A court in east China’s Fujian Province has ruled against a woman who has sued her ex-partner for custody of her 1-year-old daughter in a landmark legal battle with a same-sex couple.

The Huli District People’s Court in Xiamen City ruled in favor of Amei – the pseudonym media was used for the birth mother – on the grounds that the parental relationship between the child and the plaintiff cannot be legally established on the basis of the child alone, according to one Summary of the ruling the court released last week, they have the plaintiff’s genes.

Plaintiff Xiaoti – also a pseudonym – had given her eggs for in vitro fertilization last year, and the resulting embryo was then injected into ant’s body.

“The recognition of this kind of parent-child relationship should follow the basic principles of civil law,” says the summary of the judgment. “According to basic moral values, the maternal relationship is not defined by genetic continuity, but by the emotional bond (formed) during months of pregnancy and the ordeal of childbirth.”

The case has highlighted the plight of many same-sex Chinese couples and the legal challenges they face in the absence of laws that specifically apply to LGBT families, such as the right to spend time with their children after the separation.

Dong Xiaoying, attorney and founder of the non-profit network for lawyers for diverse families, told Sixth Tone that while thousands of people in the Chinese LGBT community have started families through surrogacy agencies in recent years, this approach is still in a legal gray area falls and this is not protected under Chinese law. The country’s new civil code, which will come into effect next year, states that “buying or selling human cells in any form” is illegal.

“Lesbian couples often choose to impregnate one partner with the other’s egg so that both women can feel involved in the process,” she said. “But if they can’t settle their disputes privately, the law won’t protect them and both of them will be in pain.”

Earlier this year, a similar custody lawsuit filed by a woman who was denied access to her children after nine years of separation from her partner helped spark public discourse on the issue. A court has not yet heard this case.

Although the verdict in Xiaoti’s case is “not surprising” under current law, it is still alarming for the LGBT community, according to Dong. The lawyer said that since same-sex marriages are not legalized in mainland China, LGBT families are not protected by law and are vulnerable to litigation even after overcoming all other obstacles to having children.

Xiaoti meanwhile plans to appeal the verdict and request another hearing, according to the summary of the verdict.

Editor: Bibek Bhandari.

(Header image: People Visual)