THE LEGAL IMPLICATIONS OF SURROGACY

IN PARTIAL FULFILLMENT OF THE REQUIREMENTS IN LEGAL MEDICINE

SUBMITTED TO:

ATTY, MARIA THERESA YU-PANES M.D.

SUBMITTED BY:

DEL FIERRO, ROLANDO JR M..

MONTEFOLCA, ZYRA G.
NG, PAUL JARED Q.
SADSAD, AZZEDINE G.
TAN, JAYSON G.

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 TABLE OF CONTENTS

I. INTRODUCTION……………………………………………………………………………………………………….3
II. SURROGACY AROUND THE WORLD………………………………………………………………………….4
A. ASIA…………………………………………………………………………………………………………………..4
THAILAND
HONG KONG
CAMBODIA
B. EUROPE……………………………………………………………………………………………………………..8
FRANCE
GERMANY
SPAIN
C. UNITED STATES OF AMERICA…………………………………………………………………………….9
CALIFORNIA
FLORIDA
VIRGINIA
III. SURROGACY: A GLOBAL ISSUE………………………………………………………………………………11
SCANDALS OF SURROGACY IN ASIA
THE BABY FAMMY SCANDAL
SURROGACY IN ASIA AS A CROSS-BORDER BUSINESS
SURROGACY: A PRESSING ISSUE IN EUROPE AND IN THE UNITED STATES
IV. SURROGACY IN THE PHILIPPINES…………………………………………………………….…………..14
SURROGACY AS A CONTRACT, LEGALITY
ON MATERNITY
ON PATERNITY
ON FILIATION
LAWS, RULES AND JURISPRUDENCE ESTABLISHING FILIATION
ON CITIZENSHIP
OTHER ISSUES
V. CONCLUSION……………………………………………………………………………………………………….30
SURROGACY ABROAD IN A NUTSHELL
LACK OF LEGISLATION IN THE PHILIPPINES
PROPOSED LEGISLATION
IT MUST BAN COMMERCIAL SURROGACY
FOREIGN NATIONALSCANNOT GET FILIPINO SURROGATE MOTHERS
SURROGACY MUST BE LIMITED TO INFERTILE HETEROSEXUALS
A SURROGACY REGULATORY BODY MUST BE ESTABLISHED
REMEDY

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I. INTRODUCTION

“What makes a family?” Under the 1987 Constitution, it defines family as the foundation of
the nation. The Family Code defines it as well, as a basic social institution which the public
cherishes and protects. These are merely broad and theoretical definitions of what a family
is, thus we still go back to the question as to what a family really is? Does the marriage of a
man and a woman already places such relationship to the realm of which qualifies it as
included in the realm of the term “family”? It may seem that the law says so, based on the
context of the Family Code, but in the context of actual society, would it fit?

Since the olden days, childlessness between a man and a woman had been imputed on
women. The overall impression, though, is that infertility has often been a frightening and
societally damaging experience — and that women usually suffered for it. Women in
Egyptian times were attributed with Nephthys, the Goddess of represented by a falcon or a
vulture, which was represented as the goddess of funerals and certain dangerous rites of
the afterlife.

The same stigma was attributed to women in Ancient Indian societies. They did not
have a good life either. Women who couldn’t get pregnant were discriminated and were
labeled negatively as being possessed by “Nirti”, a particularly ferocious goddess and could
be cast away out of a family unit.

In the modern day Philippine culture, this stigma is still present although this tide
had already subsided in stark contrast with the days of the past. However, married couples
who could not bear child are still pressured by the constant queries of family relatives and
close peers if a child is already on the way. It had become a norm or as yet, close to a rule,
that when couple, once married, are dictated by the society to bring a child into the world.

However, no matter how immense the pressure and the stigma is, it doesn’t compare to
the yearning of a married couple to have a child. In the modern days, generally, couples are
not anymore pressured by society as having a child are capable of being planned. Having a
child has become a choice for married men and women, thus, nowadays, having a child are
borne out of love and will.

The Legislature of the Philippines has empathized with these problems of society, thus
the Domestic Adoption Act and the Inter-country Adoption Act was enacted. It paved a way
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for uncapable couples to have a child of their own, albeit merely by legal fiction. However,
there are some thoughts that linger upon some which is the feeling and pride of having an
offspring which is of the same “blood” as the what Filipinos commonly refer it.

Thus, in the advent of technology, breakthroughs in medical field has helped modern
day couples to have a child of their own flesh and blood despite incapacities of one or both,
although through a non-traditional process. This paved the way for surrogacy, as a practice
by which a woman (called a surrogate mother) becomes pregnant and gives birth to a baby
in order to give it to someone who cannot have children. However, having solved the
problem of childlessness and the concern for blood-related offspring, another problem
arises, now, with the interest of the state coming in. The problem then which couples face
now, in the Philippine jurisdiction, are its legal implications. How are the children borne
out of surrogacy viewed in the eyes of Philippine law? Are children borne out of the
surrogate mothers automatically treated as legitimate children of the couples who
provided for the egg and sperm cells, or in the strictest sense of law, are they legitimate
children of the surrogate mothers?

There is as yet no solution, in Philippine jurisdiction, as to this limbo. Nevertheless,

it is but about time that this puzzled be solved for what may be an expected unlocking key
would result to many closed doors.

II. SURROGACY AROUND THE WORLD

Surrogacy law is constantly evolving. Laws differ widely from one jurisdiction to
another and vary from country to country. They can also differ with regard to altruistic and
commercial gestational surrogacy, as well as a country’s view on LGBT parents. Each
country has different laws regarding what is allowed or forbidden as regards surrogacy
contracts.

A. Asia

In most Asian countries, the legislative aspects of surrogacy agreement are not fully
regulated. The gaps in legislation grant some flexibility to meet individual needs of
intended parents. Among the countries in Asia, Thailand, Hongkong and Cambodia have
recognized the legal effects surrogacy contracts by enacting laws governing the same.

Thailand

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 On February 19, 2015, the National Legislative Assembly of Thailand enacted the
Protection for Children Born Through Assisted Reproductive Technologies Act. This
act significantly protects children born through Assisted Reproductive Technologies (ART)
and sets the legal procedures the spouses (referred to as “applicants”) must follow in order
to have such children.

Briefly, the purposes of the new Act are as follows:

1) To specify the parents’ legal status;

2) To control and specify the rights and duties of related parties during and after
surrogacy;

3) To control and set boundaries on the proper use of enhanced technology,

especially for achieving pregnancy in procedures; and

4) To prohibit surrogacy involving a business or profit-making enterprise.

The new Act defines assisted reproductive technology as “any medical scientific
procedure that removes eggs or sperm from a human body for the purpose of unnatural
pregnancy, including artificial insemination ” of a third person1. Surrogacy is defined as
“pregnancy by assisted reproductive technology2”

In Thailand, applicants for surrogacy must be lawful spouses, and the wife cannot be
pregnant. Same-sex couples cannot seek surrogacy, because Thai law has not yet provided
for legally sanctioned same-sex marriage. In addition, one of the following criteria must be
met:

1) Both applicants (husband and wife) are Thai; or

2) If only one of the applicants is Thai, the couple must have been married for at
least three years3.

The surrogate mother must:

1) Be a blood relative of either of the applicants, but may not be either applicants’
parent or descendant4; and

1 Protection for Children Born Through Assisted Reproductive Technologies Act of 2015. § 3

2 Id.

3 Id. § 21(1)

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 2) Have had a pregnancy before the surrogacy5.

