GESTATIONAL SURROGACY, THE SOLUTION OR THE PROBLEM?

:
A STUDY ON THE LEGAL EFFECTS OF SURROGACY

A Thesis Paper Presented to the Commercial Law Department De La Salle University Manila

In partial fulfillment Of the requirements of the course Practicum and Legal Internship (PRCLMGT)

Presented By: Ferrer, Johansen Z. Diesta, Mary Catherine A. K31

November 2, 2011

This is for those couples who are searching themselves trying to find a way for them to have a child. This is for the couples who have faced the same fate as to my friends. This is for those who yearn for a child but never had the legal freedom to do so. This is for those who wanted to help but never had the legal freedom to do so.

God Gave To Me A Child

God gave to me a child and then I knew The precious gift of life, the beating heart, The little hand that clings in childish trust, The shining eyes that are so much a part Of every moment in a parents day; A language that no words could ever say. God gave to me a child and then I knew The joy of love fulfilled, the quiet peace Of home and fireside where, with strife denied, The heart can calmly rest in loves release, Can gain strength in knowing angels stand Around little ones with guarding hand. God gave to me a child and then I knew The parenthood of God, the eternal care Of He who keeps the night watch and never sleeps Who, when His children need Him, is always there. I sought His kingdom for so long a while, And then I found it in my little babys smile. -James B. Singleton-

Acknowledgement
We would like to thank the following people for their unwavering support throughout the making of this paper:

Our Family and friends Atty. Patrick Perillo Atty. Antonio A. Ligon Atty. Joy Cruz Atty. Christopher Bundang Ms. Elizabeth (Ate Sebb) Mrs. Remedios Ramos and her staff Prof. Marlon de luna Era Ms. Arisa Suzuki

ABSTRACT
Gestational Surrogacy is a controversial practice all over the world. Case laws in different countries do not even have a unanimous ruling on how to treat this issue. Needless to say, different countries have different stands on this practice. However, if one looks closely to the foundation of this practice, it is merely just another way of practicing ones right to reproduce. Reproductive freedom is one of the rights that are protected and embodied in the United Nations Declaration of Human Rights (UDHR). Since the Philippines is a State Party to this International covenant, the legislature has the obligation to make sure that this right is protected and addressed in our country. However, congress has not yet done anything to address such right in the Philippines. The main premise of this research is that the Philippines signed and ratified International treaties, therefore the Philippines now is obliged to address these issues and rights these become a binding source of customary international law. Since the Philippines has not yet addressed the issue on Surrogacy, the research was done in an international point of view using international treaties and conventions that are binding in the Philippines, narrowing down then to the provisions in the Constitution. The research intends to explain why Gestational Surrogacy, when legalized, can be beneficial to Philippine Society. This includes defining the rights of the parties involved, namely the commissioning couple, the surrogate mother, the medical practitioner and the child.

Table of Contents
Chapter 1: Introduction 1 Background of the Study 1 Statement of the Problem and Objectives 6 Definition of Terms Scope and Limitations Significance of the Study Chapter 2: Review of Related Literature Historical Background Surrogacy in Other Countries International Laws Reproductive Rights Constitutional Background Womens Rights Artificial Insemination and Gestational Surrogacy Baby Selling and Surrogacy Adoption and Surrogacy Simulation of Birth and Surrogacy Adultery and Surrogacy Concubinage and Surrogacy A Baby Maker and A Surrogate Mother Synthesis Chapter 3: Conceptual Framework Chapter 4: Research Methodology Chapter 5: International Laws Universal Declaration of Human Rights (UDHR) International Covenant on Civil and Political Rights (ICCPR) International Covenant on Economic, Social and Cultural Rights (ICESCR) Chapter 6: Reproductive Right The Right to Life The Right to Liberty and Security of a Person The Right to Health, including sexual and reproductive health The Right to decide the number and spacing of Children The Right to Consent to Marriage and to Equality in Marriage The Right to Privacy The Right to Equality and Non-discrimination The Right to be free from practices that harm women and girls The Right to not be subjected to Torture or Other Cruel, Inhuman, Degrading Treatment or Punishment The Right to be free from Sexual and Gender-based Violence The Right to access Sexual and Reproductive Health Education and Family Planning Information The Right to Enjoy the Benefits of Scientific Progress Chapter 7: Gestational Surrogacy Gestational Surrogacy Gestational Surrogacy in Other Countries Gestational Surrogacy in the Philippines

Chapter 8: Analysis Reproductive Right is upheld in the Philippines Gestational Surrogacy is a Reproductive Right Gestational Surrogacy will further promote the Reproductive Right Chapter 9: Conclusion and Recommendation Conclusion Recommendation Annex Proposed Gestational Surrogacy Act of 2011 Senate Bill No. 2344 on June 8, 2006 was the first reading and was referred to the committee on youth, women and family relations. Tables Index Bibliography

Chapter 1: Introduction
Background of the study
Medical technology opened doors for people in the hopes of answering queries. It gives more options on how people can improve the quality of their life, so as to also lengthen mankinds existence.1 Medical technology constantly evolves, either to correct a practice previously recommended, or to surface a better practice that could be of greater help. One of its many breakthroughs is Assisted Reproductive Technology

(ART) which is the general term referring to methods to achieve pregnancy by artificial or partial insemination.2 The following statement provides a better explanation on what is ART and what are the steps other countries have been doing regarding ART:
Countries all over the world already took a step towards reproductive technology. Regulations of Assisted Reproductive Technology (ART) have evolved in different ways in different countries. In the United States, the Society for Assisted Reproductive Technology (SART), established a voluntary registry through which all programs that provide assisted reproductive services can share information and results. The Donor Conception Support Group, in Australia, was founded in 1993. Its a group where the members use donor sperm, eggs or embryos, those who already have children conceived on donor programs, adult donor of offspring, and donors. On the other hand, the United Kingdom has Human Fertilization and Embryology Authority. It is an organization acting as an independent regulator overseeing safe and appropriate practice in fertility treatment and embryo research.

1 2

Eucomed, available at http://www.eucomed.org/medical-technology (last accessed July 25, 2011) Id.

In the Philippines, the only association related to such, is the Philippine Council for Health Research and Development (PCHRD). It is an agency of the Department of Science and Technology, which is responsible for monitoring research activities done in the country. It is also in accordance to Executive Order No. 128. However, since more people are opting to resort to artificial reproductive procedures, a Sperm Bank in Malate was established in 1991. The said clinic is used for long-term storage of sperm cells. Medical institutions like Victory, A.R.T. Laboratory Phil. Inc in Makati City and St. Lukes Medical Center in Quezon City, are performing such procedures and are likewise, practicing artificial reproductive procedures. As technologies spread, ARTs are being used increasingly for other purposes beyond infertility. Some of which include gender selection of infants, reduction or passing on hereditary diseases that may contribute to improving the quality of life of their child. 3

One treatment that arose from ART is surrogacy. Surrogacy in its general form is the state of being a surrogate or surrogate mother.4 Surrogacy or surrogate-

parenting agreement is an arrangement where a surrogate mother agrees to carry a child to term on behalf of another woman and then assigns her parental rights to that woman and father.5 This kind of arrangement usually involves a couple wherein they

cannot bear a child due to medical conditions and a woman willing to bear the child for them. Surrogacy also has two (2) kinds - traditional surrogacy or In Vitro Fertilization

and Gestational Surrogacy.6

Jesusa R. Lapuz, ART (Assisted Reproductive Technology) and its Legal Innuendos: A Challenge for a Statutorial Renovation, (2008) (online published thesis, Universiy of Santo Tomas) (published on the UST Law Review website) 4 Surrogate Motherhood, available at http://legaldictionary.thefreedictionary.com/Surrogate+Motherhood (last accessed on July 20, 2011) 5 BLACKS LAW DICTIONARY 1459 (Brian A. Garner ed. , 1999) 6 Geller & Carolan, Surrogacy FAQ, available at http://www.gellercarolan.com/surrogacy-faq#q3 (last accessed July 11, 2011)

Before surrogacy or any concept of reproductive technology was spoken of in the society, the couples choices for having a child is to either adopt, to live a childless life or repeat the story of Abraham and Sarai. The story of Abraham and Sarai is the first ever recorded instance where the concept of surrogacy is to be applied in having a child. The story goes that Sarai was considered to be infertile so she has asked her husband Abraham to have an intercourse with their housemaid, Hagar, so that they may have children.7 Relatively, because of the advances in the medical field, they now have another option. There new option is to have a child that is genetically related to both of them through surrogacy, specifically, gestational surrogacy. Surrogacy has been a practice done worldwide. It has helped a lot of infertile couples have a child and start a family of their own. Gestational Surrogacy, to be specific, aids couples who wish have children who are genetically related to them. Technology is not what distinguishes gestational surrogacy from other reproductive technologies, but the circumstance of its application. 8 The very application of surrogacy is what makes it a complex practice.9 First, it involves many parties.

