Perfecting the law in the field of surrogacy in Vietnam today

To achieve the proposed research objectives, in the process of researching the topic, the author used the following basic research methods:

- Synthesis and commentary method: used in chapter 1 when studying general issues about the concept, content, role, and significance of surrogacy for humanitarian purposes; laws of some countries in the world and criteria for perfecting the law on surrogacy.

- Analytical and statistical methods: used in chapter 2 when analyzing the law's limitations and problems regarding the rights and obligations of the parties; sanctions applied when violations occur when performing surrogacy; presenting cases that occur when applying the law on surrogacy in real life to make recommendations on improving the law in this field in chapter 3.

VI. Scientific significance of the topic:

Having a more general and comprehensive view of surrogacy for humanitarian purposes, making recommendations to improve legal regulations so that infertile couples who have a legal need to have children can apply with peace of mind, while at the same time, ensuring the rights and obligations of the subjects participating in this legal relationship.

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VII. Thesis structure:

The thesis is divided into 3 chapters:

- Chapter I: Some theoretical issues of perfecting the law on surrogacy in Vietnam today

- Chapter II: Current status of law and law enforcement in the field of surrogacy in Vietnam

- Chapter III: Some solutions to improve the law and enhance the effectiveness of law implementation on surrogacy

CHAPTER I: SOME THEORETICAL ISSUES OF IMPROVING THE LAW ON SURROGACY IN VIETNAM TODAY

1.1. Concept and legal characteristics of surrogacy

1.1.1. Concept of surrogacy

Infertility is an undesirable thing for couples today. However, with assisted reproductive technology, many couples have been able to welcome their babies into the world. Simply put, these are modern medical techniques to intervene in the conception process of women with the noble purpose of helping infertile and sterile people to get pregnant and fulfill their natural duties. Giving birth with assisted reproductive technology has demonstrated the remarkable development of science and technology, solving the infertility of both men and women due to the influence of many external factors such as the environment, chemicals, ... or from the physical structure of each person causing difficulties in the pregnancy process. This positive development from medicine has brought a lot of hope and happiness to infertile couples who want to have children in the world in general and in Vietnam in particular. Therefore, infertility is the reason leading to the formation of assisted reproductive methods, including surrogacy.

In Vietnam, before the Law on Marriage and Family 2014 was promulgated, the concepts of “surrogacy” and “surrogate pregnancy” were widely and popularly used. However, the content and meaning of these concepts were not consistent, and there was even an equivalence between the concepts.

Some people understand that “surrogacy” is when a man (husband) has direct (physiological) intercourse, without using reproductive support measures, with a woman (not the wife), until this woman conceives, becomes pregnant and gives birth. In this case, the child is born from the sperm of the man (husband) combined with the egg of the woman (not the wife). In reality, in Vietnam today, there are many couples who, for some reason, cannot have children naturally (such as the wife has a disability and cannot conceive and give birth; or the wife does not have a uterus due to illness and has to have it removed, etc.), so the couple has discussed and agreed to let the husband have direct (physiological) intercourse with another woman (who has agreed) to conceive, become pregnant and give birth to a child for the infertile couple and the woman who accepts the “surrogacy” has an agreement on remuneration (money or property) for this surrogacy. [1, pp. 11,12]

“Surrogacy” is simply understood as the agreement between the hiring party and the surrogate mother that the hiring party will pay the surrogate mother money or property, and the surrogate mother will carry the pregnancy, give birth and give the child to the surrogate mother.

In reality, equating surrogacy with surrogacy is no longer appropriate, it makes the issue more complicated and sensitive, and is no longer in line with Vietnamese customs and laws. It is time to understand surrogacy in its true sense, in accordance with the state regime and legal system of each country.

Nowadays, with the development of assisted reproductive technology, the above actions are not protected by law and condemned by society. Assisted reproductive technology was born, specifically in vitro fertilization, which allows sperm and eggs of a couple to be taken out of the body, fertilized by sperm and eggs to create embryos, cultured embryos and transferred to the uterus of another woman for pregnancy. Thanks to that, legitimate surrogacy techniques can be performed. With in vitro fertilization, we have true surrogacy techniques.

Surrogacy can be simply understood as the case where, after in vitro fertilization, if the mother, for health reasons or for some other condition, cannot get pregnant, she must rely on another woman to get pregnant and give birth. There are many different concepts and understandings of this issue, but according to the author, to understand it legally, the 2014 Law on Marriage and Family has a very clear definition in Clause 22, Article 3: “ Surrogacy for humanitarian purposes is when a woman voluntarily, not for commercial purposes, helps a couple get pregnant, where the wife cannot get pregnant and give birth even when using assisted reproductive techniques, by taking the wife's egg and the husband's sperm for in vitro fertilization, then implanting them into the uterus of the woman who voluntarily gets pregnant and gives birth”.

