Saint Louis University SCHOOL OF LAW
Baguio City
November 28, 2016
IN THE MATTER OF THE SURROGACY CONTRACTS ENTERED INTO Y !OEL SANTOS CRU", AND #IC$I ELO AND HAYDEN $HO AROAD%
These are consolidated cases of surrogacy contracted by Joel Santos Cruz in one case and by Vicki Vicki Belo and Hayden Kho in another in hich the researchers sought to anser research !uestions given to the" by their #rofessor in fulfill"ent of their re!uire"ents in La $$$% #ersons and &a"ily 'elations(
T&e '()*+( (-*e)e.e-*/ (re (/ 'oo/
!oe S(-*o/ Cr+ )(/e
Joel Santos Cruz is a business"an ho is the )resident and C*+ of brands ,ficionado -er"any #erfu"es( He then anted to have children of his on but he could not do it the .usual/ ay it ould be done because he does not ant to have inti"ate or se0ual relations ith a o"an and that he as attracted attracted to boys% even hen he as still a kid( So% he did the )rocess having a child through 1V& 21n3Vitro &ertilization4(
He began the )rocess here in the #hili))ines by consulting to s)ecialists( The egg cells ere bought abroad and the surrogate "others ere &ili)inas( They tried the )rocedure three ti"es% but it did not ork( Just hen he as losing ho)e% he tried checking che cking the 1nternet and found hat he had been looking for( 1nitially% he chose a Ukrainian as a surrogate "other but he as #age 1 of 23
re5ected because he ould be a single father and it is against Ukrainian la( So% he as then told to try the )rocess in 'ussia because there as no )rohibition to a single father( He then ent to a la fir" in 6osco% ith a clientele around the orld% hich took care of everything% fro" contracting the doctor and looking for the surrogate "other% etc( He stayed there for five days to co")lete all the re!uire"ents necessary( He chose a o"an% long3legged% and a 7$3year3old single "other% ho looks like Julia 'oberts( He sa and kne the o"an but the latter did not( He then sub"itted his s)er" in ,ugust 89$$(
,fter five "onths% on January $8% 89$8% he got a call that the )rocedure as orking% and that the surrogate "other as conceiving( ,ccording to the ultrasound% he as going to have tins( +riginally% the hole contract costs around : "illion )esos )er child% but he as charged an additional half of that a"ount because he as having tins( The surrogate "other then gave birth on Se)te"ber ;% three days ahead of the original date of Se)te"ber 88( Joel then arrived one eek after that( Before he could bring the babies ho"e to the #hili))ines in +ctober% he sub"itted nu"erous docu"ents such as birth certificates% )er"it fro" the
#4)54 eo (-. H(.e- $&o )(/e
1n the case of Vicki Belo and Hayden Kho% they clai" that their baby Scarlet Sno is $99 )ercent their daughter( 1n an article a rticle that ca"e out on #hili))ine Star on Tuesday% Tuesday% 6ay $=% 'icky 'ick y Lo rote that the $;3"onth3old $;3"onth3old celebrity celebrity baby is Hayden>s daughter ?not ith(((
s Bandila ,BS3CB@>s Bandila aired Aednesday% 6ay $% the celebrity doctor clarified that Scarlet Sno% hile carried by a surrogate "other% is ?$99 our baby%? Vicki said( Hayden e0)lained to 'icky that the surrogate "other as .only a carrier%/ a gestational surrogate% and .has no genetic
1 htt)DEE()hilstar(co"Eentertain"entE89$7E98E$FEG9G$Eho35oel3cruz3got3tin35oys
2last seen
,ugust $G% 89$:4 #age 2 of 23
contribution/ to their baby( Hayden then further said in a te0t "essage that Scarlet is not 6e0ican3,"erican(8
T&e 7+e/*4o-/ /o+&* *o be (-/ere. (re (/ 'oo/
I%
Are *&e /+rro() )o-*r()*/ e-*ere. 4-*o b !oe S(-*o/ Cr+, (-. #4)54 eo (-. H(.e- $&o (bro(. v(4. &ere 4- *&e 9&44::4-e/; (% I' *&e )o-*r()*/, 4*& *&e /(me :(r*4e/ 4-vove., ere e-*ere. (-. e
II%
&ere 4- *&e 9&44::4-e, (re *&e v(4.; b% I' *&e /+rro(*e mo*&er 4/ (/o ( F44:4-o )4*4e-, (re *&e v(4.; )% I' -o :(me-* or )o-/4.er(*4o- (/ 4ve- *o *&e /+rro(*e, (re *&e v(4.; Are *&e )&4.re- )o-/4.ere. *&e4r o- )&4.re-; I' e/, (re *&e e4*4m(*e or
III%
4e4*4m(*e )&4.re-; I' *&e /+rro() )o-*r()*/ ere :re:(re. b ( F44:4-o (er, .4. *&e (er v4o(*e (- r+e o- e( e*&4)/ b .o4- /o;
To anser the )receding !uestions% the researchers ould first discuss about the "edical )rocedure )erfor"ed% and the nature and legalities of the contract e0ecuted by the )arties in the cases(
Ar*4'4)4( I-/em4-(*4o-
,rtificial inse"ination 2,14 is defined as the i")regnation of a fe"ale 2usually the ife4 ith se"en fro" a "ale 2ideally fro" the husband4 ithout se0ual intercourse(7 6ore technically% it is the ?introduction of se"inal fluid ith s)er"atozoa in the generative tract of a o"an by "eans of syringe% )i)ette% irrigation or other si"ilar "eans(?; 2 htt)DEE"anila(coconuts(coE89$:E9FE$GEvicki3and3hayden3scarlet3sno3$993)ercent3our3baby 2last seen
,ugust $G% 89$:4 3 &lerida 'uth #( 'o"ero% Legal Aspects of Artificial Insemination % F #H1L( L( J( 89% 2$G74 4
