How many times can a surrogate mother in Vietnam take leave for antenatal care?
“Hello, lawyer. I am a surrogate for my siblings’ children. I am a worker at an enterprise and have full social insurance participation. So I would like to ask that during the surrogacy period, I can take leave. How many times can a surrogate mother in Vietnam take leave for antenatal care? Are these maternity leave days entitled to the benefits? After I give birth, what is the maternity regime like? when I give birth? Ask a lawyer to answer.” Thanks for your question.
The Maternity regime is one of the paid regimes for people participating in compulsory social insurance. So if the woman is a surrogate mother, how is this regime regulated? How many days of maternity leave and maternity leave? How is the maternity benefit? Are male employees entitled to maternity benefits when their wives give birth? To clarify this, today, LSX Lawfirm will give you an article about “How many times can a surrogate mother in Vietnam take leave for antenatal care?“, as follows:
Legal grounds
- Law on marriage and family 2014
- Law on Social Insurance 2014
- Circular 59/2015/TT-BLDTBXH
What is surrogacy?
Surrogacy is mentioned quite commonly, but not everyone understands this concept.
Pursuant to Article 3 of the Law on Marriage and Family 2014, surrogacy is understood in two forms: surrogacy for artificial purposes and surrogacy for commercial purposes.
According to Clause 22, Article 3 of the Law on Marriage and Family:
“Humanitarian surrogacy is a woman’s voluntary, non-commercial use of pregnancy for a couple whose wife is unable to conceive and give birth even with assisted technology. reproduction by taking the wife’s ovum and the husband’s sperm for in vitro fertilization, then implanting it in the uterus of a woman who voluntarily becomes pregnant so that this person can become pregnant and give birth.
According to Clause 23, Article 3 of the Law on Marriage and Family, surrogacy for commercial purposes is a woman’s pregnancy for another person by the application of assisted reproductive technology for economic or social benefits. other benefits.
Vietnamese law currently only allows surrogacy for humanitarian purposes and does not allow surrogacy for commercial purposes.
How many times is a female employee who is a surrogate mother allowed to take maternity leave?
Subjects entitled to maternity benefits
According to the provisions of Article 30 of the Law on Social Insurance 2014, beneficiaries of maternity benefits include:
- Persons working under labor contracts with a term of a full 1 month or more;
- Officials and civil servants;
- National defense workers, public security workers, people doing other jobs in cipher organizations;
- Officers and professional soldiers of the People’s Army; officers, professional non-commissioned officers, officers and technical non-commissioned officers of the People’s Public Security; people who do cipher work and receive salaries like soldiers;
– Business managers; salaried cooperative managers.
Conditions for enjoying maternity benefits
According to Article 31 of the Law on Social Insurance 2014, the conditions for enjoying the maternity regime are as follows:
- An employee is entitled to the maternity regime in one of the following cases:
a) Pregnant female employees;
b) Female employees give birth;
c) Female employees are surrogates and the mother asks for surrogacy;
d) The employee adopts a child under 6 months old;
dd) Female employees put on IUDs, employees take sterilization measures;
e) Male employees who are paying social insurance premiums whose wives give birth to children.
- Employees specified at Points b, c, and d, Clause 1 of this Article must pay social insurance premiums for full 06 months or more within 12 months before giving birth or adopting a child.
- The employees specified at Point b, Clause 1 of this Article who have paid social insurance premiums for the full 12 months or more but have to take a leave of absence from work to take care of the pregnancy when they are pregnant as designated by a competent medical facility must pay social insurance premiums for full 03 months or more within 12 months before giving birth.
- Employees who fully meet the conditions specified in Clauses 2 and 3 of this Article, but terminate their labor contracts, working contracts or quit their jobs before the time of giving birth or adopting children under 06 months of age, are still entitled to a maternity regime as prescribed in Articles 34, 36, 38 and Clause 1, Article 39 of this Law.”
Accordingly, surrogate mothers are one of the beneficiaries of the maternity regime. However, in order to enjoy this regime, employees must have paid social insurance premiums for 6 months or more during the 12 months before giving birth.
