Nong Duc Tai[1]
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| An expectant mother receiving prenatal care__Photo: https://familymaid.vn |
Current state of surrogacy in Vietnam
Vietnam is among the countries in the region with a relatively high rate of infertility, with an estimated 7-8 per cent of couples of reproductive age experiencing difficulties in conceiving. In this context, the desire to become parents represents a legitimate and deeply profound aspiration. The introduction of the institution of altruistic surrogacy in the 2014 Law on Marriage and Family officially paved the way for thousands of families, enabling them to have children who carry their own genetic lineage. Since the first successful surrogacy case in 2016, many babies have been born through this mechanism, bringing immense happiness to parents after years of longing and affirming the significant humanitarian value of this policy.
Nonetheless, alongside these positive outcomes, the social reality surrounding surrogacy has increasingly revealed complex developments, posing numerous challenges for state management. One of the most pressing issues today is the growing prevalence of illegal surrogacy networks, often disguised under the guise of “humanitarian assistance” or “support.” Brokers use social media platforms to establish closed groups in which they recruit surrogate mothers with promises of compensation amounting to several hundred million Vietnam dong. Such activities not only seriously violate legal regulations, effectively transforming surrogacy into a form of profit-driven “commercial surrogacy”, but also pose risks to women’s health, facilitate the exploitation of vulnerable women, and may even lead to child trafficking, thereby causing significant public concern.
In addition, although surrogacy has been legally permitted, social prejudices surrounding the practice remain relatively strong. Many people continue to hold unfavourable views, or even stigmatize women who act as surrogate mothers, perceiving the practice as contrary to traditional moral values. Such attitudes inadvertently create considerable psychological pressure, discouraging women who might otherwise wish to assist relatives out of compassion. Even couples who seek surrogacy may encounter negative comments from family members or friends, which can adversely affect their emotional well-being throughout what is already a challenging journey.
Finally, a reality that cannot be overlooked is that the demand for surrogacy in practice has extended beyond the scope currently permitted by law. In addition to legally married couples facing infertility, an increasing number of single women and individuals from the LGBT community have expressed legitimate aspirations to have children. However, due to the absence of a clear legal framework governing such situations, they are often compelled either to resort to informal or illegal arrangements, entailing significant legal and health risks, or to abandon their hope of parenthood altogether. This legal gap not only creates opportunities for the proliferation of illicit services but also raises broader questions about the inclusiveness and humanitarian character of the legal system in ensuring reproductive rights for all citizens.
Current legal framework
Vietnam’s legal framework governing surrogacy has been developed with considerable caution and a strong humanitarian orientation. At its core is the 2014 Law on Marriage and Family, together with implementing regulations, most notably Decree 10/2015/ND-CP and, more recently, Decree 207/2025/ND-CP. Through these instruments, the legal framework on surrogacy has gradually been refined. It seeks both to facilitate infertile couples in realising their aspiration to become parents and to ensure strict regulatory control in order to prevent potential abuses.
Progressive aspects
One of the most notable advances of Vietnam’s law lies in the formal institutionalisation and detailed regulation of the parties involved in altruistic surrogacy arrangements.
With regard to the intending parents (the requesting party)
Under Article 95 of the 2014 Law on Marriage and Family, the requesting party must be a legally married couple. A fundamental condition is that the wife must be medically certified as unable to conceive and give birth even after the use of assisted reproductive technologies. In addition, the couple must not have a common child and must have received comprehensive counselling regarding the medical, legal, and psychological implications before proceeding with surrogacy. These requirements aim to ensure that surrogacy functions strictly as a last resort, after all available medical interventions have proven unsuccessful.
Regarding the surrogate mother
The law establishes strict criteria designed to protect women and preserve the humanitarian nature of the arrangement. The surrogate must be a relative of either the wife or the husband within the same family line (such as a sister or cousin), must have previously given birth, and may act as a surrogate only once in her lifetime. She must be of an appropriate reproductive age and receive medical confirmation that she is capable of pregnancy. Importantly, if the surrogate is married, the written consent of her husband is mandatory. These provisions are intended to minimize potential psychological and legal conflicts while also demonstrating respect for the family stability of the surrogate.