#age 3 of 23
,1 is classified according to hose se"en is used( Se"en "ay be secured fro" the husband and in5ected by instru"ent into the o"ans re)roductive tract in order to induce )regnancy( This )rocess is knon as ho"ologous artificial inse"ination or artificial inse"ination by the husband 2,1H4(F This is done hen the husband has live s)er"atozoa of ade!uate nu"ber but cannot de)osit the" in the o"an for conce)tion to take )lace( ,rtificial inse"ination has actually been in use for centuries( : 1ts first use as "ade on ani"als as early as $788(= The first re)orted case of ,1 on a hu"an being occurred in $=GG hen a husbands s)er" as used to i")regnate his ife(
Ar*4'4)4( I-/em4-(*4o- (-. 9&44::4-e L(
#hili))ine la e0)ressly recognizes artificial inse"ination( The &a"ily Code of the #hili))ines )rovideD
,rticle $:;( Children conceived or born during the "arriage of the )arents are legiti"ate( Children conceived as a result of artificial inse"ination of the ife ith the s)er" of the husband or that of a donor or both are likeise legiti"ate children of the husband and his ife% )rovided% that both of the" authorized or ratified such inse"ination in a ritten instru"ent e0ecuted and signed by the" before the birth of the child( The instru"ent shall be recorded in the civil registry together ith the birth certificate of the child(G
5 Id. 6 The first Catholic Church decision to address the issue of artificial inse"ination as "ade as far back
as $G=( Ahen asked the !uestion of hether ,1 is )er"issible4 the cardinals ith the a))roval of #o)e Leo I111 re)lied% ?@on Licere(? 1t as only in $G;G that they for"ulated a )olicy( 1n an address by #o)e Leo I11 to Catholic doctors% he conde"ned ,1 as i""oral and illicit e0ce)t hen it ?serves as an au0iliary to the natural union of the s)ouses and of fecundation(? Castillo% ibid note 8% at $;7% n(;( 7 Id. 8 Id.
#age = of 23
This )rovision shos the )rogressiveness of the Code in taking into account "odern technologies that ere yet to be regulated under )ositive la($9 &urther"ore% this settles the !uestion of the status of the child born under artificial inse"ination(
S+rro() (-. *&e 9ro)e//
,rtificial 1nse"ination is used in surrogacy( Surrogacy is defined as the ?)ractice hereby a o"an carries a child for another ith the intention that the child should be handed over after birth(/$$ This "ethod is resorted to hen the )roble" lies in the infertility of the ife ho is unable to carry to ter"($8 1t is an arrange"ent beteen a third )erson% called the surrogate% and a contracting cou)le% hereby the surrogate carries a baby to ter" and turns over the child after birth to the contracting cou)le( The surrogate then relin!uishes all )arental rights over the child(
Surrogate "otherhood is not li"ited to any )articular "ethod of conce)tion( There are at least four )ossible situations involving surrogate "others( First % a surrogate is artificially inse"inated and the child is then surrendered to the s)er" donor( This involves the use of the surrogates on egg to be fertilized by either the husband or a donors s)er"( Second, the surrogate carries a zygote created through in vitro fertilization% ith the child going to the ovu" donor at birth( The husbands or a donors s)er" "ay be used( Third, the zygote is created through in vivo fertilization ith the child going to the ovu" donor at birth( , Fourth )ossibility follos the sa"e )rocedure as the second and the third ith the child going to a third )erson% 9 The &a"ily Code of the #hili))ines% ,rt( $:; 10 ,'TU'+ T+L*@T1@+ ,
I CO!"TA#I!S A"$ %&#ISP#&$!"C! O" T'! CI(IL CO$! OF T'!P'ILIPPI"!S F8$ 2$GG= ed(4 hereinafter 1 T+L*@T1@+(
11 #eport of the Committee of In)uir* into 'uman Fertili+ation and !mr*olog* 2
Chair"an4 2$G;4% LondonD H6S+% C"nd( G7$;% at )ar( (l( 12 J+H@ K( 6,S+@% !$ICO-L!AL ASP!CTS OF #!P#O$&CTIO" A"$ PA#!"T'OO$ 88:
2$GG94( #age > of 23
ty)ically% the s)er" donor( This arises hen the egg used is fro" a donor fertilized by the husbands s)er"(
Surrogacy is classified as either traditional or gestational( Traditional surrogacy is a situation here the s)er" of the intending father is used to fertilize a surrogates ovu"( -estational surrogacy refers to an instance here the zygote of the cou)le is i")lanted into the uterus of a surrogate ho carries it to ter"(
The surrogate and the contracting )arties enter into a contract )rior to the e0ecu tion of the arrange"ent( The contract contains the condition that the surrogate "ust have the ability to bear children and restrictions on any of the listed actions that "ay cause har" to the child( The contract also )rovides for the relin!uish"ent of the child to the contracting cou)le after birth and the a"ount to be )aid to the surrogate as her co")ensation for services rendered(
Le(4*4e/ o' S+rro() ? Ge-er(