Namely, the commissioning couple, the doctor and the surrogate mother, sometimes the surrogate mother also has a husband whose consent is to be asked. Despite the difficulty this practice entails, couples still enter it willingly because of the promising parenthood it assures.10

7 8

Genesis 16 Sue A. Meinke, Surrogate Motherhood: Ethical and Legal Issues available at http://bioethics.georgetown.edu/publications/scopenotes/sn6.pdf (last accessed July 10, 2011) 9 Id. 10 Id.

Some countries prohibit the practice of surrogacy for many reasons. One of which is the ethical consequence brought about by such act. In the Philippines, bills regarding surrogacy argue that the act demeans the status of women to that of breeding animals.11 The practice also demoralizes women for allowing their womb to be rented. Moreover, these bills also claim that the practice of surrogacy is not different from baby selling because a payment is given to the surrogate mother after the baby is delivered.12 Clearly, these bills do not wish to legitimize surrogacy in the Philippines for they believe that such practice is unethical. In contrast to what the aforementioned bills, John Roberston, a professor of law and medical ethics in the University of Texas counters the idea of surrogacy as baby selling. He said that, baby selling is having your biological child and selling it to another right after birth. Whereas, in a surrogacy, agreements are made before the conception even occurred to ensure that the couples biological child could be carried to term and handed to the couple immediately after birth.13 Hence, surrogacy is not the same as baby selling. With these continuous breakthroughs in the medical field, especially in the reproductive technology, it begs to answer some questions in the field of law. It is whether or not international and domestic laws are being updated to answer the pressing issues of society namely on the practice of surrogacy. In some countries the practice of surrogacy is deemed prohibited.
11 12

In Austria, for example, prohibits the

S. B. 2344, 13th Cong., 2d Sess. (June 7, 2006) Id. 13 Heeral Joshipura, Surrogate Motherhood and Technology available at http://cseserv.engr.scu.edu/StudentAccounts/ENGR019Winter2002/HJoshipura/ResearchPaper.htm (last accessed July 10, 2011)

practice of surrogacy because under their Reproductive Medicine Act of 1992 section 9.2, any intervention into the germline is inadmissible meaning an embryo must not be manipulated.14 In Germany prohibition on surrogacy occurs due to complicated cases in 1985 to 1987 which brought upon the deteriorated image of surrogacy. 15 This event then opened the way for the conservative German government to enact the Embryo Protection Law of 1991 to protect public policy and prevent instances of surrogacy.16 Norway outright prohibit the practice of surrogacy for reasons to void legal complications on the status of parenthood over the child and on the citizenship of the child.17 In the United Kingdom, surrogacy is legal and only reasonable expenses can be paid to the surrogate mother to preserve the integrity of having a child.18 Others like France, Australia, Denmark and The Netherlands follow the same principle in allowing such arrangements. The Philippines, being a state party to a number of treaties and international conventions recognize the actions of such conventions. These international conventions recognize the rights of humans to reproduce and other rights related to the rights of reproduction, while providing individuals the liberty to choose in which way they wish to have a child and start a family. In this sense, the practice of surrogacy may be
14

European Society of Human Reproduction Embryology, Austrian legislation, available at http://www.eshre.eu/ESHRE/English/Guidelines-Legal/Legal-documentation/Austria/page.aspx/563 (last accessed August 8, 2011) 15 Victoria Keppler & Michael Bokelmann, Surrogate motherhood The legal situation in Germany, available at http://www.surrogacy.com/legals/article/germany.html (last accessed August 8, 2011) 16 European Society of Human Reproduction Embryology, German legislation, available at http://www.eshre.eu/ESHRE/English/Guidelines-Legal/Legal-documentation/Germany/page.aspx/366 (last accessed August 8, 2011) 17 Norway: The Official Site in Malaysia, About Surrogacy, available at http://www.norway.org.my/News_and_events/News/About-surrogacy/ (last accessed August 8, 2011) 18 Surrogacy UK, What is Surrogacy? Legalities, available at http://www.surrogacyuk.org/whatissurrogacyc.html (last accessed August 8, 2011)

considered as an individuals way of practicing their freedom by choosing such means to have a child.

Statement of the Problem and Objectives

The Philippines has laws in which the laws declares, enumerates and safeguards the rights of its citizens as human beings following the Universal Declaration of Human Rights and others which protects the rights of individuals. With how information and advancement in different fields are now conducted, the Philippines finds itself in a bind trying to keep up. medical field. One of which is the practice of surrogacy arrangement in the

Other countries have already made their stand on this subject by

enacting laws which defines the line on which is acceptable and not acceptable with this practice. For instance, the United Kingdom has the Human Fertilization and Embryology Act of 2008 and the Surrogacy Arrangement Act of 1985 which generally states that they allow surrogacy in their country so long as they do not do the act of surrogacy on a commercial basis.19 The United States of America have different statues in different states. In India, surrogacy is allowed despite it being against their traditions to give their citizens an option in how to reproduce.20 The Philippines though does not have any law that neither legalizes nor illegalizes surrogacy as a reproductive practice. The undefined laws of the Philippines gives rise to the question as to what will happen to the parties involved in the surrogacy arrangement when they want to go through such practice. This gives more emphasis on what will happen to the adults
19 20

Surrogacy Arrangement Act, 1985, 2 (Eng.) Fozia Yasin, Unofficial Surrogacy World Capital, available at http://www.womensenews.org/story/reproductive-health/110330/indias-surrogacy-boom-awaits-legaloversight (last accessed July 20, 2011)

involved in surrogacy because the Court and the Law will always see for the benefit of the child. This study aims to explain why gestational surrogacy, when legalized, can be beneficial to the Philippine society. It aims to give definition and safeguard to the rights of the couples, a surrogate mother, a medical practitioner and the child involved. Moreover, since the Philippines is a state party to different International Treaties and Conventions, this study also aims to verify if prohibition of surrogacy will result to a violation in any of the treaties ratified. If no such violation is found, then, this study will help the legislation address this issue, as it is one of the obligations the Philippines has for being a state party to international treaties. This study also aims to resolve the conflict that may arise from surrogacy being similar to simulation of birth. It is of utmost importance that the two be defined and differentiated to ensure that the former is not in any way, coupled to the commission of the felony. Furthermore, it is also to lessen the complexity of getting a birth certificate for a child and determining the parentage of a child.

Definition of Terms
Assisted Reproductive Technology (ART) - is a general term referring to methods used to achieve pregnancy by artificial or partially artificial means.21 Reproductive technology - is the term used to describe the range of medical treatments available to assist couples to conceive.22

21

Jesusa R. Lapuz, ART (Assisted Reproductive Technology) and its Legal Innuendos: A Challenge for a Statutorial Renovation, (2008) (online published thesis, Universiy of Santo Tomas) (published on the UST Law Review website)

Artificial insemination is the injection of semen into the vagina or uterus by means of a syringe or the like rather than by coitus. 23 It also defined as a procedure in which a fine catheter (tube) is inserted through the cervix (the natural opening of the uterus) into the uterus (the womb) to deposit a sperm sample directly into the uterus. The purpose of this relatively simple procedure is to achieve fertilization and pregnancy. Artificial insemination is also called intrauterine insemination (IUI).24 Surrogacy the state of being a surrogate or surrogate mother.25 Also known as a surrogate-parenting arrangement and defined as an arrangement in which the surrogate mother agrees to carry a child to term in behalf of another women and then assign[s] her parental rights to that woman and the father.26 Surrogate Mother is a woman who carries a child to term on behalf of another woman and then assigns her parental rights to that woman and the father.27 Gestational Surrogacy is the legal and medical process through which a Surrogate woman carries the genetic material of the Intended Father or Sperm Donor and the Intended Mother or Egg Donor. It uses the process of IVF (in-vitro fertilization) eggs are retrieved from the intended mother or egg donor's ovaries and fertilized with the sperm of the intended father or sperm donor to create Embryos. Embryos are then

22

Womens Health Queensland Wide Inc., available at http://www.womhealth.org.au/studentfactsheets/infertility.htm (last accessed July 24, 2011) 23 Websters Encyclopedic Unabridged Dictionary of the English Language, 85 24 MedicineNet.com, Definition of Artificial Insemination, available at http://www.medterms.com/script/main/art.asp?articlekey=7001 (last accessed August 8, 2010) 25 Dictionary.com, Surrogacy | Define Surrogacy at Dictionary.com, available at http://dictionary.reference.com/browse/surrogacy (last accessed July 20, 2011) 26 BLACKS LAW DICTIONARY 1459 (Brian A. Garner ed. , 1999) 27 BLACKS LAW DICTIONARY 1458 (Brian A. Garner ed. , 1999)

transferred to the gestational surrogate mother's uterus where she will carry the fetus to term and deliver a baby for the Intended Parents.28 In Vitro Fertilization(IVF) - is when the intended mother can produce fertile eggs but cannot carry a child to birth, the intended mother's egg is removed, combined with the husband's or another man's sperm.29 Hysterectomy (his-tur-EK-tuh-mee) - is a surgery to remove a woman's uterus or womb. The uterus is where a baby grows when a woman is pregnant. The whole uterus or just part of it may be removed. After a hysterectomy, you no longer have menstrual periods and cannot become pregnant.30 Simulation of Birth - is the tampering of the civil registry making it appear in the birth records that a certain child was born to a person who is not his/her biological mother, causing such child to lose his/her true identity and status.31 Artificial Insemination Donor (AID) also known as Heterologous Insemination, the sperm in this classification comes from a donor and not from the actual husband.32