Beyond setting eligibility requirements, the law also establishes a relatively comprehensive framework of rights and obligations for the parties involved, thereby providing a clear legal basis for the implementation of surrogacy arrangements. The surrogate mother has rights and responsibilities comparable to those of a parent with respect to reproductive healthcare and the care of the foetus until the child is handed over to the requesting couple. She is entitled to maternity benefits in accordance with the labour and social insurance laws. Conversely, the requesting couple is responsible for covering the actual costs associated with reproductive healthcare and is strictly prohibited from refusing to receive the child. Their parental rights and obligations towards the child arise from the moment of birth.
In addition to permitting and protecting altruistic surrogacy relationships, Vietnam’s law also provides strict sanctions to address violations, particularly commercial surrogacy.
Administrative sanctions and criminal liability
According to Article 60 of Decree 82/2020/ND-CP, the act of giving birth through assisted reproductive techniques for commercial purposes, including commercial surrogacy, is subject to an administrative fine of between VND 5 million and 10 million. Violators are also required to return any unlawful profits obtained from such activities. These sanctions may apply to the requesting party, the surrogate mother, as well as other individuals involved in the commercial arrangement.
More serious violations, such as organising or brokering commercial surrogacy networks, may give rise to criminal prosecution. Article 187 of the 2015 Criminal Code establishes the offense of “organising surrogacy for commercial purposes.”
The subject of this offense is the organiser or broker rather than the woman who directly acts as a surrogate, who is generally subject only to administrative sanctions. Such conduct infringes upon the institution of marriage and family as well as the state’s social management order.
Criminal penalties are divided into two principal tiers. Offenders may face a fine of between VND 50 million and 200 million, non-custodial reform for up to two years, or imprisonment from three months to two years. In aggravated circumstances, such as organised crime, offences involving two or more participants, repeated offences, or dangerous recidivism, the penalty may increase to imprisonment ranging from one to five years. In addition, offenders may be subject to supplementary fines of VND 10-50 million and may be prohibited from holding certain positions or practicing certain professions for one year to five years.
A particularly noteworthy development is the issuance of Decree 207/2025/ND-CP, which represents a significant step towards updating and refining the legal framework. This decree not only replaces Decree 10/2015/ND-CP but also introduces several progressive provisions. For the first time, the law formally permits single women who wish to undergo assisted reproductive procedures to do so, thereby opening the possibility of motherhood to a broader group of individuals. The decree also strengthens regulatory requirements for medical facilities, mandating at least two years of experience in performing in vitro fertilisation (IVF) procedures and the presence of professional counselling teams specialising in medical, psychological and legal issues. Furthermore, administrative procedures have been simplified in order to facilitate greater accessibility for citizens.
Limitations and challenges
Despite considerable progress and timely updates, an objective assessment indicates that Vietnam’s regulations on surrogacy still reveal limitations and shortcomings.
First, conceptual ambiguity and legal boundaries
One of the most crucial issues lies in the blurred boundary between “altruistic” and “commercial” surrogacy. While the law prohibits parties from obtaining economic benefits from surrogacy arrangements, it provides limited guidance on what constitutes an “economic benefit” and what types of financial support may be considered legitimate. For example, questions remain as to whether expenses such as health recovery allowances, compensation for lost income, transportation costs, accommodation, or nutrition support should be regarded as reasonable. The lack of detailed guidance creates difficulties in the practical application of the law and inadvertently leaves loopholes that may be exploited.
Second, eligibility requirements for participating parties
Certain legal conditions are increasingly viewed as overly restrictive and lacking flexibility.
For the requesting party, the law currently limits eligibility to legally married couples who do not yet have a common child. This approach overlooks the reproductive needs of several other groups, including single women who may now access assisted reproductive technologies but whose right to request surrogacy remains unclear, same-sex couples wishing to have children, and married couples who already have one child but face the risk of transmitting serious hereditary diseases and therefore wish to have another healthy child.
For the surrogate mother, the requirement that she must be a close relative of the requesting couple, although intended to ensure trust and minimise conflicts, can become a significant barrier in modern societies where nuclear families are increasingly common. Many couples wishing to pursue surrogacy are unable to identify a qualified and willing relative. Furthermore, the requirement that the surrogate must have previously given birth may exclude women who are physically and psychologically capable of undertaking surrogacy but have not yet had children. Similarly, the legal provision that the surrogate must be “of appropriate age” lacks clear quantitative criteria, thereby creating uncertainty in practical enforcement.
