I am Italian and I married my Vietnamese wife in early 2010. we have been living in Ho Chi Minh city ever since and we enjoy every minute spent together. La vita e bella!
However, there is something that troubles us; it seems my wife cannot give birth even though we have tried many different methods. We feel more powerless than ever! When we almost gave up believing that one day we would have a child together, we heard that a new Vietnamese law allows for surrogacy. We are curious to know whether this option is available to us as a couple. If so, what are the requirements?
In June 2014, the National Assembly of Vietnam passed a new Vietnam Surrogacy Law – part of a wider Law on Marriage and Family, legalizing non commercial gestational surrogacy for the first time. Since the enforcement of this new law, surrogacy has been a hot topic for many childless couples living in Vietnam.
In line with various other countries around the world, the new law only allows for so-called “voluntary and altruistic surrogacy.” It means that the surrogate mother may be reimbursed for her actual expenses, but that she may not receive any other commercial benefit for carrying someone else’s baby. Furthermore, the new law only allows for “gestational surrogacy,” which refers to the process whereby the surrogate mother is impregnated with an embryo that is created by in vitro fertilization from the ovum of the wife and the sperm from the husband. Traditional surrogacy, on the contrary, is not governed by the new law.
Good news so far, but what are the requirements for surrogacy and who may apply for it? In fact, the new law imposes rather strict conditions on both the couple requesting for surrogacy and on the potential surrogate mother.
The husband and wife requesting for surrogacy, for example, may not have a common child already. Furthermore, it must be certified that the wife is unable to give birth to a child herself, even with assisted reproductive technology, and the couple must have received health, legal and psychological counseling before starting the process of surrogacy.
The surrogate mother, on the other hand, must have a kinship (i.e. sister or cousin) to the wife or husband requesting the surrogacy and she can only carry someone else’s baby once. Furthermore, she must have already given birth to a child, be of a “suitable” age and it must be certified by a competent health organization that she is in good health. Moreover, when the potential surrogate mother is married, she needs to have her husband’s written consent and she must have received health, legal and psychological counseling as well.
The consensual nature of surrogacy in Vietnam is underlined by the fact that there needs to be a written agreement between the parties involved. Such an agreement, which also needs to be notarized, must contain full information about the parties and confirm that the conditions that we mentioned above are met.
Relevant to your situation, the new Law on Family and Marriage does neither impose any conditions on the nationality of the couple requesting the surrogacy, nor on the nationality of the surrogate mother. So as long as a person of kin to you or your wife is willing to carry your child, you can start the application process.
In the future, more hospitals may be allowed to assist with surrogacy, but for the moment you can only apply at the following three hospitals in Vietnam: the National Hospital of Obstetrics and Gynecology in Hanoi, the Hue General Hospital in Thua Thien-Hue Province and the Tu Du Hospital in Ho Chi Minh City.
We hope that the new law will offer you and your family loads of happiness.
Every month, Hadrien and Marijn answer legal questions from Oi readers. If you have any legal question you want answered, send them to [email protected].
*A member of the Paris Bar, Hadrien Wolff has been practicing law in Vietnam for more than seven years, currently as a partner of Audier & Partners based at its HCMC office. Having gained extensive legal experience in the Netherlands and Cambodia, Marijn Sprokkereef is an associate at the Hanoi office of the same firm. Audier & Partners is an international law firm with presence in Vietnam, Myanmar and Mongolia, providing advice to foreign investors on a broad range of legal issues.