CONDITIONS FOR SURROGACY: HOW VIETNAM’S LAW REGULATES

For many reasons, many couples now turn to surrogacy as a method of finding a common child between the two. So what is the current Vietnamese law on conditions for surrogacy? Find out with OTIS LAWYERS in the article below!

Legal basis

Law on Marriage and Family 2014

Decree 98/2016/ND-CP amending and supplementing a number of articles of Decree No. 10/2015/ND-CP dated January 28, 2015 regulating childbirth by in vitro fertilization and surrogacy conditions for humanitarian purposes

Circular 34/2015/TT-BYT amending and supplementing Article 2 of Circular No. 17/2012/TT-BYT dated October 24, 2012 of the Minister of Health regulating the issuance and use of birth certificates

What is surrogacy?

Surrogacy under the Law on Marriage and Family 2014 includes: surrogacy for humanitarian purposes and surrogacy for commercial purposes. Accordingly:

– Altruistic surrogacy means A pregnancy carried voluntarily for non-commercial purpose by a woman for a couple of whom the wife is unable to carry a pregnancy and give birth even if assisted reproductive technology is applied. The voluntary gestational carrier is impregnated and gives birth through the transfer into her uterus of an embryo created by in vitro fertilization from the ovule of the wife and sperm of the husband (Clause 22 Article 3 Law on Marriage and Family 2014).

– Commercial surrogacy means a pregnancy carried by a woman for another person through assisted reproductive technology for enjoying economic or other benefits. (Clause 23 Article 3 Law on Marriage and Family 2014).

Conditions for surrogacy

According to Point g, Clause 2, Article 5 of the Law on marriage and family, surrogacy is strictly prohibited for commercial purposes. Therefore, the law only allows surrogacy for humanitarian purposes.

– The surrogacy for humanitarian purposes must be done on a voluntary basis by the parties and in writing.

– Surrogacy for humanitarian purposes must not be contrary to the law on childbirth by assisted reproductive technology.

Conditions of the person requesting surrogacy

Husband and wife have the right to ask a surrogate mother when fully meeting the following conditions:

– There is a certification by 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;

– Have been consulted on medical, legal and psychological issue

Conditions of surrogate mother

The person being asked for surrogacy must fully meet the following conditions:

- Being a relative in the same row of the wife's or husband's side asking for surrogacy;

- Have ever given birth and are 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 is required;

- Have been consulted on medical, legal and psychological issue

Conditions of establishments performing surrogacy techniques

Medical examination and treatment establishments permitted to perform surrogacy techniques for humanitarian purposes must satisfy the following conditions:

- Having at least 02 years of experience in performing in vitro fertilization techniques, from the date of being approved by the Ministry of Health to perform this technique;

– The total number of cycles of in vitro fertilization must be at least 1,000 cycles per year for 2 years.

Order and procedures for performing surrogacy techniques

Step 1: Prepare documents

To apply for surrogacy, you need to prepare the following documents and documents:

For the couple asking for surrogacy:

- An application form for surrogacy technique;

- A written confirmation of the husband and wife's common childless status;

- A confirmation that the wife has a medical condition, pregnancy will risk affecting the health and life of the mother, the fetus and the mother cannot become pregnant or give birth even if assisted reproductive. technology is applied.

For the surrogate woman:

– A commitment to voluntary surrogacy for humanitarian purposes;

- A statement of the surrogate mother that she has never carried out a surrogacy;

- A confirmation of the ability to become pregnant, meeting the regulations for embryo recipients and having given birth;

– The certificate of the husband of the surrogate woman (in case the surrogate woman has a husband) of consent for the surrogacy.

In addition, both parties must provide the following documents:

- Dossier and papers proving the kin relationship with the same line;

- A written certification of the content of medical advice from an obstetrician;

- A written certification of the content of psychological counseling of a person with a university degree in psychology or higher;

– A written confirmation of the content of legal advice from a lawyer, a jurist or a legal aid person;

– An agreement on surrogacy for humanitarian purposes between the husband and wife asking for surrogacy and the surrogacy party.

Step 2: Submit application

Infertile couples submit their application for the technique of surrogacy for humanitarian purposes to a medical examination and treatment facility authorized to perform this technique.

These facilities include: Central Obstetrics and Gynecology Hospital; Hue Central General Hospital; Tu Du Obstetrics and Gynecology Hospital in Ho Chi Minh City.

Step 3: Carry out the surrogacy technique

Within 30 days from the day on which the complete application is received, the establishment licensed to perform the surrogacy technique must have a treatment plan to perform the surrogacy technique.

In case this technique cannot be performed, a written reply must be given, clearly stating the reason.

Some notes when performing surrogacy technique

Procedure for birth registration in case of surrogacy

Clause 2, Article 1 of Circular 34/2015/TT-BYT has the following provisions:

“Article 2. Procedures for issuance of Notice of birth

c) In case a baby is born through surrogacy, intended parents or a woman who carries and gives birth (surrogate mother) must submit written confirmations about surrogacy as prescribed in Appendix 05 enclosed herewith and certified true copy or a copy accompanied by the original of surrogacy agreement for humanitarian purposes between intended parents and surrogate mother to the medical examination and treatment facility where the baby is born.

The baby who is born through surrogacy shall be granted the Notice of birth according to forms as prescribed in Appendix 01A enclosed herewith. This Notice of birth shall serve as the basis for proving surrogacy when carrying out registration of birth.

Issuance of Notice of birth is prescribed in Point a, Clause 2, this Article”.

Thus, according to this regulation, in case of asking for surrogacy for humanitarian purposes, it is necessary to bring along the certificate of childbirth by surrogacy technique and a certified copy enclosed with the original for comparison, the agreement on surrogacy for humanitarian purposes between the husband and wife asking for surrogacy and the surrogacy party to send to the medical examination and treatment facility where the child was born.

Identification of parents and children in case of surrogacy

 “Children born in case of surrogacy for humanitarian purposes are common children of husband and wife who asked for surrogacy from the time the child was born.” (Article 94 of the Law on Marriage and Family)

According to the above provisions, children born in the case of surrogacy for humanitarian purposes are common children of husband and wife through surrogacy. The person requested surrogacy will not be considered the mother of the child and shall not be named in the birth registration of that child.

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