Scope and Limitations

The progressing outbreak of medical technology is increasingly used for other purposes beyond reproduction.
28

The study is only limited to the use of In Vitro

Geller & Carolan, Surrogacy FAQ, available at http://www.gellercarolan.com/surrogacy-faq#q3 (last accessed July 11, 2011) 29 Surrogate Motherhood, available at http://legaldictionary.thefreedictionary.com/Surrogate+Motherhood (last accessed July 20, 2011) 30 Womenshealth.gov, Hysterectomy Fact Sheet, available at http://www.womenshealth.gov/publications/our-publications/fact-sheet/hysterectomy.cfm#a (last accessed July 20, 2011) 31 Domestic Adoption Law, Republic Act No. 8552, 3(j) (1998) 32 Meyer Vs. Nebraska 262 U.S. 390 (1923)

Fertilization (IVF) in Gestational Surrogacy. IVF is different from Artificial Insemination and Baby selling. Artificial Insemination is where one normally understood as the use of a sperm donor and having the mother to have her own egg cells to be used.33 Baby selling on one hand is simply understood as selling your own child, whether the child is biologically yours or not.34 The concept of Gestational Surrogacy is also irrelevant to concept of adultery and concubinage. This is because adultery and concubinage

involves the physical action of sexual intercourse but with gestational surrogacy the process of IVF would be used and any sexual interaction between the surrogate mother and biological father of the child is never placed in the equation of gestational surrogacy.35 However, this study is only limited for infertile married couples who enter into surrogacy arrangements, and those couples who enter such arrangements for health reasons. This study is also limited to Gestational Surrogacy and its legal effects. It

does not intend to cover other forms of surrogacy. Furthermore, the studys focus is on the parental rights of the commissioning couple and the surrogate mother.

Significance of the Study

Filipinos are known for having strong family ties. Married couples, therefore, are greatly expected to have a child or have children. Society, likewise, dictates that a family cannot be called a family without children. However, not all married couples are capable of having their own child.

33 34 35

See INFRA Artificial Insemination and Gestational Surrogacy See INFRA Baby Selling and Surrogacy See INFRA Adultery and Surrogacy; Concubinage and Surrogacy

In view of the foregoing, said couples will benefit from this study because it will open their minds to a different way of having children that is genetically related to them. Likewise, it is important because couples will gain knowledge and understanding of the rights of all the parties involved in surrogacy arrangements. It would also aid in determining how to protect the rights of the different parties without violating the rights of others. This study also aims to help the Philippine jurisprudence and laws to keep

up with the ever changing technology of society that aids humanity in their needs and wants. Also, it would help address the international legal obligations in which the

Philippines has bound itself to by signing international laws, treaties, conventions and such. In the long run, the legalization of gestational surrogacy in the Philippines will help reduce child trafficking in the country. Eventually, society will see that becoming a surrogate mother is a good thing for it will help others enjoy the blessings of having a child of their own.

Chapter 2: Review of Related Literature

Historical Background
In 1976, Noel Keane, a lawyer, wrote the first formal contract between a surrogate mother and a married couple in the United States.36 However, the surrogate then did not receive any compensation from the commissioning couple. Most accounts on the said agreement did not discuss the facts in detail, but as for Keane, he started an Infertility Center which arranged hundreds of surrogate pregnancies per year.37 In 1978, the first test tube baby was born. Louise Joy Brown was the first baby born out of In Vitro Fertilization.38 Although there was no surrogate mother in their case, this became a historical outbreak for medical research because it paved the way towards gestational surrogacy. The first instance of gestational surrogacy was recorded to have occurred in 1985. The surrogate mother carried the child of a woman who had a hysterectomy, but had retained her ovaries.39 In a legal case in Europe a controversy regarding partial surrogacy arrangement took place. This gave way to the birth of the law entitled Surrogacy Arrangement Act of 1985, which limits but not bans the practice.40 Under this law the only thing

36

Information-On-Surrogacy.com, History of Surrogacy available at http://www.information-onsurrogacy.com/history-of-surrogacy.html (last accessed July 19, 2011) 37 Id. 38 Surrogate Motherhood, available at http://legaldictionary.thefreedictionary.com/Surrogate+Motherhood (last accessed July 20, 2011) 39 Information-On-Surrogacy.com, History of Surrogacy available at http://www.information-onsurrogacy.com/history-of-surrogacy.html (last accessed July 19, 2011) 40 Peter R. Brinsden, Gestational Surrogacy, available at http://humupd.oxfordjournals.org/content/9/5/483.full.pdf (last accessed July 20, 2011)

deemed illegal was the practice of commercial surrogacy. After this event, the British Medical Association agreed that surrogacy cannot actually prosper with little or without the actual support of the doctors in the practice of surrogacy.41 In the same year the UK Parliament passed the Human Fertilization and Embryology Act of 1990 which does not ban surrogacy as a means of reproduction.42 The British Medical Association later then reported that `Surrogacy is an acceptable option of last resort in cases where it is impossible or highly undesirable for medical reasons for the intended mother to carry a child herself.43 In 2002, a law was passed making commercial surrogacy legal in India. 44 This law states that the surrogate mothers name will not appear on the birth certificate. Also, the surrogate mother will have no right over the surrogate child.45 Since then, surrogacy in India has boomed as a form of a job for Indian women despite their traditional values.46 The Indian society then condemned surrogacy because it has become a way of life for some women who desire to earn more so that they could be of help to their family. However, in one case wherein the father is a Japanese national and the surrogate is an Indian surrogate mother, the child had to go after the name of the surrogate mother appeared in the birth certificate. This case paved the way for

41 42

Id. Id. 43 Id. 44 SurrogateMother.com, Surrogacy and India, available at http://www.surrogatemother.com/profiles/blogs/surrogacy-and-india (last accessed July 20m 2011) 45 Id. 46 Fozia Yasin, Unofficial Surrogacy World Capital, available at http://www.womensenews.org/story/reproductive-health/110330/indias-surrogacy-boom-awaits-legaloversight (last accessed July 20, 2011)

questions regarding the Indian Surrogacy Law that was passed in 2002.47 In 2008, the Assisted Reproductive Technology (Regulation) Bill and Rules was formulated.48 It was formulated to help create a statute that would help determine and protect the rights of all the involved parties in a surrogacy arrangement.49 In the Philippines, the idea of gestational surrogacy is still new and only a handful can be said to have had the privilege of using gestational surrogacy as a method of reproduction. However, the practice of gestational surrogacy is kept a secret since it has been said that there is a thin line separating gestational surrogacy from simulation of birth50 and child trading.

Surrogacy in Other Countries

Not all countries prohibit the practice of surrogacy; there are also those that allow it provided that the arrangement is done following the laws of the State. In

England, as well as in Wales, the practice is not illegal. However, to arrange one commercially is deemed illegal.51 In Spain, surrogacy is considered to be an illegal act.52 Consequently, Spanish couples go to the United States to arrange the said act.53 As a result, a certificate was issued to the United States, stating that children born thru a surrogate mother in the

47

QIC & AC, Delhi, Surrogacy and its consequences on the Right of the Child & Surrogated Mother: Concept Paper, available at http://surrogacyqicac.blogspot.com/ (last accessed July 20, 2011) 48 Id. 49 Id. 50 Domestic Adoption Law, Republic Act 8552, art. 1 3 (j) (1998) 51 Alternative Family Law, International Law, available at http://alternativefamilylaw.co.uk/en/children/international-surrogacy.htm (last accessed August 5, 2011) 52 Surrogacy Center in Ukraine La Vita Felice, available at http://www.mothersurrogate.com/en//?p=surrogacy_spain0 (last accessed August 5, 2011) 53 Id.