How many times of maternity leave are allowed for female employees who are surrogate mothers?
Pursuant Article 32 of the Law on Social Insurance 2014 stipulates the period of enjoying the benefits during antenatal care as follows:
- During pregnancy, female employees are entitled to take a leave of absence from work to go for prenatal check-ups 05 times, 01 day each time; If the patient is far from the medical examination and treatment facility or the pregnant woman has a medical condition or an abnormal pregnancy, she is entitled to 2 days off for each prenatal check-up.
- The time off from work to enjoy the maternity regime specified in this Article is calculated by working days excluding public holidays, New Year holidays, and weekly rest days.
Thus, during a maternity period, you are allowed 5 days off to go to antenatal care, 1 day each time, not required once a month but depending on your health status. In special cases such as when away from medical examination and treatment establishments or when the pregnant woman has a medical condition or an abnormal pregnancy, she is entitled to 2 days off each time.
Benefit level
When you are eligible for maternity benefits, during these days off, you will be entitled to a maternity check-up regime according to your insurance.
In order to be paid the regime with the social insurance agency, you need to provide all documents when you go to the antenatal clinic, which is a letter of leave to enjoy social insurance from the medical facility in accordance with regulations.
According to Article 39 of the Law on Social Insurance, the maternity benefits are as follows:
- In case of having paid social insurance for the full 6 months before taking maternity leave.
The 1-day salary is equal to 100% of the average monthly salary on which social insurance premiums are based for the 6 months before taking maternity leave divided by 24
- If you have not paid social insurance for 6 months when taking maternity leave,
The 1-day benefit rate is equal to 100% of the average monthly salary on which social insurance premiums are based on the paid months divided by 24.
The regime for female employees to be surrogate mothers when giving birth
According to Article 35 of the Law on Social Insurance:
Female employees who are surrogate mothers are entitled to benefits for antenatal check-ups, miscarriages, abortions, abortions, stillbirths, or pathological abortions and benefits for childbirth until the time of handing the child over to the mother asking for surrogacy. . In the case that from the date of birth to the time of delivery of the child, the maternity leave period is less than 60 days, the surrogate mother is still entitled to the maternity regime until full 60 days including public holidays and days off. Tet holiday, weekly rest day.
The mother who asks for surrogacy is also entitled to the maternity regime from the time of receiving the child until the child is full 6 months old.
Specifically, this issue is as follows:
Time to enjoy the regime
Female employees giving birth are entitled to 6 months of maternity leave before and after giving birth.
In case female employees have twins or more, from the second child onwards, for each child, the mother is entitled to an extra month of leave.
The maximum period of maternity leave before giving birth shall not exceed two months.
- In case after giving birth to a child, if a child under two months old dies, the mother is entitled to a leave of absence from work for four months from the date of birth; if a child over two months old dies, the mother is entitled to two months of leave from the date of the child’s death. but the total and period of leave before and after giving birth must not exceed the maximum period of entitlement mentioned above.
Benefit level
How many times can a surrogate mother in Vietnam take leave for antenatal care?
The level of benefits is also based on Article 39 of the Law on Social Insurance. Accordingly, one month will be equal to 100% of the average monthly salary on which social insurance premiums are based for six months.
- In case female employees have twins or more, from the second child onwards, for each child, the mother is entitled to an extra month of leave.
- The maximum period of maternity leave before giving birth is not more than 02 months.
- In case after giving birth, if a child under two months old dies, the mother is entitled to two months of leave from the date of death, but the total time of leave before and after giving birth does not exceed the maximum benefit period mentioned above.
The 1-month allowance is equal to 100% of the average monthly salary on which social insurance premiums are based for the 6 months before taking leave to enjoy the maternity regime.
One-time allowance when giving birth
Female employees giving birth to children are entitled to a one-time allowance for each child equal to twice the base salary at the time the female employee gives birth. (Article 38 of the Law on Social Insurance)
Maternity regime for male employees when their wives give birth
In addition to stipulating that a woman who is pregnant or gives birth is entitled to the maternity regime, her husband is also entitled to the regime when his wife gives birth to a child. Specifically:
Conditions for enjoying the maternity regime for men when their wives give birth to children
How many times can a surrogate mother in Vietnam take leave for antenatal care? To enjoy this regime, male employees whose wives give birth to children must be paying social insurance premiums according to Point e, Clause 1, Article 31 of the Law on Social Insurance.
