San Sebastian College – Recoletos 1

CHAPTER I

THE BACKGROUND OF THE STUDY AND RELATED RESEARCH

WORK

Introduction

As much as how dramatic the stories of surrogacy are – as prosed in

movies and various TV series here in the Philippines, the tales about the conflict

of rights of the parties involves, are as painfully true as it is in the real world.

The advent of more advanced technology came as a miracle to many

couples from the world over who are having a hard time to conceive their own

child. From going to Obando, Antipolo, praying to different saints and practicing

different superstitions, surrogacy as a means of artificial method of reproduction

saved their family life from breaking up. Take into account popular figures from

the Hollywood in the likes of Elton John and David Furnish who are among

celebrities to become parents of a baby born to a surrogate mother.

In the Philippines, even though it is not yet profusely practiced, surrogacy

is now taking the limelight among big people in the society, especially among
 San Sebastian College – Recoletos 2
celebrities, same-sex couples and a lot more. The latest example is Scarlet Snow

Belo (the daughter of cosmetic surgeons Vicky Belo and Hayden Kho) who is

also a baby born to a surrogate.

The Oxford Dictionary defines a surrogate mother as a “woman who bears

a child on behalf of another woman, usually by artificial insemination of her own

egg by the other woman’s partner”.

Surrogate is also known as “substitute” and it is derived from the Latin

word rogo or “ask”. In practical terms, it is the process of using a substitute

mother in place of the natural mother. Surrogacy comes in two types, the

traditional surrogacy and gestational surrogacy.

In traditional surrogacy (Straight Method) the surrogate is pregnant with

her own biological child, but this child was conceived with the intention of

relinquishing the child to be raised by others such as the biological father and

possibly his spouse or partner. The child may be conceived via sexual

intercourse (NI), home artificial insemination using fresh or frozen sperm or

impregnated via IUI (intrauterine insemination), or ICI (intracervical insemination)

which is performed at a fertility clinic. Sperm from the male partner of the
 San Sebastian College – Recoletos 3
‘commissioning couple’ may be used, or alternatively, sperm from a sperm donor

can be used. Donor sperm will, for example, be used if the ‘commissioning

couple’ are both female or where the child is commissioned by a single woman.

In gestational surrogacy (Host Method) the surrogate becomes pregnant

via embryo transfer with a child of which she is not the biological mother. She

may have made an arrangement to relinquish it to the biological mother or father

to raise, or to a parent who is unrelated to the child (e. g. because the child was

conceived using egg donation, sperm donation or is the result of a donated

embryo). The surrogate mother may be called the gestational carrier.

Advanced countries of Christian origins such as France, Belgium, Holland,

Australia, Canada, United Kingdom and Hungary, have made surrogacy illegal.

Surrogacy is also banned in Japan and Saudi Arabia, both non-Christian nations.

In the United States, surrogacy is legal depending on the state concerned.

Surrogacy is legal in Israel under their “Embryo Carrying Agreements Law”

passed in 1996. The only major nation where surrogacy is legal is India. In a

2008 case involving a Japanese baby, the Supreme Court of India held that

commercial surrogacy is allowed in India. Commercial surrogacy is now a

lucrative business in India, where the cost of a cycle is between US$14,000.00 to

US$25,000.00. The industry is now estimated to be worth US$500.0 Million per

 San Sebastian College – Recoletos 4
year (Indian Business Report, BBC World, March 18, 2009). Success, however,

is not assured because the average success rate is only 50%.

Advocates of surrogacy contend that this procedure helps save lives

because of female infertility or other medical issues which makes the pregnancy

or delivery risky.

Critics of surrogacy contend that the procedure is unethical and

undermines the legal provisions on adoption.

However, there is as yet no law governing the practice in the Philippines.

The transaction can still be said to be largely informal mainly because of the

absence of a firm law. In the last Congress, then Senator Manuel Villar filed a bill

in the Senate (Senate Bill No. 2344) which would have outlawed surrogacy.

There is yet no update about the status of the bill, but the bill proposes to

penalize not only surrogacy arrangement but also the act of selling infants by

their mothers. The practice of surrogacy arrangement is morally and religiously

wrong. Senator Manuel Villar said that he see no 'difference between surrogate

motherhood and black-market baby selling.’ Hence, both practices are outlawed

in the bill.
 San Sebastian College – Recoletos 5

Also in the said bill, Senator Manuel Villar described surrogate parenting

as “...a concept that is relatively new in this country, although for a long time it

has been widely known in the US and in other well-developed countries.