United States will not be registered in Spain.54

Accordingly, the child will not have

Spanish nationality; therefore, the child will need a visa to be able to enter Spain. 55 However, despite the said prohibition of such practice in the country, there are still a lot of people doing it. In fact, in a study done by researchers from a city university in the United Kingdom, they concluded that Spanish surrogate mothers feel a positive sense of self-worth because of their overall positive experience.56 They said that seeing their commissioning couples faces once the child is born makes the process worthwhile.57 The United States do not have a unanimous law on surrogacy. Some states like Alaska, Colorado, Georgia, Hawaii, Maine, Minnesota, Mississippi, Montana, and Wyoming do not have laws against surrogacy or banning surrogacy. 58 Other states, on the other hand have no specific laws on such but existing laws and circumstances make it unclear if surrogacy is to be allowed or banned. In Delaware, only termination of parental rights is forbidden, but theres no specific law defining the act of the surrogate mother as a termination of her parental right.59 In Kansas, there adoption law does not consider surrogate motherhood as a professional service.60 Moreover, the same law prohibits commercialization of motherhood.61 In Maryland, only

payments for adoptions and sale of minors are prohibited, but definitions of such crimes

54 55

Id. Id. 56 Id. 57 Id. 58 Delwyn Lounsbury, Surrogacy and Surrogate Mother Information, available at http://www.surrogacysurrogate-mother.com (last accessed August 5, 2011) 59 Id. 60 Id. 61 Id.

do not include surrogacy.62 In Massachusetts, there is no direct law on related to such; however their (pre)birth certificate requires the intended parents to be the genetic source.63 In Missouri, their strict adoption law may not allow compensated surrogacy, because the latter is construed as child trafficking, and such is a felony in the said state.64 In Ohio, some courts accept the act, but they never really ruled on it.65 On the other hand, there are also some states that provide laws which specifically prohibit surrogacy. One of these states is the District of Columbia which penalizes any person who engages in such arrangement with a fine of ten thousand US dollars and one year of imprisonment.66 Another is Indiana and Louisiana which makes surrogacy contracts unenforceable and against public policy.67 Moreover, New York and North Dakota bans surrogacy and states that contracts with such agreement are void and unenforceable.68 Finally, the strictest of all states in this regard is Michigan which penalizes the violator with a fine of fifty thousand US dollars.69 There are other states that likewise provide laws that allow and regulate the practice of surrogacy. One of which is Arkansas, which makes contracts of such

arrangement valid and enforceable under the circumstance that the intended father is the sperm donor, and he and his wife are both parents.70 However, if the intended

62 63 64 65 66 67 68 69 70

Id. Id. Id. Id. Id. Id. Id. Id. Id.

father is not married, he becomes the sole parent.71 In addition, if the sperm donor is anonymous, then the intended mother is the legal sole parent.72 In Connecticut, the court ruled that the gestational carrier agreement of a gay male couple is valid, enforceable and has full legal effect.
73

In Illinois, surrogacy is allowed as long as the

surrogate mother is not biologically related to the child, and a surrogacy doctor certifies it.74 In Kentucky, only uncompensated surrogacy is allowed but contracts of such In Nebraska, Surrogacy contracts are

arrangement are voidable but not illegal.75 generally void and unenforceable.

However, if there is no compensation to the

surrogate mother given, then it is otherwise.76 The same law is true for New Mexico, Oklahoma, Washington and North Carolina.77 In Pennsylvania, if the arrangement is done with a legally recognized agency, then payment is accepted.78 In Rhode Island, Cloning law exempts assisted reproductive technologies used in gestational surrogacy since there is no genetic link.79 In Tennessee, Texas and Utah, it is only allowed for married couples.80 Moreover, in Utah the surrogate is required to give a written release of rights.81 In West Virginia, fees and expenses included in any arrangement wherein a woman agrees to become a surrogate mother are not prohibited by the Statute.82 While in Wisconsin, the surrogates name should be in the birth certificate until the court
71 72 73 74 75 76 77 78 79 80 81 82

Id. Id. Id. Id. Id. Id, Id, Id. Id, Id, Id, Id.

is able to determine parental rights. However, after such a new one with the names of the intended parents may be issued.83 Among all the States in the US that allows surrogacy, many prefer to do it in Florida because of the specific laws on such that the State provides.84 The Florida

Statute outlines the procedure and permits genetic surrogacy and gestational surrogacy.85 Under the Florida Statute, couples who wish to enter a surrogacy

arrangement must sign an agreement with the surrogate mother stating that the surrogate mother agrees that after birth the couple will have custody over the baby and later on adopt the child.86 Signed consents are required before the birth of the child, and may be revoked seven days after the childs birth.87 Furthermore, the surrogate is not to be given any compensation by the couple.88 Only expenses, including the ones for reasonable living, are to be given regardless of how the pregnancy turns out.89 The procedure of a Gestational Surrogacy contract is also provided and outlined in the Florida Statute.90 The law reiterates that a binding and enforceable gestational surrogacy contract must be accomplished by the couple and the surrogate mother before the childs birth.91 Gestational surrogates must also be eighteen years old and above, and the couple must be legally married.92 Moreover, the gestational surrogate

83 84

Id. Harold S. Eskin, P.A., Surrogacy Law, available at http://www.legalsurrogacy.com/surrogacy-law.htm (last accessed August 5, 2011) 85 Id. 86 FLA. STAT. ch. 63.213 (2010) 87 Id. 88 Id. 89 Id. 90 Id. 91 FLA. STAT. ch. 742.15 (2010) 92 Id.

must be determined within reasonable medical certainty by a licensed physician.93 Furthermore, the statute also provided certain provisions that must be present in the contract.94 The agreement is to be reviewed by the court to check if stipulations are in accordance with the law.95 After such, the new birth certificate is issued to the

couple.96 Once again, no actual compensation is permitted by the State.97 Canada in 2004, passed a law banning commercial surrogacy. The law specifically stated that no person shall pay a surrogate mother or offer to pay or advertise that it will be paid.98 The law also prohibits purchasing of sperm or ova from a donor or anyone acting in behalf of the donor.99 Aside from the different states that allow surrogacy, there are also other countries that permit the same. One of those is the United Kingdom.100 On July 16, 1985 the Surrogacy Arrangements Act of 1985 was enacted.101 Kingdom.102 The act aims to regulate surrogacy arrangements in the United It also bans commercial surrogacy, and penalizes even those who While surrogacy arrangements are

contravene in such commercial arrangement.103

allowed, compensation is limited, thus making it hard for couples to find a surrogate mother.104 In addition, the United Kingdom declares that the surrogate mother has six

93 94

Id. Id. 95 Id. 96 Id. 97 Id. 98 Assisted Human Reproduction Act, 3-6 (1) (2004) (Can.) 99 Assisted Human Reproduction Act, 3-76 (1) (2004) (Can.) 100 Id. 101 Surrogacy Arrangement Act, 1985 (Eng.) 102 Id. 103 Id. 104 Id.

weeks to decide if she wants to keep the child.105

This is applicable even if the

surrogate is not genetically related to the child.106 Furthermore, this act only extends to Northern Ireland. Scotland, although allows such practice, has a different version of this act.107
Table 1: Surrogacy in Other Countries

Countries and States in the United States that allow and regulate Surrogacy Arkansas California Connecticut England Florida Illinois Kentucky Nebraska New Mexico Oklahoma North Carolina Rhode Island Tennessee Texas United Kingdom Utah Washington West Virginia Wisconsin

Countries and States in the United States that bans Surrogacy

Michigan New York North Dakota Indiana Louisiana Spain

Countries and States in the United States that have unclear laws on Surrogacy Delaware Kansas Missouri Massachusetts Maryland Ohio

Countries and States in the United States that neither allows or bans Surrogacy Alaska Colorado Georgia Hawaii Maine Minnesota Mississippi Montana Wyoming

International Laws
International law can be defined as the body of legal rules, norms, and standards that apply between sovereign states and other entities that are legally recognized as
105 106 107

Id. Id. Id.

international actors.108 International laws, traditionally consists of rules and principles governing the relationship of nations to each other.109 Today, international laws act as the standard in the different relationships of individuals, the state and of other countries.110 International law is the framework within which international co-

operation is achieved because of the underlying premise that no State can act on its own.111 National security, trade and economy of a State Concerns are mainly the concern of international law.112 The scope and nature also, covers all of which was and still is the practices and principles of States.113 These practices and principles may vary in form in other States, however they are still is the same practices and principles that are recognized in other States. International law covers everything that is essential to

guide the States citizens to co-function peacefully with one another.114 This is because a law is the societys framework of principles within the society develops.115 The law is that binding element that makes society adheres to its recognized values and standards.116

108

Britannica Online Encyclopedia, International law, available at http://www.britannica.com/EBchecked/topic/291011/international-law (last accessed August 14,2011) 109 Cornell University Law School, International Law, available at http://www.law.cornell.edu/wex/international_law (last accessed August 14, 2011) 110 Id. 111 ALAN VAUGHAN LOWE, INTERNATIONAL LAW 1 (2007) 112 Id. 113 ALAN VAUGHAN LOWE, INTERNATIONAL LAW 8-9 (2007) 114 Id. 115 MALCOLM N. SHAW, INTERNATIONAL LAW 1 (6th ed. 2008) 116 Id.