The specific conditions for enjoying the maternity regime for men specified in Clause 2, Article 9 of Circular 59/2015/TT-BLDXH are to have paid social insurance premiums for 6 months or more during the 12 months before giving birth.
Time off from work to enjoy benefits
How many times can a surrogate mother in Vietnam take leave for antenatal care? Pursuant to Clause 2, Article 34 of the Law on Social Insurance:
Male employees who are paying social insurance premiums when their wives give birth to children are entitled to maternity leave as follows:
– 05 working days with a normal birth of 1 child;
- 07 working days when the wife gives birth to a child requiring surgery or gives birth to a child under 32 weeks old;
– 10 working days for twins, from triplets, each additional child is entitled to 3 more working days, up to 14 working days
- In case the wife has twins or more and has to have surgery, she is entitled to 14 working days off.
In addition
– The time to enjoy the regime does not include holidays, New Year, and weekly rest
– In addition, in some special cases, male employees are entitled to a longer leave, including:
- In case only the mother participates in social insurance or both parents participate in social insurance but the mother dies after giving birth, the father is entitled to a leave of absence to enjoy the maternity regime for the remaining time of the mother. If the mother participates in social insurance but is not eligible for benefits and the mother dies after giving birth, the father is entitled to take maternity leave until the child is full 6 months old.
- In case the father participates in social insurance but does not quit his job when his wife dies after giving birth, in addition to his salary, he is also entitled to the maternity regime for the rest of the mother’s time.
- In case only the father participates in social insurance but the mother dies after giving birth or is in danger after giving birth but is no longer healthy enough to take care of the child as certified by a competent medical examination and treatment facility, the father is entitled to leave. maternity leave until the child is full 6 months old.
Some other notes
- Male employees take leave to enjoy the regime within 30 days from the date the wife gives birth. If there are days off before the wife gives birth, it is counted as unpaid leave or employee’s leave.
- In case a male employee takes many leaves, the time to start taking leave for the last time must still be within the first 30 days from the date of birth of the wife and the total period of leave for maternity benefits must not exceed the period of time. regulations.
- When a male employee takes leave when his wife gives birth to a child, which coincides with the time of annual leave, personal leave, or unpaid leave, the maternity regime will not be counted.
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Related article
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- The issue of surrogacy according to current Vietnamese law
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Related questions
According to Clauses 2 and 3, Article 31 of the Law on Social Insurance in 2014, the conditions for enjoying maternity benefits for female employees giving birth are:
“Must have paid social insurance premiums for 6 months or more during the 12 months before giving birth, or female employees who have paid social insurance premiums for the full 12 months or more but have to take a leave of absence from work to take care of the pregnancy as indicated by the medical examination and treatment facility.
For competent medical treatment, they must pay social insurance contributions for full 03 months or more within 12 months before giving birth. Therefore, employees who pay social insurance premiums for 6 months or more are entitled to maternity benefits even though the payment process is not continuous.
Female employees who have not yet recovered their health after enjoying the maternity regime, within the first 30 days of work, have not yet recovered, and are entitled to convalescence and health rehabilitation from 05 days to 10 days. The time for convalescence and recovery includes public holidays, New Year holidays, and weekly rest days. In case there is a period of convalescence and health rehabilitation from the end of the previous year to the beginning of the next year, such time off shall be counted for the previous year. Therefore, if the patient’s health has not yet recovered when they return to work, they will be given 5-10 days of rest and recovery.
The mother asking for surrogacy prepares a dossier to request the social insurance agency to settle the maternity regime, including the papers specified in Clause 4, Article 5 of Decree 115/2015/ND-CP as follows:
– A copy of the agreement on surrogacy for humanitarian purposes; a written confirmation of the time of handing over the child to the surrogacy requesting party and the gestational surrogacy party;
– A copy of the child’s birth certificate or a copy of the child’s birth certificate;…
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