For same-sex couples in China, even guardianship is often out of reach

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This year marked the beginning of a new chapter in Ah Dong’s life, but nothing was easy. In 2021, he and his same-sex partner had two children overseas, one conceived with his own sperm, the other with his partner’s. However, only six months after the children were born, Ah Dong’s partner died in a traffic accident. Along with coping with her grief and the needs of two young children, Ah Dong faced the threat that her partner’s father could take her biological grandson away from her. The couple’s relationship was not recognized by Chinese law, meaning they only had legal rights to their own biological son and not their partner’s biological child.

Ah Dong finally reached a custody agreement with her partner’s father, but not all LGBT parents are so lucky. Same-sex cohabitation is increasingly common in Chinese cities, and a growing number of same-sex couples have started their own families. In a 2020 survey of Chinese gays and lesbians by the charity Love Makes a Family, 76% said they had lived with a same-sex partner; 5% said they were raising children in a same-sex relationship.

With the continued lack of legal recognition of same-sex relationships in China, these arrangements can be precarious. Many same-sex couples worry that when they need someone to approve medical care, the person closest to them who knows them best won’t have the power to make important decisions.

Inheritance, parental rights and control of assets are also thorny issues. A well-known case occurred in 2020 in the northeastern city of Shenyang involving a lesbian couple in their late 80s who had been living together for more than 50 years. After one of the women became mentally challenged, her partner found himself excluded from the medical and financial decision-making process in favor of the woman’s biological parents. In blatant defiance of the decades they had been together, relatives sold the couple’s home, which was in the disabled woman’s name. Even after 50 years together, the two women were still considered strangers in the eyes of the law.

Given the risks, many same-sex couples seek to avail themselves of all existing legal protections. Perhaps the most talked about arrangement is “voluntary guardianship”, or yiding jianhu. Voluntary guardianship was first sanctioned in China under the “General Provisions of Civil Law”, published in 2017, which allows adults to appoint someone to act as a guardian in case of disability or mental impairment . Originally conceived as a way for families to cope with elderly or mentally handicapped relatives or for parents of children with intellectual disabilities to appoint a carer in the event of their death, voluntary guardianship was later incorporated into the first Chinese civil code in 2020.

For sexual minorities, voluntary guardianship agreements promise some degree of control in the event of a partner’s death or incapacitation. Gay or lesbian Chinese people can designate their partner as their legal guardian, allowing them to make decisions about their health, medical care and property as necessary and in accordance with their agreed wishes.

Even after 50 years together, the two women were still considered strangers in the eyes of the law.

But despite a handful of high-profile cases, voluntary guardianship remains out of reach for many same-sex couples, in part because applicants face intense scrutiny from notaries public. Sometimes the application process can feel like an elaborate game of bait and switch. When Yang Yi and his partner of seven years decided to try to apply for voluntary guardianship from a notary public in Guangzhou, they feared rejection. Notaries asked the couple about their private life, how long they had been together, if they were co-owners, how they shared daily tasks and decision-making, if their families were aware of their relationship and the the origins and particular circumstances of each family.

After three grueling interviews, just as the couple were about to sign the agreement, the notary’s office suddenly said that same-sex couples – and only same-sex couples – applying for voluntary guardianship must post bail. 100,000 yuan ($15,000). Faced with such blatant discrimination, Yang Yi and her partner dropped out.

It is not uncommon for notaries to impose additional requirements or burdens on same-sex couples applying for voluntary guardianship. For example, some only work with couples who have been together for at least seven years and have come out to their parents; others only offer guardianship arrangements for property matters, but not health care. Notaries in many cities have closed their doors to same-sex couples.

According to LGBT Rights Advocacy China, notaries’ concerns often revolve around the stability of same-sex relationships, the appropriateness and public acceptability of granting guardianship rights to same-sex couples, and potential conflicts between voluntary guardians and parents. biological of a person. Officials are also under pressure from above: a 2021 report by the Association of Notaries of China found that employees of some notary offices were disciplined for providing voluntary guardianships to same-sex couples.

At least in theory, Chinese courts and legal experts agree that guardianship should be available to all adults, regardless of gender, sexual orientation or marital status. Last February, China’s Supreme People’s Court issued an interpretation of the Civil Code stating that courts “should respect the true wishes of the neighborhood and appoint guardians based on the best interests of the neighborhood”, and give people “living and having close emotional ties with the neighborhood”. priority over blood or marital ties. Yet in a 2020 case involving condominium property owned by a same-sex couple in the Xinjiang Uyghur Autonomous Region, the judge said same-sex partnerships “violate public order and good morals”.

With access to protections such as voluntary guardianship still tenuous, a growing number of same-sex Chinese people have instead turned to LGBT-friendly lawyers who specialize in helping same-sex couples reach legal settlements. through a range of tools – including contracts, wills, living wills, and entrusted guardianship – provided for in China’s current legal framework.

This is how Ah Dong finally managed to keep his family together. After the death of his partner, he asked for the help of a pro bono lawyer specializing in the rights of sexual minorities to facilitate communication with his partner’s family. Eventually, both parties agreed to jointly raise the child. The deceased’s father – who had lost his only son – moved into Ah Dong’s home in Shanghai, and Ah Dong guaranteed that he would look after the man in his old age.

In November 2019, as China prepared to release its Civil Code, more than 180,000 people submitted suggestions on changing Civil Code laws relating to marriage and family, many of them in favor of legalizing marriage. homosexual. This letter-writing campaign has failed, but there is growing awareness and support for marriage equality among young Chinese people, while the needs of aging gays and lesbians in China cannot be ignored anymore. long time.

Translator: David Ball; editors: Cai Yiwen and Kilian O’Donnell; portraitist: Wang Zhenhao.

(Header image: MamiGibbs/VCG)

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