Surrogacy for humanitarian purposes must be carried out on the principle of voluntariness of both parties and must meet the conditions and requirements of the law that “ the woman is voluntary, not for commercial purposes” . That is, the surrogate mother will not, for economic or any other purpose, carry a pregnancy to help a couple who cannot have children. Such a provision helps distinguish between surrogacy for humanitarian purposes and surrogacy for commercial purposes – which is strictly prohibited by Vietnamese law, and is clearly stipulated in the Penal Code.

The law also clearly stipulates the conditions for using a surrogate mother here: even if the wife applies other reproductive support measures but still cannot have children, then she can seek this measure as a way to "borrow the uterus" of another woman.

Not only that, the above concept has proposed and stipulated that the method of surrogacy must be performed by in vitro fertilization, that is, "taking the wife's egg and the husband's sperm to fertilize in vitro, then implanting them into the uterus of the woman who is asked to carry the pregnancy and give birth". Thus, scientifically, the woman's egg and the man's sperm are not the result of a natural, direct combination between the husband and the husband, but must rely on medical support from specialized doctors. From the egg and sperm taken from the husband and the husband's bodies, the doctor fertilizes in vitro to create an embryo and implants the embryo into the uterus of the surrogate mother. Through this, it can be seen that surrogacy must go through strict procedures, without "direct assistance" between the husband who asks for the surrogacy and the surrogate mother [4, p18]. That means the child born will have the biological characteristics of both the husband and the surrogate mother. Unlike the previous method, when this method was available, the husband had to have direct intercourse or inject sperm into the uterus of the surrogate mother. This does not guarantee biological and intrinsic reasons, so this act cannot be considered surrogacy.

1.1.2. Legal characteristics of surrogacy

1.1.2.1. Contractual

According to Article 385 of the 2015 Vietnamese Civil Code: “A contract is an agreement between the parties on the establishment, change or termination of civil rights and obligations”. The agreement element is the decisive factor in creating a contract. In the case of surrogacy for humanitarian purposes, to be recognized and guaranteed, the parties involved in this relationship must comply with the prescribed conditions, and must have full documents proving that the person requesting the pregnancy and the pregnant person are legally protected by the third party.

We can define a surrogacy contract as follows: "A surrogacy contract is an agreement and consensus of will between the party requesting surrogacy, an infertile couple, and the surrogate, a woman who voluntarily carries the pregnancy for humanitarian purposes, in order to exercise rights and obligations to each other in the legal relationship regarding surrogacy." [5, p.12]

In surrogacy, before the subjects carry out the surrogacy activity, the first thing is that the parties must agree with each other on the contents throughout the surrogacy process. Simply put, that is the discussion to create a civil contract called a surrogacy contract.

A surrogacy contract is a special type of contract because the subject here is a human being - a child born through in vitro fertilization. With this type of contract, the law must have very strict regulations to ensure the rights of children. With this nature, the humanitarian purpose is the core throughout the process of concluding and implementing the contract. In cases where it is for commercial purposes or is forced to accept under threat or when the transaction is made, the person establishing it is not aware of and in control of his or her actions, it is not accepted. Therefore, the contract is of course invalid because children are not a commodity, which is a violation of human morality and good customs.

Strictly regulating the content of the contract is extremely important to ensure the legality of the surrogacy contract and at the same time serve as a basis for resolving disputes arising in court.

Currently, Vietnamese law has issued Form No. 06 of surrogacy agreement for humanitarian purposes, issued together with Government Decree No. 10/2015/ND-CP regulating childbirth by in vitro fertilization and surrogacy for humanitarian purposes. This surrogacy agreement is also considered a sample surrogacy contract issued by law for the parties to rely on, have a basis as well as sample terms to continue to complete their agreements. This contract contains full information of the subjects participating in this relationship.

The principle of resolving surrogacy contract disputes is voluntary, equal and consensual, putting the interests of the child born from surrogacy first.

Surrogacy is always accompanied by complex legal issues and many cases can easily lead to disputes. Therefore, the surrogacy contract needs to be clear and detailed because in case of conflicts, the parties in this relationship are the ones with the highest decision in making action plans. Therefore, the agreement of the parties in the initial contract is the closest and clearest basis for resolving disputes.

1.1.2.2. Controlling

According to the Vietnamese dictionary, "control" is understood as examining to detect and prevent anything that is against regulations, placed within the scope and authority of a certain subject.

From the above concept, it can be understood that legal control of surrogacy is an individual, a group of people, an organization that monitors, reviews, evaluates, and compares with established regulations to see whether certain individuals, groups of people, or organizations comply with those regulations or not. If any acts that are contrary to established regulations are discovered, they must be promptly stopped to avoid bad consequences [4, p.18]

