What is gestational surrogacy according to the law in Vietnam? Are female employees who are intended mothers eligible for the maternity benefits in Vietnam?

What is gestational surrogacy according to the law in Vietnam?

Pursuant to Clauses 22 and 23, Article 3 of the Law on Marriage and Family in 2014:

Interpretation of terms

In this Law, the terms below are construed as follows:

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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.

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As regulated above, gestational surrogacy is the act of a woman carrying and giving birth to a child for someone else. The intended parents are the biological parents of the child, not the surrogate.

[1] 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.

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

What is gestational surrogacy according to the law in Vietnam? Are female employees who are intended mothers eligible for the maternity benefits in Vietnam? - image from internet

Are female employees who are intended mothers eligible for the maternity benefits in Vietnam?

Pursuant to Article 31 of the Law on Social Insurance in 2014 stipulating conditions for enjoying the maternity benefits:

Conditions for enjoying the maternity benefits

1. Employees shall be covered by the maternity benefits in one of the following cases:

a/ Pregnant female employees;

b/ Female employees giving birth to children;

c/ Female employees as surrogate mothers and intended mothers;

d/ Employees adopting under-6-month children;

dd/ Female employees having intrauterine devices or employees taking sterilization measures;

e/ Male employees currently paying social insurance premiums whose wives give birth to children.

2. To enjoy the maternity benefits, employees defined at Points b, c and d, Clause 1 of this Article must have paid social insurance premiums for at least full 6 months within 12 months before childbirth or child adoption.

3. To enjoy the maternity benefits, employees defined at Point b, Clause 1 of this Article who have paid social insurance premiums for at least full 12 months and need to take a leave during pregnancy for pregnancy care as prescribed by a competent health establishment must have paid social insurance premiums for at least full 3 months within 12 months before childbirth.

4. Employees who fully satisfy the conditions specified in Clause 2 or 3 of this Article and terminate their labor contracts or working contracts or cease working before the time of childbirth or the time of adoption of under-6-month children are still entitled to the maternity benefits prescribed in Articles 34, 36 and 38, and Clause 1, Article 39, of this Law.

As regulated above, female employees, who are intended mothers, must have paid social insurance premiums for at least full 6 months within 12 months before childbirth or child adoption to enjoy the maternity benefits.

What are conditions for husband and wife to ask for a person’s gestational surrogacy in Vietnam?

Pursuant to Clauses 2, Article 95 of the Law on Marriage and Family in 2014 stipulating conditions for husband and wife to ask for a person’s gestational surrogacy in Vietnam:

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.

As regulated above, husband and wife have the right to ask for a person’s gestational surrogacy when they fully meet the following conditions:

- The wife is certified by a competent health organization as unable to carry a pregnancy and give birth even with assisted reproductive technology;

- The couple has no common child;

- The couple has received health, legal and psychological counseling.

Note: Gestational surrogacy must be carried out on a voluntary basis by all parties involved and documented in writing, in compliance with the laws and regulations regarding assisted reproductive techniques for procreation.

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