Surrogate motherhood is nothing but baby selling. It is similar to the generic

experiments that are done with animals which are bred for certain purposes. A

woman becomes a surrogate mother when she agrees to conceive a child in her

womb only to give away the child after birth to another person for a valuable

consideration.”

Senator Villar likewise added that “…while infertile couples desperately

seek to have a baby, their desires should not be met at the expense of

transforming human reproduction into a purely utilitarian enterprise. The idea of

negotiating pregnancy by commercial contract should be abhorrent to anyone

who believes in the dignity of human life. Commercialized surrogacy reduces

women to the status of breeding animals, their wombs rented, their eggs bought

and sold in much the same manner as commercial livestock. In the surrogacy

process, the ultimate victim is the baby, whose identity is fragment between two

parents whose only relationship with each other is a financial agreement. Babies

are not products like microwave ovens and automobiles. Pregnancy should never

be reduced to a commercial service. Civilized nations throughout the world have

 San Sebastian College – Recoletos 6
outlawed commercial surrogacy arrangements. It is now time for the Philippines

to follow suit. This will deter any future plans mostly of foreigners from luring our

Filipino women to become surrogate mothers. The quantity of surrogacy

incidents in the past, in our minds, will not justify the passage of a law banning

the same.”

It can be gleaned from the proposed bill that it focuses in prohibiting

surrogate motherhood including infant selling. It also provides for penalties in

violation thereof. However, the bill did not define and prescribe the rights of the

surrogate mother, the genetic mother and the child born to a surrogate mother.

Therefore, the rights of these persons which are not in anyway penalized

because of the absence of an implementing law are likewise not protected and

are subject to abuses and danger of exploitation.

It can be simply said that even if the practice is unlawful in the first place,

there is no firm law penalizing the same either.

In the Philippine jurisdiction, the legal status of surrogacy has not yet been

settled. However, since the practice of surrogacy is undeniably growing in the

 San Sebastian College – Recoletos 7
Filipino community, it becomes of import to define and prescribe the rights of the

surrogate mother, the genetic mother and the baby born to a surrogate.

The 1987 Constitution has no outright prohibition of surrogacy. Section 12,

Article II of the 1987 Constitution merely provides the following:

Section 12. The State recognizes the sanctity of family life and shall

protect and strengthen the family as a basic autonomous social institution.

It shall equally protect the life of the mother and the life of the unborn from

conception. The natural and primary right and duty of parents in the

rearing of the youth for civic efficiency and the development of moral

character shall receive the support of the Government.

The closest law the Philippines has on the subject of surrogacy is in The

Family Code of the Philippines (Family Code). The Family Code, however, is

silent about surrogacy but has provisions regarding artificial insemination or

adoption. Articles 163 and 164 of the Family Code provides:

Art. 163. The filiation of children may be by nature or by adoption. Natural

filiation may be legitimate or illegitimate.

 San Sebastian College – Recoletos 8

Art. 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.

Alexander B. Cabrera in his opinion published on Rappler.com he said

that in the Philippines, the contract of surrogacy is not expressly stated as illegal.

Some are of the legal opinion that a female’s reproductive system or parts

thereof are beyond the commerce of men. He views surrogacy, however, in the

genre of a service contract, the validity of which may lie in whether the service is

right or wrong. Although not listed in the law, he said that surrogacy could be

classified as an unenforceable contract. This means that even if the donor

parents pay for the surrogacy process and go to court to enforce it, they will lose

because the Philippine laws will only consider the birth mother as the parent

unless parental rights and authority are transferred by process of adoption. But if
 San Sebastian College – Recoletos 9
no one complains, it is ratified. Still, the right process should be to legally adopt

the child the donor parents have contracted to be conceived by a surrogate.

However, what is vague about the legality of surrogacy is the shortcut process

that after delivery—the names of the genetic parents are immediately placed on

the birth certificate of the child.