If the applicants do not have any blood relatives who can serve as the surrogate,
they will be able to apply based on exceptions that will be outlined in future regulations to
be issued by the Minister of Public Health6

The approval of the husband of the surrogate mother is required for surrogacy.7
The eggs of the surrogate mother may not be used for the surrogacy procedure. 8 The
applicants and the surrogate mother must have a written agreement before the pregnancy
occurs, indicating that the applicants will be the legal parents of the child. 9 The Act also
clearly states that the applicants will be the legal parents of the surrogate child and cannot
deny the parentage of a child born through ART.10

Thai surrogacy law puts Thailand in the group of countries where surrogacy is
allowed only for altruistic purposes as Section 24 thereof prescribes penal sanctions for
commercial surrogacy. Under the law, if anyone is involved in surrogacy for profit, he/she
will be sentenced upon conviction to imprisonment for up to ten years or a fine of up to
200,000 Baht (about P300,000).11 If anyone acts as an agent by requesting or accepting
money, property, or other benefits in return for managing or giving advice about surrogacy,
he/she will be sentenced upon conviction to imprisonment for up to five years and/or a
fine of up to 100,000 Baht (about P150,000). 12

Finally, the Act will be applied retroactively to those children of surrogacy born
before the Act’s entry into force, through a process of the parents’ seeking court approval.13

Hong Kong

In Hong Kong, surrogacy is regulated by the Human Reproductive Technology

Ordinance14 as well as the Parent and Child Ordinance.15

4 Id. § 21(2) & (3)

5 Id. § 21(4)

6 Id. § 21(3)

7 Id. § 21(4)

8 Id. § 22(2)

9 Id. § 3.

10 Id. §§ 29 & 33

11 Id. §§ 24 & 48

12 Id. §§ 27 & 49

13 Id. § 56

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 The Human Reproductive Technology Ordinance provides for two requisites so that
a “commissioning couple” or the couple to whom the child is to be handed over after birth,
may be eligible for surrogacy, viz:

1) The commissioning couple must be legally married;

2) In view of the clinical condition of the commissioning couple, the commissioning

wife is unable to carry a pregnancy to term and no other treatment option is
practicable; and

3) The commissioning couple must not give financial gains to surrogate mother
other than reasonable expenses in the course of pregnancy.

It is a criminal offense in Hong Kong for any person to make or receive payment, in
the city or elsewhere, for a surrogacy arrangement. Offenders face a maximum jail term of
two years and a fine of up to HK$100,000. This applies to any form of participation in
setting up a surrogacy arrangement on a commercial basis and includes compiling
information for use in the agreement.

The Parent and Child Ordinance specifies who the legal mother and legal father of
a child born out of a surrogacy contract is. Under Section 9, the legal mother is the
“woman who bears the child until a parental order which says otherwise is in place.”
Likewise, Section 10 of the said Ordinance says that if the legal mother is married at the
time of surrogacy, the husband will be the legal father of the child until a parental order is
made. However, if the legal mother is not married, her partner who attended the clinic with
her and obtained the services for the artificial insemination shall be regarded as the legal
father.

Cambodia

For a time, Cambodia was the only country in the region with both the technology
and the legal loopholes to satisfy the demand of infertile couples from Australia, the United
States, China and beyond.

The world is divided when it comes to issues concerning surrogacy and some of these
countries in fact absolutely prohibit all forms of surrogacy.

14 Hong Kong Ordinances (2007, August 2) Retrieved from: http://www.hklii.hk/eng/hk/legis/ord/561

15 Hong Kong E-Legislation (2000, January 9) Retrieved from: https://www.elegislation.gov.hk/hk/cap429!en

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B. Europe

France

In France, surrogacy has been considered to be unlawful since 1994 and the same has
been grounded on public policy. It also runs counter to the principle of inviolability of the
human body as surrogacy treats the human body like a property. Furthermore, the
intended parents and the surrogate mother are not allowed to choose the status of the child
pursuant to the principle of non-availability of people’s status.16

Germany

In Germany, surrogacy was held to be a breach of Article 1 of their Constitution which

provides that human dignity is inviolable. Under German law, making a human being as a
subject of a contract is prohibited which also includes utilizing another person’s body for
the purpose of reproduction.17 Although surrogacy has been absolutely prohibited, on
December 10, 2014, (Case XII ZB 463/13) the German Federal Court of Justice –
Bundesgerichtshof recognized the foreign judgment granting parental rights to a German
same-sex couple over a child born as a result of surrogacy in California with the genetic
material of one of the intended parents.18

Spain

In Spain, surrogacy is prohibited and contracts related thereto were considered null
and void. Under Spanish law, the surrogate is considered as the legal mother of the child.
But in 2010 a case involving two married Spanish men who had a child as a result of
surrogacy in California pushed the Department of the Ministry of Justice to issue a
Instrucción whereby it directed the recognition of the majority of these foreign surrogacy
and allowed the intended parents to keep the child. But it was limited only to those cases
covered by a judicial decision in a foreign jurisdiction.19

C. United States of America

16 Surrogacy Under French Law: Ethical, Medical, and Legal Issues by Allane Madanamoothoo

17 International Surrogacy Laws, Ukranian Family Law, retrieved from

http://www.familylaw.com.ua/index.php?option=com_content&view=article&id=69&Itemid=&lang=de

18 Surrogacy Law and Policy in the U.S.: A National Conversation Informed by Global Lawmaking, 2016

19 Ibid

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 In the United States of America, surrogacy laws vary from state to state. Some states do
not have a fixed legislation as to surrogacy contracts and are only governed by case laws. A
few states even expressly prohibited surrogacy contracts whether commercial or altruistic
such as New York, Michigan and Indiana. In these states, surrogacy contracts were
considered void and unenforceable.20

However there are also some states that expressly allowed surrogacy and in fact
enacted legislation to that effect.

California

In the state of California, the parties to the surrogacy agreement, the intended parents
and the surrogate, must be represented by separate legal counsels. The agreement must
also be notarized. The execution and notarization of the agreement must be made prior to
the administration of medications used in assisted reproduction or any embryo transfer
procedure. The agreement must be attested by the parties, under penalty of perjury, as to
their compliance with the contract. The surrogacy agreement enjoys the presumption of
validity. In addition, intended parents are allowed to establish legal parentage prior to the
child’s birth and the necessary action is to be filed in the country where the child is
anticipated to be born, the country where the surrogate or the intended parent reside, in
the country where the agreement was executed or in the country where the medical
procedures were performed. The copy of the agreement must be filed with the court as part
of the parentage action. 21

Florida

In the state of Florida, a binding and enforceable gestational surrogacy contract must
first be executed between the gestational surrogate and the commissioning couple before
engaging in gestational surrogacy. It is required that the gestational surrogate and the
commissioning couple must be 18 years old or older and the later should be legally married.
22

The couple can only enter into such contract only when it is determined with
reasonable certainty by a licensed physician that the commissioning mother cannot

20 ibid.