Ahat have been the legislative res)onses to surrogacy contracts 1n foreign countries% there are four )ossible categories consideredD )rohibition% facilitation% regulation% and a static a))roach($7 #rohibition refers to efforts to )revent surrogacy arrange"ents( 1t is divided into to categoriesD cri"inalization and null and void contracts( Such a res)onse is based on )ublic )olicy argu"ents% like the co""odification of the babies% the )ossible )sychological har" to the "other ho relin!uishes custody of the child% and the failure to consider the childs best interest( 1n facilitation% the govern"ent acts to enforce the agree"ents "ade by consenting )arties( This a))roach su))orts co""ercial services involved in the surrogacy )rocess($;
13 1an 6c,llister% odern #eproductive Technolog* and the La/s0 Surrogac* Contracts in the &nited
States and !ngland % 89 SU&&+LK T',@S( L( '*V( 797% 79 2$GG:4( 14 6c,llister% su)ra @ote $9% at 79
#age 6 of 23
, regulatory3sche"e% on the other hand% ould enforce surrogacy contracts that "eet ordered criteria($F This can include the re!uire"ent of 5udicial revie of all surrogacy contracts or the use of a state agency for "atching )artici)ants( ,lthough this ill settle all controversies regarding the legal status of the child and custody rights% there is the danger that such an a))roach ould lead to e0cessive govern"ent interference(
The static a))roach )rovides that even absent legislative guidelines% courts "ay address !uestions regarding custody and validity of contracts( Courts are "ore likely to consider the" as voidable rather than void )er se( ,ny atte")t by the courts to )rohibit re)roductive technologies not addressed by the legislature is tanta"ount to 5udicial legislation(
There are a lot of countries that do not allo surrogacy at all% including% &rance% -er"any% 1taly% #akistan% Saudi ,rabia and "any 1sla"ic countries( 1n &rance% the co""issioning )arents of a surrogate child are legally )revented fro" ado)ting it% even if the surrogate "other is ha))y to give the child u)( South ,frica% a )o)ular fertility touris" destination% does not allo surrogacy for )arents fro" another country% even though they )er"it it for residents($:
6any
"ore
countries
have
las
that
)rohibit co""ercial
surrogacy but
do
allo altruistic surrogacy( 1n so"e countries% co""ercial surrogacy is actually a cri"inal offence( ,ltruistic surrogacy is )er"itted in ,ustralia% Canada% 1srael and so"e states in the US,( 1n 1srael% surrogacy agree"ents "ust be a))roved by the state and surrogates are restricted to single o"en% idos and divorcees( 1n the US,% so"e states are "ore o)en to surrogacy issues than others% ith states like California and 6aryland surrogate friendly% hile @e Mork and the so called Nbible3belt 6id3Aest states are "ore restrictive($=
15 Id. 16 http011fertilit*.treatmentaroad.com1going-aroad-for-treatment1surrogac*-issues
2Last seen
@ove"ber $9% 89$:4 17 Id.
#age @ of 23
1n so"e countries co""ercial surrogacy is not only legal% it is encouraged as a groing industry that attracts foreign visitors( -eorgia% 'ussia% Ukraine and% "ost fa"ously% 1ndia% have all beco"e "a5or destinations for fertility touris" due to their liberal vies on surrogacy issues($
1t is i")ortant to re"e"ber that hile surrogacy% and even co""ercial surrogacy% "ay be legal in a chosen destination country% )eo)le "ay still encounter )roble"s once they get ho"e% es)ecially if their ho"e nation is less o)en "inded($G &or e0a")le% a British cou)le ho traveled abroad for surrogacy "ay find that they need a visa to bring their child ho"e% and ill face a co")le0 legal road to register the child as their on( 1nterested )eo)le should check that their ho"e nation ill recognize their rights to the child and allo the" to for"ally ado)t before they e"bark on the surrogacy )rocess(89
Le(4*4e/ o' S+rro() 4- R+//4(
'ussia is one of the fe lucky countries here surrogacy is alloed by la( The legal as)ects of surrogacy are sti)ulated by the Famil* Code of the #ussian Federation and the #ussian La/ on the Population 'ealthcare( The "edical as)ect of surrogacy is s)elt out in +rder := issued by the #ussian inistr* of 'ealthcare. The 'ussian La of Civil Healthcare of June 88%$GG7 OF;=3$% ,rticle 7F Artificial insemination and implantation of emr*os states the folloingD N*very "a5or o"an of fertile age is entitled to the right of artificial inse"ination and i")lantation of an e"bryo( , o"an can be artificially inse"inated and have an e"bryo i")lanted in licensed "edical centres u)on the ritten consent of the s)ouses 2of a single o"an4( ,ll the infor"ation concerning the artificial inse"ination and e"bryo i")lantation% as ell as the donors )ersonal data constitute a "edical secret( ,fter the delivery of the baby the 18 Id. 19 Id. 20 Id.
