A surrogate mother is defined by the Oxford Dictionary as a “woman who bears a child on behalf of another a nother woman, usually by artificial insemination of her own egg by the other woman’s partner”. Surrogate is a lso nown as “substitute” and it is deri!ed from the "atin word rogo or “as”. #n practical terms, it is the process of using a substitute mother in place of the natural mother. $here are different types of surrogacy. $he more common ones are traditional surrogacy and gestational surrogacy. $hese two items are defined in %iipedia as follows& #n traditional surrogacy 'also nown as the Straight method( the surrogate is pregnant with her own biological child, but this child was concei!ed with the intention of relin)uishing the child to be raised by others such as the biological father and possibly his spouse or partner. $he $he child may be concei!ed !ia sexual intercourse '*#(, home artificial insemination using fresh or fro+en sperm or impregnated !ia ## 'intrauterine insemination(, or #-# 'intracer!ical insemination( insemination( which is perfor performed med at a fertil fertility ity clinic. clinic. Sperm Sperm from the male partne partnerr of the commiss commission ioning ing couple’ couple’ may be used, used, or alternati!ely, sperm from a sperm donor can be used. Donor sperm will, for example, be used if the commissioning couple’ are both female or where the child is commissioned by a single woman. #n gestational surrogacy 'aa the /ost method( the surrogate becomes pregnant !ia embryo transfer with a child of which she is not the biological mother. She may ha!e made an arrangement to relin)uish it to the biological mother or father to raise, or to a parent who is unrelated to the child 'e. g. because the child was concei!ed using egg donation, sperm donation or is the result of a donated embryo(. $he surrogate mother may be called the gestational carrier. Ad!ocates of surrogacy contend that this procedure helps sa!e li!es because of female infertility or other medical issues which maes the pregnancy or deli!ery risy. Constitutional or Statutory or Treaty Prohibitions #n our 0urisdiction the legal status of surrogacy has not yet been settled. $he 1234 -onstitution has no outright prohibition of surrogacy. Section 15, Article Article ## of the 1234 -onstitution merely pro!ides the following& Section 15. $he State recogni+es the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. #t shall e)ually protect the life of the mother and the life of the unborn from conception. $he natural and primary right and duty of parents in the rearing of the youth for ci!ic efficiency and the de!elopment of moral character shall recei!e the support of the 6o!ernment. $he closest law the 7hilippines has regarding surrogacy is in $he 8amily -ode of the 7hilippines '8amily -ode(. $he 8amily -ode, howe!er, is silent about surrogacy but has pro!isions regarding artificial insemination or adoption. Articles 19: and 19; of the 8amily 8amily -ode pro!ides& Art. 19:. $he $he filiation of children may be by nature or by adoption. adoption. *atural filiation filiation may be legitimate or illegitimate. Art. 19;. -hildren -hildren concei!ed or born during the marriage marriage of the parents parents are legitimate. legitimate. -hildren concei!ed as a result of artificial insemination of the wife with the sperm of the husband or that of a donor or both are liewise legitimate children of the husband and his wife, pro!ided, that both of them authori+ed or ratified such insemination in a written instrument executed and signed by them before the birth of the child. $he instrument shall be recorded in the ci!il registry together with the birth certificate of the child. Surrogacy as a Status A. Citizenship of the Child $he modes of ac)uiring 7hilippine citi+enship are enumerated in the 1234 -onstitution. Section 1, Article #< pro!ides the following& Section 1. $he following are citi+ens of the 