Saint Louis University

SCHOOL OF LAW
Baguio City

November 28, 2016

IN THE MATTER OF THE SURROGACY CONTRACTS ENTERED INTO BY JOEL

SANTOS CRUZ, AND VICKI BELO AND HAYDEN KHO ABROAD.

These are consolidated cases of surrogacy contracted by Joel Santos Cruz in one case and
by Vicki Belo and Hayden Kho in another in which the researchers sought to answer research
questions given to them by their Professor in fulfillment of their requirements in Law 111,
Persons and Family Relations.

The factual antecedents are as follows:

Joel Santos Cruz case:

Joel Santos Cruz is a businessman who is the president and CEO of brands Aficionado
Germany Perfumes. He then wanted to have children of his own but he could not do it the
usual way it would be done because he does not want to have intimate or sexual relations with
a woman and that he was attracted to boys, even when he was still a kid. So, he did the process
having a child through IVF (In-Vitro Fertilization).

He began the process here in the Philippines by consulting two specialists. The egg cells
were bought abroad and the surrogate mothers were Filipinas. They tried the procedure three
times, but it did not work. Just when he was losing hope, he tried checking the Internet and found
what he had been looking for. Initially, he chose a Ukrainian as a surrogate mother but he was

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rejected because he would be a single father and it is against Ukrainian law. So, he was then told
to try the process in Russia because there was no prohibition to a single father. He then went to a
law firm in Moscow, with a clientele around the world, which took care of everything, from
contracting the doctor and looking for the surrogate mother, etc. He stayed there for five days to
complete all the requirements necessary. He chose a woman, long-legged, and a 31-year-old
single mother, who looks like Julia Roberts. He saw and knew the woman but the latter did not.
He then submitted his sperm in August 2011.

After five months, on January 12, 2012, he got a call that the procedure was working, and
that the surrogate mother was conceiving. According to the ultrasound, he was going to have
twins. Originally, the whole contract costs around 6 million pesos per child, but he was charged
an additional half of that amount because he was having twins. The surrogate mother then gave
birth on September 4, three days ahead of the original date of September 22. Joel then arrived
one week after that. Before he could bring the babies home to the Philippines in October, he
submitted numerous documents such as birth certificates, permit from the Department of Justice,
etc. The twins traveled with Russian passports but now, they have dual passports, Russian and
Filipino. 1

Vicki Belo and Hayden Kho case:

In the case of Vicki Belo and Hayden Kho, they claim that their baby Scarlet Snow is 100
percent their daughter. In an article that came out on Philippine Star on Tuesday, May 17, Ricky
Lo wrote that the 14-month-old celebrity baby is Hayden's daughter "not with...Dr. Vicki Belo
but with a surrogate mother whom neither Hayden nor Vicki has ever met." But in a statement
sent to ABS-CBN's Bandila aired Wednesday, May 18, the celebrity doctor clarified that Scarlet
Snow, while carried by a surrogate mother, is "100% our baby," Vicki said. Hayden explained to
Ricky that the surrogate mother was only a carrier, a gestational surrogate, and has no genetic

1 http://www.philstar.com/entertainment/2013/02/15/908891/how-joel-cruz-got-twin-joys (last seen

August 19, 2016)

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contribution to their baby. Hayden then further said in a text message that Scarlet is not
Mexican-American.2

The questions sought to be answered are as follows:

I. Are the surrogacy contracts entered into by Joel Santos Cruz, and Vicki Belo
and Hayden Kho abroad valid here in the Philippines?
a. If the contracts, with the same parties involved, were entered and executed
here in the Philippine, are they valid?
b. If the surrogate mother is also a Filipino citizen, are they valid?
c. If no payment or consideration was given to the surrogate, are they valid?
II. Are the children considered their own children? If yes, are they legitimate or
illegitimate children?
III. If the surrogacy contracts were prepared by a Filipino lawyer, did the lawyer
violate any rule on legal ethics by doing so?

To answer the preceding questions, the researchers would first discuss about the medical
procedure performed, and the nature and legalities of the contract executed by the parties in the
cases.

Artificial Insemination

Artificial insemination (AI) is defined as the impregnation of a female (usually the wife)
with semen from a male (ideally from the husband) without sexual intercourse. 3 More
technically, it is the "introduction of seminal fluid with spermatozoa in the generative tract of a
woman by means of syringe, pipette, irrigation or other similar means."4

2 http://manila.coconuts.co/2016/05/19/vicki-and-hayden-scarlet-snow-100-percent-our-baby (last seen

August 19, 2016)

3 Flerida Ruth P. Romero, Legal Aspects of Artificial Insemination, 58 PHIL. L. J. 280, (1983)

4 Domingo Castillo et al., A Legal Perspective on Artificial Insemination, 51 PHIL. L. J. 142, 146 (1976)

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 AI is classified according to whose semen is used. Semen may be secured from the
husband and injected by instrument into the womans reproductive tract in order to induce
pregnancy. This process is known as homologous artificial insemination or artificial insemination
by the husband (AIH).5 This is done when the husband has live spermatozoa of adequate number
but cannot deposit them in the woman for conception to take place.