#age 8 of 23
surrogate "other% according to #aragra)h ;% ,rticle F$ of the &a"ily Code of the 'ussian &ederation and #aragra)h F% ,rticle $: of the &ederal La of the 'ussian &ederation NCivil ,cts% gives her consent for )utting the biological )arents na"es onto the birth registrar( By doing this% the surrogate "other reassigns her rights to the baby to the biological )arents and thus cannot clai" her rights any"ore(8$
1n 'ussia% local surrogate "aternity )rogra"s are accessible for foreigners% and according to its las% "arital status of the intended )arent2s4 is not i")ortant% for even a single )erson can also have the right to have a surrogate child( 88
,rticle F$ of the &a"ily Code of the 'ussian &ederation states that% ? 6arried )ersons ho have given their ritten consent for the i")lantation of an e"bryo to another o"an for the )ur)ose of carrying it to ter"% can be registered as )arents of the child only ith the consent of the o"an ho gave birth to that child 2the surrogate "other4?( ,rt( F8 of the &a"ily Code of the 'ussian &ederation states that ?neither the s)ouses% ho have given their consent for the i")lantation of an e"bryo to another o"an% nor the surrogate "other 2section to% )aragra)h ; of article F$ of the )resent Code4 have the right to invoke these circu"stances hen contesting the )arentage after the )arents have been entered into the register of births(? #aragra)h F% )age $: of the la ?+n Civil Status ,cts? states that ?s )arents "ust be )resented concurrently ith the docu"ent confir"ing the birth of the child(87 ,fter the entry of the )arents in the book of birth registrations is "ade% the surrogate irrevocably loses all rights to the child(
21 htt)DEEsurrogacy(ruEengE&,PE 2last seen @ove"ber 8=% 89$:4 22 htt)DEEblogs(elenas"odels(co"EenEsurrogacy3in3russiaE 2last seen @ove"ber 8=% 89$:4 23 htt)DEE(surrogacy"ed(co"Elegal3"attersEsurrogacy3in3russia(ht"l 2last seen @ove"ber 8=% 89$:4
#age of 23
Children born to heterose0ual cou)les ho are not officially "arried or single intended )arents through gestational surrogacy should be registered in accordance to analogy of 5us 2art( F of the &a"ily Code of 'ussia4( , court decision "ight be needed for thatQ but on ,ugust F% 899G% a St( #etersburg court definitely resolved a dis)ute hether single o"en could a))ly for surrogacy and obliged the State 'egistration ,uthority to register a 7F3year3old single intended "other% @ataliya -orskaya% as the "other of her ?surrogate? son ho beca"e the first o"an in 'ussia to defend her right to beco"e "other through a court )rocedure( +n @ove"ber 7% 899G a 6osco district court ado)ted the sa"e decision on a si"ilar case( 8; Si"ilarly% on ,ugust ;% 89$9 Babushkinsky
Le(4*4e/ o' S+rro() 4- *&e USA
1n the US,% ,rkansas as one of the first states to enact surrogacy friendly las( 1n $GG% under then -overnor Bill Clinton% it )assed ,ct :;=% hich states that in a surrogacy arrange"ent% the biological father and his ife ill be recognized as the child>s legal )arents fro" birth% even if his ife is not genetically related to the child 2i(e(% in a traditional surrogacy arrange"ent4( 1f he is un"arried% he alone ill be recognized as the legal )arent( , o"an "ay
th
24 'e)roductive Bio6edicine +nline% ,bstracts of the F Congress of the Aorld ,ssociation of
'e)roductive 6edicine% $93$7 +ctober% 89$9% 6osco% 'ussia( (rb"online(co" 25 htt)DEE(surrogacy(ruEengEnesEnes;()h) 2last seen @ove"ber 8=% 89$:4
#age 10 of 23
also be recognized as the legal "other of the surrogate birth "other>s genetic child as long as that child as conceived ith anony"ous donor s)er"(8:
California la% as established in rulings of the California Su)re"e Court% is very favorable to surrogacy( ,lthough California has no statute that directly addresses the surrogacy )rocess% the state>s courts have used California>s Unifor" #arentage ,ct for the )ur)ose of inter)reting a nu"ber of different cases that relate to this )rocedure( 1n the notable cases of Calvert v( Johnson 2$GG74 and Buzzanca v( Buzzanca 2$GG4% California first established and then reinforced its )osition that intent governs in the deter"ination of )arentage in gestational surrogacy situations( 1t held that the intended )arents as )art of a gestational surrogacy agree"ent should be recognized as both the legal and the natural )arents(
1n a gestational surrogacy situation% the surrogate is not the biological contributor of the egg% but rather the carrier of the e"bryo that is "ade u) of the intended father>s s)er" and the intended "other>s egg and is then i")lanted into the surrogate>s uterus via in vitro fertilization( 1n the Johnson versus Calvert case% the court ulti"ately decided that the )erson ho had intended to )rocreate 3 in this case% the intended "other ho )rovided the egg 3 ould be considered as the child>s natural "other(8=
1n California% an e0isting statutory la a))licable is the Unifor" #arentage ,ct 2U#,4% hich as never designed to govern the ne re)roductive technology of gestational surrogacy( Under the U#,% both the genetic "other and the gestational "other have an e!ual right to be the childs natural "other( But the U#, allos the natural "other for each child% and thus the court is re!uired to "ake a choice( To break this .tie/ beteen the genetic "other and the gestational 26 htt)sDEEen(iki)edia(orgEikiESurrogacyRlasRbyRcountry 2last seen @ove"ber 8=% 89$:4 27 htt)DEE("odernfa"ilysurrogacy(co"E)ageEstateRlasRinRcaliforniaRforRsurrogacy 2last seen