7hilippines& 1. $hose who who are citi+ens citi+ens of the 7hili 7hilippine ppines s at the time of the the adoption adoption of this -onstit -onstitution ution== 5. $hose whose whose fathers fathers or mother mothers s are citi+en citi+ens s of the the 7hilippi 7hilippines= nes= :. $hose $hose born before before >anuar >anuary y 14, 124:, 124:, of 8ilipin 8ilipino o mother mothers, s, who elect elect 7hilipp 7hilippin ine e -iti+ -iti+ens enship hip upon reaching the age of ma0ority= and ;. $hose who are are naturali naturali+ed +ed in in the accord accordance ance with with law. law. $he enumeration therein is considered as exclusi!e. *ot e!en adoption, which is considered as a simulation of nature, can confer 7hilippine citi+enship to an alien adoptee e!en if the adopters are citi+ens of the 7hilippines. $here $here appears to be no )uestion of citi+enship if both the surrogate mother and the putati!e mother are citi+ens of the 7hilippines. A problem therefore arises when the surrogate mother is an alien while the putati!e mother is a 7hilippine citi+en. #s the child born of the surrogate mother an alien or a citi+en of the 7hilippines? %ill the baby be considered as a stateless citi+en? citi+en? @epublic @epublic Act 255 '“A* A-$ BAC#*6 $/ -#$#E*S/# -#$#E*S/#7 7 O8 7/#"#77 7/#"#77#* #* -#$#E* -#$#E*S S %/O A-F#@ A-F#@ 8O@#6* 8O@#6* -#$#E* -#$#E*S/#7 S/#7 7@BA* 7@BA**$ *$ AB*D# AB*D#*6 *6 8O@ $/ 7@7OS 7@7OS -OBBO*% -OBBO*%A" A"$/ $/ A-$ A-$. *O. 9:, AS AB*DD A*D 8O@ O$/@ 7@7OSS”( 7@7OSS”( expressly pro!ides for deri!ati!e citi+enship under its section ;, as follows&
Section ;. Deri!ati!e -iti+enship G $he unmarried child, whether legitimate, illegitimate or adopted, below eighteen '13( years of age, of those who reHac)uire 7hilippine citi+enship upon effecti!ity of this Act shall be deemed citi+enship of the 7hilippines Bother G child relationship is fraught with !arious problems, emotional, moral, ethical, legal, social etc. Study conducted by some organi+ations re!eal that surrogate mothers ha!e little difficulty in relin)uishing their rights o!er a surrogate child to the intending parents a nd that the ma0ority of surrogates are satisfied with their surrogacy experience and do not bother upon their bonding with the child they ga!e birth. 8ew other studies state that the surrogate mothers at time depict deep emotional attachment to the babies they gi!e birth. -onflicting !iews ha!e also been highlighted. 8urther elaboration on these ethical, psychological or moral issues are not necessary for our purpose.
%e are in this case primarily concerned with the relationship of the child with the gestational surrogate mother, and with the donor of the o!a. #n the absence of any legislation to the contrary, we are more inclined to recogni+e the gestational surrogate who has gi!en birth to the child as the natural mother. Iabies born are not in a position to now who is the egg donor and they only now their surrogate mother who is real. %ife, of the biological father, who has neither donated the o!a, nor concei!ed or deli!ered the babies cannot in the absence of legislation be treated as a legal mother and she can ne!er be a natural mother. #n our !iew, by pro!iding o!a, a woman will not become a natural mother. "ife taes place not in her womb, nor she recei!es the sperm for fertili+ation. /uman fertili+ation is the union of a human sperm and egg usually occurring in the ampulla of the urine tube. 7rocess in!ol!es de!elopment of an embryo. 7rocess in this case followed is #n une 1, 5JJ, ;9J S-@A 124, 5J9H5J3.(, the -ourt summari+ed the laws, rules, and 0urisprudence on establishing filiation, discoursing in rele!ant part& Laws, ules, and !urisprudence "stablishing Filiation $he rele!ant pro!isions of the 8amily -ode pro!ide as follows& A@$. 14. #llegitimate children may establish their illegitimate filiation in the same way and on the same e!idence as legitimate children. xxxx A@$. 145.
