Commercial gestational surrogacy is a prohibited act in Vietnam. However, as of September 01, 2020, when Decree 82/2020/ND-CP took effect, an administrative penalty form for this act was established.
Article table of contents
Fine of up to 10 million VND for commercial gestational surrogacy in Vietnam (Illustrative image)
1. Forms of Surrogacy
Surrogacy refers to the scenario where a woman helps carry a pregnancy for a couple in which the wife, despite undergoing assisted reproductive technologies, remains unable to conceive and bear a child. This surrogacy must involve assisted reproductive technologies. Currently, there are two forms of surrogacy recognized in the Law on Marriage and Family 2014 under Article 3: altruistic surrogacy and commercial surrogacy.
Altruistic surrogacy involves a woman voluntarily agreeing to carry a pregnancy for another. Conversely, commercial surrogacy involves a woman carrying a pregnancy for another in exchange for economic or other benefits.
2. Penalties for commercial gestational surrogacy in Vietnam
The State's permission for surrogacy represents legislative progress, offering hope to couples struggling with infertility. However, Vietnamese law only permits altruistic surrogacy, a regulation codified from Articles 94 to 99 of the Law on Marriage and Family 2014. Although commercial surrogacy is prohibited, the Criminal Code 2015 only addresses penalties for organizing commercial gestational surrogacy under Article 187. The heaviest penalties include fines up to 200,000,000 VND, non-custodial rehabilitation for up to 2 years, or imprisonment for up to 5 years.
The acts of organizing and carrying out surrogacy are distinct. When the Criminal Code 2015 was introduced, there were no penalties for the latter. It was not until September 1, 2020, when Decree 82/2020/ND-CP took effect that administrative penalties for such acts were established, applying to both the party requesting and the party carrying out the commercial gestational surrogacy. Specifically, Article 60 stipulates:
Fines ranging from 5,000,000 VND to 10,000,000 VND for acts of childbirth using assisted reproductive technologies for commercial purposes, cloning, or commercial surrogacy.
2. Remedial Measures:
Mandatory surrender of illicit gains obtained through the violation stipulated in Clause 1 of this Article.
Comparing these two regulations, organizing commercial gestational surrogacy is classified as a crime and entails criminal liability, while commercial gestational surrogacy incurs only administrative penalties in Vietnam. This is likely due to the severity of the organizing act. Organizers must facilitate meetings, exchanges, and support means to carry out surrogacy. The organizers' primary goal is to receive material benefits from the surrogacy requesters; the purpose of pregnancy is not the deciding factor. In other words, without organizers, the connection between the requesting party and the surrogate cannot be made. Therefore, categorizing the act of organizing commercial gestational surrogacy under the Criminal Code is reasonable.
Thus, the new regulation on penalties for commercial gestational surrogacy in Article 60 of Decree 82/2020/ND-CP ensures that violations in the marriage and family sector are not overlooked and creates a safe legal framework for surrogacy in Vietnam.
Phuong Thanh
- Key word:
- commercial gestational surrogacy
- Vietnam
- Surrogacy