A leading author and professor in Civil Law, Atty. Elmer Rabuya, in his

book The Law on Persons and Family Relations noted that the law is concerned

with the establishment of paternity only and not maternity. He further wrote that

this is because nature always points out the mother by evident signs, and,

whether married or not, she is always certain. In the case of a surrogate contract,

who will be considered as the mother of the child? Is it the surrogate mother or

the putative mother? In as much as the child came out of the womb of the

surrogate mother, it may be concluded that the surrogate mother will be the

mother of the child in the eyes of the law.

It suggests that the donor parents cannot claim parental right over the

child that actually came from the womb of the surrogate. They can only claim

legitimacy over the child if they resort to adoption. Biologically, the child may

carry the mother and father’s DNA, genes and traits although some scientists say
 San Sebastian College – Recoletos 10
the surrogate’s genes may be present as well, but the law recognizes as mother

only the woman who carried the child to term.

There are a lot of complications over the rights of parties involved in the

process of surrogacy. There are no internationally recognized laws for surrogacy,

so many parents and children can be left vulnerable - or even stateless. It can

take several months to bring a surrogate baby back to the parents' home country,

as they may not be automatically recognized as the legal parents.

Many experts argue that an international agreement, similar to the Hague

Adoption Convention, is needed so that rules are consistent across different

countries. However, this could be difficult since countries are divided in their

views of surrogacy.

Importance of the Study

 San Sebastian College – Recoletos 11
The study by the researcher will look into the rights available to surrogate

mothers, the genetic mothers and the babies born to surrogate mothers,

especially that there is no firm law governing the same. The findings of the study

may serve as an effective guide to the authorities in balancing the views as to the

dispute or issue with regard to the rights of the involved parties, which has long

been debated by members of the society.

The study will help in balancing the promotion of child’s best interest while

protecting the interest of the society as a whole.

Statement of the Problem

1) What are the rights of a surrogate mother, a genetic mother and a child

born to a surrogate mother?"

2) Who has the better right over a child born to a surrogate mother?

Scope and Delimitations of the Study

 San Sebastian College – Recoletos 12
This paper seeks to determine the rights of a surrogate mother, the

genetic mother and the child born to a surrogate mother in the light of Philippine

civil law other related legal sources, as well the contract law. The paper is divided

into different parts. The first part provides a brief introduction of the paper while

the second part provide for its scope and limitations. The third part provides for

the methodology to be used in the study. This paper will conclude with an

assessment of the rights available to the parties involved as can be gleaned from

existing laws and jurisprudence in the Philippines. The study is limited to

Philippine setting, although it may use reference to laws of other countries as

may be deemed proper.

Operational Definition of Terms

 Surrogacy The Oxford Dictionary defines a surrogate mother as a

“woman who bears a child on behalf of another woman, usually by artificial

insemination of her own egg by the other woman’s partner”. Surrogate is

also known as “substitute” and it is derived from the Latin word rogo or

“ask”. In practical terms, it is the process of using a substitute mother in

place of the natural mother. Surrogacy comes in two types, the traditional

surrogacy and gestational surrogacy.

 Infertility The World Health Organization defines it as “a disease of the

reproductive system defined by the failure to achieve a clinical pregnancy

 San Sebastian College – Recoletos 13
after 12 months or more of regular unprotected sexual intercourse.”…

(WHO-ICMART glossary1). “Infertility is the inability of a sexually active,

non-contracepting couple to achieve pregnancy in one year.

 Sperm Cells is defined as haploid (they have half the number of

chromosomes as the other cells in the organism's body). Sperm often

have at least one flagellum. During fertilization, the nucleus of

a spermfuses with the nucleus of the much larger egg cell (the female

reproductive cell) to form a new organism.

 Egg Cell or ovum, is the female reproductive cell (gamete) in oogamous

organisms. The egg cellis typically not capable of active movement, and it

is much larger (visible to the naked eye) than the motile sperm cells.

 Artificial Insemination is the introduction of semen into part of the female

reproductive tract (as the cervical opening, uterus, or fallopian tube) by

other than natural means.

Flow Chart of the Research Process

The researcher will make use of qualitative approach in achieving the

objectives of the study. A qualitative approach is a general way of thinking about

conducting qualitative research. It describes, either explicitly or implicitly, the

purpose of the qualitative research, the role of the researchers, the stages of

research, and the method of data analysis.

 San Sebastian College – Recoletos 14

Particularly, the researcher will make use of written documents. This form

of qualitative approach usually refers to existing documents (as opposed

transcripts of interviews conducted for the research). It can include newspapers,

magazines, books, websites, memos, transcripts of conversations, annual

reports, and so on. Usually written documents are analyzed with some form

of content analysis.

