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Vietnam: New Family Law Adopted

(Sept. 15, 2015) Vietnam’s legislature has adopted a new Law on Marriage and Family that will come into effect on January 1, 2016. The Law has 133 articles, arranged in nine chapters, and institutes a number of significant reforms. The primary goal of the Law is to give citizens a legal means to exercise their human rights in family relationships. (New Law on Marriage and Family, VIETNAM LAW AND LEGAL FORUM (Aug. 5, 2015).)

Same-Sex Marriages

The new Law ends the previous legislation’s ban on same-sex marriages, which had been a provision the article 10 of that previous law, discussing circumstances in which marriage is forbidden. (Id.; The Marriage and Family Law 2000, Law No.22/2000/QH10 (June 9, 2000), art. 10 ¶ 5, ANT.) While the new text does not extend legal protection to individuals in such marriages in case of conflicts between the spouses, it does end the prohibition on same-sex marriages. (New Law on Marriage and Family, supra.)

Marriages Involving Foreigners

The new Law has a full chapter on marriage and family relations when a foreigner is involved. While in general all the provisions applicable to citizens also apply to foreigners, there are some provisions that apply to foreigners specifically. The chapter contains information on consular legalization of any documentation involved in establishing family relationships involving foreigners. Foreign court judgments on family relations that include a request that Vietnam carry out enforcement may be accepted if they comply with existing Civil Procedure Code provisions. Detailed regulations on family relationships involving foreigners are forthcoming. (Id.; Civil Procedure Code, Law No. 24/2004/QH11 (June 15, 2004), National Office of Intellectual Property of Vietnam website.)

Surrogacy

The new Law also contains provisions on other aspects of family relationships, including gestational surrogacy. It permits and defines the rights and responsibilities of the parties to voluntary surrogacy arrangements when they are completely altruistic in nature. It defines the specific conditions that must be met by the parties to the relationship. (New Law on Marriage and Family, supra.) A couple can look for a gestational surrogate if the wife is unable to successfully complete a pregnancy, even when assisted reproductive technology is considered. Furthermore, the couple must have no existing children in common and must undergo counseling on the medical, legal, and psychological aspects. The surrogate must be a relative of the couple, must have previously given birth but not served as a surrogate before, and must be an appropriate age. She must also have extensive pre-surrogacy counseling, and, if married, obtain consent from her husband, in writing, to go ahead with the surrogacy. (Id.)

The new Law will permit disputes over surrogacy relationships to be adjudicated in the courts. If both spouses in the couple requesting the surrogacy die or lose their capacity to take legal action before they receive the baby, the surrogate mother has the right, but is not required, to raise the child. (Id.) Should the surrogate decide not to keep the child in such a situation, guardianship would be determined under other provisions of the Law. (Id.)