21 California Family Code Section 7962

22 Florida Statutes Chapter 742

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physically gestate a pregnancy to term or when the gestation would risk the health of the
commissioning mother or the fetus.23

In addition, the contract must state: (a) that the surrogate is the only person who can
consent to the clinical intervention and management of the pregnancy; (b) the surrogate
agrees to undergo medical treatment and to adhere to reasonable medical advice on her
prenatal health; (c) the surrogate will relinquish her parental rights upon the birth of the
child; (d) the commissioning couple will take the custody of the child; and (e) the surrogate
will assume parental rights for the child if neither one of the commissioning couple is the
genetic parent. 24

The commissioning couple cannot pay to the gestational surrogate an unreasonable

sum. The couple may agree in their contract to pay the surrogate only reasonable living,
legal, medical, psychological and psychiatric expenses that are directly related to the
prenatal (during pregnancy), intrapartal (during labor), and postpartal (after birth)
periods.25

Virginia

Lastly, in the state of Virginia, the surrogate contract entered into be the intended
parents and the surrogate and her husband, if any, shall be approved by the court prior to
the performance of assisted conception.26

The surrogate contract must likewise be signed by all the parties and acknowledged.
Under the laws of Virginia, it is required that the intended parents be subjected to home
study and the same must be filed with the court. It is also required that the surrogate must
have been pregnant at least once and experienced at least one live birth and bearing
another child will not pose an unreasonable risk to her or the child’s health as supported by
medical evidence. Not only the surrogate, but also her husband and the intended parents
have submitted themselves to physical and psychological examination prior to the signing
of the contract. It is also required that at least one of the intended parents is the genetic
parent of the child.27

23 Ibid

24 Ibid

25 Ibid

26 Code of Virginia Title 20 Chapter 9 Section 20-159

27 Code of Virginia Title 20 Chapter 9 Section 20-160

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 The law prohibits compensation for the surrogate. Only reasonable medical and
ancillary costs are allowed. Under their law, surrogate brokers or those who accept
compensation for recruiting or procuring surrogates or those who accept compensation for
otherwise arranging or inducing intended parents and surrogates to enter into surrogacy
contracts are liable to all the parties to the purported surrogacy contract in a total amount
equal to three times the amount of compensation to have been paid to the broker pursuant
to the contract.28

III. SURROGACY: A GLOBAL ISSUE

The scandals of surrogacy in Asia

Thailand was one of the few countries in Asia where commercial surrogacy was not
specifically banned by law. There was however a regulation stating that doctors risk losing
their license if they perform surrogacy for pay. Thailand became a go-to destination for
couples from Australia, Hong Kong and Taiwan and a low-cost alternative to the United
States. But this led to a string of scandals. In July 2014, a West Australian couple were
accused abandoning an infant known as Baby Gammy, leaving him with with his surrogate
mother learning he had Down Syndrome. This was widely known as The Baby Gammy
Scandal.

Moreover, a recent arrest of a man for attempting to transport human sperm from
Thailand to Laos has cast a spotlight on cross-border surrogacy arrangements designed to
get around bans by individual countries in the region.29

With bans on commercial surrogacy in Thailand, Cambodia and Vietnam driving the
rent-a-womb industry underground, more surrogate mothers are now implanted with
embryos in Laos, where there are no laws governing the practice. These surrogates then
deliver their babies in a separate country.

The Baby Gammy Scandal

In July 2014, an internationally publicized incident occurred in which a Thai woman,

Pattaramon Chanbua, who had been hired as a surrogate mother for an Australian couple,
sought to raise money for her critically ill surrogate son. The baby had been in her care
since she gave birth in December 2013; biological parents David Farnell and Wendy Li had
left Thailand that month with baby Gammy's twin sister Pipah.

28 Code of Virginia Title 20 Chapter 9 Section 20-165

29Tan Hui Yee (May 1, 2017) Ban in Thailand has driven industry underground and across to neighbouring Laos and Cambodia
Retrieved from: http://www.straitstimes.com/asia/se-asia/rent-a-womb-trade-goes-cross-border-in-parts-of-indochina

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 When ultrasound results seven months into the surrogate pregnancy indicated that
Ms Pattaramon was carrying twins and that one of the twins, a boy, had Down Syndrome,
the intended parents, Farnell and Li, requested that she abort him, and that they would
keep only the child's twin sister. Ms Pattharamon refused, citing her Buddhist beliefs, and
instead opted to raise the boy (named Gammy) on her own. Thai surrogacy laws dictate
that a child's legal mother is its birth mother. Gammy is eligible for Australian citizenship
because David Farnell is his biological father. He will now have access to healthcare in
Australia and is eligible for an Australian passport. Thus, surrogate mother Pattaramon
Chanbua sought Australian citizenship to safeguard Gammy's future.

The Farnells returned to Australia in December 2013, bringing baby Gammy's twin
sister Pipah with them.

In the wake of the Baby Gammy scandal, the Thai government has passed a law
criminalizing surrogacy and prohibiting foreigners from seeking surrogacy services. The
law, which prohibits the act of hiring women commercially to carry fetuses to term, aims to
stop Thailand from being a surrogacy hub for foreign couples.30

Surrogacy in Asia as A Cross-Border Business

Cambodia’s own surrogacy boom was fuelled by decisions to ban the practice in
Thailand, India and Nepal. Each of these moves fed Cambodia’s fledgling industry. The first
in vitro fertilisation (IVF) clinic in Phnom Penh opened months after Thailand’s ban and
Phnom Penh’s first surrogate babies were born in early 2016.

However, subsequent clampdowns on surrogacy in Cambodia, have again led to

the emergence of complex, cross-border operations that put women, children and
would-be parents at greater risk than before. In Cambodia – where many families owe
informal debts and gambling is popular, even among women – offers from brokers seeking
surrogates were particularly tempting. A standard payment for a pregnancy would be in
the region of US$10,00031, more than five times the annual wage for a garment worker and
enough to build a new home or pay off a loan.

In October 2017, the health ministry of Cambodia followed other countries in the
region by deciding to ban foreigners from seeking commercial surrogacy within its borders.

30NelsonGroom (February 20, 2015) Retrieved from:

http://www.dailymail.co.uk/news/article-2961448/Thai-parliament-bans-surrogacy-wake-Aussie-baby-Gammy-saga.html#ixzz5
0B8mAw7s

31AudreyWilson (June 4, 2017) HOW ASIA’S SURROGATE MOTHERS BECAME A CROSS-BORDER BUSINESS Retrieved from:
http://www.scmp.com/week-asia/society/article/2096675/how-asias-surrogate-mothers-became-cross-border-business

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 That decision may have been welcomed by people but it’s had a host of unintended,
and unpleasant consequences, not least among them is the chaos caused for surrogates and
intended parents whose embryos were implanted before the decision was made. The
ensuing chaos forced Cambodia to announce an “exit strategy” for such children. It is now
common for a couple in one country to pay a surrogate in a second country, via an agency
in a third country, for a child that will be born in a fourth country, all in an effort to comply
with the letter of the law in the various jurisdictions. Typically, surrogates are impregnated
in Laos but give birth in Thailand or other countries. And while such arrangements help
agencies skirt the legal issues, critics say they make it easier for one side or another to
cheat on payment issues and, in the worst case scenarios, give rise to fears over
human-trafficking.

In Cambodia, some agencies have responded to the ban by relocating their offices
abroad and paying already pregnant surrogate mothers to cross the border into Thailand to
deliver – as Thailand’s new law effectively only prevents surrogacy agencies from
operating within its borders.

Other surrogates who became pregnant before the ban but remained in Cambodia
have been left in limbo, facing challenges communicating with their agencies and intended
parents. And some, post birth, say they have not received their full payments.