Contemporary Studies and Literature Related to the Present Work

SENATE BILL NO. 2344

Surrogate parenting is a concept that is relatively new in this country,

although for a long time it has been widely known in the US. and in other

welldeveloped countries.

Surrogate motherhood is nothing but baby selling. It is similar to the

generic experiments that are done with animals who are bred for certain

purposes. A woman becomes a surrogate mother when she agrees to conceive a

 San Sebastian College – Recoletos 15
child in her womb only to give away the child after birth to another person for a

valuable consideration.

Infertility is a real crisis for many married couples. Medical advances can

help a significant number, but many still face the possibility of forever remaining

childless. Adoption is not a feasible alternative for most because fewer and fewer

children are available. Hence, a surrogate is often their only choice. We feel,

however, that while infertile couples desperately seek to have a baby, their

desires should not be met at the expense of transforming human reproduction

into a purely utilitarian enterprise.

The idea of negotiating pregnancy by commercial contract should be

abhorrent to anyone who believes in the dignity of human life. Commercialized

surrogacy reduces women to the status of breeding animals, their wombs rented,

their eggs bought and sold in much the same manner as commercial livestock. In

the surrogacy process, the ultimate victim is the baby, whose identity is fragment

between two parents whose only relationship with each other is a financial

agreement.

Babies are not products like microwave ovens and automobiles.

 San Sebastian College – Recoletos 16

Pregnancy should never be reduced to a commercial service. Civilized

nations throughout the world have outlawed commercial surrogacy

arrangements. It is now time for the Philippines to follow suit. This will deter any

future plans mostly of foreigners from luring our Filipino women to become

surrogate mothers. The quantity of surrogacy incidents in the past, in our minds,

will not justify the passage of a law banning the same.

The enclosed bill proposes to penalize not only surrogacy arrangement

but also the act of selling infants by their mothers. The practice of surrogacy

arrangement is morally and religiously wrong. We see no 'difference between

surrogate motherhood and black-market baby selling. Hence, both practices are

outlawed in this bill.

AN ACT PROHIBITING SURROGATE MOTHERHOOD INCLUDING INFANT

SELLING AND PROVIDING PENALTIES THEREFOR

Be it enacted by the Senate and House of Representatives of the

Philippines in Congress assembled:

 San Sebastian College – Recoletos 17
SECTION 1. It shall be unlawful for any woman capable of motherhood to

agree, verbally or in writing, with any person, whether natural or juridical, to

become a surrogate mother, with or without consideration, or to sell her offspring.

It shall also be unlawful for any person to be a party to such an

agreement, whether as a physician, nurse, medical technologist, agent, broker,

representative, middleman or in any similar capacity.

SECTION 2. A woman is said to have agreed to become a surrogate

mother when she agrees to conceive a child naturally or artificially, by her own

lawful husband or otherwise, for the purpose of giving that child away after birth,

or while already conceiving shall agree to give away the child after birth, to

another person with the intention of giving up permanently all her paternal rights,

love and affection over the child.

SECTION 3. The penalty of five (5) years imprisonment plus a fine of Ten

Thousand Pesos (PlO,OOO.OO) shall be imposed upon both the woman who

shall agree to become a surrogate mother or shall sell her infant and the person

who shall have contracted with her. The penalty of two (2) years imprisonment

plus a fine of Five Thousand Pesos (P5,OOO.OO) shall be imposed upon the
 San Sebastian College – Recoletos 18
physician, nurse, medical technologist, agent, broker, representative or

middleman; Provided, That if the offender is a foreigner, his Philippine visa shall

be cancelled and he shall be deported only after serving his sentence.

SECTION 4. This Act shall take effect upon is approval.

Contracts to make babies: An examination of artificial Reproductive

Technology from Philippine contract law perspective

The authors examine Artificial Reproductive Technology ART (contracts in

the light of Philippine civil law) specifically contract law. The paper outlines the

different ART methods most familiar to Filipino couples seeking fertility

treatments: artificial insemination, in vitro fertilization and surrogacy. It also

describes what an ART contract is in general, as well as the specific contracts

that are executed for each ART procedure.