That is, the State will issue legal documents, regulating the conditions for surrogacy, regulations on giving birth by assisted reproductive technology, the agreement of the parties, the determination of parents and the resolution of legal disputes. The control of the law here covers both the contractual agreement between the parties to ensure the legal issues involved in case of disputes and at the same time control by specific medical measures, methods to perform surrogacy. These conditions require the participation of medical facilities, State management agencies, ensuring strict legal procedures. Specifically, to perform surrogacy, the parties must submit a request to perform surrogacy for humanitarian purposes to a medical facility licensed to perform this technique, including: 1. Application for surrogacy according to the form; 2. Commitment to voluntarily perform surrogacy for humanitarian purposes according to the form; 3. A statement from the person agreeing to be a surrogate mother that she has never been a surrogate mother; 4. A confirmation of the couple's childlessness, certified by the People's Committee of the commune where the couple requesting the surrogacy resides; 5. A confirmation from the medical facility performing in vitro fertilization that the wife has a medical condition that, if she becomes pregnant, will pose a high risk to the health and life of the mother and fetus, and that the mother cannot become pregnant and give birth even when assisted reproductive technology is applied; 6. A confirmation from the medical facility performing in vitro fertilization for the surrogate mother about her ability to become pregnant, meeting the regulations for embryo recipients as follows: the recipient of sperm, egg, or embryo must be healthy enough to perform in vitro fertilization, become pregnant, and give birth; must not be suffering from sexually transmitted diseases, HIV, or STDs;

infectious diseases belonging to group A, B; not suffering from genetic diseases that affect the next generation, not suffering from mental illness or other diseases that make them unable to perceive and control their behavior and have given birth; 7. Confirmation from the People's Committee of the commune level or the surrogate mother or the person requesting the surrogacy to prove their relationship with the same line of kin based on relevant civil status documents and be responsible before the law for the authenticity of these documents; 8. Confirmation from the husband of the surrogate mother (in case the surrogate mother has a husband) on his consent to the surrogacy; 9. Confirmation of medical advice from an obstetrician; 10. Confirmation of psychological advice from a person with a university degree in psychology or higher; 11. Confirmation of legal advice from a lawyer or jurist or legal aid person; 12. Agreement on surrogacy for humanitarian purposes between the couple requesting the surrogacy and the surrogate mother as prescribed. [4, p20]

In order to bind the parties to their agreement and to make it easier for the law to control and monitor the agreement of the two parties, the agreement between the two parties participating in the surrogacy agreement must be made in writing and notarized in accordance with the provisions of the law. The 2014 Law on Marriage and Family clearly demonstrates the voluntary spirit of the parties participating in the surrogacy agreement with the provision that both the spouses requesting the surrogacy and the spouses receiving the surrogacy must participate in signing the agreement. In the case where the spouses requesting the surrogacy authorize each other or the spouses receiving the surrogacy authorize each other regarding the agreement, the authorization must be made in writing and notarized and the authorization to a third party is not legally valid. The clear provision that the parties' voluntariness must be made in writing and notarized is a condition for easy control by the law. Currently, the world can be divided into 4 groups: countries without regulations, countries that oppose it, countries that allow surrogacy for humanitarian purposes, and countries that approve commercialization. Although the social situation and legal views of countries on surrogacy are different, the promulgation of regulations to control them all have the same purpose of protecting the rights of the parties involved in the relationship and ensuring the will of the State on this issue to satisfy the conditions and goals set out before.

1.1.2.3. Ethical surrogacy

It can be said that allowing “surrogacy” is not allowing “renting a child”. Allowing “surrogacy” for certain designated subjects to ensure the right to work

The legitimate mother of all women and the surrogate mother are not for profit. Surrogacy is an achievement of medicine, it can be said that it is a great progress to make the dream of being a mother of many women come true. The nature of "surrogacy" is very humane because it is a help of one woman to another woman to give birth to children. Pregnancy and childbirth are also meaningful acts to maintain the race, unite and preserve the happiness of each family.

1.2. Contents of the law on surrogacy

1.2.1. The law on surrogacy stipulates the functions, tasks and powers of agencies in practicing and controlling surrogacy.

The 2014 Law on Marriage and Family clearly stipulates medical examination and treatment facilities that are allowed to perform in vitro fertilization; conditions for surrogacy for humanitarian purposes and the authority to provide a certificate of reproductive status for infertile cases who want to perform surrogacy. The People's Committee at the commune level is responsible for confirming the marital status, the relationship between the party requesting the surrogacy and the party receiving the surrogacy, the status of having or not having children together, etc. In case of a dispute, the parties have the right to request the Court to resolve it, specifically the District People's Court. Any violations will be handled according to the provisions of the Law on Marriage and Family and other relevant legal documents.

1.2.2. The law stipulates the rights and obligations of each party when participating in a surrogacy relationship.

When entering into this relationship, both parties must establish mutual rights and obligations. This is not only expressed in the form of an agreement according to the will of the party requesting the surrogacy and the surrogate mother, but must also be based on the requirements of the law on the content of the exercise of rights. The law clearly stipulates the settlement of consequences in case of obstetric complications; support to ensure reproductive health for the surrogate mother during pregnancy and childbirth, the receipt of the child by the party requesting the surrogacy, the rights and obligations of both parties towards the child in case the child has not been handed over to the party requesting the surrogacy and other related rights and obligations.

It can be seen that the regulation on the time of termination of rights and obligations of the parties in surrogacy relationship for humanitarian purposes is reasonable, on the one hand, it best ensures the health of the child from the time it is a fetus until birth.

Perfecting the law in the field of surrogacy in Vietnam today - 2

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