Surrogacy: A pressing issue in Europe and in the United States

Although surrogacy has been recognized by some states in the United States, there are
however issues which are internationally debatable and are now subject of irreconcilable
beliefs:

Recent California cases where two surrogates were, in separate matters, each
pressured to abort a fetus because the would-be parents didn’t want them, even though
they were by all accounts healthy, exemplify the moral, ethical, and social problems caused
by allowing the growth of what amounts to nothing less than a human breeding industry in
this country. It’s conservatively a $3.5 billion business and estimates have it growing at a
rate of nearly 15 percent by 2018.32
The practice of surrogacy has been officially condemned by the European Parliament.
According to the European Parliament in Brussels, the practice “undermines the human

32 Breaking News: European Parliament Condemns Surrogacy by The Center for Bioethics and Culture Network on December
17, 2015 retrieved from: http://www.cbc-network.org/2015/12/breaking-news-european-parliament-condemns-surrogacy/

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dignity of the woman since her body and its reproductive functions are used as a
commodity”. 33

According to the European leaders, gestational surrogacy is a pressing human rights

matter which comprises exploitation and use of human body for money especially women
in developing countries. 34

Jennifer Lahl, the president of Center for Bioethics and Culture Network and a former
pediatric critical care nurse, urged the United States to address this global issue:

Are women’s lives less important in the United States than other parts of the
world? Most countries throughout the world understand that commercial surrogacy
industry exploits women for financial gain and that this is a human rights issue of
global proportions. No potential leader of the Free World can ignore one of the most
important human rights issues of our time.35

IV. SURROGACY IN THE PHILIPPINES

Surrogacy in the Philippine setting is a relatively new concept. It has not gained that
much popularity compared to that of the USA and other Asian countries such as Thailand
and India. In fact it would be difficult to find any woman who has legitimately advertised
herself as available for surrogacy, at least not in the regular channels of traditional media. A
casual search in the internet would not yield a direct contact with a woman who offers her
womb for surrogacy; unlike in the USA where services for surrogacy have attained
mainstream status and an ‘industry’ for such a service is actually thriving.

There are, however, notable cases here in the Philippines involving celebrities who
have resorted to surrogacy in order to have children. The likes of Joel Cruz (the openly gay
multi-millionaire behind the Aficionado Germany Perfumes) and Dr. Victoria “Vicki”
Belo-Kho (Medical Director of the Belo Medical Group) together with her husband Dr.
Hayden Kho.

While Joel Cruz had been open about the details of the three (3) surrogacy services he
engaged, which, coincidentally, also bore three (3) sets of twins, Dr. Vicki and Dr. Hayden
kept the details of their daughter, Scarlet Snow Belo’s surrogacy from public knowledge.

At present, surrogacy in the Philippines is neither prohibited nor openly allowed.

33 Ibid

34 ibid

35 ibid

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 This paper seeks to discuss the implications of surrogacy as a concept with respect to
its legality and morality vis-à-vis its treatment in the Philippines as well as the laws
addressing the same.

Surrogacy as a Contract, Legality

In general, surrogacy comes within the purview of artificial reproductive technology or

assisted reproductive technology, the former being preferred as it connotes and gives
emphasis to the fact that the reproduction was not done in the normal manner. It is one of
the three most common forms of assisted reproductive technology. The other two being
artificial insemination and in vitro fertilization.

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." 36This method is resorted
to when the problem lies in the infertility of the wife who is unable to carry to term.37 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.38

Surrogacy is classified into two kinds. It may either be traditional or gestational.

Traditional surrogacy is one wherein the sperm of the intending father is used to fertilize
the surrogate’s own ovum (which could be the case of Joel Cruz). Gestational surrogacy, on
the other hands, refers to a situation where the zygote of the couple is implanted into the
uterus of a surrogate who carries it to term.

Prior to the execution of the surrogacy arrangement, the surrogate and the contracting
parties enter into a contract which 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. It also provides for the relinquishment of the child to the contracting couple after
birth as well as the amount to be paid to the surrogate as her compensation for services
rendered.

The execution of private agreements as a method to create families certainly drew

sharp criticism. 39 Some commentators are of the view that payment to a surrogate

36Report of the Committee of Inquiry into Human Fertilization and Embryology, Dame Warnock, Chairman, 1984, London,
HSMO, Cmnd, 9314, at par. 8.1.

37 Medico-Legal Aspects of Reproduction and Parenthood, John K. Mason, 1990

38Contracts to Make Babies: An Examination Of Artificial Reproductive Technology From A Philippine Contract Law Perspective,
Genevieve H. Reyes and Hazel Rose B. See

39 Warnock Committee on Fertilization and Embryology

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devalues the contributor and the sanctity of human life. Others argue, however, that
"money is one dimension of human interaction and valuing." That is to say that the critical
issue is not whether the agreement involves monetary exchanges but whether it is treated
as reducible solely to its monetary considerations. This highlights the idea that the services
offered by a surrogate has worth and must be compensated, as it is part of our nature to
pay for things of value.

In the context of Philippine laws, a contract, in order to be considered valid, as a rule,

has to have the vital elements of consent, object, and cause or consideration.

Discussing the abovementioned requisites of a valid contract in relation to surrogacy is,

therefore, proper in order to determine its conformity to the general provision as such.

For purposes of better discussion and presentation ranging from the most basic to
the most controversial requisite, it is deemed more practical to discuss the requisites in the
following manner, first, consent, then, cause or consideration and lastly, object.

As to the first requisite of consent, it is beyond cavil that surrogacy arrangement,

necessarily, if not, obviously, involves the consent of the contracting parties – the surrogate,
in one hand and the contracting couple, on the other. Thus, consent, as an element of a
contract, is present beyond question.

As to the requisite of cause or consideration, Article 1350 of the Civil Code provides, “In
onerous contracts, the cause is considered to be, for each contracting party, the prestation
or promise of a thing or service by the other.” In the case of surrogacy, the prestation on the
part of the contracting couple is the compensation agreed upon as payment for the services
of the surrogate. While the surrogate’s prestation is the performance of her obligation in
the contract, that is to carry the child to its term, give birth to the same and turn him or her
over to the contracting couple divesting herself of any right over the child.

As to the requisite of object, the following provisions of the Civil Code are illuminating:

Article 1347. All things which are not outside the commerce of men,
including future things, may be the object of a contract. All rights which are
not intransmissible may also be the object of contracts.

No contract may be entered into upon future inheritance except in

cases expressly authorized by law.

All services which are not contrary to law, morals, good customs,
public order or public policy may likewise be the object of a contract. (1271a)

16 | P a g e
 Article 1348. Impossible things or services cannot be the object of
contracts. (1272)

Article 1349. The object of every contract must be determinate as to

its kind. The fact that the quantity is not determinate shall not be an obstacle
to the existence of the contract, provided it is possible to determine the same,
without the need of a new contract between the parties. (1273)

The question, thus, boils down to whether the object of the subject arrangement is
within the bounds of the definition provided by the aforementioned provisions. However,
before delving into the propriety of the object of surrogacy, there must first be a
determination as to what the object of the arrangement is. Based on the definition under
the Civil Code, it is safe, if not appropriate, to say that the object of surrogacy is the child
born out of it. It is the child itself that is the object of the “contract”.

Thus, after having established what consists of the object, the question posed now
points to whether it is a proper object in the legal and technical sense of the matter. Stated
otherwise, is a child, another living thing, a human being, a life form, a proper “object” of a
“contract”?

A basic tenet of contracts law is the treatment that a human being is not a proper object
of any contract. This principle is based upon the belief that a human being cannot be
appropriated in the strict sense of commercial transactions. A human being therefore
cannot be treated like that of property of any kind wherein a contract can be a proper
consensus between parties to regulate the same.

