"There is absence of legislation in the Philippines on this matter."
In this changing world, procreation has been subject to various scientific interventions. One of these is surrogacy. It is a process wherein a surrogate, a woman, bears and carries a child for another through medically assisted reproduction and pursuant to a written agreement between the surrogate and the intended or commissioning parent(s) (Sec. 7960(f), California Family Code as amended).
In the Philippines, only artificial insemination as a method of extracorporeal conception has been recognized through the Family Code in 1988. Artificial insemination is a process where a child is conceived with the sperm of the husband or that of a donor without sexual contact (Article 164, Family Code of the Philippines). The child conceived and born by reason of artificial insemination to a married couple is their legitimate child (Article 164, Family Code of the Philippines).
The growing interest in surrogacy of late was brought about by the inability of spouses, couples and partners to bear their own child either because of an inability to conceive in vivo due to defective ovarian cells or an inhospitable uterus for an in vitro conception. With this reality and not wanting to adopt a child who is not related to them by blood, some opt to explore surrogacy arrangements.
There are two types of surrogacy. Traditional surrogates are women who agree to be fertilized by the sperm of the male parent and gestate or carry in her uterus the conceptus of the intended father or donor, as arranged by the intended parent or parents. Gestational carriers, on the other hand, are women who are not intended parents and agree only to gestate an embryo that is genetically unrelated to her pursuant to an assisted reproduction agreement (Sec. 7960(f)(1)(2), California Family Code as amended).
In traditional surrogacy, the so-called surrogate mother is not only the woman who gave birth to the child, but the child’s genetic mother as well. She is without a doubt the natural parent of the child, as is the father. This is in contrast to gestational surrogacy where the sperm of the married man is artificially united with the egg of the woman and the resulting embryo is implanted in another woman’s womb. It is also to be differentiated from cases where there is a separate sperm donor [In re Marriage of Moschetta, 25 Cal. App. 4th 1218 [30 Cal. Rptr. 2d 893] (1994)]. Much attention is given today to gestational surrogacy.
In the Philippines, there is no law on surrogacy; whether traditional or gestational. Hence, if a child is born to a surrogate mother regardless if it is traditional or gestational, the child is illegitimate and this status will appear in his or her birth certificate. The intended or commissioning parent/s can improve the status of the child by adopting him or her. In simpler words, a child born outside of marriage is an illegitimate child (Article 164, Family Code), regardless of the means by which he or she was conceived. The situation is made further complicated if the surrogate mother is married and has her own children.
Furthermore, the citizenship of the child under the 1987 Constitution follows the citizenship of the Filipino mother or father (Section 1(2), Article IV). If the surrogate mother and the intended father are Filipinos then the child is a Filipino, and this will appear in the child’s birth certificate. Another dilemma will arise if the intended father or commissioning parent has a different citizenship. It may later present an issue on dual citizenship which may disadvantage the child in the future.
Surrogacy through the years has been highly commercialized. However, Philippine law has no specific definition on commercial surrogacy. For an operational definition on the matter, Australia’s Queensland Surrogacy Act of 2010 is referenced. It defines commercial surrogacy as an act wherein a person receives a payment, reward or other material benefit or advantage (other than the reimbursement of the birth mother’s surrogacy costs) for the person or another person: (a) agreeing to enter into or entering into the surrogacy arrangement; (b) permanently relinquishing to one or more intended parents the custody and guardianship of a child born as a result of the surrogacy arrangement; and (c) consenting to the making of a parentage order for a child born as a result of the surrogacy arrangement” (Section 10, Queensland Surrogacy Act of 2010).
However, commercial surrogacy arrangements in Australia are illegal and offenders will suffer three years of imprisonment (Section 56, Queensland Surrogacy Act of 2010). In the Philippines, there is no law expressly prohibiting commercial surrogacy or contractual arrangements of this nature. However, it is important to determine the legal implications of commercial surrogacy to existing Philippine laws.
It is fundamental in Contract Law that “the contract is the law between the parties. Obligations arising from contracts have the force of law between the contracting parties and should be complied with in good faith. Unless the stipulations in a contract are contrary to law, morals, public order or public policy, the same are binding as between the parties” (Morla v. Belmonte, G.R. No. 171146, December 7, 2011).
While there is no law that prohibits commercial surrogacy or contractual surrogacy arrangements, “under the principles relating to the doctrine of public policy, as applied to the law of the contracts, courts of justice will not recognize or uphold any transaction which, in its object, operation, or tendency, is calculated to be prejudicial to the public welfare, to sound morality, or to civic honesty” (Tee v. Tacloban Electric and Ice Plant Co., February 14, 1959 citing 12 Am. Jr. pp, 663-664). The test is whether the parties have stipulated something inhibited by the law or inimical to, or inconsistent with the public welfare (Tee v. Tacloban Electric and Ice Plant Co., February 14, 1959).
There are many things that the law does not prohibit, in the sense of attaching penalties, but which are so mischievous in their nature and tendency that on grounds of public policy they cannot be admitted as the subject of a valid contract (Tee v. Tacloban Electric and Ice Plant Co., February 14, 1959). The question whether a contract is against public policy depends upon its purpose and tendency, and not upon the fact that no harm results from it (Tee v. Tacloban Electric and Ice Plant Co., February 14, 1959).
With these standards in place, a case in the future involving commercial surrogacy arrangements may be faced with serious challenges in the Supreme Court. It does mean, however, that these standards may not be revisited since laws are dynamic and adjust, adapt and address the realities of the times. To be able to hurdle the broad standards of public morals and policy because of our predominantly Christian heritage, laws will have to be passed by the legislature.
While we sympathize with spouses and couples who tirelessly seek options to conceive and bear a child, they have to accept the absence of legislation in the Philippines on the matter of surrogacy. This is the reason why well-off spouses or couples take advantage of the laws of other countries that legally allow surrogacy. But once blessed with a child, the parents should be reminded by the Proverbs of Solomon to “train up a child in the way he should go, and when he is old he will not depart from it.”