@ove"ber 8=% 89$:4 #age 11 of 23
"other% the "a5ority uses the legal conce)t if intent( 1n so doing% the "a5ority has articulated the rationale for using the conce)t of intent that is grounded in )rinci)le of tort% intellectual )ro)erty and co""ercial contract la(
The allocation of )arental rights and res)onsibilities necessarily i")acts the elfare of a "inor child( ,nd in issues of child elfare% the standard that courts fre!uently a))ly is the best interests of the child( 1ndeed% it is highly significant that the U#, itself looks to a child>s best interests in deciding another !uestion of )arental rights( This .best interests/ standard serves to assure that in the 5udicial resolution of dis)utes affecting a child>s ell3being% )rotection of the "inor child is the fore"ost consideration( Conse!uently% e ould a))ly .the best interests of the child/ standard to deter"ine ho can best assu"e the social and legal res)onsibilities of "otherhood for a child born of a gestational surrogacy arrange"ent(
S+rro() Co-*r()*/ 4- *&e 9&44::4-e/
1n the #hili))ines% at )resent% there is no governing la on surrogacyQ but the vie has been taken that surrogacy contracts should be declared void for being against )ublic )olicy( ,lthough )rohibition is the least attractive o)tion% it ould be favored in our country because of the conservative stand)oint held by "ost of the citizens influenced by religion and the belief that such an arrange"ent tends to denigrate the sanctity of "arriage( 1f &ili)inos% hoever% engage into surrogacy contracts abroad% it "ay beco"e valid( ,rticle $= of the Civil Code of the #hili))ines )rovide thatD The for"s and sole"nities of contracts% ills% and other )ublic instru"ents shall be governed by the las of the country in hich they are e0ecuted(8
The rst )aragra)h of the ,rticle lays don the rule of le0 loci celebrationis insofar as e0trinsic validity 2for"s and sole"nities4 is concerned( Thus% a contract entered into by a &ili)ino in Ja)an ill be governed by Ja)anese la insofar as for" and sole"nities of the
28 Civil Code of the #hili))ines% ,rt( $=
#age 12 of 23
contract are concerned(8G 1t should be noted that hile the rst )aragra)h of ,rticle $= s)eaks of for"s and sole"nities% no "ention is "ade of the la that should govern the intrinsic validity of contracts in general( The )revailing rule in #rivate 1nternational La today is to consider the le0 loci voluntatis 2the la of the )lace voluntarily selected4 or the le0 loci intentionis 2the la of the )lace intended by the )arties to the contract4(79 Hence% if a surrogacy contract is entered and e0ecuted abroad% and as long as it is legally alloed in that )lace% then the contract is said to be valid(
+n the other hand% in a surrogacy contract entered into here in the #hili))ines% there is a contradicting vie( 1n a surrogacy% the surrogate "other and the )utative )arents sign a contract that )ro"ises the cou)le ill cover all "edical e0)enses in addition to the o"ans )ay"ent% and the surrogate "other ill hand over the baby after birth( The essential ele"ents of a valid contract are consent% cause and consideration( , surrogacy contract "ay be attacked that its ob5ect is beyond the co""erce of "an(7$
,rticle $7$ of the Civil Code )rovidesD There is no contract unless the folloing re!uisites concurD $( Consent of the contracting )arties 8( +b5ect certain hich is the sub5ect "atter of the contract 7( Cause of the obligation hich is established #er the Civil Code% the re!uisites of things as ob5ect of a contract are the folloingD a( The thing "ust be ithin the co""erce of "an 2,rt( $7;=4 b( 1t "ust not be i")ossible% legally or )hysically 2,rt( $7;4 c( 1t "ust be in e0istence or ca)able of co"ing into e0istence 2,rts( $;:$% $;G7 and $;G;4 d( 1t "ust be deter"inate or deter"inable ithout the need of a ne contract beteen the )arties 2,rts( $7;G and $;:94 th
29 Civil Code of the #hili))ines ,nnotated $: *dition% #aras% *dgardo% 'e0 Book StoreD 6anila% )($$= 30 1d( at $$G 31 htt)sDEEausltechla(ord)ress(co"E89$8E9GE8:Ees)ino3donato3the3a))reciation3of3surrogate3"others3
in3the3)hili))ine3legal3syste"E 2Last seen @ove"ber $$% 89$:4 #age 13 of 23
By analogy% e can a))ly the case of Beltran et( al( vs( The Secretary of Health 2-' no( $77:;94% )ro"ulgated *n Banc by the Su)re"e Court on @ove"ber 8F% 899F( #etitioners Beltran and others% all o)erators of )rivately3oned co""ercial blood bank co")anies% !uestioned the constitutionality of the @ational Blood Services ,ct of $GG; 2'(,( ==$G4% hich called for the )hase3out of all co""ercial blood bank co")anies ithin to years fro" the effectivity of the ,ct( ,"ong others% the la sought to encourage voluntary blood donations instead of )ersons selling their blood to the co""ercial blood banks( 1t as learned that "ost of the )ersons ho sell their blood are )oor so they "ake a livelihood selling their blood( The Su)re"e Court !uoted the )etitioners as follosD .000 under the Civil Code% the hu"an body and its organs like the heart% the kidney and the liver are outside the co""erce of "an 000/(78
1t therefore a))ears that a hu"an organ is a not a )ro)er ob5ect of a valid contract( , fe"ales vagina% uterus% fallo)ian tubes% cervi0 and ovary are )art of her internal re)roductive organ% being a hu"an organ% it is beyond the co""erce of "an(77