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, 1460).

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,
17 | P a g e
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”.

It therefore appears that a human organ is a not a proper object of a valid contract. A
female’s 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. Likewise, a
human being in its common connotation cannot be an object of commercial transactions as
it is not a proper object of a contract.40

As stated earlier, there is yet no law dealing specifically on the subject of surrogacy in
the Philippines. Senator Manny Villar passed a bill in the Senate prohibiting the practice of
surrogacy.

The bill states that while infertility is a real crisis for many married couples, the idea of
negotiating pregnancy by commercial contract should be abhorrent to anyone who believes
in the dignity of human life. It further states that 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.

Basically, the bill reflects the Catholic view on Natural Law as a primary basis in dealing
with reproduction related societal and personal issues. However, the bill did not gain
support from fellow Senators and was eventually archived. No other bill has been filed
since.

As it stands now, the lack of any law or regulation dealing with surrogacy somehow
strengthens the validity of this practice in modern day Philippines.

On Maternity

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

40 Espino, Donato: The Appreciation of Surrogate Mothers in the Philippine Legal System:
https://ausltechlaw.wordpress.com/2012/09/26/espino-donato-the-appreciation-of-surrogate-mothers-in-the-philippine-legal-
system/

18 | P a g e
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.

On Paternity

Paternity is the civil status of a father in relation to his child. In our Civil Code, he will
be considered the father of the child if he gives his consent to the artificial insemination in
accordance with Art. 164 of the Family Code. Applying by analogy this provision of law to
surrogacy, paternity may not be established if the father did not give his consent to the
surrogacy contract.

On Filiation

Filiation is the civil status of a child in relation to his or her parents. The filiation of
children may be by nature or by adoption (Art. 163, FC). Natural filiation, which is
established by blood relationship, can either be legitimate or illegitimate (Id). The status of
a marriage determines the filiation (De Santos vs. Angeles, 251 SCRA 206). Thus, a child
born within a valid marriage is legitimate, as expressly provided by Art. 164 of the Family
Code.

In Herrera v. Alba (G.R. No. 148220, June 15, 2005, 460 SCRA 197, 206-208.),
the Court summarized the laws, rules, and jurisprudence on establishing filiation,
discoursing in relevant part:

Laws, Rules, and Jurisprudence Establishing Filiation

The relevant provisions of the Family Code provide as follows:

ART. 175. Illegitimate children may establish their illegitimate

filiation in the same way and on the same evidence as legitimate children.

xxxx

ART. 172. The filiation of legitimate children is established by any of

the following:

(1) The record of birth appearing in the civil register or a final judgment; or

19 | P a g e
 (2) An admission of legitimate filiation in a public document or a private
handwritten instrument and signed by the parent concerned.

In the absence of the foregoing evidence, the legitimate filiation shall be

proved by:

(1) The open and continuous possession of the status of a legitimate

child; or

(2) Any other means allowed by the Rules of Court and special laws.

The Rules on Evidence include provisions on pedigree. The relevant

sections of Rule 130 provide:

SEC. 39. Act or declaration about pedigree. — The act or declaration of a

person deceased, or unable to testify, in respect to the pedigree of another
person related to him by birth or marriage, may be received in evidence
where it occurred before the controversy, and the relationship between the
two persons is shown by evidence other than such act or declaration. The
word “pedigree” includes relationship, family genealogy, birth, marriage,
death, the dates when and the places where these facts occurred, and the
names of the relatives. It embraces also facts of family history intimately
connected with pedigree.

SEC. 40. Family reputation or tradition regarding pedigree. — The

reputation or tradition existing in a family previous to the controversy, in
respect to the pedigree of any one of its members, may be received in
evidence if the witness testifying thereon be also a member of the family,
either by consanguinity or affinity. Entries in family bibles or other family
books or charts, engraving on rings, family portraits and the like, may be
received as evidence of pedigree.

This Court’s rulings further specify what incriminating acts are acceptable as evidence
to establish filiation. In Pe Lim v. CA, a case petitioner often cites, we stated that the issue of
paternity still has to be resolved by such conventional evidence as the relevant
incriminating verbal and written acts by the putative father. Under Article 278 of the New
Civil Code, voluntary recognition by a parent shall be made in the record of birth, a will, a
statement before a court of record, or in any authentic writing.

To be effective, the claim of filiation must be made by the putative father himself and
the writing must be the writing of the putative father. A notarial agreement to support a

20 | P a g e
child whose filiation is admitted by the putative father was considered acceptable evidence.
Letters to the mother vowing to be a good father to the child and pictures of the putative
father cuddling the child on various occasions, together with the certificate of live birth,
proved filiation.

However, a student permanent record, a written consent to a father’s operation, or a

marriage contract where the putative father gave consent, cannot be taken as authentic
writing. Standing alone, neither a certificate of baptism nor family pictures are sufficient to
establish filiation.

These procedures relate to filiation by nature and not to filiation by surrogacy. It is

therefore not settled within our jurisdiction on how filiation by surrogacy may be
established.41

On Citizenship

Since filiation laws and procedures cannot apply specifically on surrogacy cases the
issue on citizenship of the child is complicated.

The modes of acquiring Philippine citizenship are enumerated in the 1987 Constitution.
Section 1, Article IV provides the following:

Section 1. The following are citizens of the Philippines:

1. Those who are citizens of the Philippines at the time of the adoption of this
Constitution;

2. Those whose fathers or mothers are citizens of the Philippines;

3. Those born before January 17, 1973, of Filipino mothers, who elect Philippine
Citizenship upon reaching the age of majority; and

4. Those who are naturalized in the accordance with law.

The enumeration therein is considered as exclusive. Not even adoption, which is

considered as a simulation of nature, can confer Philippine citizenship to an alien adoptee
even if the adopters are citizens of the Philippines. There appears to be no question of
citizenship if both the surrogate mother and the putative mother are citizens of the
Philippines. A problem therefore arises when the surrogate mother is an alien while the

41 Espino, Donato: The Appreciation of Surrogate Mothers in the Philippine Legal System:
https://ausltechlaw.wordpress.com/2012/09/26/espino-donato-the-appreciation-of-surrogate-mothers-in-the-philippine-legal-
system/

21 | P a g e
putative mother is a Philippine citizen. Is the child born of the surrogate mother an alien or
a citizen of the Philippines? Will the baby be considered as a stateless citizen?

Republic Act 9225 (“AN ACT MAKING THE CITIZENSHIP OF PHILIPPINE CITIZENS
WHO ACQUIRE FOREIGN CITIZENSHIP PERMANENT AMENDING FOR THE PURPOSE
COMMONWEALTH ACT. NO. 63, AS AMENDED AND FOR OTHER PURPOSES”) expressly
provides for derivative citizenship under its section 4, as follows:

Section 4. Derivative Citizenship – The unmarried child, whether legitimate,

illegitimate or adopted, below eighteen (18) years of age, of those who re-acquire
Philippine citizenship upon effectivity of this Act shall be deemed citizenship of the
Philippines.

This provision of law, however, is limited only to the process of naturalization.