The article analyzes ART contracts using as framework the essential

requisites of a contract and the probable liabilities for breach of the contract. It

concludes with an assessment of the applicability of existing contract law to an

ART contract.
 San Sebastian College – Recoletos 19

The main reason why couples employ artificial methods of reproduction is

because one or both of the couple suffer from infertility problems. The causes of

infertility in men involve problems in sperm production and delivery. Female

infertility on the other hand is caused by abnormalities in the fallopian tube and

the uterus and ovulation defects. Although some of the defects can be treated

with conventional therapies, ART is resorted to when these remedies prove

ineffective.

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." This

method is resorted to when the problem lies in the infertility of the wife who is

unable to carry to term. 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.

Surrogacy and the law

 San Sebastian College – Recoletos 20
Remember the story about the Australian couple who allegedly

abandoned their son, diagnosed with Down Syndrome, with his surrogate mother

in Thailand, while taking with them the boy’s twin sister?

The couple have since denied that they abandoned the boy, claiming that

the surrogate had refused to hand him over and threatened to keep the girl as

well and report them to the police if they insisted on taking both twins.

So it now seems a case of “they said, she said.”

Whoever is telling the truth, the case has focused attention on the issue of

surrogacy—its legality, morality, and the ethical challenges it presents to the

aspiring parents, the surrogate, and the law.

There is no question about the scientific validity of the procedure. The

couple provide their sperm and egg, have these fertilized, then have the fertilized

ovum implanted in a surrogate who, usually for a certain sum although some do it

voluntarily, agrees to carry the fetus to term and then turn over the baby after

delivery.
 San Sebastian College – Recoletos 21
Of course, between implantation and delivery many things can go awry.

Some surrogates, during pregnancy and upon delivery, come to think of the baby

they’re carrying as their offspring, sometimes disappearing with the child

altogether. Others share the heart-wrenching loss of losing their baby almost

upon delivery with mothers who decide to offer their children for adoption. The

babies are plucked from their arms, often even before they could start suckling

their young, turned over to the adoptive parents or the egg-and-sperm donors,

treated little better than vessels or wombs for hire.

But the heartache spills over to the parents as well, especially those who,

after forking over substantial sums for the surrogate and the agency which

makes the arrangements, are left devastated when the surrogate has a change

of heart. Sometimes, the impending arrival of a child can test a fragile

relationship, leading to the breakup of the marriage. Just remember all the

Hollywood and local films revolving around such a dilemma, proof that if this

doesn’t happen in real life, then it certainly flourishes in the imaginations of

filmmakers.

STILL, surrogacy is very real and is indeed a growing “industry.” This,

even if the business is still mired in controversy and doubts about its ethical

limits.
 San Sebastian College – Recoletos 22

“There is a dark side to this business,” acknowledges a Thai employee of

the agency that made the arrangements between the Australian couple and the

Thai surrogate, speaking to a foreign publication. Pattaramon Chanbua, 21,

already had two older children before she agreed to the arrangement, although

she complained that the couple reneged on paying her the full amount they

promised.

But the agency employee stressed that “most of the time I have seen

happiness,” in cases where the arrangement results in both material reward for

the surrogate (as well as perhaps maternal fulfillment) and the arrival of a child to

a formerly childless couple who can now complete their family.

Although the more common destinations for childless couples seeking a

surrogate in Asia are Thailand and India, surrogacy is likewise booming in China,

reports the New York Times.

China is among a growing list of countries where surrogacy is illegal. But

the trade is flourishing because of “rising infertility, a recent relaxation of the one-

child policy, and a cultural imperative to have children.” The surrogacy black
 San Sebastian College – Recoletos 23
market leads to over 10,000 births a year in China, with many couples traveling

to nearby countries like Thailand, or to backwater towns, to find women willing to

carry a child to term in exchange for a payment.

Because Chinese couples prefer their children not only to look Chinese

but to be biologically Chinese (“blood” is very important in China), often a trip

abroad involves the couple and the surrogate for the procedure of implantation.

And then, after returning to China, says the NYT report, “the surrogate is installed

in a private apartment with a full-time assistant. To make sure she does not get

ideas about fleeing with the customer’s fetus, she is cut off from her family and

receives daily visits from a psychological counselor.”

Still, cases of fleeing surrogates and absconding parents are increasingly

common, and the situation remains “murky” because of the absence of laws and

rules in the surrogacy black market.