,lso% there ill be issues in the cause or consideration of the contract if the surrogate "other ill be co")ensated ith "oney( Cause is the essential and i")elling reason hy a )arty assu"es an obligation(7; ,ccording to ,rticle $7F8 of the Civil Code of the #hili))ines% contracts ithout cause% or ith unlaful cause% )roduce no effect hatsoever( The cause is unlaful if it is contrary to la% "orals% good custo"s% )ublic order or )ublic )olicy(
1n surrogacy% there are to arrange"entsD altruistic surrogacy and co""ercial surrogacy( 1n altruistic surrogacy% the surrogate "other is not )aid for her service( She offers her o"b as 32 Id. 33 Id. 34 Civil Code of the #hili))ines ,nnotated% Su)ra at )age :9
#age 1= of 23
an act of altruis"( +ften there ill be a )re3established bond beteen the surrogate "other and the e0)ecting cou)le( Ty)ically% the surrogate "other is a friend or a relative( Ahile in co""ercial surrogacy% the surrogate "other receives co")ensation for carrying the child( +ften there ill be a "ediating )arty% a surrogacy agency that deals ith all the )ractical arrange"ents for the co""issioning cou)le% such as finding a suitable surrogate "other and dealing ith all the )a)erork% etc( 7F
1n an article entitled .The *thics of Surrogacy/% the author rote nu"erous vies regarding surrogacy% hich so"e are enu"erated as folloD &irst is that% co""ercial surrogacy is a for" of or co")arable to )rostitution( +ne can vie the o"en as selling )hysical% inti"ate% bodily servicesQ selling their bodies and their function for "oney( 1n another% it is a for" of alienated labor( 6any )eo)le ork and are not e"otionally attached to the >)roduct> of their ork or the ork )rocess for that "atter( 1n relation to surrogacy% it is )hysical re)roductive labor( 'e)roduction is so"ething that "any )eo)le believe belong in the )rivate s)here and should be surrounded ith res)ect and e"otional attach"ent( Ao"en>s re)roductive ca)acities should not be used as )hysical labor and the status of a child% should not be relegated to that of a co""odity( ,lso% surrogacy turn babies into co""odities(
Ty)ically% basing on the afore"entioned% it can be vieed that co""ercial surrogacy is contrary to la% "orals% good custo"s% )ublic order or )ublic )olicy( 1t is then an unlaful cause% hich ould then )roduce no effect as a re!uisite of a valid contract here in the #hili))ines( 1t ould be "uch better if altruistic surrogacy is contacted in that the surrogate "other is
35 htt)DEE()ositive3)arenting3ally(co"Eethics3of3surrogacy(ht"l 2last seen @ove"ber 8=% 89$:4 36 1d
#age 1> of 23
)erfor"ing such service gratuitously for liberality% hich is alloed under ,rticle $7F9 of the Civil Code(
D4/)+//4o- o- *&e #(4.4* o' *&e S+rro() Co-*r()* (-. 4*/ Im:4)(*4o- *o F44(*4o- (-. Le4*4m()
Surrogacy is the )ractice hereby a o"an% the surrogate "other% carries a child for another )erson and that )erson>s )artner% herein the co""issioning cou)le% as the result of an agree"ent )rior to conce)tion that the child should be handed over to the co""issioning cou)le after the birth( 1t involves the trans)lantation of re)roductive cells% usually through artificial inse"ination% to the surrogate "other( The surrogate "other "ay be the genetic "other% here her on egg as used to create the e"bryoQ or she "ay have had a fertilized e"bryo i")lanted in her% in hich case she ill not be genetically related to the child( These situations are so"eti"es referred to as% res)ectively% ?)artialEtraditional? surrogacy and ?hostEfullEgestational? surrogacy( The co""issioning cou)le "ay both be the genetic )arents% or 5ust one or neither of the" "ay be genetically related to the child( This ill de)end on the sources of the egg and s)er" used to create the e"bryo( 1n so"e instances% it "ay be that both the s)er" and the egg ere )rovided by donors% so that the resulting child is not related genetically to either the surrogate "other or the co""issioning cou)le(7=
1n the case of Joel Santos Cruz% since he is the donor of the s)er" cell and he chose a 'ussian surrogate "other ho look likes Julia 'oberts% and in hich case her on egg cell as )resu"ed to be have been used% it is referred to as a traditional surrogacy( 1t as )erfor"ed in 'ussia% and co")ensation as )aid to the surrogate "other( Ahereas% in the case of Vicki Belo and Hayden Kho% since they clai" that the child is $99 their daughter and that the surrogate "other is only a carrier and has no genetic contribution to their baby% because )resu"ably their on egg and s)er" cells ere used% it is referred to as a gestational surrogacy( &urther research revealed that the )lace here the cou)le )erfor"ed it as in the US,% but it as not s)ecifically deter"ined hich state( #resu"ably% it as a state here surrogacy is valid( 37 htt)sDEE(gov(ukEgovern"entEu)loadsEsyste"Eu)loadsEattach"entRdataEfileE8:97GEsurrogacy()df
2last seen @ove"ber 8=% 89$:4 #age 16 of 23
(alidit* of the Contracts
1n the cases of Joel Santos Cruz and Vicki Belo and Hayden Kho% they entered into surrogacy contracts abroad in order to have offs)ring of their on( 1t as contracted in )laces% na"ely 'ussia and the US,% here surrogacy is alloed( Considering that the surrogacy contracts entered by the" abroad ere e0ecuted and all obligations sti)ulated therein ere fulfilled or e0tinguished as "anifested in the facts that the surrogacy as a success% the contract e0ecuted abroad is valid as it is governed by the la of the )lace it as e0ecuted according to the doctrine of le0 loci celebrationis or ,rticle $= of the Civil Code of the #hili))ines( Therefore% the surrogacy contracts entered into by Joel Santos Cruz% and Vicki Belo and Hayden Kho abroad is valid here in the #hili))ines(