In point is the well-publicized citizenship battle of Baby Manji, who was born of a
surrogate mother but whose parents are Japanese nationals. Before the baby was born,
however, the Japanese couple separated with the wife not willing to accept the child. The
surrogate mother also abandoned the baby. Indian authorities refused to issue Baby Manji
an Indian passport, contending that he is not an Indian citizen. Fortunately for
humanitarian reasons, the Japanese government issued a one-year visa after the Indian
government had granted the baby a travel certificate in compliance with a recent ruling of
the Indian Supreme Court. According to Japanese authorities, Baby Manji may be given
Japanese citizenship once a parent-child relationship is established through recognition of
paternity or through adoption.

Another case decided by India’s Supreme Court is the citizenship issue of twin babies
born of an Indian surrogate mother in India. The babies’ parents are German nationals.
They were issued passports by the authorities but these were later returned upon request
of the authorities because the twin babies’ Indian citizenship has not yet been settled. An
action was brought before the Indian Supreme Court for the return of the passports. The
parents contend that they needed the passports so they can apply for a German visa for the
twin babies.

The Indian Supreme Court ruled that the twin babies are citizens of India so their
passports should be returned. Hereunder are excerpts of the Supreme Court decision dated
November 11, 2009 under Civil Application No. 11364 of 2009:

Detailed counter affidavit has been filed on behalf of the Regional Passport Officer at
Ahmedabad on 25.3.2008 and 4.11.2009, stating that surrogate mother cannot be treated
as mother of the babies, and children born out of surrogacy, though in India, cannot be
22 | P a g e
treated as Indian citizens within the meaning of Section 3 of the Citizenship Act, 1955.
Further it is also stated that parents of the children are not Indian citizens and therefore,
children are also not Indian citizens as per Section 3(1) (b) of Citizenship Act, 1955.
Further it is also stated that as per Passport Act, 1967, only Indian citizens can apply for
Indian Passport and as per Section 6 (2) (a) of the Act, Passport cannot be issued to
non-citizens. Further it is also stated that as per direction of the Government of India,
Ministry of External Affairs, Passport Authority can issue identity certificate, showing name
of surrogate mother, which does not entail citizenship to the children but would enable him
to take his children out of India. Further, it was also pointed out that the Central
Government is yet to legalize surrogacy and hence, children born out of surrogacy, though
in India, cannot be treated as Indian citizens.

Learned counsel appearing for the petitioner Mr. Dhaval C. Dave submitted that since
both the children are born in India, they are Indian citizens by birth as per Section 3 of the
Citizenship Act, 1955 and therefore, entitled to have all the rights of Indian citizens and the
Passport Authorities are legally obliged to issue Passports to them under the Indian
Passports Act, 1967. Learned counsel submitted that surrogacy is not prohibited in India
and admittedly, children are born in India to a surrogate mother who herself is an Indian
citizen. Learned counsel submitted that petitioner and his wife are German citizens but as
the children are not born in Germany, they would not get German citizenship, especially
when German law does not recognize surrogacy. Learned counsel submitted that for the
purpose of obtaining VISA from the Consulate of United Kingdom, it is necessary that
children should have an Indian Passport since they are born in India and not in Germany.

Learned counsel Mr. Anshin Desai appearing for the Passport Authority submitted that
children are not Indian citizens and therefore, not entitled to get Passport under the Indian
Passport Act. Learned counsel submitted that petitioner’s intention is to acquire German
citizenship and in order to facilitate that he is seeking Indian citizenship for the children.
Learned counsel submitted that in exceptional cases Passport Authorities can issue
certificate of identity as was done in the case case of one Baby Manju Yamada. Learned
Counsel also referred to the judgment of the Apex Court in Baby Manju Yamada Vs. Union
of India (2008) 13 SCC 518 where the Passport Authorities have issued only certificate for
permission to travel out of India.

We may at the outset point out that lot of legal, moral and ethical issues arise for our
consideration in this case, which have no precedents in this country. We are primarily
concerned with the rights of two new born innocent babies, much more than the rights of
the biological parents, surrogate mother, or the donor of the ova. Emotional and legal

23 | P a g e
relationship of the babies with the surrogate mother and the donor of the ova is also of vital
importance. Surrogate mother is not the genetic mother or biologically related to the baby,
but, is she merely a host of an embryo or a gestational carrier? What is the status of the ova
(egg) donor, which in this case an Indian national but anonymous. Is the ova donor is the
real mother or the gestational surrogate? Are the babies motherless, can we brand them as
legal orphans or Stateless babies? So many ethical and legal questions have come up for
consideration in this case for which there are no clear answers, so far, at least, in this
country. True, babies conceived through surrogacy, encounter a lot of legal complications
on parentage issues, this case reveals. Legitimacy of the babies is therefore a live issue. Can
we brand them as illegitimate babies disowned by the world. Further, a host of scientific
materials are made available to us to explain what is traditional surrogacy, gestational
surrogacy, altruistise surrogacy, commercial surrogacy etc. and also the response of
various countries with regard to the surrogacy, especially commercial surrogacy.

Commercial surrogacy is never considered to be illegal in India and few of the

countries like Ukrain, California in the United States. Law Commission of India in its 220th
Report on Need for Legislation to regulate Assisted Reproductive Technology Clinics as
well as rights and obligations of parents to a surrogacy has opined that surrogacy
agreement will continue to be governed by contract among parties, which will contain all
terms requiring consent of surrogate mother to bear the child, agreement of a husband and
other family members for the same, medical procedures of artificial insemination,
reimbursement of all reasonable expenses for carrying the child to full term, willingness to
hand over a child to a commissioning parents etc. Law Commission has also recommended
that legislation itself should recognize a surrogate child to be the legitimate child of the
commissioning parents without there being any need for adoption or even declaration of
guardian. Further it was also suggested that birth certificate of surrogate child should
contain names of the commissioning parents only and that the right to privacy of the donor
as well as surrogate mother should be protected. Exploitation of women through surrogacy
was also a worrying factor, which is to be taken care of through legislation. Law
Commission has expressed its desire that Assisted Reproductive Technology Bill with all
safeguards would be passed in the near future.

Ukraine Surrogacy Laws are very favourable and fully support the individuals
reproductive rights. Clause 123 of the Family Code of Ukraine and Order 771 of the Health
Ministry of Ukraine regulate surrogacy. Ukraine laws permit commissioned parents to
choose the gestational surrogacy, ova, or sperm donation embryo, adoption, programmes
for which no permission is required. Legislation also provides for a commercial surrogacy
agreement between the parties. Child born legally belongs to the commissioned parents
24 | P a g e
and the surrogate mother cannot keep the child to herself. California is also accepting the
surrogacy agreements, which has no statute directly dealing with surrogacy. Courts
generally rely on Uniform Parentage Act to deal with various surrogacy agreements.
California Supreme Court in Johnson Vs. Calvert (1993) 5 CAL 4th 484 held that gestational
surrogate has no parental rights to a child born to her since a gestational surrogacy
contract is legal and enforceable and the intended mother is the natural mother under the
Californian law. In the above case the intended mother donated the egg and a surrogate
mother gave birth, in such a case the Court held that the person who intended to procreate
should be considered as the natural mother. In another case decided by the U.S Court in the
year 1998 Buzzanca Vs. Buzzanca 1961 CAL. Appl.4th 1410 (1998), the Court considered
the issue of traditional surrogacy agreements. That was a case where the surrogate mother
has been artificially inseminated i.e. a surrogate mother was impregnated by using her ova
and anonymous sperm, meaning thereby the intended parents had a genetic link to the
child. Court held that when a married couple uses non-genetically related embryo and
sperm implanted into a surrogate intended to procreate a child, they are lawful parents of
the child. In another U.S case decided in 1998, In Re Marrijo Moschetta awarded legal
parent rights to the intended father and surrogate mother. In another U.S case considered
by the New Jersy Supreme Court, In Re Baby 537 A.2d 1227 (NJ.02/03/1988), gave custody
to the natural father of the child, but rights of the adopted mother was denied. Surrogate
mother who conceived the child via artificial insemination was granted visitation rights.

