The dif­fi­cult road to par­ent­hood for same­sex 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

Oi Vietnam - - Contents -

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 par­entchild 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.

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 ofAudier & 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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