1f% hoever% the contracts% ith the sa"e )arties involved% ere entered and e0ecuted here in the #hili))ine% it ould be invalid( The discussion in the )receding )ages regarding the legalities of surrogacy contracts arrant that it be void because it does not have a laful ob5ect and cause% and it "ay also be vieed that surrogacy "ay be against "orals% good custo"s% )ublic order% or )ublic )olicy( 1t is against ,rticle $79: and $7$ of the Civil Code of the #hili))ines% and therefore against the la(
1f in another situation% the surrogacy contracts entered into by Joel Santos Cruz% and Vicki Belo and Hayden Kho abroad as ith a surrogate "other ho is also a &ili)ino Citizen% it ould still re"ain valid because the la of the )lace here the contract as e0ecuted 2le0 loci celebrationis4 and the la of the )lace intended by the )arties to the contract 2le0 loci intentionis4 ould govern(
Lastly% if the situation is that there as no )ay"ent or consideration given to the surrogate% it ould still re"ain valid( This is because it is "uch globally acce)ted that altruistic surrogacy is )erfor"ed rather than co""ercial surrogacy( But it is still the res)onsibility of the #age 1@ of 23
co""issioning cou)le to )rovide the surrogate "other ith all her needs during the )rocess )ursuant to ,rticle $G of the Civil Code of the #hili))ines hich )rovideD .*very )erson "ust% in the e0ercise of his rights and in the )erfor"ance of his duties% act ith 5ustice% give everyone his due% and observe honesty and good faith(/
Filiation and Legitimac*
1n the case of Joel Santos Cruz% the tins% #rince Sean and #rincess Synne% are considered to be his on children( Hoever% they are considered to be illegiti"ate( Under 'ussian Las% Joel Santos Cruz is legally ca)able to enter into a contract of surrogacy ith the 'ussian o"an to be the surrogate "other of his intended children( He "ay then register his na"e as the father in the birth certificate ith the consent of the surrogate "other( Since the surrogate "other )resu"ably consented to such because there ere no troubles in the filiation of the child as stated in the case% and that he as able to bring ho"e the babies to the #hili))ines% therefore% the surrogate "other gave u) her rights to the tins to Joel Santos Cruz as the )arent registered in the birth certificate of the children( ,s stated in ,rticle $=8 of the &a"ily Code of the #hili))ines% .The liation of legiti"ate children is established by any of the folloingD 2$4 The record of birth a))earing in the civil register or a nal 5udg"entQ or 284 ,n ad"ission of legiti"ate liation in a )ublic docu"ent or a )rivate handritten instru"ent and signed by the )arent concerned(/ ,lso in ,rticle $=F of the sa"e code% .1llegiti"ate children "ay establish their illegiti"ate liation in the sa"e ay and on the sa"e evidence as legiti"ate children(/ &iliation is the fact or condition of being a son or daughterQ relationshi) of a child to a )arent( 7 To establish filiation under the la% the birth certificate signed by the father is co")etent evidence of )aternity( , birth certicate% being a )ublic docu"ent% offers )ri"a facie evidence of liation and a high degree of )roof is needed to overthro the )resu")tion of truth contained in such )ublic docu"ent(7G
th
38 Blacks La
#age 18 of 23
Therefore% Joel Santos Cruz is considered to be the father of the children% hoever% they "ust be considered illegiti"ate because he is not validly "arried to the surrogate "other% and according to ,rticle $:F of the &a"ily Code% .Children conceived and born outside a valid "arriage are illegiti"ate% unless otherise )rovided in this Code(/
1n the case of Kho and Belo% the fertilized egg as collected fro" Belo and Kho and as then i")lanted to the uterus of an unna"ed ,"erican36e0ican surrogate "other ho gave birth to baby Scarlet Sno in U(S last 6arch 7% 89$F(;9 1t is also knon as gestational surrogacy here a surrogate is i")lanted ith an e"bryo created by 1V&% using intended father>s s)er" and intended "other>s eggs( The resulting child is genetically unrelated to the surrogate(;$
To anser the issue on hether or not% baby Scarlet Sno Belo% is considered their 2Kho and Belo4 on% yes% Scarlet Sno Belo is considered their on( 1n the )resent case% Kho and Belo decided to have a baby to build a fa"ily and to stay together forever and )rovide love and su))ort for the intended child through surrogacy( Therefore% )re"ises considered% Hayden Kho and Vicki Belo are the genetic% biological and natural )arents of Scarlet Sno Belo( Hoever% the child is considered to be illegiti"ate because Kho and Belo are not validly "arried( ;8 1n )ursuant to ,rticle $:F of the &a"ily Code of the #hili))ines% .Children conceived and born outside a valid "arriage are illegiti"ate% unless% otherise )rovided by the la(/ Hayden Kho and Vicki Belo are not legally "arried% thus the child conceived or born% hether through a natural se0ual intercourse or by in vitro fertilization% is )ri"a facie illegiti"ate(
E*&4)( Co-/4.er(*4o-/ o' *&e F44:4-o L(er 40 htt)DEE()e)()hEnesE:79==Evicki3belo3clarifies3scarlet3sno3is3her3biological3daughter3ith3
