In China, a woman’s custody battle spotlights challenges facing same-sex couples

It’s been more than four years since Zhang Peiyi last saw her son, one of two children from her former marriage.

Denied custody of both kids, Zhang finally settled in June for visitations with her daughter. But after seeing her only once, Zhang’s ex-wife called the meetings off indefinitely. What Zhang thought was the end of a years-long legal battle is facing yet another hurdle, as she has to go through court again to ask them to enforce her visitation rights.

“These types of disputes are not well protected in our country,” said Gao Mingyue, the lawyer representing Zhang. “This is a reminder that we have to be self-sufficient.”

For straight couples – regardless of marriage status – both are recognised as custodians by law. If the two split, the court decides who gets custody based on factors like the parent’s financial resources, the child’s desire and the home environment – operating from the principle of making the best decision for the child.

But for same-sex couples who have children via surrogacy or in vitro fertilisation, nothing is guaranteed.

Zhang, a Shanghai resident, knows this first-hand. She’s been fighting to see her children since 2020, after a difficult separation.

When Zhang turned to the law, she discovered just how little protections there were for LGBTQ couples in China, where there’s no legal standard for two mothers or two fathers. The law around families is written exclusively for cases of a mother and a father.

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While surrogacy is not illegal, hospitals are forbidden from selling eggs or sperm, so laws do not address issues of parentage where surrogacy is involved. And the courts have so far avoided making any legal