WHAT about childless Filipino couples? Is surrogacy a possibility?

There is as yet no law governing the practice, although I know of some

couples who enter into informal arrangements with surrogates who, for a certain
 San Sebastian College – Recoletos 24
sum, agree to carry their child. Right after birth, the child is registered as the child

of the donor-parents, a practice also common in informal adoptions.

In the last Congress, Manuel Villar, then a senator, filed a bill in the Senate

which would have outlawed surrogacy, although I don’t know what that bill’s

status is today, or if his wife, Sen. Cynthia Villar, has refiled it.

The transaction is still largely informal mainly because of the absence of a

firm law. But couples resorting to surrogacy should take heed of a lawyer’s

opinion, published in a legal blog, that under the law, the surrogate is considered

the mother of the child.

“The law does not confer upon A and B (the donor parents) the right to

claim parental right over the child that actually came from the womb of C (the

surrogate) to be considered as their legitimate child, unless they resort to

adoption,” says the lawyer-author.

Biologically, the child may carry the mother and father’s DNA, genes and

traits (although some scientists say the surrogate’s genes may be present as
 San Sebastian College – Recoletos 25
well), but the law recognizes as mother only the woman who carried the child to

term. 1

Conceived on a Sunday

While enjoying their vacation in the US, the last thing she expected from

her 10-year-old son was a question she hoped would never be asked: “‘Nay, is it

true what Ate said? That I am not your real son, that I am just ampon?”

Her eyes were suddenly tearful, as she stood frozen by the bathroom

door. She was speechless for 15 seconds, which felt like an eternity before she

finally uttered: “You are not my son by birth, but you are so much more... you are

my son...by choice!”

What I shared is a conversation that has really transpired, and many more

poignant and challenging conversations like this will happen at homes. But they

will not break the bonds between parent and child. Adoption completes a family,

and saves and grants new lives.

1 Opinion Inquirer (2015, June 10). Surrogacy and the Law. Retrieved from
http://opinion.inquirer.net/77435/surrogacy-and-the-law
 San Sebastian College – Recoletos 26
The question we pose this Sunday touches on surrogacy. If adoption is an

international human norm, should the process of hiring surrogate mothers be

looked upon with disdain, even criminalized, as one locally proposed legislation

suggests?

Surrogate mothers conceive, and carry babies who they will have to give

up at birth in favor of the genetic parents, for a fee. So the stark difference with

adoption as we know it is that there is a contract to deliver the child even before

the child is born. Stated otherwise, the child would not have been conceived had

it not been for the wishes of parents who wanted a child from their genetic line

and are not able to have one naturally.

There are countries that recognize surrogacy arrangements as legal.

Some don’t. Invariably, the issue that comes to court even on these pre-

contracted conceptions is this: Who has greater parental authority between the

birth mother and the genetic parent? For instance, in the US, the surrogate

mother who developed much attachment to the baby she bore refused to give up

the baby and was granted joint custody with the genetic mother. In another case

in the UK, the surrogate mother refused to give up the baby upon learning that
 San Sebastian College – Recoletos 27
the genetic parent has violent tendencies. The surrogate mother feared for the

safety of her baby and won the court case to retain her daughter.

Surrogacy is largely practiced, and nowadays, there are even websites

(legal or not) that advertise surrogate mothers, describe their state of health and

hobbies, age and experience with bearing a child. It should be noted that even in

some countries where surrogacy is allowed, soliciting or brokering for surrogacy

is criminalized. This only shows how this complex phenomenon has turned into

an industry.

In the Philippines, the contract of surrogacy is not expressly stated as

illegal. Some are of the legal opinion that a female’s reproductive system or parts

thereof are beyond the commerce of men. I view surrogacy, however, in the

genre of a service contract, the validity of which may lie in whether the service is

right or wrong. Although not listed in the law, I would classify surrogacy as an

unenforceable contract. This means that if you have paid for it and go to court to

enforce it, you will lose because our laws will only consider the birth mother as

the parent unless parental rights and authority are transferred by process of

adoption. But if no one complains, it is ratified. Still, the right process should be to

legally adopt the child you have contracted to be conceived by a surrogate. We

 San Sebastian College – Recoletos 28
are not unaware, however, of the shortcut process that after delivery—the names

of the genetic parents are immediately placed on the birth certificate of the child.