hayden3kho 2last seen @ove"ber 8=% 89$:4 41 htt)sDEEen(iki)edia(orgEikiESurrogacyO-estationalRsurrogacyR(8-S(8G 2last seen @ove"ber 8=% 89$:4 42 htt)DEElifestyle(in!uirer(netE88G;8Ehy3vicki3and3hayden3decided3to3have3a3babyE 2last seen
@ove"ber 8=% 89$:4 #age 1 of 23
Life is not so"ething )eo)le give aayQ it is a gift fro" -od and -od alone( Surrogacy as a groing industry in the )resent century faces a lot of criticis"s% debates and deliberations( *very )eo)le have his on vie and o)inion on hether the )ractice of surrogacy is ethical or otherise( The ord surrogate "eans substitute( That "eans a surrogate "other is the substitute for the genetic3biological "other( 1n co""on language% a surrogate "other is the )erson ho is hired to bear a child% hich she hands over to her e")loyer at birth( ;7
#rofessional res)onsibility% on the other hand% is the area of legal )ractice that enco")asses the duties of attorneys to act in a )rofessional "anner% obey the la% avoid conflicts of interest% and )ut the interests of clients ahead of their on interests( 6oreover% Legal *thics enco")asses an ethical code governing the conduct of )ersons engaged in the )ractice of la( These are rules and conducts that "ust be folloed by a &ili)ino layer in rendering services to the country% to the court% to his clients and to his colleagues(;;
The layer ho gets into the contract ill be liable( Under ,rticle $7$ of the Civil Code of the #hili))ines Book 1V% +bligations and Contracts% a contracts has ; re!uisites na"ely% 2$4 Consent of the contracting )artiesB 284 +b5ect certain hich is the sub5ect "atter of the contractQ and 274 Cause of the obligation hich is established(;F 1n the case at bar% Joel Cruz% ho had his tins given by a 'ussian surrogate in e0change of cash;:% albeit the contract is valid in 'ussia% it is not recognized here in the #hili))ines since it is an unlaful )ractice( Under the second re!uisite hich is the ob5ect% it is not "erely an ob5ect to s)eak of but has definite !ualifications( The contract being "ade as not valid for the reason that the child as not ithin the co""erce of the "an( Aith that% it cannot be an ob5ect of the contract( &urther% since the zygote ill be e"bedded into another o"an 2surrogate "other4% the re)roductive organ is in the sa"e "anner% 43 Surrogate 6otherhood *thical or Co""ercial 44 Judicial #rocessD La% Courts% and #olitics in the United States by Ste)hen Scott 6einhold 45 Civil Code of the #hili))ines +bligations and Contracts% Book 1V 46 htt)DEE()hilstar(co"Eentertain"entE89$7E98E$FEG9G$Eho35oel3cruz3got3tin35oys 2last seen
@ove"ber 8=% 89$:4 #age 20 of 23
not ithin the co""erce of the biological "other( Since Joel Cruz )aid the surrogate "other for his tins% it is understood that the surrogates o"b as "ade for business thus being the ob5ect of the contract( 6oreover% ,ccording to ,rticle $7;=% )aragra)h 7 of the Civil Code of the #hili))ines% .,ll services hich are not contrary to la% "orals% good custo"s% )ublic order% or )ublic )olicy "ay likeise be the ob5ect of a contract%/;= a o"ans o"b being )art of the hu"an body is not a )ro)er ob5ect of a contract for the reason that it is beyond the co""erce of "an( Though it is )rovided in the sa"e code that there should be a consent of the contracting )arties% still% the ob5ect is not certain hich should be the "atter of the contract(
The second )re"ise in hich the layer ho binded the contract is liable% is on Canons and 'ules of Code of #rofessional 'es)onsibility( Under Canon $ ., layer shall u)hold% obey the las of the land and )ro"ote res)ect for la and legal )rocesses/ and under hich is 'ule $(9$ hich states that ., layer shall not engage in unlaful% i""oral or deceitful conduct(/ Since% surrogacy is a violation of )ublic )olicy% a &ili)ino layer then ho "ade a surrogacy contract "ay it be abroad or ithin the #hili))ines% violated the )ara"ount la of the land hich is the Constitution because a surrogacy contracts ere then considered unlaful( 6oreover% Canon 88 states that ., layer shall ithdra his services only for good cause and u)on notice a))ro)riate in the circu"stances(/ 1t is very clear as stated that a layer should ithdra hi"self fro" any service that is ground on i""orality( ,s stated under 'ule 88(9$% a layer should not bind a contract to anyone ho )ursues an illegal or i""oral course of conduct in connection ith the "atter he is handling( Lastly% under 'ules $(9$% a layer shall not undertake a legal service hich he knos or should kno that he is not !ualified to render( &ili)ino layers cannot )artici)ate in Surrogacy contracts )erfor"ed in abroad because their legal services are only )erfor"ed% valid% and binding in the #hili))ines(;
Co-)+/4o-
47 Id 48 Code of #rofessional 'es)onsibility Canons and 'ules of Legal *thics
#age 21 of 23
AH*'*&+'*% )re"ises considered% the researchers conclude thatD I%
T&e /+rro() )o-*r()*/ e-*ere. 4-*o b !oe S(-*o/ Cr+, (-. #4)54 eo (-. H(.e- $&o (bro(. (re v(4. &ere 4- *&e 9&44::4-e/% (% I' *&e )o-*r()*/, 4*& *&e /(me :(r*4e/ 4-vove., ere e-*ere. (-. e
II%
v(4.; T&e )&4.re- (re )o-/4.ere. *&e4r o-B &oever, *&e (re )o-/4.ere. *o be
III%
4e4*4m(*e )&4.re-% I' *&e /+rro() )o-*r()*/ ere :re:(re. b ( F44:4-o (er, *&e (er v4o(*e. *&e C(-o-/ (-. R+e/ e-+mer(*e. 4- *&e Co.e o' 9ro'e//4o-( Re/:o-/4b44* (-. Le( E*&4)/%
#age 22 of 23
#age 23 of 23