Artificial insemination has actually been in use for centuries. 6 Its first use was made on
animals as early as 1322.7 The first reported case of AI on a human being occurred in 1799 when
a husbands sperm was used to impregnate his wife.8

Artificial Insemination and Philippine Law

Philippine law expressly recognizes artificial insemination. The Family Code of the
Philippines provide:

Article 164. Children conceived or born during the marriage of the parents are
legitimate. Children conceived as a result of artificial insemination of the wife with the
sperm of the husband or that of a donor or both are likewise legitimate children of the
husband and his wife, provided, that both of them authorized or ratified such
insemination in a written instrument executed and signed by them before the birth of the
child. The instrument shall be recorded in the civil registry together with the birth
certificate of the child.9

5 Id.

6 The first Catholic Church decision to address the issue of artificial insemination was made as far back
as 1897. When asked the question of whether AI is permissible) the cardinals with the approval of Pope
Leo XIII replied, "Non Licere." It was only in 1949 that they formulated a policy. In an address by Pope
Leo XII to Catholic doctors, he condemned AI as immoral and illicit except when it "serves as an
auxiliary to the natural union of the spouses and of fecundation." Castillo, ibid note 2, at 143, n.4.

7 Id.

8 Id.

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This provision shows the progressiveness of the Code in taking into account modern
technologies that were yet to be regulated under positive law.10 Furthermore, this settles the
question of the status of the child born under artificial insemination.

Surrogacy and the Process

Artificial Insemination is used in surrogacy. Surrogacy is defined as the "practice

whereby a woman carries a child for another with the intention that the child should be handed
over after birth.11 This method is resorted to when the problem lies in the infertility of the wife
who is unable to carry to term.12 It is an arrangement between a third person, called the surrogate,
and a contracting couple, whereby the surrogate carries a baby to term and turns over the child
after birth to the contracting couple. The surrogate then relinquishes all parental rights over the
child.

Surrogate motherhood is not limited to any particular method of conception. There are at
least four possible situations involving surrogate mothers. First, a surrogate is artificially
inseminated and the child is then surrendered to the sperm donor. This involves the use of the
surrogates own egg to be fertilized by either the husband or a donors sperm. Second, the
surrogate carries a zygote created through in vitro fertilization, with the child going to the ovum
donor at birth. The husbands or a donors sperm may be used. Third, the zygote is created
through in vivo fertilization with the child going to the ovum donor at birth. A Fourth possibility
follows the same procedure as the second and the third with the child going to a third person,

9 The Family Code of the Philippines, Art. 164

10 ARTURO TOLENTINO, I COMMENTARIES AND JURISPRUDENCE ON THE CIVIL CODE OF

THEPHILIPPINES 521 (1997 ed.) [hereinafter I TOLENTINO].

11 Report of the Committee of Inquiry into Human Fertilization and Embryology (Dame Mary Warnock,
Chairman) (1984), London: HMSO, Cmnd. 9314, at par. 8.l.

12 JOHN K. MASON, MEDICO-LEGAL ASPECTS OF REPRODUCTION AND PARENTHOOD 226

(1990).

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typically, the sperm donor. This arises when the egg used is from a donor fertilized by the
husbands sperm.

Surrogacy is classified as either traditional or gestational. Traditional surrogacy is a

situation where the sperm of the intending father is used to fertilize a surrogates ovum.
Gestational surrogacy refers to an instance where the zygote of the couple is implanted into the
uterus of a surrogate who carries it to term.

The surrogate and the contracting parties enter into a contract prior to the execution of the
arrangement. The contract contains the condition that the surrogate must have the ability to bear
children and restrictions on any of the listed actions that may cause harm to the child. The
contract also provides for the relinquishment of the child to the contracting couple after birth and
the amount to be paid to the surrogate as her compensation for services rendered.

Legalities of Surrogacy - Generally

What have been the legislative responses to surrogacy contracts? In foreign countries,
there are four possible categories considered: prohibition, facilitation, regulation, and a static
approach.13 Prohibition refers to efforts to prevent surrogacy arrangements. It is divided into two
categories: criminalization and null and void contracts. Such a response is based on public
policy arguments, like the commodification of the babies, the possible psychological harm to the
mother who relinquishes custody of the child, and the failure to consider the childs best interest.
In facilitation, the government acts to enforce the agreements made by consenting parties. This
approach supports commercial services involved in the surrogacy process.14

13 Ian McAllister, Modern Reproductive Technology and the Laws: Surrogacy Contracts in the United
States and England, 20 SUFFOLK TRANS. L. REV. 303, 308 (1996).

