Tiếng Việt
TABLE OF CONTENTS
1. What is surrogacy?
2. How is surrogacy regulated by Vietnamese law?
3. What is the penalty for commercial surrogacy?
1. What is surrogacy?
In biological terms, “surrogacy” is when a woman becomes pregnant and gives birth to a child for a couple who want to have children but cannot conceive. This process takes place through the creation of an embryo from the egg and sperm of the couple using the surrogate through in vitro fertilization. The embryo of the couple using the surrogate will be transferred into the uterus of the surrogate woman.
2. How is surrogacy regulated by Vietnamese law for humanitarian purposes?
Currently, in Vietnamese law, the concept of “surrogacy” is divided into “Altruistic gestational surrogacy” and “Commercial gestational surrogacy” stipulated in Clauses 22 and 23, Article 3, Law on Marriage and Family 2014 as follows:
“Article 3. Interpretation of terms
22. Altruistic gestational 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.
23. Commercial gestational surrogacy means a pregnancy carried by a woman for another person through assisted reproductive technology for enjoying economic or other benefits.”
Regarding “surrogacy for humanitarian purposes”, Article 95 of the 2014 Law on Marriage and Family provides additional provisions on surrogacy for humanitarian purposes as follows:
“Article 95. Conditions for altruistic gestational surrogacy
1. Altruistic gestational surrogacy shall be based on the voluntariness of involved parties and established in writing.
2. Husband and wife have the right to ask for a person’s gestational surrogacy when they fully meet the following conditions:
a/ The wife is certified by a competent health organization as unable to carry a pregnancy and give birth even with assisted reproductive technology;
b/ The couple has no common child;
c/ The couple has received health, legal and psychological counseling.
3. A gestational carrier must fully satisfy the following conditions:
a/ She is a next of kin of the same line of the wife or husband who asks for gestational surrogacy;
b/ She has given birth and is permitted for gestational surrogacy only once;
c/ She is at a suitable age and is certified by a competent health organization as eligible for gestational surrogacy;
d/ In case she is married, she obtains her husband’s written consent;
dd/ She has received health, legal and psychological counseling.
4. Altruistic gestational surrogacy must not contravene the law on giving birth with assisted reproductive technology.
5. The Government shall detail this Article.”
For “commercial surrogacy” as stipulated in Point g, Clause 2, Article 5 of the 2014 Law on Marriage and Family, commercial surrogacy is strictly prohibited.
“2. The following acts are prohibited:
g/ Giving birth with assisted reproductive technology for commercial purpose, commercial gestational surrogacy, prenatal sex selection, cloning;”
3. What is the penalty for commercial surrogacy?
Regarding administrative sanctions for commercial surrogacy, according to Article 60 of Decree 82/2020/ND-CP stipulating administrative sanctions in the fields of judicial assistance; judicial administration; marriage and family; civil judgment enforcement; bankruptcy of enterprises and cooperatives:
“Article 60. Violations of regulations on childbirth
1. A fine of VND 5,000,000 to VND 10,000,000 shall be imposed for performing childbirth using assisted reproductive techniques for commercial purposes, asexual reproduction, and commercial surrogacy.
2. Remedial measures:
Forced to return the illegal profits gained from committing the violation specified in Clause 1 of this Article.”
Regarding criminal prosecution related to surrogacy for commercial purposes, according to Article 187 of the 2015 Penal Code, amended and supplemented in 2017, it is stipulated that:
“Article 187. Surrogacy for commercial purposes
1. A person who organizes surrogacy for commercial purposes shall be liable for a fine of from VND 50,000,000 to VND 200,000,000, face a penalty of up to 02 years’ community sentence or 03 – 24 months’ imprisonment.
2. This offence committed in any of the following cases shall carry a penalty of 01 – 05 years’ imprisonment:
a) The offence is committed against 02 or more people;
b) The offence has been committed more than once;
c) The offence is committed in the name of an agency or organization;
d) Dangerous recidivism.
3. The offender might also be liable to a fine of from VND 10,000,000 to VND 50,000,000, be prohibited from holding certain positions or doing certain works for 01 – 05 years.”