Writer作者| 志愿者 Soda、末度、杨一、高明月
Editor | FanFan、Adam Robbins
Translator翻译 | 木子水工
A same-sex couple’s dispute over custody of their children has been filed in court in China. On March 17, 2020, a female same-sex couple’s case regarding guardianship and custody over their two children was accepted by Dinghai District People’s Court of Zhoushan City, Zhejiang Province. At present, the court is organizing both sides to carry out mediation before litigation.
As with other child custody disputes between same-sex couples in China, this case reflects the difficulties and challenges faced by LGBT families when clear legal protections are absent.
Case Review: “A’s egg in B’s womb” – who is the mother?
DeDe and her partner met and fell in love in 2009, later marrying and registering in Los Angeles, USA. In 2017, they both chose to receive embryo transplants in the United States and gave birth to a boy and a girl (both children are US nations). The egg that became DeDe’s embryo was provided by her partner. Their choice, commonly known as “A’s egg in B’s womb”, is very common in the lesbian community: one of the couple provides the egg that is fertilized with sperm obtained from other sources, then implanted into the other’s uterus through artificial techniques for purposes of fertility.
However, the births of their children opened a “Pandora's box”. Prior friction intensified as their family values and parenting styles collided, undermining their marriage and building an invisible wall between the two women.
After DeDe was forced out of the family home, conflicts escalated about how their their children should be raised. Dede chose to call the police, but the officer equivocated after understanding their relationship. He gave up the attempt to resolve the conflict and “warned” DeDe to cease her so-called “harassment” of her wife and children.
At the end of 2019, DeDe filed in court for the guardianship and custody of the two children. On March 17, 2020, the case was accepted by the People's Court of Dinghai District, Zhoushan City, Zhejiang Province. Currently, the court is organizing two sides to conduct pre-litigation mediation.
Lawyer’s opinions: Children’s rights need maximum protection
Gao Mingyue, lawyer from Guantao Zhongmao (Shanghai) law firm, one of the agents of both parties, believes that there are many legal questions in this case, including: Should we adopt the “gene theory” or “delivery theory” for the determination of the birth mother of a child? If one party does not raise the child directly, does she still have custody of the child? Should the case adopt Chinese law or American law?
Gao also points out that although same-sex marriage has not yet been legalized in China, the determination of identity in the partnership cannot damage the legitimate rights and interests of children. When ascribing guardianship and custody of children, no matter what theory or principle the court adopts, the final decision cannot be divorced from the needs of minor children in daily life and guardianship (custody, education, protection, etc.). The court should follow the principle of “the best interests of the child” established by the United Nations’ Convention on the Rights of the Child and maximize the protection of the legitimate rights and interests of children.
Analysis: Recognizing reproductive rights of homosexuals is still far off
In China, many experts and scholars believe that even if homosexuals can obtain legal permission to marry, their reproductive rights can only be realized through adoption, because homosexuals cannot give birth to their children naturally through natural union of the two. However, having a baby through assisted reproductive technology seems to have never been taken into consideration.
In fact, there have been discussions and practices on artificially assisted childbirth of single women in China. Article 30, paragraph 2, of the Regulations of Jilin Province on Population and Family Planning, which was officially implemented on November 1, 2002, stipulates that “a woman who has reached the legal marriage age and decides not to marry and has no children can take legal medical assisted measures to bear a child.”
This provision is a bold attempt. If the reproductive rights of single women are recognized, then lesbian partners and families can realize their rights through assisted reproductive technology.
However, the “Human Assisted Reproductive Technology Specifications” published by the Ministry of Health in 2003 states: “When implementing the IVF technology, medical institutions are prohibited to implement human assisted reproductive technology (artificial insemination, in vitro insemination-embryo transfer, intracytoplasmic sperm injection and various new technologies that have evolved on these bases) for single women.” The legality of single women’s reproductive rights has been denied.
Since the entities involved in assisted reproductive technology include not only same-sex couples, but also a third person who provides the sperm or egg, how to confirm the parental relationship of children born with assisted reproductive technology is also a big problem. Although childbirth can only be done by one partner, the actual “marriage relationship” determines it’s the collective responsibility for both parties to raise the children.
Nurturing is the foundation of parent-child relationship. In countries where same-sex partnerships are protected by law, children born with assisted reproductive technology that is implemented with the consent of the other half of the same-sex couple are generally regarded as their common children, and both sides bear the responsibility of nurturing.
Swedish law stipulates that both sides of the same-sex couple, registered partners or the same-sex cohabitees are all considered to be the parents of artificially born children.
In the UK, the presumption rule is adopted. When one of the same-sex partners is put into an artificially inseminated embryo or sperm or an egg, and no contrary intention is shown, the other partner is presumed to be another parent of the child. Donors of eggs or sperm are not considered legal relatives of unborn children.[1] This not only protects the rights of the same-sex partners who have their babies through assisted reproductive technology, but also addresses the question of the third person donating eggs or sperm in order to help others achieve fertility.
Social reality: The rights of Chinese homosexual families urgently need legal protection
The dispute between DeDe and her partner about the custody of their children is not rare in China. Conservatively, there are about 70 million sexual minorities in China. With the development of assisted reproductive technology and the pursuit of equal reproductive rights, more and more Chinese homosexual families choose to have children. There are more than 100 commercial institutions that only provide assisted reproductive services to sexual minorities in China. Homosexual families in different regions form a mutual aid network to share their fertility experience and form a hidden but widespread social group.
In the current domestic legal system situation, homosexual families in China are facing the difficulty of choosing “one out of two”, which is, only one of them can be the biological father / mother of their children, while the other has no clear legal relationship with their children. If one of the couple dies, the children raised together can only be raised by grandparents according to the law, and the non-bearing partner can avoid legal responsibility for nurturing the children. In addition, as same-sex partnerships are not legally recognized, the couple cannot enjoy maternity leave, allowances or other related social benefits.
In a same-sex marriage, the determination of parental rights should not be limited to the ownership of egg or sperm, and the maintenance of family does not depend on that cluster of molecular polymers.
If reality shows us some possibility beyond social prejudice, do we need to reflect on the rationality of the current institutional system? In a parent-child relationship, when we admit the fact of "Bearing", must we hide the value of "Nurturing"?
References:�
[1] Ma Yufeng: "Study on the Legal Protection of Family Rights of Same-sex Couples", Southwest University of Political Science and Law, 2013.