14 McAllister, supra Note 10, at 308

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 A regulatory-scheme, on the other hand, would enforce surrogacy contracts that meet
ordered criteria.15 This can include the requirement of judicial review of all surrogacy contracts
or the use of a state agency for matching participants. Although this will settle all controversies
regarding the legal status of the child and custody rights, there is the danger that such an
approach would lead to excessive government interference.

The static approach provides that even absent legislative guidelines, courts may address
questions regarding custody and validity of contracts. Courts are more likely to consider them as
voidable rather than void per se. Any attempt by the courts to prohibit reproductive technologies
not addressed by the legislature is tantamount to judicial legislation.

There are a lot of countries that do not allow surrogacy at all, including, France,
Germany, Italy, Pakistan, Saudi Arabia and many Islamic countries. In France, the
commissioning parents of a surrogate child are legally prevented from adopting it, even if the
surrogate mother is happy to give the child up. South Africa, a popular fertility tourism
destination, does not allow surrogacy for parents from another country, even though they permit
it for residents.16

Many more countries have laws that prohibit commercial surrogacy but do
allow altruistic surrogacy. In some countries, commercial surrogacy is actually a criminal
offence. Altruistic surrogacy is permitted in Australia, Canada, Israel and some states in the
USA. In Israel, surrogacy agreements must be approved by the state and surrogates are restricted
to single women, widows and divorcees. In the USA, some states are more open to surrogacy
issues than others, with states like California and Maryland surrogate friendly, while New York
and the so called bible-belt Mid-West states are more restrictive.17

15 Id.

16 http://fertility.treatmentabroad.com/going-abroad-for-treatment/surrogacy-issues (Last seen

November 10, 2016)

17 Id.

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 In some countries commercial surrogacy is not only legal, it is encouraged as a growing
industry that attracts foreign visitors. Georgia, Russia, Ukraine and, most famously, India, have
all become major destinations for fertility tourism due to their liberal views on surrogacy
issues.18

It is important to remember that while surrogacy, and even commercial surrogacy, may be
legal in a chosen destination country, people may still encounter problems once they get home,
especially if their home nation is less open minded. 19 For example, a British couple who traveled
abroad for surrogacy may find that they need a visa to bring their child home, and will face a
complex legal road to register the child as their own. Interested people should check that their
home nation will recognize their rights to the child and allow them to formally adopt before they
embark on the surrogacy process.20

Legalities of Surrogacy in Russia

Russia is one of the few lucky countries where surrogacy is allowed by law. The legal
aspects of surrogacy are stipulated by the Family Code of the Russian Federation and
the Russian Law on the Population Healthcare. The medical aspect of surrogacy is spelt out in
Order 67 issued by the Russian Ministry of Healthcare. The Russian Law of Civil Healthcare of
June 22,1993 #5487-1, Article 35 Artificial insemination and implantation of embryos states the
following: Every major woman of fertile age is entitled to the right of artificial insemination and
implantation of an embryo. A woman can be artificially inseminated and have an embryo
implanted in licensed medical centres upon the written consent of the spouses (of a single
woman). All the information concerning the artificial insemination and embryo implantation, as
well as the donors personal data constitute a medical secret. After the delivery of the baby the

18 Id.

19 Id.

20 Id.

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surrogate mother, according to Paragraph 4, Article 51 of the Family Code of the Russian
Federation and Paragraph 5, Article 16 of the Federal Law of the Russian Federation Civil
Acts, gives her consent for putting the biological parents names onto the birth registrar. By
doing this, the surrogate mother reassigns her rights to the baby to the biological parents and thus
cannot claim her rights anymore.21

In Russia, local surrogate maternity programs are accessible for foreigners, and according
to its laws, marital status of the intended parent(s) is not important, for even a single person can
also have the right to have a surrogate child. 22

Article 51 of the Family Code of the Russian Federation states that, " Married persons
who have given their written consent for the implantation of an embryo to another woman for the
purpose of carrying it to term, can be registered as parents of the child only with the consent of
the woman who gave birth to that child (the surrogate mother)". Art. 52 of the Family Code of
the Russian Federation states that "neither the spouses, who have given their consent for the
implantation of an embryo to another woman, nor the surrogate mother (section two, paragraph 4
of article 51 of the present Code) have the right to invoke these circumstances when contesting
the parentage after the parents have been entered into the register of births." Paragraph 5, page
16 of the law "On Civil Status Acts" states that "During the official registration of the birth of a
child on application of the spouses, who had given their consent for the implantation of an
embryo to another woman for the purpose of carrying it to term, a document, issued by a medical
organization in confirmation of the consent obtained from the woman, who gave birth to that
child (the surrogate mother), for registering said spouses as the child's parents must be presented
concurrently with the document confirming the birth of the child. 23 After the entry of the parents
in the book of birth registrations is made, the surrogate irrevocably loses all rights to the child.

