Legal Provisions on Surrogacy for Humanitarian Purposes

Legal Provisions on Surrogacy for Humanitarian Purposes

Currently, infertility and subfertility among married couples have become increasingly common. The desire to have a child – something that seems simple and natural for many – is, however, an immense challenge for others. The law’s recognition of surrogacy for humanitarian purposes marks a progressive step and a ray of hope for infertile couples. One of the mandatory conditions for surrogacy is counseling on medical, legal, and psychological aspects. From the legal perspective, it must be emphasized that a written confirmation of legal counseling provided by a lawyer, jurist, or legal aid officer is a compulsory document in the application dossier for surrogacy for humanitarian purposes.

Key Legal Issues Concerning Surrogacy for Humanitarian Purposes

Conditions for the Intended Parents (the commissioning couple):

1. • A competent medical institution certifies that the wife cannot conceive and give birth, even with assisted reproductive techniques.
   • The couple has no common child.
   • They have undergone medical, legal, and psychological counseling.

Conditions for the Surrogate Mother:

1. • Must be a relative in the same line of kinship of either spouse.
   • Must have previously given birth and may act as a surrogate only once.
   • Must be of appropriate reproductive age and certified by a competent medical institution as capable of surrogacy.
   • If married, her husband must give written consent.
   • Must undergo medical, legal, and psychological counseling.

Formal Requirements:

1. • Surrogacy for humanitarian purposes must be based on the voluntary consent of all parties.
   • The surrogacy agreement must be made in writing and notarized.
   • If either spouse authorizes the other to conclude the agreement, such authorization must be in writing and notarized. Authorization to a third party has no legal effect.
   • Where the surrogacy agreement between the surrogate and the commissioning couple is made in conjunction with the agreement with the medical facility performing assisted reproductive techniques, the agreement must be certified by the competent authority of that medical facility.

Application Dossier for Surrogacy:
The infertile couple must submit their dossier to a licensed medical establishment, which includes:

1. • Application requesting implementation of surrogacy technique;
   • Written undertaking of voluntary surrogacy for humanitarian purposes;
   • Written declaration from the surrogate confirming she has not previously acted as a surrogate;
   • Certification by the Commune-level People’s Committee of the couple’s place of residence confirming they have no common child;
   • Medical certification from an in vitro fertilization facility confirming the wife suffers from a condition that makes pregnancy life-threatening or impossible, even with assisted reproductive techniques;
   • Medical certification of the surrogate mother’s ability to conceive and confirming she has previously given birth;
   • Documentation proving kinship, certified by the Commune-level People’s Committee or established via civil status records, with responsibility before the law for authenticity;
   • Written consent of the surrogate’s husband (if married);
   • Certification of medical counseling by an obstetrician;
   • Certification of psychological counseling by a qualified psychologist;
   • Certification of legal counseling by a lawyer, jurist, or legal aid officer;
   • Written surrogacy agreement between the commissioning couple and the surrogate.

Processing Time: Within 30 days from receipt of a complete dossier, the licensed medical facility must establish a treatment plan for surrogacy. If unable to proceed, it must issue a written reply stating clear reasons.

Legal Counseling Content:

1. • Determination of parent–child relationship in cases of surrogacy for humanitarian purposes;
   • Rights and obligations of the surrogate mother;
   • Rights and obligations of the commissioning couple;
   • Other relevant legal issues.

The law determines that the child born from surrogacy for humanitarian purposes is the common child of the commissioning couple from the moment of birth.

Rights and Obligations of the Surrogate Mother:

1. • The surrogate mother and her husband (if any) have parental rights and obligations in caring for the pregnancy and child until the child is handed over; thereafter, they must transfer the child to the commissioning couple.
   • The surrogate mother must comply with prenatal check-ups and medical screening procedures.
   • She is entitled to maternity benefits under labor and social insurance law until handing over the child. If the maternity leave period before handover is less than 60 days, she remains entitled until the full 60 days are completed.
   • Surrogacy does not count towards the surrogate’s number of children under population and family planning policies.
   • She may request support for reproductive healthcare from the commissioning couple.
   • For reasons concerning her own health, life, or fetal development, she has the right to decide on the number of embryos or continuation/termination of the pregnancy, in accordance with reproductive healthcare law.
   • If the commissioning couple refuses to take the child, the surrogate has the right to petition the Court to compel them to accept custody.

Rights and Obligations of the Commissioning Couple:

1. • Must cover actual expenses for reproductive healthcare as regulated by the Ministry of Health.
   • Acquire parental rights and obligations toward the child from the time of birth.
   • The intended mother is entitled to maternity leave benefits from the time of receiving the child until the child reaches six months old.
   • Cannot refuse to take the child. If they delay or neglect parental duties, they must provide child support under the law and may face legal liability, including compensation to the surrogate.
   • In case of death of either spouse, the child retains inheritance rights under law.
   • The child has legal rights and obligations with other family members of the commissioning couple under Decree No. 10/2015/NĐ-CP, the Civil Code, and other relevant laws.
   • If the surrogate refuses to hand over the child, the commissioning couple has the right to request the Court to compel delivery of the child.

Legal Grounds:

• Article 14, Decree No. 10/2015/NĐ-CP on in vitro fertilization and conditions for surrogacy for humanitarian purposes;
• Articles 94, 95, 97, and 98 of the Law on Marriage and Family 2014.