To overcome infertility and meet the needs of infertile couples and single women to have children, the law of our country has allowed the above subjects to apply in vitro fertilization. So, in the case of applying in vitro fertilization, how will the identification of father, mother and child be done? In the article below, Apra Law will analyze the legal issue of identifying father, mother and child in the case of childbirth by in vitro fertilization technique.
What is in vitro fertilization?
Clause 21 Article 3 of the 2014 Law Marriage and Family holds that: “Giving birth with assisted reproductive technology means giving birth through artificial insemination or in vitro fertilization”. Thus, there are two methods of assisted reproduction, which are: (i) Artificial insemination; (ii) In vitro fertilization. In which, in vitro fertilization is “in vitro fertilization means the combination between an egg and sperm in vitro to create an embryo” (Clause 1 Article 2, Decree No.10/2015/ND-CP on giving birth through in vitro fertilization and conditions for altruistic gestational surrogacy). In other words, in vitro fertilization is a method of fertilization whereby an egg is fertilized by sperm outside the body, in a test tube, to form an embryo. The embryos are raised for 2 to 5 days and then transferred to the woman’s uterus.
Cases of application of in vitro fertilization
According to clause 1 Article 3 Decree No.10/2015/NĐ-CP, there are two cases where in vitro fertilization is applied:
Firstly, an infertile couple desiring to have children: Clause 2 Article 2 Decree No.10/2015/ND-CP holds that: “Infertility means a wife’s being unable to conceive after the couple has unprotected sexual intercourse on an average of 2-3 times/week for one year”. Thus, in case the husband is infertile or the wife is infertile or both are infertile, this method will be applied.
Secondly, a single woman desiring to have children: Clause 6 Article 2 Decree No.10/2015/ND-CP holds that: “Single woman means a woman who has no lawful marriage relation as prescribed by law”. Thus, a woman who who has no lawful marriage relation according to the provisions of the law may apply in vitro fertilization method.
Identification of father, mother and child in case of childbirth by in vitro fertilization technique
Firstly, for an infertile couple: Clause 1, Article 93 and Article 88 of the 2014 Law on Marriage and Family stipulate that the determination of father, mother and child in this case shall be done according to the principle of legal presumption, specifically:
– A child who is born or conceived by the wife during the marriage period is the common child of the husband and wife.
– A child who is born within 300 days from the time of termination of a marriage shall be regarded as a child conceived by the wife during the marriage period.
– A child who is born before the date of marriage registration and recognized by his/her parents is the common child of the husband and wife.
However, not all of the above-mentioned principles of determining father, mother and child apply to infertile couples. Clause 2 Article 2 Decree No.10/2015/ND-CP holds that: “Infertility means a wife’s being unable to conceive after the couple has unprotected sexual intercourse on an average of 2-3 times/week for one year”. Thus, the case of children born before the date the husband and wife register their marriage and are recognized by the couple as common children will not apply to the case of children born by in vitro fertilization technique. Thus, if the children are born before the date of marriage registration and are recognized by the couple as common children shall not apply to the case of children born by in vitro fertilization technique.
Secondly, for single women:
Clause 6 Article 2 Decree No.10/2015/ND-CP holds that: “Single woman means a woman who has no lawful marriage relation as prescribed by law”. Then, a single woman may receive sperm from another person in case she wishes to have a baby and whose eggs are qualified for impregnation (Clause 1 Article 5 Decree No.10/2015/ND-CP), or she may receive embryos from another person in case she has no egg or whose eggs are unqualified for impregnation (Point c Clause 3 Article 5 Decree No.10/2015/ND-CP). In both cases, the child born shall be identified as the child of the single woman, according to clause 2 Article 93 of the 2014 Law on Marriage and Family: “A single woman who gives birth to a child with assisted reproductive technology is the mother of that child”. Identification of mother and child in such case is based on the voluntariness and birth events of the single woman herself.
The question here is, whether there is a parent-child relationship between a sperm donor and an embryo donor. According to Article 93 of the 2014 Law on Marriage and Family: “No parent-child relationship shall arise between a person who donates sperm, egg or embryo and the child born with assisted reproductive technology”. Thus, giving birth by in vitro fertilization technique applied to single women shall not give rise to a father, mother and child relationship between the sperm donor, the embryo and the born child. This regulation is completely compatible with the principle specified in Clause 4, Article 3 Decree No.10/2015/ND-CP: “The donation and receipt of sperm or embryos shall be conducted on the principle of anonymity of donors and recipients, sperm and embryos of donors shall be encoded to ensure confidentiality while characteristics of donors, particularly their race, shall be clearly indicated”. This also helps to eliminate disputes that may arise about the parent-child relationship between a sperm donor, a donor, an infertile couple and a single woman.
Above is the consulting article on “Identifying father, mother and child in case of childbirth by in vitro fertilization technique” of Apra Law Firm. If you still have questions about the above issues and need to be answered, please contact the hotline for further advice and support.
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