21 http://surrogacy.ru/eng/FAQ/ (last seen November 27, 2016)

22 http://blogs.elenasmodels.com/en/surrogacy-in-russia/ (last seen November 27, 2016)

23 http://www.surrogacymed.com/legal-matters/surrogacy-in-russia.html (last seen November 27, 2016)

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 Children born to heterosexual couples who are not officially married or single intended
parents through gestational surrogacy should be registered in accordance to analogy of jus (art. 5
of the Family Code of Russia). A court decision might be needed for that; but on August 5, 2009,
a St. Petersburg court definitely resolved a dispute whether single women could apply for
surrogacy and obliged the State Registration Authority to register a 35-year-old single intended
mother, Nataliya Gorskaya, as the mother of her "surrogate" son who became the first woman in
Russia to defend her right to become mother through a court procedure. On November 3, 2009 a
Moscow district court adopted the same decision on a similar case. 24 Similarly, on August 4,
2010 Babushkinsky District Court decided that single man who applied for gestational surrogacy
(donor eggs were used) can be registered as father of his new born surrogate child. Surrogates
name wont be listed on the birth certificate. The First Single Dad Through Surrogacy in Russia
was represented in Court by lawyers of the Rosjurconsulting law firm, specializing in
reproductive law and surrogacy. The Moscow Courts landmark decision confirmed once more:
single intended parents regardless of their sex or sexual orientation can implement their right for
parenthood through surrogacy in Russia.25 After these landmark decisions, authorities started
registration of "surrogate" children born to single intended parents without waiting for a court
ruling.

Legalities of Surrogacy in the USA

In the USA, Arkansas was one of the first states to enact surrogacy friendly laws. In
1989, under then Governor Bill Clinton, it passed Act 647, which states that in a surrogacy
arrangement, the biological father and his wife will be recognized as the child's legal parents
from birth, even if his wife is not genetically related to the child (i.e., in a traditional surrogacy
arrangement). If he is unmarried, he alone will be recognized as the legal parent. A woman may

24 Reproductive BioMedicine Online, Abstracts of the 5 th Congress of the World Association of

Reproductive Medicine, 10-13 October, 2010, Moscow, Russia. www.rbmonline.com

25 http://www.surrogacy.ru/eng/news/news4.php (last seen November 27, 2016)

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also be recognized as the legal mother of the surrogate birth mother's genetic child as long as that
child was conceived with anonymous donor sperm.26

California law, as established in rulings of the California Supreme Court, is very

favorable to surrogacy. Although California has no statute that directly addresses the surrogacy
process, the state's courts have used California's Uniform Parentage Act for the purpose of
interpreting a number of different cases that relate to this procedure. In the notable cases
of Calvert v. Johnson (1993) and Buzzanca v. Buzzanca (1998), California first established and
then reinforced its position that intent governs in the determination of parentage in gestational
surrogacy situations. It held that the intended parents as part of a gestational surrogacy
agreement should be recognized as both the legal and the natural parents.

In a gestational surrogacy situation, the surrogate is not the biological contributor of the
egg, but rather the carrier of the embryo that is made up of the intended father's sperm and the
intended mother's egg and is then implanted into the surrogate's uterus via in vitro
fertilization. In the Johnson versus Calvert case, the court ultimately decided that the person who
had intended to procreate - in this case, the intended mother who provided the egg - would be
considered as the child's natural mother.27

In California, an existing statutory law applicable is the Uniform Parentage Act (UPA),
which was never designed to govern the new reproductive technology of gestational surrogacy.
Under the UPA, both the genetic mother and the gestational mother have an equal right to be the
childs natural mother. But the UPA allows the natural mother for each child, and thus the court is
required to make a choice. To break this tie between the genetic mother and the gestational
26 https://en.wikipedia.org/wiki/Surrogacy_laws_by_country (last seen November 27, 2016)

27 http://www.modernfamilysurrogacy.com/page/state_laws_in_california_for_surrogacy (last seen

November 27, 2016)

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mother, the majority uses the legal concept if intent. In so doing, the majority has articulated the
rationale for using the concept of intent that is grounded in principle of tort, intellectual property
and commercial contract law.