It may surprise you that the Philippine law is not completely zero in

recognizing reproductive technologies, when used by spouses without involving a

surrogate mother. In Article 164 of the Family Code, the child is considered

legitimate even if the wife was artificially inseminated with the sperm of a donor.

The spouses should simply put this arrangement in writing before the child is

born. Article 164 refers to artificial insemination (AI). It was obviously written

before in vitro fertilization (IVF) technology. With IVF it is possible for the wife, if

needed, to receive sperm as well as egg donations. The egg and sperm of third-

party donors are fertilized in a laboratory and the developed embryo is then

placed in the womb of the wife. So technically, in an IVF where the wife received

egg donation, the child of the legally married couple will be considered

illegitimate under Article 164. Our Constitution protects the child from conception,

but it is a promise that cannot be fulfilled without fresh legislation.

A surrogate mother can be impregnated through AI or IVF. A recent spat

between two international celebrities brought to light just recently the very human

issues in surrogacy. The fashion icon who referred to IVF technology as

 San Sebastian College – Recoletos 29
producing “synthetic” babies said certain things should not be changed such as a

baby being born out of a husband-and-wife relationship. The pop icon replied that

IVF is a miracle that fulfilled dreams of legions to have children of their own. And

a reply was made electronically, apparently from the “synthetic children”, in so

many words: “Where is our mother?”

This Easter and in this article, I struggle between legal technicalities and

my faith that would not look kindly on these new reproductive methods. Although

I am unworthy, I cannot help but think that all that has life comes from God; that

in the final judgment, our Creator will count less the steps how life was brought

about, but will look more on how much that life has been nurtured, respected,

and protected by the persons the child call as parents. A very happy and

meaningful Easter Sunday to all my readers. 2

In the eyes of the law, who is deemed the mother in surrogacy in the

Philippines?

2 Philistar (2015, June 5). Conceived on A Sunday, Alexander Cabrera. Retrieved from
http://www.philstar.com/business/2015/04/05/1440375/conceived-sunday
 San Sebastian College – Recoletos 30
If A and B, who are married couple, agreed to hire C to implant their egg

and sperm cells and bear the child in C’s own womb, who is the deemed to be

the mother of the child in the eyes of the law in the Philippines?

It is apparent that A, B and C have entered into a contract of surrogacy.

Surrogacy is the process where another woman carries and delivers a child in

behalf of another couple. It involves the transplantation of the couple’s egg and

sperm cells, usually through artificial insemination to the surrogate mother. By

nature, the surrogate mother becomes the replacement of the natural mother of

the child. In this case, A and B are considered to be the putative parents of the

child while C takes the role of the surrogate mother. In the absence of surrogacy

law in the Philippines, the legal issue now redounds to the question of who then

becomes the mother of the child upon birth.

In the legal point of view, in the absence of law on surrogacy in the

Philippines, C is deemed to be the mother of the child. A and B as the putative

parents have no vested right conferred upon them by law to enforce a specific

right that can be considered to be legally demandable and enforceable as the

right to be recognized as the parents of the child, more so for A (wife) to claim as

the lawful mother of the child that was born out of the womb of C. Thus, C is

undisputedly considered to be the biological mother of the child.

 San Sebastian College – Recoletos 31

The Family Code of the Philippines mainly provides the specific provision

in establishing the paternity but not maternity relation to a child. Indeed, it is

difficult to dispute the character of a biological mother of a child from whose

womb the latter came from. The paternity and filiation provision in the Family

Code of the Philippines that gave consideration in cases of artificial insemination

is found in Article 164 that provides:

“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 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 …..”

It is clear from the letters of the law that the artificial insemination

contemplated by the law is that one made on the wife, giving no room for

allowing a surrogate mother to whom the insemination may be done. Under this

premise, the law does not confer upon A and B the right to claim parental right

over the child that actually came from the womb of C to be considered as their

legitimate child, unless they resort to adoption.

