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