The allocation of parental rights and responsibilities necessarily impacts the welfare of a
minor child. And in issues of child welfare, the standard that courts frequently apply is the best
interests of the child. Indeed, it is highly significant that the UPA itself looks to a child's best
interests in deciding another question of parental rights. This best interests standard serves to
assure that in the judicial resolution of disputes affecting a child's well-being, protection of the
minor child is the foremost consideration. Consequently, we would apply the best interests of
the child standard to determine who can best assume the social and legal responsibilities of
motherhood for a child born of a gestational surrogacy arrangement.

Surrogacy Contracts in the Philippines

In the Philippines, at present, there is no governing law on surrogacy; but the view has
been taken that surrogacy contracts should be declared void for being against public policy.
Although prohibition is the least attractive option, it would be favored in our country because of
the conservative standpoint held by most of the citizens influenced by religion and the belief that
such an arrangement tends to denigrate the sanctity of marriage. If Filipinos, however, engage
into surrogacy contracts abroad, it may become valid. Article 17 of the Civil Code of the
Philippines provide that: The forms and solemnities of contracts, wills, and other public
instruments shall be governed by the laws of the country in which they are executed.28

The rst paragraph of the Article lays down the rule of lex loci celebrationis insofar as
extrinsic validity (forms and solemnities) is concerned. Thus, a contract entered into by a
Filipino in Japan will be governed by Japanese law insofar as form and solemnities of the

28 Civil Code of the Philippines, Art. 17

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contract are concerned.29 It should be noted that while the rst paragraph of Article 17 speaks of
forms and solemnities, no mention is made of the law that should govern the intrinsic validity of
contracts in general. The prevailing rule in Private International Law today is to consider the lex
loci voluntatis (the law of the place voluntarily selected) or the lex loci intentionis (the law of the
place intended by the parties to the contract). 30 Hence, if a surrogacy contract is entered and
executed abroad, and as long as it is legally allowed in that place, then the contract is said to be
valid.

On the other hand, in a surrogacy contract entered into here in the Philippines, there is a
contradicting view. In a surrogacy, the surrogate mother and the putative parents sign a contract
that promises the couple will cover all medical expenses in addition to the womans payment,
and the surrogate mother will hand over the baby after birth. The essential elements of a valid
contract are consent, cause and consideration. A surrogacy contract may be attacked that its
object is beyond the commerce of man.31

Article 1318 of the Civil Code provides: There is no contract unless the following
requisites concur:
1. Consent of the contracting parties
2. Object certain which is the subject matter of the contract
3. Cause of the obligation which is established
Per the Civil Code, the requisites of things as object of a contract are the
following:
a. The thing must be within the commerce of man (Art. 1347)
b. It must not be impossible, legally or physically (Art. 1348)
c. It must be in existence or capable of coming into existence (Arts. 1461, 1493
and 1494)
d. It must be determinate or determinable without the need of a new contract
between the parties (Arts. 1349 and 1460)

29 Civil Code of the Philippines Annotated 16th Edition, Paras, Edgardo, Rex Book Store: Manila, p.117

30 Id. at 119

31 https://ausltechlaw.wordpress.com/2012/09/26/espino-donato-the-appreciation-of-surrogate-mothers-
in-the-philippine-legal-system/ (Last seen November 11, 2016)

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 By analogy, we can apply the case of Beltran et. al. vs. The Secretary of Health (GR no.
133640), promulgated En Banc by the Supreme Court on November 25, 2005. Petitioners
Beltran and others, all operators of privately-owned commercial blood bank companies,
questioned the constitutionality of the National Blood Services Act of 1994 (R.A. 7719), which
called for the phase-out of all commercial blood bank companies within two years from the
effectivity of the Act. Among others, the law sought to encourage voluntary blood donations
instead of persons selling their blood to the commercial blood banks. It was learned that most of
the persons who sell their blood are poor so they make a livelihood selling their blood. The
Supreme Court quoted the petitioners as follows: xxx under the Civil Code, the human body
and its organs like the heart, the kidney and the liver are outside the commerce of man xxx.32

It therefore appears that a human organ is a not a proper object of a valid contract. A
females vagina, uterus, fallopian tubes, cervix and ovary are part of her internal reproductive
organ, being a human organ, it is beyond the commerce of man.33

Also, there will be issues in the cause or consideration of the contract if the surrogate
mother will be compensated with money. Cause is the essential and impelling reason why a party
assumes an obligation.34 According to Article 1352 of the Civil Code of the Philippines, contracts
without cause, or with unlawful cause, produce no effect whatsoever. The cause is unlawful if it
is contrary to law, morals, good customs, public order or public policy.

