Vietnam: What is surrogacy for profit? Distinguish between commercial and altruistic gestational surrogacy

Hello, Lawnet would like to answer your questions as follows:

1. What is commercial gestational surrogacy ?

The Law on Marriage and Family 2014 stipulates the concept of surrogacy as follows:

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.

Commercial gestational surrogacy means a pregnancy carried by a woman for another person through assisted reproductive technology for enjoying economic or other benefits.

Commercial gestational surrogacy is one of the prohibited acts specified in Article 5 of the Law on Marriage and Family.

2. What are the penalties for commercial gestational surrogacy in Vietnam?

Currently, the law has no regulations on how to handle the parties who hire and receive surrogacy, but only stipulate sanctions for those who organize surrogacy (or surrogacy for commercial purposes).

Specifically, Article 187 of the Criminal Code 2015 provides:

"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 circumstances carries 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.”

Thus, anyone who organizes surrogacy for commercial purposes can be prosecuted for criminal liability with a prison term of up to 5 years.

3. Distinguish between commercial and altruistic gestational surrogacy.

The main difference that distinguishes these two concepts is the purpose of surrogacy.

Altruistic gestational surrogacy is a woman's voluntary, non-commercial use of pregnancy for a couple whose wife is unable to conceive and give birth.

Meanwhile, commercial gestational surrogacy involves a woman's pregnancy for another person by applying assisted reproductive technology for economic or other benefits.

In order to limit cases of surrogacy but also create conditions to help couples who have difficulty having children, our country's law has specific provisions on surrogacy for humanitarian purposes. Altruistic gestational surrogacy has stricter regulations to ensure the rights and obligations, health, and psychology of the parties, and there are regulations on dispute settlement when problems arise.

Both the surrogacy-requesting party and the gestational surrogacy party must satisfy the following conditions:

- For spouses requesting surrogacy:

+ 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.

+ The husband and wife do not share any children.

+ Having been consulted on medical, legal, and psychological matters.

- To the person who requested surrogacy:

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

+ Having given birth to a child and can only become a surrogate once;

+ Being of legal age and having been cleared by a competent medical organization for surrogacy;

+ In case the surrogate woman has a husband, the husband's written consent is required;

+ Having been consulted on medical, legal, and psychological matters.

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

Agreement on surrogacy, rights and obligations of the parties, and settlement of disputes related to altruistic gestational surrogacy are specified in Articles 96, 97, 98, and 99 of the Law on Marriage and Family.

Please refer to some more judgments related to the crime of organizing surrogacy for commercial purposes that have been tried in practice:

(1) Judgment on the crime of organizing surrogacy for commercial purposes No. 111/2021/HSPT

(2) Judgment on the crime of organizing surrogacy for commercial purposes No. 13/2022/HS-PT

(3) Judgment on fraud to appropriate property and organize surrogacy for commercial purposes No. 245/2022/HS-PT

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