A city court in East China has denied custody of a 4-year-old boy born through in-vitro fertilization to his mother in a divorce ruling that experts say could set negative legal precedent in China.
Chen Ping (pseudonym) and ex-husband Lin Wei (pseudonym) had been locked in a divorce battle in Linhai, Zhejiang Province since 2015.
Chen had been seeking custody for her 4-year-old son, who was born from a third-party sperm donor after Lin was found to be infertile.
However in the November 7 ruling, a Linhai city court granted custody to Lin, despite his family forcibly taking the child from Chen in 2015 and denying her visits, media reported.
The decision has left Chen devastated. "My boy may not recognize me anymore," she told media.
The court said they based the ruling considering the child had already been living with Lin for almost three years and Lin's "loss of fertility."
"He is even not the child's biological father," said Chen.
Lin and Chen were married in 2009. The couple turned to IVF after Lin was diagnosed with a complete lack of sperm.
Their son was born in 2013. But by then, Chen said their marriage had fallen apart.
"He rarely came to see me at the hospital," Chen said, "and my baby suffers from heart disease. Lin never helped us."
Two years later, Chen filed for a divorce, which was denied by a local court.
Determined, Chen filed for divorce again. Soon after, Lin's family arrived at Chen's home and took her son. She hasn't seen her child since.
The Linhai court based their decision on the fact that Lin was unable to have children and the child had become more familiar with the father. "The child is now used to that environment and way of life," said the court.
While non-biological parents have a right to equal custody in divorce cases according to Chinese Law, other circumstances must be taken into account, said Wang Dibo, a professor at Hangzhou Normal University.
"We must consider how the child came to live with [Lin]," said Wang, who also argued against the court taking Lin's infertility into consideration.
"The judgment may have a negative influence," said Wang.