International laws mostly come from treaties or customary law.117 Treaties are generally contracts signed by States who agrees to the rules or statements of the treaty.118 The States have the choice to either enter or not. However, when such

treaties are entered and signed, it is already binding.119 It gives rise to the obligations of State parties who signed it to comply with such treaties.120 In other cases,

international laws become binding because States have observed and participated in certain practices for so long that it became a customary law.121 Sources of international law can help determine how binding an international law is to a State. Sources of international law can be clearly derived from Article 38 of the Statute of the International Courts of Justice which states:
1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.122 [emphasis supplied]

117 118 119 120 121 122

ALAN VAUGHAN LOWE, INTERNATIONAL LAW 18-19 (2007) Id. Id. Id. ALAN VAUGHAN LOWE, INTERNATIONAL LAW 26 (2007) Statute of the International Court of Justice, art 38

Primarily, the sources of international law are treaties and customary laws.123 Customary international law refers to international obligations arising from established state practice, as opposed to obligations arising from formal written international treaties.124 It also is the result years of observance of general and consistent practice of states which they follow from a sense of legal obligation.125 Customary international laws can be established by state practices and opinio juris.126 State practices are normal or general practices of the state or nation which are in accordance to their laws and rights.127 Opinio juris on the other hand denotes a subjective obligation, a sense on behalf of a state that it is bound to the law in question.128 Better explained by the Latin phrase opinio juris sive necessitatis which means an opinion of law or necessity.129 It is to do an act believed to be legally obligatory130 or is already a part of an international law.131 However to prove such fact is difficult but in some cases it could pave the way in addressing an issue by establishing an explicit international law.132 An example of a customary international law is that as a rule States are bound by their treaty obligations or known as pacta sunt servanda.133 International law simply operates as a legal system because of such rule.134 Such rule ensures that States will
123 124

ALAN VAUGHAN LOWE, INTERNATIONAL LAW 18-19 (2007) Cornell University Law School, Customary international law available at http://topics.law.cornell.edu/wex/Customary_international_law (last accessed August 15, 2011) 125 Id. 126 Id. 127 ALAN VAUGHAN LOWE, INTERNATIONAL LAW 42-47 (2007) 128 Cornell University Law School, Opinio juris available at http://www.law.cornell.edu/wex/opinio_juris_international_law (last accessed August 15, 2011) 129 Id. 130 SHAW, supra note 115, at 84 131 ALAN VAUGHAN LOWE, INTERNATIONAL LAW 42-47 (2007) 132 Id. 133 ALAN VAUGHAN LOWE, INTERNATIONAL LAW 58 (2007) 134 Id.

honor their treaty commitments and make their commitment truly binding.135 And to protect such rule or customary international law, the concept of jus cogens is to be applied. Jus cogens is a Latin term which means compelling law or peremptory law.136 It refers to certain fundamental, overriding principles of international law, from which no derogation is ever permitted.137 This is to say that States may not escape their binding force either by persistent objection or by making agreements to disregard the rule.138 Jus cogens is better defined by Article 53 of the Vienna Convention on the Law of Treaties which states that the rule of jus cogens as a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm os general international law having the same character.139 To reiterate its importance, the following statement will help:
States become bound by the rules, whether or not they consent, because international law cannot admit that they are not bound by them if it is to retain its coherence and even a minimal moral authority.
140

Treaties are international agreements.141

Other names for such are a

Convention, an Exchange of Notes, a Memorandum of Understanding, a Covenant, a Charter or any other suitable name depending on its level of importance. 142 Relatively

135 136

Id. Cornell University Law School, Jus cogens available at http://www.law.cornell.edu/find/wex/jus%20cogens (last accessed August 16, 2011) 137 Id. 138 ALAN VAUGHAN LOWE, INTERNATIONAL LAW 59 (2007) 139 Id. 140 ALAN VAUGHAN LOWE, INTERNATIONAL LAW 60 (2007) 141 ALAN VAUGHAN LOWE, INTERNATIONAL LAW 64 (2007) 142 Id.

all of them are categorized together under the heading of treaties codified in the 1969 Vienna Convention on the Law of Treaties.143 A reason why treaties supersede customary international laws is that customary international laws are in essence the body of law that applies by default144 while treaties have more of the characteristics similar to the body of tort law or the law of obligations 145 which permits the capacity to change or vary provisions of the treaty to accommodate domestic laws of the States. Article II, Section 2 of the Philippine Constitution states:
The Philippines renounces war as an instrument of national policy, adopts the

generally accepted principles of international law as part of the law of the land and
adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.146 [emphasis supplies].

The above statement help realize that treaties and especially customary laws are recognized as a part of the laws of the land. Before a treaty is signed by the Congress it is procedural to ratify the treaty first according to the current laws of the land.147 The force of a treaty as a statute is on the same level of the statute of Congress.148 However when there are disputes between a statute of a Congress and a treaty, the former will supersede the other.149 And in disputes between a treaty and the

constitution, the constitution will prevail over a treaty.150

143 144 145 146 147 148 149 150

Id. ALAN VAUGHAN LOWE, INTERNATIONAL LAW 64 (2007) Id. PHIL. CONST. art. II, 2 DE LEON, HECTOR S., TEXTBOOK ON THE PHILIPPINE CONSTITUTION 69 (2008 ed.) Id. Id. Id.

Reproductive Rights
All individuals have reproductive rights which they should exercise freely. This is because reproductive rights are human rights too. The guarantees to this statement are all over the international laws and conventions headed by the United Nations.151 Reproductive Rights is defined by the 1994 International Conference on Population and Development (ICDP) which states:
[R]eproductive rights embrace certain human rights that are already recognized in national laws, international human rights documents and other consensus documents. These rights rest on the recognition of the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so, and the right to attain the highest standard of sexual and reproductive health. It also includes their right to make decisions concerning reproduction free of discrimination, coercion and violence, as expressed in human rights documents.152

This is then reinforced by the Beijing Declaration and Platform for Action, Fourth World Conference on Women.153 That statement led to different awakenings for

different States in admitting that reproductive rights are also a key ingredient for the development of the human society.154 This was later on seen in more recent

international conventions such as the Convention on the Elimination of Discrimination Against Women and the likes.155

151 152

Center for Reproductive Rights, Reproductive Rights are Human Rights (2009) International Conference on Population and Development, September 13, 1994 153 See Fourth World Conference on Women, Beijing Declaration and Platform for Action, September 15, 1995 Ch. 3, Par. 96 154 Center for Reproductive Rights, Reproductive Rights are Human Rights (2009) 155 Convention on the Elimination of all Forms of Discrimination against Women, December 18, 1979

The Center for Reproductive Rights has enumerated twelve (12) human rights key to reproductive rights (1) the right to life, (2) the right to liberty and security of a person, (3) the right to health, including sexual and reproductive health, (4) the right to decide the number and spacing of children, (5) the right to consent to marriage and to equality in marriage, (6) the right to privacy, (7) the right to equality and nondiscrimination (8) the right to be free from practices that harm women and girls, (9) the right to not be subjected to torture or other cruel, inhuman, degrading treatment or punishment, (10) the right to be free from sexual and gender-based violence, (11) the right to access sexual and reproductive health education and family planning information, and (12) the right to enjoy the benefits of scientific progress.156 These 12 human rights are seen by the Center for Reproductive Rights as the major legal framework in establishing the significance of the reproductive rights to be recognized as a human right.157 Also to establish that local laws should be made and enacted into protecting such right.

Constitutional Background
The Bill of Rights declares and enumerates a persons rights and privileges which the Constitution is designed to protect against any other person or government.158 It ensures that the rights enumerated are enjoyed by the people. It also, guarantees the individuals that their rights are protected by the state.159

156 157 158 159

Id. Id. DE LEON, HECTOR S., TEXTBOOK ON THE PHILIPPINE CONSTITUTION 166-193 (2008 ed.) Id.

