“Hello, Lawyer, due to some health reasons, my husband and I can’t get pregnant naturally. We want to ask a surrogate. However, we do not understand the provisions of the law on rights and obligations. In the process of receiving the gestational surrogacy party and the gestational surrogacy party, the gestational surrogacy receiving party does not comply with the agreements set out before, how should we deal with it? this topic. Sincere thanks to Lawyer!.”. Thanks for your question. To clarify the above, today, LSX Lawfirm will give you an article about “The issue of surrogacy according to current Vietnamese law”, as follows:
Legal grounds
- Law on Marriage and Family 2014
What is surrogacy?
Surrogacy understood as using the technical method of taking the wife’s eggs and husband’s sperm for in vitro fertilization. It is then implanted in another woman’s uterus so that she can carry out the surrogate pregnancy. Surrogacy is a process of performing medical techniques; modern scientific methods interfere with the natural pregnancy of man; when the natural process of human pregnancy limited by various reasons. Surrogacy performed for couples who are unable to bear children; The cause comes from the wife’s body.
According to the Law on Marriage and Family 2014 only pregnancy is allowed for humanitarian purposes; Prohibition of surrogacy for commercial purposes.
Surrogacy for humanitarian purposes is a woman’s voluntary work; not for commercial purposes of conceiving a couple whose wife is unable to become pregnant; or childbirth even with assisted reproductive technology. By taking the wife’s ovum and the husband’s sperm to fertilize the test tube; then implanted into the uterus of a woman who voluntarily becomes pregnant so that this person can become pregnant and give birth.
Commercial surrogacy is a woman’s pregnancy for another person using assisted reproductive technology for economic or other benefits.
Agreement on surrogacy for humanitarian purposes between the two parties
An agreement on surrogacy for humanitarian purposes between husband and wife requesting surrogacy; (hereinafter referred to as the party requesting surrogacy) and the spouse of the gestational carrier; (hereinafter referred to as the gestational carrier) must have the following basic contents:
-Full information about the surrogacy requesting party and the gestational surrogacy party; according to the relevant conditions specified in Article 95 of the Law on Marriage and Family 2014;
– Commitment to exercise the rights; obligations specified in Articles 97 and 98 of the Law on Marriage and Family 2014;
– The settlement of consequences in case of obstetric complications; support to ensure reproductive health for surrogate mothers during pregnancy and childbirth; the adoption of a child by the party requesting surrogacy; the rights and obligations of both parties towards the child in case the child has not assigned to the party requesting surrogacy; and other related rights and obligations;
-Civil liability in case one or both parties violate their commitments under the agreement.
The agreement on surrogacy must made in writing and notarized. In case the spouses requesting surrogacy authorize each other, or the spouses of the surrogacy party authorize each other to reach an agreement, the authorization must made in writing and notarized. Authorization to a third party has no legal effect.
In case of agreement on surrogacy between the gestational carrier; If the party requesting surrogacy made together with an agreement between them and the medical facility performing the birth by assisted reproductive technology, this agreement must be certified by a competent person of this medical facility.
Conditions for surrogacy for humanitarian purposes
Surrogacy for humanitarian purposes must done on a voluntary basis by the parties and in writing.
Spouses have the right to ask for surrogacy when fully meeting the following conditions:
- Having a certification from a competent medical organization that the wife cannot become pregnant and give birth even when assisted reproductive techniques are applied;
- Husband and wife do not have children in common;
- Received medical, legal, and psychological counseling.
- The person asked for surrogacy must fully meet the following conditions:
- Being a relative in the same row of the wife or husband’s side asking for surrogacy;
- Have ever given birth and only allowed to be a surrogate once;
- Being of appropriate age and certified by a competent medical organization on the possibility of surrogacy;
- In case the surrogate woman has a husband, the husband’s written consent required;
- Received legal advice on medical, legal, and psychological.
Rights and obligations of the gestational carrier for humanitarian purposes
The surrogate mother and husband of the gestational carrier have the same rights and obligations as parents in taking care of reproductive health; taking care of and raising the child until the time of handing over the child to the surrogacy requester; must hand over the child to the party asking for surrogacy.