 San Sebastian College – Recoletos 32
Another argument that may be raised is there was a contract for surrogacy

among A, B and C. The said contract is against public policy and thus void ab

initio. For a contract to be valid, the Civil Code of the Philippines requires the

following requisites in Article 1318:

1. Consent of the parties

2. Object certain which is the subject matter of the contract

3. Cause of the obligation which is established

For an object to be a valid subject of a contract, Article 1347 of the Civil

Code requires that the same should be within the commerce of men. A child is

not within the commerce of men and thus cannot be an object of a contract. More

so, the female reproductive organ is likewise beyond the commerce of men and

is therefore cannot be a valid object of a contract. Article 1352 of the Civil Code

of the Philippines provides that:

“Contracts without cause or with an unlawful cause produce no effect

whatever. The cause is unlawful if it is contrary to law, morals, good customs,

public order or public policy.”

 San Sebastian College – Recoletos 33
Therefore, it can be concluded that a child or a human being and a female

reproductive organ cannot be a lawful object of a contract, on the ground of

unlawful cause as it is contrary to law, against public policy and good customs.

Even the Organ Donation Act of 1991 in the Philippines only sustains the

validity of donating any part of the body of the donor only during such period

of after or immediately before his death(Section 4 (b) – Organ Donation Act of

1991).

Owing to these existing provisions defined in the legal systems of the

3
Philippines, C is the mother of the child in the eyes of the law.

CHAPTER 2

ANALYSIS AND DISCUSSION OF SPECIFIC ISSUES AND CONCERNS OF

THE STUDY

A. Rights of a surrogate mother, a genetic mother and a child born to a

surrogate mother.

3 Talk About Philippine Law (2013, August). In the eyes of the law, who is deemed the mother. Retrieved
from
http://talkaboutphilippinelaw.blogspot.com/2013/08/in-eyes-of-law-who-is-deemed-mother-in_28.html
 San Sebastian College – Recoletos 34
1) Rights of a surrogate mother

Undisputably, the surrogate mother is considered to be the legal mother of

the child in the eyes of the Philippine laws. It is difficult to dispute the

character of a biological mother of a child from whose womb the latter

came from.

The Family Code of the Philippines mainly provides the specific

provision in establishing the paternity but not maternity relation to a child,

simply because the recognition of maternity becomes automatic on the

part of the woman whose womb the child came from.

The surrogate mother then bas the legal right to claim custody

over the child and the right to exercise her maternal claims over the same.

This right cannot be impugned by the contract of surrogacy entered into

with the genetic parents, even if payments were made for tbe

arrangement, because in the eyes of the law, the contract is void ab initio,

because the object of the contract which is the womb of a woman is

considered to be outside the commmerce of men and is againt good

customd and public policy, thus rendering the contract unenforceable even

if enforced in courts of justice for their claims. Relatively, it can be implied

that since no contract exists, it cannot bind the surrogate mother and the

same cannot be charged with breach.

 San Sebastian College – Recoletos 35
The surrogate mother thus have the right to deny the genetic

mother any claims over the child such as custody,visits, and such other

relative actions. She can also decline the offer of the putative parents to

adopt the child.

2) Rights of putative genetic mother

The only available right to the putative mother is to be able to resort

to adoption, in order to have valid maternal claims and legal custody over

the child.

The putative genetic mother has no vested right conferred upon her

by law to enforce a specific right that can be considered to be legally

demandable and enforceable as the right to be recognized as the parent

of the child, especially for her to claim as the lawful mother of the child that

was born out of the womb of the surrogate mother.

CHAPTER 3
FINDINGS, CONCLUSIONS AND RECOMMENDATIONS

FINDINGS
 San Sebastian College – Recoletos 36
The researcher used the abovementioned enumeration of the rights of a

surrogate mother, a genetic mother and a child born to a surrogate mother, to

determine who has the better right between the two claiming mothers over the

child subject of the claim. Based on the gathered data, it is thus determined that

it is the SURROGATE MOTHER who has legal rights over the child born from her

womb.

BIBLIOGRAPHY

(Web)

CONCEIVED ON A SUNDAY

Philistar (2015, June 5). Conceived on A Sunday, Alexander Cabrera.

Retrieved from

http://www.philstar.com/business/2015/04/05/1440375/conceived-sunday

SURROGACY AND THE LAW

Opinion Inquirer (2015, June 10). Surrogacy and the Law. Retrieved from

http://opinion.inquirer.net/77435/surrogacy-and-the-law

(Law)
 San Sebastian College – Recoletos 37
SENATE BILL NO. 2344

AN ACT PROHIBITING SURROGATE MOTHERHOOD INCLUDING

INFANT SELLING AND PROVIDING PENALTIES THEREFOR