The first article of the Bill of Rights contains the Due Process Clause which states:
No person shall be deprived of life, liberty, or property without due process of law , nor shall any person be denied the equal protection of the laws. 160

Therefore, a persons life, liberty or property cannot be taken away from any individual without due process.161 The Due Process Clause remains vague up to this date because by not being so might prove constricting and prevent the judiciary by adjusting it to the particular cases and to the ever-changing conditions of society.162 The due process therefore must continue to be dynamic and resilient but adaptable to the dynamics of the current society.163 This ensures that in the event a person may be deprived of such, different branches of the government will have a better opportunity at interpreting it the way that it could be of benefit to the public, and while being in line with an individuals rights.164 This also makes sure that the deprivation does not equate to taking away of the rights of a person without reasonable cause.165 Persons in the Due Process Clause means all kinds of persons, may it be natural or artificial persons.166 Natural persons, whether citizens or aliens, are protected by the clause, thus, both have the privilege of enjoying all of the rights mentioned. Moreover, they should not be deprived of such rights without the due process of law. Artificial

160 161 162 163 164 165 166

PHIL. CONST. art. III, 1 Id. ISAGANI A. CRUZ, CONSTITUTIONAL LAW 99-100 (2007 ed.) Id. Id. Id. ISAGANI A. CRUZ, CONSTITUTIONAL LAW 101 (2007 ed.)

persons like corporations and partnerships are also protected by the Due Process Clause, however, only to the extent of their properties.167 This is because as creations of law, their nature makes them subject to the control and changes made by the legislature.168 Property in the Due Process Clause is anything that can come under the right of ownership and be the subject of a contract.169 This includes all tangible objects so long as they are part of the normal and legal commerce of man. However, vested rights in public office cannot be regarded as property. This is because, public office is created by the statute, and hence, legislature can take it, specially, if the welfare of the public is being questioned.170 In relation to this, privileges given by the government and statues can be taken away from a person once public welfare, again, is questioned. Liberty in the Due Process Clause does not mean unrestricted license, because it is something that is regulated by law.171 It is the freedom of doing what is right from wrong as said by Mabini and written in Justice Cruz book. 172 Liberty is having the chance to enjoy all of ones rights anytime and anywhere one decides to enjoy it. However, it is also through this liberty where one hinders other people from enjoying the same rights. For instance, one can enjoy his/her freedom to express his/her

opinions, but to unfairly destroy anothers reputation173 or any other similar act that would harm an individual, the government, or the public is going beyond ones right to
167 168 169 170 171 172 173

Id. Id. ISAGANI A. CRUZ, CONSTITUTIONAL LAW 105-106 (2007 ed.) Id. ISAGANI A. CRUZ, CONSTITUTIONAL LAW 104-105 (2007 ed.) Id. Id.

liberty, and therefore may be criminally sanctioned. Another way of looking at this liberty is the freedom of a person to knowledge and information, and applying or practicing such in his/her life, provided that he/she does not harm anyone else.174 Basically, liberty is ones freedom to act according to how he or she wills, as long as he or she does not violate the rights of others.175 Life is defined by Justice Cruz as the integrity of the physical person. No one, not even the government, can deprive a person of his faculties or limbs even if it will be used on persons as punishments for a crime.176 Life is protected by making sure that every body part of a person will not be deprived of him even in securing ones health. However, if one must undergo a certain process which would result to pain or deprivation of ones faculty, one should be in as much as little pain or none at all. This should be the general principle when dealing with such scenario.177 Life, in this clause, also pertains to ones right of reproduction and the resultant savoring joys of parenthood.178 Relatively, ones right on how to reproduce is supposedly protected by the Due Process Clause. In the Constitution of the United States, the case of Meyer vs Nebraska established the tradition of procreative liberty, they affirmed that Constitutional liberties include freedom for an individual to marry, establish a home and bring up children and that the state cannot interfere with one decision.179 Because of this statement,

174 175 176 177 178 179

Id. Id. Id. Id. Id. Meyer Vs. Nebraska 262 U.S. 390 (1923)

some have argued that the freedom for coital reproduction extends to IVF and AID180. However, the decision confined the procreative liberty to married couples only. 181

Womens Rights
The Convention on the Elimination of Discrimination against Women, also known as CEDAW is a convention that is also known as the international bill of rights for women.182 Its focus is to eliminate all forms of discrimination against women, and discrimination here is defined as:
...any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field."183

Discrimination against women, though thoroughly defined in the first article, is more meticulously explained in the succeeding articles. Such latter articles, define what composes discrimination against women and lays down the program for national action to end such discrimination.184 By being a party to the convention, State parties commit themselves to end all forms of discrimination. This commitment entails undertaking measures like

incorporation of the principles of equality in the legal system, and abolishing all

180 181

Id. Scott B. Rae, The Ethics of Commercial Surrogate Motherhood: Brave New Families? 11 (1994) 182 United Nations, Overview of the Convention on the Elimination of all Forms of Discrimination against Women, avaible at http://www.un.org/womenwatch/daw/cedaw/ (last accessed July 31, 2011) 183 Convention on the Elimination of all Forms of Discrimination against Women, December 18, 1979, art. 1 184 Id.

discriminatory laws. Moreover, it also requires that tribunals and public institutions be established to ensure the effective protection of women against discrimination. Lastly, the convention requires the State parties to protect women against enterprises or organizations that may discriminate them.185 State parties, or those parties who have become a party to the treaty, are also obliged to submit country reports to the committee regularly. The said reports must contain the movements of the state parties in pursuant to the rights the convention implemented.186 The Convention obliges state parties to ensure the rights of women in civil, political and social areas. Article 5, 6 and 7 deals on civil and political rights of women, it requires the state parties to eliminate prejudices based on the idea of the inferior and superior gender,187 and eliminate discrimination against women in political and public life188 and requires protection against trafficking and prostitution. Article 10, 11 and 12 deals on the social economic human rights, it oblige state parties to ensure womens education,189 work190 and health191 is on an equal basis with men.

185 186

Id. Committee on the Elimination of Discrimination Against Woman, available at http://www2.ohchr.org/english/bodies/cedaw/ (last accessed July 31, 2011) 187 Convention on the Elimination of all Forms of Discrimination against Women, 5 188 Convention on the Elimination of all Forms of Discrimination against Women, 7 189 Convention on the Elimination of all Forms of Discrimination against Women, 10 190 Convention on the Elimination of all Forms of Discrimination against Women, 11 191 Convention on the Elimination of all Forms of Discrimination against Women, 12

December 18, 1979, art. December 18, 1979, art. December 18, 1979, art. December 18, 1979, art. December 18, 1979, art.

The Philippines, after seven years of debate in the congress, the President then, Gloria Macapagal-Arroyo finally signed The Magna Carta of Women, which declares womens rights as human rights.192 The Magna Carta of Women, also known as

Republic Act 9710 was passed on the 14th of August, 2009.193 The Magna Carta of Women Rights seeks to eliminate discrimination against women by recognizing and protecting the rights of the Filipino women in all spheres of the society.194 It also seeks to guarantee the rights of Filipino women belonging in the marginalized sector, and promote their well-being here in the country and abroad.195 The Magna Carta of Women, according to the chairman of the National Commission on the Role of Filipino Women (NCRFW) then, Myrna Yao, The Magna Carta of Women is a landmark law because the Philippines will now have a national framework for the implementation of the provisions of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), considered as the international bill of rights of women,.196 She also said that the law mandates all local government units to establish a special desk that addresses cases related to violence against women, in every barangay.197 Section 4 (b) of the Magna Carta of Women, defines discrimination as:

192

Genalyn Kabilin, Magna Carta of Women Signed available at http://www.mb.com.ph/articles/215907/magna-carta-women-signed (last accessed August 1, 2011) 193 Indigenous Portal, Philippine President signs the Magna Carta of Women into law, available at http://www.indigenousportal.com/Gender/Philippines-President-signs-the-Magna-Carta-of-Women-intolaw.html (last accessed August 1, 2011) 194 Id. 195 Id. 196 Id. 197 Id.

any gender-based distinction, exclusion or restriction which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field;198

The same section also defines gender equality as womens right to enjoy equal conditions, resulting to their full potential to contribute in the society.199 The magna carta of women includes all rights under international instruments, in defining the rights of women.200 It also ensures equal treatment before the

law,201 and requires the equal access to education of women. 202 Moreover, it covers equal rights in all marriage and family matters 203 and provides protection from the exercise of civil, political and economic rights in marginalized sectors.204 The aforementioned, are considered to be the strengths of Republic No. 9710.205 In relation to equal access to work, Section 4 includes in its definition on discrimination against women any act or omission that directly or indirectly prohibit women in benefiting from their rights and their access to and enjoyment of opportunities.206 Furthermore, women shall be ensured of the prevention and

198 199 200 201 202 203 204 205 206

Magna Magna Magna Magna Magna Magna Magna Id. Id.

Carta Carta Carta Carta Carta Carta Carta

of of of of of of of

Women Women Women Women Women Women Women

Rights, Rights, Rights, Rights, Rights, Rights, Rights,

Republic Republic Republic Republic Republic Republic Republic

Act Act Act Act Act Act Act

No. No. No. No. No. No. No.