In surrogacy, there are two arrangements: altruistic surrogacy and commercial surrogacy.
In altruistic surrogacy, the surrogate mother is not paid for her service. She offers her womb as

32 Id.

33 Id.

34 Civil Code of the Philippines Annotated, Supra at page 680

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an act of altruism. Often there will be a pre-established bond between the surrogate mother and
the expecting couple. Typically, the surrogate mother is a friend or a relative. While in
commercial surrogacy, the surrogate mother receives compensation for carrying the child. Often
there will be a mediating party, a surrogacy agency that deals with all the practical arrangements
for the commissioning couple, such as finding a suitable surrogate mother and dealing with all
the paperwork, etc. 35

In an article entitled The Ethics of Surrogacy, the author wrote numerous views
regarding surrogacy, which some are enumerated as follow: First is that, commercial surrogacy is
a form of or comparable to prostitution. One can view the women as selling physical, intimate,
bodily services; selling their bodies and their function for money. In another, it is a form of
alienated labor. Many people work and are not emotionally attached to the 'product' of their work
or the work process for that matter. In relation to surrogacy, it is physical reproductive labor.
Reproduction is something that many people believe belong in the private sphere and should be
surrounded with respect and emotional attachment. Women's reproductive capacities should not
be used as physical labor and the status of a child, should not be relegated to that of a
commodity. Also, surrogacy turn babies into commodities. During a pregnancy a woman is
supposed to bond with her unborn baby. Surrogacy prevents the mother from forming a natural
bond to her baby and therefore forces her to emotionally detach herself from her pregnancy.
Normally the child is the end goal in a pregnancy. For the surrogate mother the child becomes
the means, for something else, namely money. When the child becomes a means, the child is
commoditized.36

Typically, basing on the aforementioned, it can be viewed that commercial surrogacy is

contrary to law, morals, good customs, public order or public policy. It is then an unlawful cause,
which would then produce no effect as a requisite of a valid contract here in the Philippines. It
would be much better if altruistic surrogacy is contacted in that the surrogate mother is

35 http://www.positive-parenting-ally.com/ethics-of-surrogacy.html (last seen November 27, 2016)

36 Id

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performing such service gratuitously for liberality, which is allowed under Article 1350 of the
Civil Code.

Discussion on the Validity of the Surrogacy Contract and its Implication to Filiation and
Legitimacy

Surrogacy is the practice whereby a woman, the surrogate mother, carries a child for
another person and that person's partner, herein the commissioning couple, as the result of an
agreement prior to conception that the child should be handed over to the commissioning couple
after the birth. It involves the transplantation of reproductive cells, usually through artificial
insemination, to the surrogate mother. The surrogate mother may be the genetic mother, where
her own egg was used to create the embryo; or she may have had a fertilized embryo implanted
in her, in which case she will not be genetically related to the child. These situations are
sometimes referred to as, respectively, "partial/traditional" surrogacy and "host/full/gestational"
surrogacy. The commissioning couple may both be the genetic parents, or just one or neither of
them may be genetically related to the child. This will depend on the sources of the egg and
sperm used to create the embryo. In some instances, it may be that both the sperm and the egg
were provided by donors, so that the resulting child is not related genetically to either the
surrogate mother or the commissioning couple.37

In the case of Joel Santos Cruz, since he is the donor of the sperm cell and he chose a
Russian surrogate mother who look likes Julia Roberts, and in which case her own egg cell was
presumed to be have been used, it is referred to as a traditional surrogacy. It was performed in
Russia, and compensation was paid to the surrogate mother. Whereas, in the case of Vicki Belo
and Hayden Kho, since they claim that the child is 100% their daughter and that the surrogate
mother is only a carrier and has no genetic contribution to their baby, because presumably their
own egg and sperm cells were used, it is referred to as a gestational surrogacy. Further research
revealed that the place where the couple performed it was in the USA, but it was not specifically
determined which state. Presumably, it was a state where surrogacy is valid.

37 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/268039/surrogacy.pdf
(last seen November 27, 2016)

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Validity of the Contracts

In the cases of Joel Santos Cruz and Vicki Belo and Hayden Kho, they entered into
surrogacy contracts abroad in order to have offspring of their own. It was contracted in places,
namely Russia and the USA, where surrogacy is allowed. Considering that the surrogacy
contracts entered by them abroad were executed and all obligations stipulated therein were
fulfilled or extinguished as manifested in the facts that the surrogacy was a success, the contract
executed abroad is valid as it is governed by the law of the place it was executed according to the
doctrine of lex loci celebrationis or Article 17 of the Civil Code of the Philippines. Therefore, the
surrogacy contracts entered into by Joel Santos Cruz, and Vicki Belo and Hayden Kho abroad is
valid here in the Philippines.

