broader legal challenges facing same-sex couples in China, and it underscores the urgent need for updated legal provisions that account for diverse family structures.
In efforts to address the legal ambiguities, some LGBTQ+ couples have sought to establish legal agreements similar to prenuptial agreements. These agreements outline the circumstances of parenting and custody arrangements, in case of a relationship dissolution.
Despite these legal battles, Zhang remains resolute in her fight for the right to see her children. Although the road ahead is uncertain, Zhang is determined to continue her fight while taking every available precaution to protect her children’s privacy.
Zhang’s determination and persistence in the face of considerable legal and personal challenges highlight the urgent need for comprehensive legal reforms in China to protect the rights of LGBTQ+ families.
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