$he filiation of legitimate children is established by any of the following&
'1( $he record of birth appearing in the ci!il register or a final 0udgment= or '5( An admission of legitimate filiation in a public document or a pri!ate handwritten instrument and signed by the parent concerned. #n the absence of the foregoing e!idence, the legitimate filiation shall be pro!ed by& '1( $he open and continuous possession of the status of a legitimate child= or '5( Any other means allowed by the @ules of -ourt and special laws. $he @ules on !idence include pro!isions on pedigree. $he rele!ant sections of @ule 1:J pro!ide&
S-. :2. Act or declaration about pedigree. K $he 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 recei!ed in e!idence where it occurred before the contro!ersy, and the relationship between the two persons is shown by e!idence other than such act or declaration. $he word “pedigree” includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred, and the names of the relati!es. #t embraces also facts of family history intimately connected with pedigree. S-. ;J. 8amily reputation or tradition regarding pedigree. K $he reputation or tradition existing in a family pre!ious to the contro!ersy, in respect to the pedigree of any one of its members, may be recei!ed in e!idence if the witness testifying thereon be also a member of the family, either by consanguinity or affinity. ntries in family bibles or other family boos or charts, engra!ing on rings, family portraits and the lie, may be recei!ed as e!idence of pedigree. $his -ourt’s rulings further specify what incriminating acts are acceptable a s e!idence to establish filiation. #n 7e "im !. -A, a case petitioner often cites, we stated that the issue of paternity still has to be resol!ed by such con!entional e!idence as the rele!ant incriminating !erbal and written acts by the putati!e father. nder Article 543 of the *ew -i!il -ode, !oluntary 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. $o be effecti!e, the claim of filiation must be made by the putati!e father himself and the writing must be the writing of the putati!e father. A notarial agreement to support a child whose filiation is admitted by the putati!e father was considered acceptable e!idence. "etters to the mother !owing to be a good father to the child and pictures of the putati!e father cuddling the child on !arious occasions, together with the certificate of li!e birth, pro!ed filiation. /owe!er, a student permanent record, a written consent to a father’s operation, or a marriage contract where the putati!e father ga!e consent, cannot be taen as authentic writing. Standing alone, neither a certificate of baptism nor family pictures a re sufficient to establish filiation. $hese procedures relate to filiation by nature and not to filiation by surrogacy. #t is therefore not settled within our 0urisdiction on how filiation by surrogacy may be established. Surrogacy as a Contract #n a surrogacy, the surrogate mother and the putati!e parents sign a contract that promises the couple will co!er all medical expenses in addition to the woman’s payment, and the surrogate mother will hand o!er the baby after birth. $he essential elements of a !alid contract are consent, cause and consideration. A surrogacy contract may be attaced that its ob0ect is beyond the commerce of man. Article 1:13 of the -i!il -ode pro!ides& $here is no contract unless the following re)uisites concur& 1. -onsent of the contracting parties. 5. Ob0ect certain which is the sub0ect matter of the contract. :. -ause of the obligation which is established. 7er the -i!il -ode, the re)uisites of things as ob0ect of a contract are the following& a. $he thing must be within the commerce of man 'Art. 1:;4(. b. #t must not be impossible, legally or physically 'Art. 1:;3(. c. #t must be in existence or capable of coming into existence 'Arts. 1;91, 1;2: and 1;2;(. d. #t must be determinate or determinable without the need of a new contract between the parties 'Arts. 1:;2, 1;9J(. Iy analogy, we can apply the case of Ieltran et. al. !s. $he Secretary of /ealth '6@ no. 1::9;J(, promulgated n Ianc by the Supreme -ourt on *o!ember 5, 5JJ. 7etitioners Ieltran and others, all operators of pri!atelyHowned commercial blood ban companies, )uestioned the constitutionality of the *ational Ilood Ser!ices Act of 122; '@.A. 4412(, which called for the phaseHout of all commercial blood ban companies within two years from the effecti!ity of the Act. Among others, the law sought to encourage !oluntary blood donations instead of persons selling their blood to the commercial blood bans. #t was learned that most of the persons who sell their blood are poor so they mae a li!elihood selling their blood. $he Supreme -ourt )uoted the petitioners as follows& “xxx under the -i!il -ode, the human body and its organs lie the heart, the idney and the li!er are outside the commerce of man xxx”. #t therefore appears that a human organ is a not a proper ob0ect of a !alid contract. A female’s !agina, uterus, fallopian tubes, cer!ix and o!ary are part of her internal reproducti!e organ, Ieing a human organ, it is beyond the commerce of man.