Third, protection of the surrogate mother’s rights and interests
Although the law recognises the surrogate’s right to reproductive healthcare and maternity benefits, these protections have not yet been fully elaborated. Current regulations lack comprehensive provisions on postnatal psychological support, such as measures to prevent postpartum depression, as well as long-term health insurance coverage or mechanisms for addressing medical complications that may arise after the child has been handed over to the requesting parents. As a result, surrogate mothers may face significant health and psychological risks without adequate legal safeguards.
Fourth, procedural gaps and dispute resolution mechanisms
Another important shortcoming concerns the lack of clear legal procedures for addressing sensitive medical decisions during pregnancy. For instance, in case severe foetal abnormalities are detected, it remains unclear about who holds ultimate decision-making authority. Similarly, the extent to which the requesting parents have the right to access medical information and participate in such decisions is not sufficiently specified. The absence of detailed regulations in this area may lead to serious conflicts between the parties and could ultimately affect the best interests of the child.
Although sanctions exist for violations such as refusing to accept the child or failing to fulfil maintenance obligations, these measures remain insufficiently deterrent and often encounter difficulties in practical enforcement.
Recommendations
In light of the legal realities and the limitations discussed above, further legislative refinement is necessary to ensure that the institution of altruistic surrogacy is effectively implemented in practice, fully realises its humanitarian value, and adequately responds to the legitimate needs of citizens.
Firstly, the concept and legal boundaries should be clarified.
One of the most fundamental issues that requires clarification is the boundary between “altruistic surrogacy” and “commercial surrogacy.” Current regulations remain relatively general and lack precise criteria, thereby creating difficulties in practical enforcement and leaving room for abuse.
A detailed implementing guideline should be issued, potentially in the form of a joint circular by the Ministry of Health, the Ministry of Finance, and the Ministry of Home Affairs, to clearly define the categories of expenses that the requesting party is responsible for covering. These expenses include:
(i) Medical costs associated with prenatal care and childbirth in accordance with established medical procedures;
(ii) Nutritional and health-related allowances for the surrogate throughout the pregnancy and postpartum recovery period;
(iii) Transportation costs related to medical examinations and delivery;
(iv) Compensation for lost income during pregnancy and maternity leave (which may be calculated based on the regional minimum wage or the average income level in the locality); and,
(v) Postnatal healthcare costs.
Quantifying these expenses would not only help distinguish altruistic arrangements from commercial ones but also better protect the legitimate interests of surrogate mothers.
Implementing regulations should further identify specific indicators of prohibited commercialization, such as payments exceeding the reasonable expenses listed above, brokerage or organisational activities conducted for profit, and the advertising or solicitation of surrogacy services on digital platforms. Such clarification would provide competent authorities with a clearer legal basis for detecting and handling violations in a timely manner.
Secondly, the expansion of eligible participants and conditions is needed.
Practical experience reveals that many individuals with legitimate needs for surrogacy are unable to meet the current legal requirements, which are considered overly restrictive. Accordingly, legislative reform should move towards a controlled expansion of eligible participants.
With respect to the requesting party, the law should allow exceptions for couples whose children are affected by serious hereditary diseases. Article 95 of the 2014 Law on Marriage and Family could be amended to permit couples who already have a child, but whose child suffers a serious hereditary disease or congenital condition confirmed by a specialised central-level medical institution, to request surrogacy for the purpose of having a healthy child.
Besides, the law should formally recognise the right of single women to request surrogacy. Decree 207/2025/ND-CP represents important progress by allowing single women to access assisted reproductive technologies. Building on this development, the legal framework could be further amended to extend this right to surrogacy, provided that such individuals satisfy requirements relating to health status, financial capacity, and comprehensive counselling and evaluation.
Moreover, the possibility of extending access to same-sex couples may be explored. Although this remains a sensitive issue requiring comprehensive research, including comparative analysis of international practices and broad public consultation. It should not be excluded from long-term legislative planning. Recognition of the parental rights of members of the LGBT community reflects the evolving social landscape of modern societies and aligns with broader human rights principles.