If, however, the contracts, with the same parties involved, were entered and executed here
in the Philippine, it would be invalid. The discussion in the preceding pages regarding the
legalities of surrogacy contracts warrant that it be void because it does not have a lawful object
and cause, and it may also be viewed that surrogacy may be against morals, good customs,
public order, or public policy. It is against Article 1306 and 1318 of the Civil Code of the
Philippines, and therefore against the law.

If in another situation, the surrogacy contracts entered into by Joel Santos Cruz, and Vicki
Belo and Hayden Kho abroad was with a surrogate mother who is also a Filipino Citizen, it
would still remain valid because the law of the place where the contract was executed (lex loci
celebrationis) and the law of the place intended by the parties to the contract (lex loci intentionis)
would govern.

Lastly, if the situation is that there was no payment or consideration given to the
surrogate, it would still remain valid. This is because it is much globally accepted that altruistic
surrogacy is performed rather than commercial surrogacy. But it is still the responsibility of the

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commissioning couple to provide the surrogate mother with all her needs during the process
pursuant to Article 19 of the Civil Code of the Philippines which provide: Every person must, in
the exercise of his rights and in the performance of his duties, act with justice, give everyone his
due, and observe honesty and good faith.

Filiation and Legitimacy

In the case of Joel Santos Cruz, the twins, Prince Sean and Princess Synne, are
considered to be his own children. However, they are considered to be illegitimate. Under
Russian Laws, Joel Santos Cruz is legally capable to enter into a contract of surrogacy with the
Russian woman to be the surrogate mother of his intended children. He may then register his
name as the father in the birth certificate with the consent of the surrogate mother. Since the
surrogate mother presumably consented to such because there were no troubles in the filiation of
the child as stated in the case, and that he was able to bring home the babies to the Philippines,
therefore, the surrogate mother gave up her rights to the twins to Joel Santos Cruz as the parent
registered in the birth certificate of the children. As stated in Article 172 of the Family Code of
the Philippines, The liation of legitimate children is established by any of the following: (1)
The record of birth appearing in the civil register or a nal judgment; or (2) An admission of
legitimate liation in a public document or a private handwritten instrument and signed by the
parent concerned. Also in Article 175 of the same code, Illegitimate children may establish
their illegitimate liation in the same way and on the same evidence as legitimate children.
Filiation is the fact or condition of being a son or daughter; relationship of a child to a parent. 38
To establish filiation under the law, the birth certificate signed by the father is competent
evidence of paternity. A birth certicate, being a public document, offers prima facie evidence of
liation and a high degree of proof is needed to overthrow the presumption of truth contained in
such public document.39

38 Blacks Law Dictionary, 9th Edition

39 Heirs of Cabals, et al. v. Court of Appeals, GR 106314-15

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Therefore, Joel Santos Cruz is considered to be the father of the children, however, they must be
considered illegitimate because he is not validly married to the surrogate mother, and according
to Article 165 of the Family Code, Children conceived and born outside a valid marriage are
illegitimate, unless otherwise provided in this Code.

In the case of Kho and Belo, the fertilized egg was collected from Belo and Kho and was
then implanted to the uterus of an unnamed American-Mexican surrogate mother who gave birth
to baby Scarlet Snow in U.S last March 3, 2015. 40 It is also known as gestational surrogacy
where a surrogate is implanted with an embryo created by IVF, using intended father's sperm and
intended mother's eggs. The resulting child is genetically unrelated to the surrogate.41

To answer the issue on whether or not, baby Scarlet Snow Belo, is considered their (Kho
and Belo) own, yes, Scarlet Snow Belo is considered their own. In the present case, Kho and
Belo decided to have a baby to build a family and to stay together forever and provide love and
support for the intended child through surrogacy. Therefore, premises considered, Hayden Kho
and Vicki Belo are the genetic, biological and natural parents of Scarlet Snow Belo. However,
the child is considered to be illegitimate because Kho and Belo are not validly married. 42 In
pursuant to Article 165 of the Family Code of the Philippines, Children conceived and born
outside a valid marriage are illegitimate, unless, otherwise provided by the law. Hayden Kho
and Vicki Belo are not legally married, thus the child conceived or born, whether through a
natural sexual intercourse or by in vitro fertilization, is prima facie illegitimate.