#* $/ LS O8 "A% %/O #S DBD $/ BO$/@ #* S@@O6A-L #* $/ 7/#"#77#*S If A and B, who are married couple, agreed to hire C to implant their egg and sperm cells and bear the child in C’s own womb, who is the deemed to be the mother of the child in the eyes of the law in the Philippines? #t is apparent that A, I and - ha!e entered into a contract of surrogacy. Surrogacy is the process where another woman carries and deli!ers a child in behalf of another couple. #t in!ol!es the transplantation of the couple’s egg and sperm cells, usually through artificial insemination to the surrogate mother. Iy nature, the surrogate mother becomes the replacement of the natural mother of the child. #n this case, A and I are considered to be the putati!e parents of the child while - taes the role of the surrogate mother. #n the absence of surrogacy law in the 7hilippines, the legal issue now redounds to the )uestion of who then becomes the mother of the child upon birth.
#n the legal point of !iew, in the absence of law on surrogacy in the 7hilippines, - is deemed to be the mother of the child. A and I as the putati!e parents ha!e no !ested right conferred upon them by law to enforce a specific right that can be considered to be legally demandable and enforceable as the right to be recogni+ed as the parents of the child, more so for A 'wife( to claim as the lawful mother of the child that was born out of the womb of -. $hus, - is undisputedly considered to be the biological mother of the child. $he 8amily -ode of the 7hilippines mainly pro!ides the specific pro!ision in establishing the paternity but not maternity relation to a child. #ndeed, it is difficult to dispute the character of a biological mother of a child from whose womb the latter came from. $he paternity and filiation pro!ision in the 8amily -ode of the 7hilippines that ga!e consideration in cases of artificial insemination is found in Article 19; that pro!ides& “Children conceived as a result of artificial insemination of the wife with the sperm of the husband or that of a donor or both are likewise legitimate children of the husband and wife, provided that both of them authorized or ratified such insemination in a written instrument executed and signed by them before the birth of the child …..” #t is clear from the letters of the law that the artificial insemination contemplated by the law is that one made on the wife, gi!ing no room for allowing a surrogate mother to whom the insemination may be done. nder this premise, the law does not confer upon A and I the right to claim parental right o!er the child that actually came from the womb of to be considered as their legitimate child, unless they resort to adoption. Another argument that may be raised is there was a contract for surrogacy among A, I and -. $he said contract is against public policy and thus !oid ab initio. 8or a contract to be !alid, the -i!il -ode of the 7hilippines re)uires the following re)uisites in Article 1:13& 1.
-onsent of the parties
5.
Ob0ect certain which is the sub0ect matter of the contract
:.
-ause of the obligation which is established 8or an ob0ect to be a !alid sub0ect of a contract, Article 1:;4 of the -i!il -ode re)uires that the same should be within the commerce of men. A child is not within the commerce of men and thus cannot be an ob0ect of a contract. Bore so, the female reproducti!e organ is liewise beyond the commerce of men and is therefore cannot be a !alid ob0ect of a contract. Article 1:5 of the -i!il -ode of the 7hilippines pro!ides that& “-ontracts without cause or with an unlawful cause produce no effect whate!er. $he cause is unlawful if it is contrary to law, morals, good customs, public order or public policy.” $herefore, it can be concluded that a child or a human being and a female reproducti!e organ cannot be a lawful ob0ect of a contract, on the ground of unlawful cause a s it is contrary to law, against public policy and good customs. !en the Organ Donation Act of 1221 in the 7hilippines only sustains the !alidity of donating any part of the body of the donor only during such period of after or i##ediately before his death 'Section ; 'b( G Organ Donation Act of 1221(.
