ALTRUISTIC GESTATIONAL SURROGACY

ALTRUISTIC GESTATIONAL SURROGACY

ALTRUISTIC GESTATIONAL SURROGACY

1. Legal grounds

Article 95, Article 96, Article 97, Article 98 of the 2014 Law on Marriage and Family.

Decree No. 10/2015/ND-CP on giving birth through in vitro fertilization and conditions for altruistic gestational surrogacy.

Decree No. 98/2016/ND-CP on amending a number of articles of Decree No. 10/2015/ND-CP dated January 28, 2015 by the Government providing for giving birth through in vitro fertilization and conditions for altruistic gestational surrogacy.

2. Content

Surrogacy can be understood in this way, the role of a woman (a surrogate mother) who is commissioned to bear a child by a married couple unable to have children themselves. The pregnancy is usually initiated through artificial insemination of the surrogate mother by the husband, although sometimes the wife's eggs are used; in this case the surrogate has no genetic relationship to the child, being simply a host for the embryo. Thus, surrogacy is a process of implementing medical techniques with modern scientific methods that interfere with human natural pregnancy, when human natural pregnancy is limited by different reasons.

Conditions for altruistic gestational surrogacy

  •  Altruistic gestational surrogacy shall be based on the voluntariness of involved parties and established in writing.

 

  • 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.

  • A gestational carrier must fully satisfy the following conditions:

 

  • She is a next of kin of the same line of the wife or husband who asks for gestational surrogacy; (Pursuant to Clause 7, Article 2 of Decree No. 10/2015/ND-CP)
  • She has given birth and is permitted for gestational surrogacy only once;
  • She is at a suitable age and is certified by a competent health organization as eligible for gestational surrogacy;
  • In case she is married, she obtains her husband’s written consent;
  • She has received health, legal and psychological counseling.

 

Rights and obligations of the altruistic gestational carrier party

  • A gestational carrier and her husband have the rights and obligations as parents in reproductive health care and care for and nursing of the child until this child is delivered to the gestational surrogacy requesting party; and shall deliver the child to the gestational surrogacy requesting party.

 

  • A gestational carrier shall comply with the Ministry of Health’s regulations on examination and screening for detecting and treating fetal abnormalities and defects.

 

  • A gestational carrier is entitled to the maternity regime as prescribed by the labor and social insurance laws until the child is delivered to the gestational surrogacy requesting party. When the duration from the date of giving birth to a child to the date of delivering that child is less than 60 days, a gestational carrier is still entitled to the maternity regime for full 60 days. The child born from gestational surrogacy shall not be counted into the number of children under the policy on population and family planning.

 

  • The gestational carrier party has the right to request the gestational surrogacy requesting party’s support and care for reproductive health.
  • In the interest of her life or health or for fetal development, a gestational carrier has the right on the number of embryos and continuation or discontinuation of the pregnancy in accordance with the laws on reproductive health care and giving birth with assisted reproductive technology.

 

  • When the gestational surrogacy requesting party refuses to receive the child, the gestational carrier party has the right to request a court to oblige the former to receive that child.

 

Rights and obligations of altruistic gestational surrogacy requesting party

  • The gestational surrogacy requesting party shall pay actual expenses for ensuring reproductive health according to the Ministry of Health’s regulations

.

  • Rights and obligations of the altruistic gestational surrogacy requesting party toward their child shall arise from the time the child is born. The mother requesting gestational surrogacy is entitled to the maternity regime in accordance with the labor and social insurance laws from the time of receiving her child to the time the child is full 6 months.

 

  • The gestational surrogacy requesting party may not refuse to receive their child. A gestational surrogacy requesting party that delays receipt of his/her child or breaches the child nursing and caring obligations shall support this child in accordance with this Law and be handled in accordance with relevant laws. If causing damage to the gestational carrier party, he/she shall pay damages. In case the gestational surrogacy requesting party dies, the child is entitled to inheritance of the former’s estate in accordance with law.

 

  • A child born from gestational surrogacy and other members of the family of the gestational surrogacy requesting party have the rights and obligations prescribed in this Law, the Civil Code and other relevant laws.
  • When the gestational carrier party refuses to deliver the child, the gestational surrogacy requesting party has the right to request a court to oblige the former to deliver the child.

 

Conditions of medical examination and treatment facilities are allowed to carry out techniques of altruistic gestational surrogacy. According to Clause 3 Article 1 Decree No. 98/2016/ND-CP and medical examination and treatment facilities that are eligible for immediate implementation techniques of altruistic gestational surrogacy:

- Central maternity hospital;

- Hue General Hospital;

- Tu Du Obstetrics Hospital in Ho Chi Minh City

In addition to the above medical examination and treatment facilities, the Minister of Health has the right to issue a decision to supplement the medical examination and treatment facility recognized by the Ministry of Health to implement in vitro fertilization and altruistic gestational surrogacy. One of the units that has been recognized to be eligible for technical implementation of altruistic gestational surrogacy is the My Duc Reproductive Support Unit - My Duc Hospital (Ho Chi Minh City).

Parties involved in childbirth by surrogacy to violate the conditions, rights and obligations prescribed in the Law on Marriage and Family shall, depending on the nature of the violation, be handled according to civil liability, administrative, criminal.

Officially allowing altruistic gestational surrogacy has opened up many opportunities for couples who wish to have children and also becomes the necessary legal mechanism to avoid surrogacy into "hiring".

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