Japan has taken a different legal stand in respect of surrogacy. Supreme Court of Japan,
on March 23, 2007, denied parenthood to genetic parents since the twin babies were born
to a surrogate mother at United States. Interpreting the Civil Code of Japan, the Supreme
Court, held a mother who physically gives birth to a child is the legal mother. There is no
provision in the Code to recognize the genetic mother as the legal mother. There exists no
specific laws in Japan concerning parent-child relationship for artificial insemination, and
the mother and child relationship will be based on the fact of delivery. The issue of
Citizenship status of such an infant is also a burning problem in Japan. The Japan Supreme
Court rejected the Japanese commissioning parents bid to register their twins born to a U.S
surrogate mother in Japan, on the ground that the law presumes the woman, who gives
birth to a child as its mother.

Germany, as law stands today, does not recognize surrogacy agreements. Law also
prohibits egg donation and advocates for embryo procreation. Medical practitioners are
also prevented from performing artificial insemination or embryo donation, which are all
criminal offences. Same seems to be the situation in Sweden, Norway, Italy and so on. But
countries like Belgium, Netherlands and Great Britain are little more liberal. Reference may
25 | P a g e
be made to the decisions of the High Court of Justice, Family Division, Rex & Y (Foreign
Surrogacy) 2008 EWHC 3030 (Fam) U.K.

We have indicated, in India there is no law prohibiting artificial insemination, egg

donation, lending a womb or surrogacy agreements. No civil or criminal penalties are also
imposed. Public pressure, for a comprehensive legislation defining the rights of a child born
out of surrogacy agreement, rights and responsibilities of a surrogate mother, egg donor,
commissioning parties, legal validity of the surrogacy agreement, the parent child
relationship, responsibilities of Infertility Clinic etc. are gaining momentum. Legislature
will have to address a lot of emotional, legal and ethical issues. Question as to whether
surrogacy can be seen as a ray of hope to otherwise a childless couple, so as to build up a
family of their own, necessary for human happiness and social stability also calls for
attention. Few are the case laws and precedents defining the rights of those who have a
vital role to play in this reproductive technology. One case law worth mentioning in India is
Baby Manje’s case decided by the apex Court of India (2008) 13 SCC 518. Various issues
which we have highlighted in this case were not discussed or answered in that case. That
was a case where the Japanese Embassy in India refused to grant the child, born to
surrogate Indian mother, VISA or Passport on the ground that the Japanese Civil Code
recognizes a mother only to be a woman who gives birth to a baby. Attempts made to adopt
Manji also did not fructify since Guardian Wards Act, 1890 did not allow single man to
adopt those babies. Efforts were made to obtain Indian Passport, which also required a
birth certificate. Question arose as to who was the real mother whether it was anonymous
egg donor or the surrogate mother. Birth certificate was then issued by the local
Municipality, by showing the father’s name. Later the Regional Passport Office, Rajasthan
issued a certificate of identity as part of a transit document and not the Passport. Certificate
did not contain nationality, mother’s name or religion of the baby.

Mother – child relationship is fraught with various problems, emotional, moral, ethical,
legal, social etc. Study conducted by some organizations reveal that surrogate mothers have
little difficulty in relinquishing their rights over a surrogate child to the intending parents
and that the majority of surrogates are satisfied with their surrogacy experience and do not
bother upon their bonding with the child they gave birth. Few other studies state that the
surrogate mothers at time depict deep emotional attachment to the babies they give birth.
Conflicting views have also been highlighted. Further elaboration on these ethical,
psychological or moral issues are not necessary for our purpose.

We are in this case primarily concerned with the relationship of the child with the
gestational surrogate mother, and with the donor of the ova. In the absence of any

26 | P a g e
legislation to the contrary, we are more inclined to recognize the gestational surrogate who
has given birth to the child as the natural mother, a view prevailing in Japan. Anonymous
Indian woman, the egg donor, in our view, is not the natural mother. She has of course a
right to privacy that forms part of right to life and liberty guaranteed under Article 21 of
the Constitution of India. Nobody can compel her to disclose her identity. Babies born are
not in a position to know who is the egg donor and they only know their surrogate mother
who is real. Wife, of the biological father, who has neither donated the ova, nor conceived
or delivered the babies cannot in the absence of legislation be treated as a legal mother and
she can never be a natural mother. In our view, by providing ova, a woman will not become
a natural mother. Life takes place not in her womb, nor she receives the sperm for
fertilization. Human fertilization is the union of a human sperm and egg usually occurring
in the ampulla of the urine tube. Process involves development of an embryo. Process in
this case followed is In Vitro Fertilization, a process by which egg cells were fertilized by
sperm outside the womb in vitro. Resultantly, the only conclusion that is possible is that a
gestational mother who has blood relations with the child is more deserving to be called as
the natural mother. She has carried the embryo for full 10 months in her womb, nurtured
the babies through the umbilical cord. Even if we assume that the egg donor is the real
natural mother, even then she is an Indian national so revealed before the learned Single
Judge, we are told. Both the egg donor as well as the gestational surrogate are Indian
nationals, and hence the babies are born to an Indian national.

The Registrar, Birth and Deaths functioning under the Registration of Births and
Deaths Act, 1969 has already issued certificate of birth to the children stating that they are
born within the local area of Anand Nagar Palika, and showing mother’s name as
Marthaben Immanuel Khristi and father’s name as the petitioner. Be that as it may, for the
purpose of issuance of the Birth Certificate. Factum of birth of the babies has been
established and that too in India to an Indian mother, whether to a gestational surrogate or
donor of an ova. In the application for Passport, we have already indicated that petitioner
has shown Khristi Marthaben Immanuel as mother gestational surrogate who is admittedly
an Indian national. Egg donor is also reported to be an Indian woman, of course her identity
is not disclosed. Either way the mother of the babies is an Indian national. Petitioner, it is
true, has not married Khristi Marthaben Immanuel, surrogate mother of the children or the
egg donor. Children are born not out of a subsisting marriage. Even if the children are
described as illegitimate children, even then they are born in this country to an Indian
national and hence, they are entitled to get Citizenship by birth as per Section 3(1)(c)(ii) of
the Citizenship Act, 1955, since one of their parent is an Indian citizen. Relevant portion of
Sec.3 is extracted hereunder for easy reference.

27 | P a g e
 3. Citizenship by birth (1) Except as provided in sub-section (2), every person born in
India, –

(a) …….. ……

(b) …….

(c) on or after the commencement of the Citizenship (Amendment) Act, 2003, where –

(i) ……

(ii) one of whose parents is a citizen of India and the other is not an illegal migrant at
the time of his birth,shall be a citizen of India by birth.

