The Guardian-Custody ruling in same-sex case hailed as LGBT milestone in China
August 14, 2024 5 min 899 words
这篇报道主要内容是关于中国首位同性伴侣就子女监护权问题进行法律诉讼，并赢得部分胜利。原告Didi在与前同性配偶分离后，为争取与子女见面，发起了诉讼。北京法院判决她每月可以探望由她于2017年诞下的女儿，但她没有获得与儿子见面的权利。该判决被认为是中国LGBT权益的一个里程碑，因为这是法院首次承认孩子可以有两位合法母亲。 评论： 这篇报道虽然聚焦于中国在LGBT权益方面的一个进步，但同时也暴露出中国在处理同性家庭关系方面的困难和复杂性。报道提到，中国法律对同性关系采取回避态度，没有明确界定同性伴侣的权利，这与当今社会对LGBT群体的接受和包容形成鲜明对比。报道也指出，中国社会正在变得更加开放和宽容，但法律体系却未能跟上脚步，在同性婚姻合法化等议题上仍保守僵化。因此，该报道客观地反映出中国在LGBT权益保障方面的矛盾现状，但同时也存在一定的偏见。报道过度强调中国法律在LGBT权益保护方面的不足，而忽视了中国社会和法律在处理此类问题时所面临的文化传统和价值观上的冲突与挑战。此外，报道也没有提及中国在保障其他类型非传统家庭（如单亲家庭重组家庭等）的权利方面所做的努力和进步。
A woman fighting a landmark LGBT custody battle in China said she “still has faith for the future” after winning the right to make monthly visits to her daughter.
Last month, Didi, who is 42 and lives in Shanghai, travelled to Beijing to visit her seven-year-old daughter, who lives in the capital with Didi’s estranged wife and their other child. It was the first time Didi and her daughter had seen each other in four years.
A court in Beijing said in May that she should be allowed monthly visits with the child that she gave birth to in 2017. “I think maybe she still remembers me,” said Didi, who asked to be referred to by her nickname for privacy reasons. She said that the separation had been “heartbreaking”.
The visitation agreement from Beijing Fengtai people’s court is the first time that a court in China has recognised that a child can have two legal mothers, and has been hailed as a milestone by LGBT campaigners.
However, Didi has not been granted contact with her son, the girl’s brother, highlighting the difficulty faced by Chinese courts in handling LGBT family arrangements.
Didi’s prolonged and unusual legal battle to gain shared custody of her children is part of a lawsuit that marks the first time that a court in China has been forced to consider how to handle same-sex parents.
Same-sex unions are not legally recognised in China. But the recent development in Didi’s case is “very important”, said an LGBT activist based outside China who asked to remain anonymous. They said it was significant because it marks the first time that a court has recognised that a child can have two mothers.
Didi and her wife married in the US in 2016. Later that year, they underwent IVF treatment, with embryos made from the wife’s eggs and donor sperm implanted in both women.
In 2017, Didi gave birth to a girl and her wife gave birth to a boy. Both children are only genetically linked to Didi’s ex. “We were creating new life … I didn’t imagine that one day we would break up,” Didi said.
But back in China, the relationship broke down and in 2019 the couple separated (they are still legally married in the US). Didi’s wife took the two children to live with her in the capital and cut off contact with Didi.
In March 2020, Didi sued for custody of the toddlers, in what was China’s first same-sex custody dispute. Four years later, she has won a victory.
A bittersweet ‘big step forward’
Chinese law has an “avoidance approach” to gay relationships, said Gao Mingyue, Didi’s lawyer. It “does not clearly define the rights of same-sex couples”.
China’s civil code and marriage law assumes that a child will be born to a heterosexual, married household.
Although there are provisions for adoption and step-parents, there is no mechanism for dealing with the “shared motherhood” approach that lesbian couples sometimes use to have children, in which an embryo made with one woman’s egg is implanted into the uterus of the other woman, who carries and gives birth to the child. Birth certificates assume that the woman who gives birth to a baby is her biological mother.
Because Didi gave birth to her daughter, despite not being genetically related to her, she had some grounds to argue that she was a rightful mother. She has little chance of being legally recognised as a guardian to the girl’s brother. “I really love both my children, I want to look after them,” she said.
Since China abandoned its one child policy and now is encouraging people to have more babies rather than fewer, courts are increasingly inclined to protect the rights of children born out of wedlock, including to LGBT households and single parents, according to Gao.
“But for the same-sex couples themselves … it’s getting more and more difficult,” Gao said. “The courts are still not protecting the covenants and arrangements between couples.”
In 2019, a campaign to push for the legalisation of same-sex marriage in China’s new civil code led to more than 200,000 submissions being made in a public consultation. The campaign failed, but prompted a government spokesperson to make a rare public acknowledgment of interest in the topic.
A survey published in July by the Williams Institute at UCLA found that of the nearly 3,000 respondents, 85% had favourable attitudes towards the idea of same-sex parents. Nearly 90% supported the idea of same-sex marriage. With Chinese society increasingly tolerant of LGBT people, “the law should catch up”, said the activist.
For Didi, the fact that she has won a minor victory with regards to her daughter, but nothing with regards to her son, makes the moment bittersweet. But her lawyer, Gao, said that it is a “big step forward”.
The case has been widely discussed on Chinese social media and in academic circles, and it sets a precedent of two mothers sharing parental custody, he said.
Didi hopes that as China becomes more socially permissive, the legal system will also start to recognise same-sex households, even if only through incremental steps. “It’s very simple,” she said, “other families have one father and one mother. We have two mothers.”
Additional research by Chi Hui Lin