Giving birth by in vitro fertilization when the husband is dead

Friend N.T. T (in Da Nang) asked: My husband and I have been married for nearly 10 years. In the early years of marriage, both of us thought that we were still young, needed to focus on our careers, and were not in a hurry to have children. We planned to earn money to buy land, build houses, buy cars... and then think about children.

My husband and I worked hard, getting caught up in the work. After a while, when we had the money, we started thinking about having children. At this time, due to the pressure of work leading to mental fatigue, I had to take medicine to treat my health. My husband had to go to work far away due to moving the branch to another province, only occasionally returning home, so I still couldn't get pregnant.

Both sides, paternal and maternal, were anxious, wanting to have grandchildren to hold, so they urged us many times. My husband is also an only child, so my mother-in-law also said long and hard about getting married for a long time but not having children, which made me even more pressured. After discussing, my husband and I decided to do artificial insemination. Luck did not come to my husband and me when both times we failed and the number of embryos stored was gone. Not discouraged, my husband and I encouraged each other to improve our health to prepare to continue working.

Unfortunately, while waiting for the next in vitro fertilization, my husband had an accident on the way to work. The accident caused my husband to fall into a coma and then died due to his severe injuries.

My husband's passing was a big shock to me. Especially when seeing my parents-in-law over 70 years old and no one by my side made me even more sad. Not wanting to see my old and depressed parents and also not wanting myself to be lonely later, I decided to have in vitro fertilization from my husband's sperm that had been stored.

This time, being blessed by God, I was lucky to get 2 embryos, the fetus developed well and was about to give birth. However, I have one concern: how is my child born registered for birth? My husband has died, can the children be considered common children of my husband and wife and have their father's name on the birth certificate? I would like to ask the lawyer for advice.

Regarding the legal issue you asked, lawyer Duong Thu Hien - Thanh Lam Law Company Limited - advises as follows:

Article 65 of the Law on Marriage and Family in 2014 (amended and supplemented in 2025) stipulates the Time of termination of marriage: "Marriage ends from the time the spouse dies.

In case the Court declares the spouse dead, the time of marriage termination is determined according to the death date recorded in the judgment or decision of the Court.

Based on the provisions of law, your marriage will end from the time your husband dies.

However, Article 9 of Decree 207/2025/ND-CP dated July 15, 2025 of the Government stipulates sending sperm, sending eggs, and sending embryos as follows:

Article 9. Send sperm, send eggs, send embryos

...

2. Cases where the sperm donor, egg donor, or dead embryo donor:

a) If the sperm sender dies, the storage facility must destroy the sperm being stored of that person, except in cases where: the wife wishes to have children from the sperm of her deceased husband; or before death, the sender has a written expressing their wish to donate sperm to the storage facility as prescribed in this Decree;

....

4. People who use sperm, eggs, and embryos in the cases specified in Clause 2 or Clause 3 of this Article that give rise to non-marital and family relations shall comply with the provisions of the law on marriage and family and civil law.

Thus, in case the husband sends dead sperm, the storage facility must destroy the sperm being stored of that person, except for cases where: the wife wishes to have children from the sperm of the deceased husband. This means that the wife can completely request to have children from the sperm of the deceased husband and will be accepted according to the law.

Accordingly, in case the wife uses sperm stored from her deceased husband for artificial insemination, the father-child relationship of the child will be determined based on the provisions of the Law on Marriage and Family 2014 (amended and supplemented in 2025).

Clause 1, Article 88 of the Law on Marriage and Family 2014 (amended and supplemented in 2025) stipulates the determination of father and mother as follows:

Article 88. Determining father, mother

1. Children born during the marriage period or because the wife is pregnant during the marriage period are common children of husband and wife.

A child born within 300 days from the date of termination of marriage is considered a child because the wife is pregnant during the marriage period.

Children born before the date of marriage registration and recognized by parents as common children of husband and wife.

Thus, if your child is born from in vitro fertilization within 300 days from the time your husband dies, then in principle the child will be considered the child of your deceased husband (common child during the marriage period).

In case your child is born from in vitro fertilization after 300 days from the time your husband died, it will not be considered your husband's child.

However, to prevent the child from being disadvantaged, Clause 1, Article 90 of the Law on Marriage and Family 2014 (amended and supplemented in 2025) stipulates: The child has the right to recognize their parents, even in cases where the parents have died. Therefore, you can carry out procedures according to the provisions of Article 102 of the Law on Marriage and Family 2014 (amended and supplemented in 2025) to identify your husband as the father of your child.

Clause 2, Article 101 of the Law on Marriage and Family in 2014 (amended and supplemented in 2025) stipulates the authority to resolve the determination of father, mother, and child:

“2. The Court has jurisdiction to resolve the determination of father, mother, or child in cases of dispute or the person requested to be identified as a deceased father, mother, or child and cases specified in Article 92 of this Law.

The Court's decision on determining fathers, mothers, and children must be sent to the civil status registration agency for notes in accordance with the law on civil status; parties in the relationship of determining fathers, mothers, and children; individuals, agencies, and organizations involved in accordance with the law on civil procedure.

Because your husband has died, according to regulations, you need to carry out procedures to request identification of father and son at the competent Court. After completion and there is a Decision of the Court, your deceased husband will be legally recognized as the father of your child. The Court's decision on identification of father and son is sent to the civil registration agency for notes according to the provisions of the law on civil registration, the birth registration agency will note your husband as the father of your child according to Clause 2, Article 101 of the Law on Marriage and Family in 2014 (amended and supplemented in 2025).

The above is the advice of the lawyer, wishing you to soon resolve your problems.