– The surrogate must comply with regulations on examination; screening procedures for detection; treatment of abnormalities and malformations of the fetus according to regulations of the Ministry of Health.
Then The surrogate mother entitled to the maternity regime in accordance with the law on labor and social insurance; until the time of handing over the child to the surrogacy requesting party. In the case from the date of birth to the time of delivery of the child; but the maternity leave period is less than 60 days; the surrogate mother still entitled to the maternity regime until the full 60 days. Childbirth due to surrogacy not included in the number of children; according to population policy and family planning.
– The gestational surrogacy party has the right to request the gestational surrogacy requesting party to provide support; take care of reproductive health.
In case for reasons of his life, health, or the development of the fetus; the surrogate has the right to decide on the number of fetuses; the continuation or discontinuance of pregnancy in accordance with the provisions of the law on reproductive health care, and give birth by assisted reproductive technology.
– In case the party requesting surrogacy refuses to accept the child; the gestational surrogacy party has the right to request the court to force the surrogacy requesting party to accept the child.
Rights and obligations of the party requesting surrogacy for humanitarian purposes
– The party requesting surrogacy obliged to pay the actual expenses; ensure reproductive health care according to regulations of the Ministry of Health.
– The rights and obligations of the party requesting surrogacy for the child arise from the time the child is born. The mother who asks for surrogacy entitled to the maternity regime; in accordance with the labor law; social insurance; from the time of receiving the child until the child is full and 6 months old.
The party requesting surrogacy may not refuse to accept the child. In case the surrogacy requesting party is late to receive the child; or in violation of the duty of care; taking care of children, they must have the obligation to support their children according to the provisions of the Law on Marriage and Family 2014; handled in accordance with relevant laws; If causing damage to the gestational carrier, they must compensate. In case the party requesting surrogacy dies, the child entitled to inherit according to the provisions of the law on the estate of the surrogacy requester.
– There are rights between the child born from surrogacy; and other members of the family requesting the surrogacy; obligations under the provisions; of the Law on Marriage and Family 2014, the Civil Code, and other relevant laws.
– In case the gestational surrogacy party refuses to hand over the child, the gestational surrogacy requesting party has the right to request the court to force the gestational surrogacy party to hand over the child.
Identification of father and mother in case of surrogacy according to law
The child is born as a joint child of the husband and wife through surrogacy; from the moment the child is born.
Dispute resolution related to surrogacy
The court is the competent authority to settle disputes about surrogacy.
– In case the child has not delivered yet, but both spouses ask for surrogacy to die; or lose the civil act capacity, the gestational surrogacy party has the right to adopt the child; if the gestational surrogacy party does not adopt the child, the guardianship and support for the child shall comply with the provisions of the Law on Marriage. person and family 2014; Social legal.
Handling violations of childbirth by assisted reproductive techniques and surrogacy
In relation to childbirth by assist reproductive technology, surrogacy violates the conditions; rights, and obligations specified in the Law on Marriage and Family 2014; depending on their nature; the degree of violation that handled according to civil, administrative, and criminal liability
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Related questions
The born child is determined to be the child of the person asking for surrogacy, so the responsibility for birth registration belongs to the husband or wife asking for surrogacy (Based on Article 15 of the Law on Civil Status 2014) then.
To prevent surrogacy for commercial purposes, the Ministry of Health requires hospitals to take a number of measures such as:
– Firstly, Strengthen the management of sperm/oocyte/embryo donation/receiving in vitro fertilization and synergistic pregnancy for humanitarian purposes.
– Secondly, Develop a process for transporting and receiving sperm/ovum/embryo between hospitals and regularly checking to prevent exchange.
– Thirdly, The semen sampling process has content on control to ensure that the semen sample is taken by the right person and taken at the hospital, to prevent the exchange of semen samples from outside.
– Finally, The hospital needs to carefully review the indications for surrogacy and pre-implantation genetic testing and issue procedures/regulations to ensure that the staff strictly follows the instructions.
Currently, there is only regulation on the criminal handling of surrogacy organizers for commercial purposes in Article 187 of the Penal Code 2015.
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