With respect to the surrogate mother, the definition of “eligible relatives” should be expanded. The current requirement that the surrogate must be a close relative is widely regarded as overly restrictive. The definition could be broadened to include, for example, legally adopted family members and relatives by marriage, such as sisters-in-law within the extended family structure.
In addition, the law may consider allowing non-relatives to act as surrogate mothers. Where no qualified relative is available, a carefully designed mechanism could permit non-relatives to serve as surrogates under close supervision by competent authorities, for instance through an interdisciplinary review council at the provincial or municipal level. Such an approach would address legitimate demand while maintaining safeguards against commercialisation.
Furthermore, existing requirements concerning prior childbirth and appropriate age should be reconsidered. The requirement that the surrogate must have previously given birth may unnecessarily exclude women who possess full civil act capacity, good physical and psychological health, and who are certified by a professional review panel as capable of undertaking surrogacy.
Furthermore, the legal provision requiring the surrogate to be of “appropriate age” should be replaced by a clearly defined age range based on scientific evidence and recommendations from the World Health Organization. For example, an age range between 20 years and 40 years may be considered the safest reproductive age group.
Thirdly, the protection of surrogate mothers should be strengthened.
Legal regulations should provide more comprehensive protection for surrogate mothers, addressing not only physical health but also psychological well-being and long-term risks.
Regarding the right to psychological care, the law should mandate psychological counselling before, during, and after pregnancy. Medical facilities performing surrogacy procedures should be required to cooperate with mental health professionals to monitor and provide support to surrogate mothers, particularly in preventing postpartum depression or other psychological complications.
Regarding health risk insurance, the requesting party ought to be required to purchase health insurance and accident insurance for the surrogate mother covering the entire pregnancy and postpartum recovery period, for example, at least twelve months after childbirth. This requirement would provide financial protection against potential medical complications.
With respect to post-delivery health protection mechanisms, clear provisions should also be introduced requiring the requesting party to continue sharing medical expenses if the surrogate mother experiences health conditions directly related to the pregnancy, such as chronic gynaecological complications or impacts on future reproductive capacity, even after the child has been handed over.
Fourthly, procedures and mechanisms for addressing emerging issues should be improved.
To enhance feasibility and reduce potential disputes, more detailed regulations should be established regarding procedural steps and the management of unexpected situations.
Administrative procedures should continue to be streamlined in accordance with Decree 207/2025/ND-CP. At the same time, clear guidelines should be issued to prevent bureaucratic obstacles or overlapping responsibilities among agencies. Public disclosure of the list of licensed medical institutions authorised to perform surrogacy procedures, as well as reputable legal and psychological counselling services, would enhance public accessibility and transparency.
The law should also establish a clear coordination mechanism among the parties involved, namely the requesting parents, the surrogate mother, medical specialists, and counsellors, particularly in case severe foetal abnormalities are diagnosed. While the final decision may ultimately rest with the pregnant woman, it should be made on the basis of comprehensive medical consultation with the requesting parents.
More effective enforcement measures are needed for violations such as refusal to accept the child or failure to fulfil maintenance obligations. Consideration may be given to introducing criminal liability in particularly serious cases where such refusal results in severe consequences, including abandonment or lack of parental care.
At the same time, stronger coordination should be promoted among competent authorities, including law enforcement agencies, health departments, and information and communications authorities, in order to detect and eliminate illegal surrogacy brokerage networks and online advertising activities.
Finally, greater emphasis should be placed on legal education and public awareness regarding surrogacy. Improving public understanding of rights and obligations in surrogacy arrangements will help citizens distinguish between legitimate humanitarian practices and illegal commercial activities. Such efforts may also contribute to reducing social stigma and fostering a supportive environment in which this humanitarian policy can function effectively.
In conclusion, the refinement of the legal framework governing surrogacy is a long-term process requiring the coordinated participation of multiple institutions, policymakers and experts. The recommendations mentioned above aim to contribute to the development of a legal regime that is sufficiently flexible to meet legitimate humanitarian needs while remaining sufficiently robust to prevent abuse and protect the rights, health and dignity of women and children, thereby supporting the advancement of a more equitable, humane, and progressive society.-
[1] People’s Security Academy