9710, 9710, 9710, 9710, 9710, 9710, 9710,

4(b) (2009) 4(f) (2009) 4 (2009) 8 (2009) 9 (2009) 15 (2009) Chapter 4 (2009)

management of infertility and sexual dysfunction pursuant to ethical norms and medical standards.207

Artificial Insemination and Surrogacy

Artificial insemination is defined as the process of injecting semen into the vagina or uterus by means of a syringe or the like rather than by coitus. 208 It also defined as

a procedure in which a fine catheter (tube) is inserted through the cervix (the natural opening of the uterus) into the uterus (the womb) to deposit a sperm sample directly into the uterus. The purpose of this relatively simple procedure is to achieve fertilization and pregnancy. Artificial insemination is also called intrauterine insemination (IUI).209 As derived from its definition artificial insemination does not involve sexual interaction with any of the participants in the process. Low sperm count and poor sperm motility in men and sperm allergy in women are the most common reasons why couples turn to AI.210 This implies that the woman or wife can actually carry a child to term. Most

women undergo three to six cycles of artificial insemination before getting pregnant.211 When it fails, they try another treatment.212 It could be derived from the process that there are two (2) persons involved (1) the sperm donor, and (2) the egg donor. The sperm donor is the biological father of the child. In cases of artificial insemination he may or may not be the biological
207 208

Magna Carta of Women Rights, Republic Act No. 9710, 17 (2009) Websters Encyclopedic Unabridged Dictionary of the English Language, 85 209 MedicineNet.com, Definition of Artificial Insemination, available at http://www.medterms.com/script/main/art.asp?articlekey=7001 (last accessed August 8, 2010) 210 Anna Santos-Villar, Infertility: The Option of Using Artificial Insemination available at http://www.smartparenting.com.ph/getting-pregnant/infertility/infertility-the-option-of-using-artificialinsemination (last accessed August 16, 2011) 211 Id. 212 Id.

father of the child and when he is not he usually does not care for the child produced in the process. The egg donor is the biological mother of the child and the one who will be carrying the child to term. The egg donor and the sperm donor in most instances does not know each other at all. Gestational Surrogacy on the other hand, is defined as:
the legal and medical process through which a Surrogate woman carries the genetic material of the Intended Father or Sperm Donor and the Intended Mother or Egg Donor. It uses the process of IVF (in-vitro fertilization). Eggs are retrieved from the intended mother or egg donor's ovaries and fertilized with the sperm of the intended father or sperm donor to create Embryos. Embryos are then transferred to the gestational

surrogate mother's uterus where she will carry the fetus to term and deliver a baby for the Intended Parents.213

Gestational surrogacy as inferred from above also does not include any sexual interaction. Couples turn to gestational surrogacy in most cases because the mother or wife cannot carry the child to full term but still has viable egg cells due to some medical reasons. Example of such case is when a woman has undergone a

hysterectomy but have retained her egg cells. Success rates of gestational surrogacy are relatively higher than artificial insemination because embryos and not just the sperm cell is the thing which will be inseminated. The only drawback of gestational

surrogacy to artificial insemination is that there are cases a surrogate mother would not want to give up the child. There are three (3) people involved in this process the married couple and the surrogate mother. The married couple is the biological parents

213

Geller & Carolan, Surrogacy FAQ, available at http://www.gellercarolan.com/surrogacy-faq#q3 (last accessed July 11, 2011)

of the child. The surrogate mother is a woman who carries a child to term on behalf of another woman and then assigns her parental rights to that woman and the father.214

Baby Selling and Surrogacy

In the Baby M case, the New Jersey lower court said that surrogacy cannot be baby selling because of one the parties involved is the natural father.215 Baby selling refers to the selling of an infant to adoptive parents or other persons by the birthparent and/or an intermediary,216 and such is unlawful in the Philippines. Under the "Special Protection of Children Against Abuse, Exploitation and

Discrimination Act.". The state protects all children from all forms of abuse, exploitation,
cruelty and all other acts related in hindering the development of a child.217 Section 3 defines children as persons below eighteen years old, who are unable to fully take care of themselves.218 Furthermore in the section, "Comprehensive

program against child abuse, exploitation and discrimination" refers to coordinated program of services and facilities that protect children against abusive acts and circumstances which would threaten the normal development of children.219 abusive acts includes child trafficking.220 Such

214

BLACKS LAW DICTIONARY 1458 (Brian A. Garner ed. , 1999) In the Matter of Baby M., 109 N.J. 396 (1988) 216 Baby Selling, available at http://encyclopedia.adoption.com/entry/baby-selling/53/1.html (last accessed July 20, 2011) 217 Special Protection of Children Against Abuse, Exploitation and Discrimination Act, Republic Act No. 7610 (1992) 218 Special Protection of Children Against Abuse, Exploitation and Discrimination Act, Republic Act No. 7610, 3 (1992) 219 Id. 220 Id.
215

Child trafficking is defined as, Any person who shall engage in trading and dealing with children including, but not limited to, the act of buying and selling of a child for money, or for any other consideration, or barter.221 Such unlawful act

penalizes persons who violate it accordingly.222 Furthermore in Article 4 of RA 7610, institutions that recruit women or children for the purposes of committing or attempting to commit child trafficking, are likewise, to be penalized.223 In Kentucky, the courts have ruled that surrogacy does not fall under baby selling, because the natural father cannot buy back what is already his.224 In addition, most of the laws related to Surrogacy in the United States are consistent with their existing adoption laws.225 Supporters of surrogacy in the US argue that they money the surrogate mothers get are not for the sale of the child, rather for the services they rendered.226

Adoption and Surrogacy

Adoption involves the creation of the parent-child relationship between individuals who are not naturally so related. The adopted child is given the rights, privileges, and duties of a child and heir by the adoptive family.227

221

Special Protection of Children Against Abuse, Exploitation and Discrimination Act, Republic Act No. 7610 7 (1992) 222 Id. 223 Special Protection of Children Against Abuse, Exploitation and Discrimination Act, Republic Act No. 7610 8 (1992) 224 Scott B. Rae, The Ethics of Commercial Surrogate Motherhood: Brave New Families? 30 (1994) 225 Id. 226 Id. 227 Adoption, available at http://legal-dictionary.thefreedictionary.com/adoption (last accessed July 20, 2011)

The Philippines has certain laws on adoption that aims to safeguard the integrity and identity of a child. The Domestic Adoption Act of 1998, also known as Republic Act 8552, lays down the rules on domestic adoption for Filipino children.228 The objectives of this law clearly states that, every child remains under the care and custody of his/her parent(s).229 Moreover, the state must prevent unnecessary separation between the biological parent(s) and the child.230 Furthermore in the

section, termination of parental authority, whether voluntary or involuntary, must first be administratively or judicially declared.231 This is to establish the status of the child as legally available for adoption first, so that his/her custody may be transferred to the Department of Social Welfare and Development or to any duly licensed and accredited child-placing or child-caring agency.232 Such entity will now be authorized to take steps for the permanent placement of the child.233 Article 5, explains that terminating such parental rights, include the transmission of parental authority from the biological parent to the adoptive parents.234 According to Atty. William Laufer, a professor of legal studies and business ethics, sociology and criminology in Wharton University of Pennsylvania, the commissioning couple does not buy the child. Rather, they buy the womans eggs and

228 229 230 231 232 233 234

Domestic Adoption Act, Republic Act No. 8552 (1998) Domestic Adoption Act, Republic Act No. 8552 , 2 (1998) Id. Id. Id. Id. Domestic Adoption Act, Republic Act No. 8552, art. 5 (1998)

rent the surrogates womb.235 Hence, payments given by the parents are not really for letting the commissioning couple adopt the baby.236

Simulation of Birth and Surrogacy

The Domestic Adoption act, defines Simulation of birth, as the altering of birth records in the civil registry to make it appear the a certain child was born to be a person who is not his/her biological mother, which results to loss of the true identity and status of a child.237 The act of simulating birth, under the Revised Penal Code, and substituting one child for another shall be punishable by prision mayor, or a fine not exceeding one thousand pesos.238 The punishment is to be given to those who shall conceal or abandon any legitimate child with the intent to cause the loss of the childs civil status.239 It also includes the physicians, surgeons or public officers who act in violation of the duties of their profession, in order to cooperate in the execution of such crimes. In addition to penalties provided, temporary special disqualification is also prescribed.240 According to William Laufer, the surrogate was merely providing the means of birth.241 Relatively, the surrogate mother does not contribute her eggs in gestational surrogacy she only carries it for the natural and biological parents.242 Thus, the act

235 236

Id. Id. 237 Id. 238 An Act Revising the Penal Code and Other Penal Laws [Revised Penal Code], Act No. 3815, art. 347 (1932) 239 Id. 240 Id. 241 WILLIAM LAUFER, CAN SURROGACY CO-EXIST? , 891-892 242 Id

does not constitute simulation of birth if the name of the surrogate mother is not written in the childs birth certificate.

