Does the wife need to ask her husband's permission when becoming a gestational carrier in Vietnam?

Does the wife need to ask her husband's permission when becoming a gestational carrier in Vietnam?

My sister and her husband have lived together for nearly 8 years and have been treated in many places but still have no children. I heard that surrogacy is legal and I'm planning to help my sister. I have a husband and a daughter. So what conditions must my sister and I meet in order to surrogate? Do I have to consult my husband about this? And can I be a gestational carrier for my sister twice? Sincerely thank you very much.

Reply: 

According to the provisions of Article 95 of the Law on Marriage and Family 2014, altruistic gestational surrogacy shall be based on the voluntariness of involved parties and established in writing.

According to this Article, 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.

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.

According to the information you provided, you intend to be a gestational carrier for your sister, so your sister and you must meet the conditions specified above. At the same time, because you are married, your surrogacy must have your husband's written consent. And you was only allowed to help her sister as a gestational carrier once in Vietnam.

Is surrogacy contract legal in Vietnam?

Please let me know if I can't ask a relative to act as a gestational carrier for us, can we ask someone who is not a relative to act as a gestational carrier under a paid surrogacy contract? And I would like to ask what are conditions for altruistic gestational surrogacy?

Reply: 

The Law on Marriage and Family 2014 recognizes that there are two types of surrogacy: altruistic gestational surrogacy and surrogacy for commercial purposes. In there:

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.

According to the provisions of Point g, Clause 2, Article 5 of the Law on Marriage and Family 2014, it is strictly forbidden for giving birth with assisted reproductive technology for commercial purpose, commercial gestational surrogacy, prenatal sex selection, cloning.

On the other hand, according to the provisions of Article 95 of the Law on Marriage and Family 2014, altruistic gestational surrogacy shall be based on the voluntariness of involved parties and established in writing.

Thus: Based on the provisions cited above, the current law only allows altruistic gestational surrogacy. The act of commercial gestational surrogacy is a violation of the current marriage and family law in Vietnam. 

Therefore: For you and your wife, you want to ask someone who is not a relative to carry out the surrogacy for you under a surrogacy contract with remuneration for surrogacy. There are signs of commercial gestational surrogacy here. So you and your spouse are not allowed to do this act in Vietnam.

Current surrogacy conditions 

As mentioned above, the law currently only allows altruistic gestational surrogacy. Therefore, the current surrogacy conditions will correspond to the conditions for altruistic gestational surrogacy, specifically as follows:

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.

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.

If my wife has a double uterus, can I ask for a surrogate in Vietnam?

Dear lawyer, my wife and I are infertile, so we still have no children. In 2010, my husband and I went to TD hospital 3 times for embryo transfer but did not get pregnant. In 2016, working at AS Hospital, but after 6 weeks of miscarriage, my wife had a double uterus. Dear lawyer, can my wife and I ask for a gestational carrier?

Reply: 

According to the provisions of the Law on Marriage and Family 2014, there are two types of surrogacy: Altruistic gestational surrogacy and Commercial gestational surrogacy. Current law only allows altruistic gestational surrogacy; commercial gestational surrogacy is prohibited by law in any form.

In particular, 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.

Altruistic gestational surrogacy must be done on a voluntary basis by the parties, be made in writing and must satisfy all conditions for altruistic gestational surrogacy as prescribed by law.

According to the provisions of Article 95 of the Law on Marriage and Family 2014, the conditions for altruistic gestational surrogacy are specified as follows:

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.

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.

Thus, a husband and wife who do not have children in common and have a medical facility's confirmation that the wife cannot become pregnant and give birth even if assisted reproductive technology is applied, can ask another person to carry out surrogacy for altruistic gestational surrogacy in Vietnam. 

Therefore, you and your wife can contact a medical facility to examine and determine if your wife can get pregnant and give birth (your wife has a double uterus), if it is determined that your wife is not. If you and your partner are able to become pregnant and give birth, you and your spouse can ask a medical facility to confirm that your wife cannot become pregnant and give birth even if assisted reproductive technology is applied in Vietnam. 

After getting the confirmation of the medical facility with the above content, you and your wife can ask a relative of the same family of the wife or husband to be a gestational carrier in Vietnam.

Best Regards!