Same Same But Different

The difficult road to parenthood for same-sex couples

My partner and I are gay and we would like to be parents. My partner is Belgian and I am Malaysian. We believe Vietnam is our best option to look for a surrogacy mother. We have already found an egg donor here but we are looking for a woman who is willing to carry our baby. Do you think it is possible for gay parents to do it in Vietnam legally?

Congratulations on your decision to be parents. As you know, having a child through surrogacy arrangements is not an easy thing for gay couples anywhere in the world. Unfortunately, Vietnam is not a feasible option to consider due to legal restrictions as explained further below. However, other options exist but will require strong determination.

In January 2015, the new Law on Marriage and Family entered into effect in Vietnam legalizing non commercial gestational surrogacy under strict conditions. This new law only allows surrogacy arrangements for heterosexual couples without a child, and when it has been certified that the wife is unable to give birth to a child herself. There are further restrictions with regards to the surrogate mother, who must have a family link to the husband or to the wife.

The Vietnamese National Assembly has legalized surrogacy arrangements in very limited and specific cases and, sadly, same-sex couples are not eligible to have a child in Vietnam via a surrogate mother under the current law.

We understand that there is a black market in surrogacy in Vietnam but we strongly advise you not to follow this path. The first obvious reason is because it is illegal and as a consequence you may face serious sanctions from the authorities. Additionally, and more importantly, it could result in dramatic consequences for you and for your baby as well as for the surrogate mother (illegal surrogacy may be performed in poor sanitary conditions.) Moreover, the surrogate mother will be recorded as the parent on the birth certificate causing numerous difficulties for you and the child throughout the child’s life. For example, the surrogate mother could change her mind and decide to keep your baby or, as the legal parent, could request to have the child returned to her at a later date. You will not be the parent of the child, from a legal point of view, and your family will be exposed to uncertainty, insecurity and substantial risks.

Legislative changes in Vietnam are not expected in the next few years. Same-sex marriage is still not recognized in Vietnamese law. The full recognition of same-sex marriage will more than likely be a pre-requisite to any evolution of the legal regulation of surrogacy in Vietnam.

However, other options are available outside Vietnam to make your wish to be parents come true. You may consider traveling to a country where surrogacy for gay couples is legal and then apply for the recognition of your parent-child relationship in the country where you are from and/or where you live. Be advised that there are two different questions to answer: First, in which countries are surrogacy arrangements legal for gay couples? Second, once you have become parents through surrogacy, will your country of citizenship, and your country of residence, recognize the parent-child relationships between you and your child?

The answer to both questions varies widely depending on national regulations. Since your partner is Belgian, it might be possible for you to move to Belgium. However, we understand there is no clear legal framework for surrogacy in Belgium. It seems that only one Belgian hospital allows surrogacy for gay couples in theory, but it is not certain whether it has ever been performed in practice. In any case, these arrangements are not officially recognized by the State of Belgium and you would probably have to follow a long subsequent procedure of adoption.

Other jurisdictions offer more certainty, such as some US and Canadian states where the law clearly states that foreign same-sex couples can become parents through surrogacy. As you may not be permitted to live in such states on a long-term basis, you can arrange to travel there during the process but you will then need to find a place where you can live permanently with your child. This leads to the second of the above-mentioned questions concerning recognition of the parent-child relationships.

The recognition of the parent-child relationship by your country of citizenship and/or by your country of residence is of paramount importance. Without it you and your child will face insecurity for life. Many countries prohibit surrogacy and do not recognize surrogacy arrangements concluded abroad even in countries where it is legal. One of the legal issues that you might face is the refusal of the consular authorities of your country of citizenship to register your child on your civil status registry. It means that your child cannot obtain your nationality. Moreover, you will not be recognized as the legal guardian of the child, thus causing numerous difficulties in your daily life.

Therefore, before performing any surrogacy abroad, you must contact the concerned administration in your country of citizenship and/or residence and make sure that your parent-child relationship will be recognized.

We strongly hope that you will find your path through this difficult journey. We would be happy to provide further guidance in navigating this difficult process after you discuss and consider your available options with your partner.

BIO: A member of the Paris Bar, Antoine Logeay has been practicing law first in France, mainly in litigation and arbitration, then in Vietnam for three years as an associate of Audier & Partners based at its Hanoi office. 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.

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