A lawsuit brought by a lesbian in China has raised the profile of same-sex parenting in a country where marriage rights are not recognized. Split from her partner last year, Zhang Peiyi is suing for custody of one of the children they parented together and visitation rights for the other. Zhang’s former partner is currently raising the toddlers in an unrevealed location. A court in the eastern province of Zhejiang accepted the case in April.

Zhang and her ex married in the United States, where they also used assistive reproductive technology to get pregnant. Zhang carried and gave birth to one of the children, her partner the other. The eggs and embryos for both children were from Zhang’s partner. The couple’s marriage was not recognized in China, leaving them in a legal gray area on a range of issues, including disputes like this one.

Recognizing same-sex relationships, including those entered into abroad—something Chinese LGBT rights activists have increasingly called for in recent years—would legally simplify such cases. But the human rights issues at stake extend beyond the rights of the two women. As Zhang’s plea lays bare, parental custody decisions necessarily affect the rights of the child. The judges would be right to consider China’s children’s rights obligations in deciding this case—the children are entitled to the benefit of family stability and care.

China ratified the United Nations Convention on the Rights of the Child in 1992. The convention recognizes the family as a fundamental group unit of society and parents’ essential role in the upbringing of children and the protection of their rights. China’s own Law on the Protection of Minors affirmed children’s rights to familial protection. The Committee on the Rights of the Child, which monitors state compliance with the convention, has observed that the preservation of family ties is “particularly relevant in cases where parents are separated and live in different places.”

The Marriage Law of China specifies that children born within or outside of a legally recognized marriage shall be afforded the same rights without any forms of discrimination.

The UN Human Rights Committee has noted that in cases of dissolution of marriage, governments should strive “as far as possible…[to] guarantee personal relations with both parents.”

Both of these international expert bodies recognize that “family” refers to a range of structures and arrangements. The CRC specifically notes that “a range of family patterns may be consistent with promoting children’s well-being.” Similarly, the Human Rights Committee stated explicitly that “the term ‘family’ . . . [should] be given a broad interpretation.” Another UN treaty body, the Committee on the Elimination of Discrimination against Women, notes that “families take many forms.”

There should be no dispute that parents and their children are a family, regardless of the parents’ marital status. That reality, along with the international principle that the best interests of the child are a primary consideration in all matters that affect them, should control cases like Zhang’s.

The Chinese government’s failure to recognize marriage equality is one problem that won’t get fixed by this case, but that recalcitrance shouldn’t be compounded by failing to respect children’s rights. And with gay dating apps in the country increasingly promoting services for same-sex couples who want children, China’s future may feature many more so-called rainbow families. It’s the government’s duty to protect them.

Michael Bochenek is senior children’s rights counsel and Kyle Knight is senior researcher in the lesbian, gay, bisexual, and transgender rights program at Human Rights Watch.

Suggested citation: Michael Bochenek and Kyle Knight, China’s Lesbian Parenting Case is a Children’s Rights Issue, JURIST – Professional Commentary, May 26, 2020, https://www.jurist.org/commentary/2020/05/bochenek-knight-china-lesbian-parent-case/.

This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at commentary@jurist.org