Section 3 uses the expression every person born and the emphasis is on the
expressions ‘person’ and ‘born’. ‘Person’ means a natural person. In Webster V.
Reproduction Health Services etc.__ (1989) 492 U.S 490, the Court held the word ‘personal’
within 14th Amendment means a human being after birth and not a foetus. Black’s Legal
Dictionary, Sixth Edition defines the word ‘born’ as an act of being delivered or expelled
from mother’s body whether or not placenta has been separated or cord cut. Both the
babies in this case are persons born in India, indisputedly one of their parents is an Indian
citizen, a surrogate mother. The two babies have therefore satisfied the ingredients of
Section 3(1)(c)(ii) and hence they are Indian citizens by birth. Passport to travel abroad
therefore, cannot be denied to those babies, who are Indian citizens, which would
otherwise be violative of Article 21 of the Constitution of India. Section 6 of the Passport
Act refers to the grounds for refusal of Passport. Section 6 (2)(a) says that Passport can be
denied if the applicant is not a citizen of India. In the instant case, we have already found
that two babies born to the surrogate mother are Indian citizens by birth and hence
entitled to get Passports.

Passport Authorities are willing to issue a certificate of identity under Section 4(2)(b)
of the Passports Act, which is issued only for the purpose of establishing the identity of a
person. In the instant case, the identity of the two babies has already been established, they
are born in this country to a surrogate mother, an Indian national, and hence citizens of
India within the meaning of Section 3(1)(c)(ii) of the Citizenship Act.

A comprehensive legislation dealing with all these issues is very imminent to meet the
present situation created by the reproductive science and technology which have no clear
answers in the existing legal system in this country. Views expressed by us, we hope, in the
present fact settings, will pave way for a sound and secure legislation to deal with a
situation created by the reproductive science and technology. Legislature has to address lot

28 | P a g e
of issues like rights of the children born out of the surrogate mother, legal, moral, ethical as
well as the rights, duties and obligations of the donor, gestational surrogate and host of
other issues.

Further, under the Indian Evidence Act, no presumption can be drawn that child born
out of a surrogate mother, is the legitimate child of the commissioning parents, so as to
have a legal right to parental support, inheritance and other privileges of a child born to a
couple through their sexual intercourse. The only remedy is a proper Legislation drawing
such a presumption including adoption. Further the question as to whether the babies born
out of a surrogate mother have any right of residence in or citizenship by birth or mere
State orphanage and whether they acquire only the nationality or the biological father has
to be addressed by the legislature.

Indian Council of Medical Research (ICMR) has issued certain guidelines on surrogacy
and Assisted Reproductive Technology (ART) in 2005. The new Bill ART (Regulation) Bill
and Rules, 2008 is yet to become law, and there is extreme urgency to push through the
legislation answering all these issues.

Whether these procedures can be applicable in the Philippine setting is still a big
question as there has yet no specific case decided by the Supreme Court dealing on the
matter. The prominent surrogacy children by celebrities here in the Philippines have not
been question before the courts. There appears to be no compelling state interest to
question them in the present time. This silence in the law and with respect to the State as
an institution regulating the family seems to impliedly allow surrogacy as a method for
infertile married couples to have children of their own.42

Other issues

It is even more cumbersome when same sex couples avail of surrogacy since same sex
marriage or companionship is not recognized legally here in the Philippines. The status of
the child is therefore uncertain with respect to citizenship, filiation and successional rights.

The status of the child cannot be the subject of compromise neither can it be
determined by parties through a contract. It would be detrimental on the part of the child if
he/she were to be brought into the world through surrogacy and his/her parents are in the
same sex.

42 Espino, Donato: The Appreciation of Surrogate Mothers in the Philippine Legal System:
https://ausltechlaw.wordpress.com/2012/09/26/espino-donato-the-appreciation-of-surrogate-mothers-in-the-philippine-legal-
system/

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V. CONCLUSION

Surrogacy abroad in a nutshell

The validity of surrogacy vary from country to country. Some countries consider
surrogacy as invalid based on public policy. This is based on the premise that human
dignity shall be inviolable and that a person cannot be the subject of contracts.
Furthermore the invalidity hinges on the exploitation of women who are vulnerable
financially especially in developing countries.

However, several countries allow surrogacy for the benefit of those who would like to
have a family but are physically unable to do so. But the same must be based on stringent
parameters. In other jurisdictions they allow surrogacy for married couples as long as it is
an altruistic surrogacy; a surrogacy without consideration except the needs of the
surrogate mother. Their laws provide for formalities to make sure that the child will be in
good hands once it is born and the same should be with the intervention of the Court for
the protection and benefit of the child.

Lack of legislation in the Philippines

As prevalent the practice of surrogacy is in the present time the lack of legislation
thereof in the Philippines is quite telling. The movement to a more liberal society has not
advanced the notion of embracing the modern view on reproduction. This has something to
do still of the encompassing influence of the Catholic church in Philippine politics and
governance. The values and doctrines taught by said church is still deeply engraved in the
laws that are being passed by the legislature which is why liberal legislation relating to
reproductive health and the use of modern medical technologies as a tool to reproduce a
human offspring is still a divisive issue.

The increasing number of couples who cannot bear children should be recognized by
the State as an issue that needs to be addressed. There is a compelling state interest to
protect these couples and help them achieve their goals of establishing a family. The family
is recognized as a protected institution and an important part of nation building as
enshrined in the 1987 Philippine Constitution. It is imperative, therefore, that the State
take steps to address the issues facing couples who do not have the capability to bear
children in the conventional way.

Proposed Legislation

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 We propose the enactment of a law to recognize surrogacy and its effects in this
jurisdiction. In line with this, we have set some parameters to guide our legislators in
crafting the said law, viz:

It must ban commercial surrogacy.

The proposed law must provide for a blanket ban on commercial surrogacy and only
permit altruistic surrogacy by a close relative, who must have given birth to a child.

This is to prevent the possibility of Philippines becoming a surrogacy hub for couples from
different countries.

Based on our research, commercial surrogacy has resulted into unethical practices,
such as "rent-a-womb" schemes and "cross-border surrogacy" putting both surrogate
mothers and their children at risk. Thus, instead of just putting into place checks and
balances for this growing industry, we propose that the government simply ban it.

If a heterosexual married couple has proven infertility, and the couple has found a
potential surrogate, they may pay for any and all of her medical bills and living expenses
during the period of pregnancy. No other remuneration must be paid.

Foreign nationals cannot get Filipino surrogate mothers.

Surrogacy must be limited to Filipino citizens only so as not to produce conflicts as

regards the citizenship of the child and the applicable national laws.

Surrogacy must be limited to infertile heterosexual couples.

We propose that surrogacy be legalized only for qualified infertile heterosexual couples.
The proposed law allows heterosexual married Filipinos couples with "proven infertility"
as certified by a government physician to try the surrogacy route. This will, by omission,
keep out any homosexual couples as the law does not cover them, as well as live-in
partners, and single men and women who might want a surrogate child. While it may seem
discriminatory as against homosexuals or unmarried couples, we believe that this
limitation stands to reason because the Congress has yet to pass a law governing
homosexual unions and their legal effects. Furthermore, extending this privilege to
common law spouses shall tantamount to placing them in equal footing with married
couples.

A surrogacy regulatory body must be established.

We propose the establishment of a Surrogacy Board at the central level, chaired by the
Secretary of the Department of Health, and City/Provincial Surrogacy Boards in respective
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local government units. This body shall be in charge of regulating hospitals which conduct
surrogacy and the registration of all qualified surrogates.

Remedy

It is ultimately the Philippines’ responsibility as a state to promote and advance the

welfare of its people. And by people, this includes those who wish to establish a family
through the method of surrogacy. The Philippines cannot disregard the clamor of
numerous childless couples by keeping silent on this pressing issue. It must act and it must
do so with dispatch.

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