Ethical Considerations of the Filipino Lawyer

40 http://www.pep.ph/news/63077/vicki-belo-clarifies-scarlet-snow-is-her-biological-daughter-with-
hayden-kho (last seen November 27, 2016)

41 https://en.wikipedia.org/wiki/Surrogacy#Gestational_surrogacy_.28GS.29 (last seen November 27, 2016)

42 http://lifestyle.inquirer.net/228942/why-vicki-and-hayden-decided-to-have-a-baby/ (last seen

November 27, 2016)

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 Life is not something people give away; it is a gift from God and God alone. Surrogacy
as a growing industry in the present century faces a lot of criticisms, debates and deliberations.
Every people have his own view and opinion on whether the practice of surrogacy is ethical or
otherwise. The word surrogate means substitute. That means a surrogate mother is the substitute
for the genetic-biological mother. In common language, a surrogate mother is the person who is
hired to bear a child, which she hands over to her employer at birth.43

Professional responsibility, on the other hand, is the area of legal practice that
encompasses the duties of attorneys to act in a professional manner, obey the law, avoid conflicts
of interest, and put the interests of clients ahead of their own interests. Moreover, Legal Ethics
encompasses an ethical code governing the conduct of persons engaged in the practice of law.
These are rules and conducts that must be followed by a Filipino lawyer in rendering services to
the country, to the court, to his clients and to his colleagues.44

The lawyer who gets into the contract will be liable. Under Article 1318 of the Civil Code
of the Philippines Book IV, Obligations and Contracts, a contracts has 4 requisites namely, (1)
Consent of the contracting parties; (2) Object certain which is the subject matter of the contract;
and (3) Cause of the obligation which is established.45 In the case at bar, Joel Cruz, who had his
twins given by a Russian surrogate in exchange of cash 46, albeit the contract is valid in Russia, it
is not recognized here in the Philippines since it is an unlawful practice. Under the second
requisite which is the object, it is not merely an object to speak of but has definite qualifications.
The contract being made was not valid for the reason that the child was not within the commerce
of the man. With that, it cannot be an object of the contract. Further, since the zygote will be
embedded into another woman (surrogate mother), the reproductive organ is in the same manner,

43 Surrogate Motherhood Ethical or Commercial

44 Judicial Process: Law, Courts, and Politics in the United States by Stephen Scott Meinhold

45 Civil Code of the Philippines Obligations and Contracts, Book IV

46 http://www.philstar.com/entertainment/2013/02/15/908891/how-joel-cruz-got-twin-joys (last seen

November 27, 2016)

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not within the commerce of the biological mother. Since Joel Cruz paid the surrogate mother for
his twins, it is understood that the surrogates womb was made for business thus being the object
of the contract. Moreover, According to Article 1347, paragraph 3 of the Civil Code of the
Philippines, All services which are not contrary to law, morals, good customs, public order, or
public policy may likewise be the object of a contract, 47 a womans womb being part of the
human body is not a proper object of a contract for the reason that it is beyond the commerce of
man. Though it is provided in the same code that there should be a consent of the contracting
parties, still, the object is not certain which should be the matter of the contract.

The second premise in which the lawyer who binded the contract is liable, is on Canons
and Rules of Code of Professional Responsibility. Under Canon 1 A lawyer shall uphold, obey
the laws of the land and promote respect for law and legal processes and under which is Rule
1.01 which states that A lawyer shall not engage in unlawful, immoral or deceitful conduct.
Since, surrogacy is a violation of public policy, a Filipino lawyer then who made a surrogacy
contract may it be abroad or within the Philippines, violated the paramount law of the land which
is the Constitution because a surrogacy contracts were then considered unlawful. Moreover,
Canon 22 states that A lawyer shall withdraw his services only for good cause and upon notice
appropriate in the circumstances. It is very clear as stated that a lawyer should withdraw himself
from any service that is ground on immorality. As stated under Rule 22.01, a lawyer should not
bind a contract to anyone who pursues an illegal or immoral course of conduct in connection
with the matter he is handling. Lastly, under Rules 18.01, a lawyer shall not undertake a legal
service which he knows or should know that he is not qualified to render. Filipino lawyers cannot
participate in Surrogacy contracts performed in abroad because their legal services are only
performed, valid, and binding in the Philippines.48

Conclusion

47 Id

48 Code of Professional Responsibility Canons and Rules of Legal Ethics

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 WHEREFORE, premises considered, the researchers conclude that:
I. The surrogacy contracts entered into by Joel Santos Cruz, and Vicki Belo and
Hayden Kho abroad are valid here in the Philippines.
a. If the contracts, with the same parties involved, were entered and
executed here in the Philippine, they are invalid.
b. If the surrogate mother is also a Filipino citizen, they are valid.
c. If no payment or consideration was given to the surrogate, they are still
valid?
II. The children are considered their own; however, they are considered to be
illegitimate children.
III. If the surrogacy contracts were prepared by a Filipino lawyer, the lawyer
violated the Canons and Rules enumerated in the Code of Professional
Responsibility and Legal Ethics.

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