Adultery and Surrogacy

The Revised Penal Code states that:
Adultery is committed by any married woman who shall have sexual intercourse with a man not her husband and by the man who has carnal knowledge of her knowing her to be married, even if the marriage be subsequently declared void.243

Adultery is a crime of result and nor tendency as stated by the Supreme court of Spain.244 In the case of United States vs Fabiana Legaspi and Paulino Pulongbaret, Justice Carson stated that, the proof of the commission of adultery, like the proof of the commission of most other crimes, may be rested on circumstantial evidence.245 It is an instantaneous crime which is consummated and exhausted or completed at the moment of the carnal union.246 Each sexual intercourse is a crime of adultery.247 Under this article, Justice Moreland in the case of US vs Topino and Guzman said in his dissenting opinion that two elements are essential to the conviction of either party.248 First, the woman must be married, and second, the carnal relation with a man not her husband must exist.249 In surrogacy arrangements, the commissioning mother,

243 244

REVISED PENAL CODE, art. 333, RPC People v. Guadalupe Zapata and Dalmacio Bondoc, G.R. No. L-3047, May 16, 1951 245 United States vs Fabiana Legaspi and Paulino Pulongbaret, G.R. L-No. 5110 (1909) 246 Id. 247 2 CUELLO CALON, DERECHO PENAL 569 248 United States v.Eodora Topino and Gabriel Guzman, G.R. No. 11895 (1916) 249 Id.

although married, doesnt have any sexual relationship with any man. In gestational surrogacy, the man with whom she is going to have a child with is his husband.250

Concubinage and Surrogacy

Spouses often establish the crime of concubinage against their respective spouses for the purpose of obtaining divorce under Act No. 2710 of the Philippine Legislature, and claiming damages thereafter.251 The provision on concubinage in the Revised Penal Code states that:
...Any husband who shall keep a mistress in the conjugal dwelling, or shall have sexual intercourse, under scandalous circumstances, with a woman who is not his wife, or shall cohabit with her in any other place. 252

In the case of The People of the Philippine Islands vs Pedro Pitoc and

Marciana del Basco, Justice Johns said that to be able to be charged with such
crime, a married man must keep a mistress in the conjugal dwelling.253 Also, evidences must be sufficient to prove that he, beyond a reasonable doubt, must have kept the mistress under "scandalous circumstances," at any other place.254 He also added that to cohabit means to dwell together as husband and wife, or in a sexual intercourse, and such comprises a continued period of time.255 Furthermore he said that the offense, therefore, is not the single act of adultery;

250 251 252 253 254 255

See SUPRA ARTIFICIAL INSEMINATION AND GESTATIONAL SURROGACY People v. Pedro Pitoc and Marciana Del Basco, GR 18513 (1922) REVISED PENAL CODE, art. 334 Id. Id. Id.

it is cohabiting in a state of adultery; and it may be a week, a month, a year, or longer, but still it is one offense only.256 In the case of Eala vs Guevarra, the Supreme Court ruled that, for a man to have sexual intercourse with a woman elsewhere, is one important element of the crime concubinage.257 The practice of surrogacy, doesnt involve the sexual intercourse between the surrogate mother and the commissioning father. Furthermore, the only process involved is the implanting of the fertilized embryo to the surrogate mothers uterus.

Baby Maker and Surrogate Mother

A surrogate mother is defined as a woman who carries a child to term on behalf of another woman and then assigns her parental rights to that woman and the father.258 A surrogate mother in practice and theory will not have sexual intercourse with the father. All contact with the surrogate mother and the married commissioning couple depends on the surrogacy-arrangement contract that the parties will sign. A surrogate mother will be taken care of by the married commissioning couple from the time of insemination to the time of birth of the child. This usually includes post-

pregnancy medical expenses. The surrogate mother will also not be compensated for the service she has rendered except for what is necessary in carrying the child to full term.

256 257 258

Id. Joselano Guevarra v. Atty. Jose Emmanuel Eala, A.C. No. 7136 (2007) BLACKS LAW DICTIONARY 1458 (Brian A. Garner ed. , 1999)

A baby maker though is the opposite of what a surrogate mother is. A baby maker is a woman whom in order to bear the child of the married commissioning couple has to have a sexual interaction with the father. Even though the married couple may actually have a child biologically theirs and carry the child to full term they may still acquire the services of a baby maker. Being a baby maker is actually illegal in the Philippines. A baby maker actually violates the laws on prostitution and child trafficking or baby selling. Prostitution refers to any act, transaction, scheme or design involving the use of a person by another, for sexual intercourse or lascivious conduct in exchange for money, profit or any other consideration.259 A baby maker will be committing an act of prostitution because here the baby maker will be having a sexual intercourse to have the baby. This is like selling her body over and over just so that the baby maker will have a source of income. Baby selling because she is selling the child to the father of the childs family after birth and all communications with the baby maker will be lost.260

Synthesis
Gestational Surrogacy started in the 1970s. The first case of gestational surrogacy was for a woman who had hysterectomy. She chose to have her eggs implanted in a surrogate mother, to later on have a child. In Europe, a controversy regarding partial surrogacy arrangement in the 1980s gave birth to their Surrogacy Arrangement Act of 1985. In this act, the only practice prohibited is commercial surrogacy. However, in India a law legalizing commercial surrogacy was passed in
259 260

Anti-Trafficking in Persons Act, Republic Act No. 9208, 3 (c) See SUPRA Baby Selling and Surrogacy

2002. In the Philippines, there are no laws that prohibit or regulate the practice of surrogacy, but the act is done underground because of the thin line that separates this practice from simulation of birth. In other countries, the practice of surrogacy is either banned or regulated. Most states in the USA allow and regulate the practice of surrogacy. Florida for instance, has a specific statute that talks about the procedure and legalities of gestational surrogacy. However, there are also states that expressly ban the practice, and penalize the violators. One of which is Michigan that penalizes the violator with a fine of fifty thousand US dollars. In addition, Spain also bans the practice; it even sent a letter to the US that if surrogacy is done in the latter, the child would need a visa to go back to Spain. Then again, there are also those that neither ban nor allow the practice, and those that have unclear provisions on Surrogacy in their laws. Mostly, the majority of these states and countries prohibit the practice of surrogacy if done commercially. International Laws consists of rules, norms, standards and legal practice followed by state parties who accept and ratify it. These laws mostly come from treaties and customary practice. Obligations arising from treaties arise when a state agrees with the objectives of the treaties, they become binding when states sign them. Consequently, these states become State parties to the covenant. Customary laws, on the other hand, refer to obligations that arise from established state practice. Therefore, when a state becomes a state party by signing a treaty, they become obliged to address these rights and issues.

International Conventions such as the Universal Declaration of Human Rights (UDHR) and Convention on the Elimination of Discrimination Against Women (CEDAW) protects the individuals right to reproduce, specifically, womens reproductive freedom. The Philippines is a state party to the mentioned conventions. Hence, the country is bound to act in accordance to the beliefs of these conventions. Locally, there are also laws that protect these rights. In the Constitution of the Philippines, the right to reproduce may be embodied in the Bill of Rights as one of the ways of exercising ones right to life and liberty. Therefore no one, not even the state, can prohibit or limit an individuals exercise of right without due process. For women, specifically, the Magna Carta of Womens Rights provides specifically rights and ways in eliminating discrimination for them, the act is in accordance to CEDAW. Surrogacy, as previously mentioned, is a controversial practice. Aside from the complexity of its application, the practice also is complex because of the legal, ethical and moral consequences. Moreover, the practice is often mistaken for other similar concepts like Artificial insemination, baby selling, adoption and simulation of birth. Furthermore, it appears to be in violation of other laws, like the law on concubinage and adultery. In Artificial Insemination the sperm of the intended father is injected to the uterus of the surrogate mother, and the child is produced using the egg of the surrogate mother. However, in gestational surrogacy, the sperm of the intended father and egg of the intended mother is fertilized in an embryo thru the process of In Vitro

Fertilization. After which, it is injected in the surrogate mother so she can carry it to full term. Gestational Surrogacy uses the sperm and egg of the intended parents. So technically, it is the intended parents gene. The payment given to the surrogate mother is not for the sale of the child, but for the services of the surrogate. In the same way, since the genetic component is from the intended parents, they are the technically the biological parents, hence, adoption is unnecessary. In gestational surrogacy, the surrogate mother is merely providing the means of birth, because the genetic component is still from the intended mother. The act does not constitute simulation of birth if the name of the surrogate mother is not written in the childs birth certificate. The practice also will not be in violation of the provisions on concubinage and adultery because there is no sexual intercourse involved. The process constitutes In Vitro Fertilization, and such does not require any carnal relation between the surrogate and the intended father or mother. Furthermore, the practice cannot be mistaken for baby making because, as stated, the act does not involve any sexual intercourse between parties.

Chapter 3: Concenptual Framework

The conceptual framework of the study is based on the establishment that there are couples whose wife has difficulty carrying a child due to health or medical condition(s). Married couples, who has reproductive rights has the freedom to decide on how to have a child. However with the conditions of some women or wives in

having difficulty to carrying a child prevents women and couples alike to enjoy the right of reproduction. In order for the Filipino citizens who has this condition to have a child the government has allowed domestic adoption through Republic Act 8552 or the Domestic Adoption Act or through The Inter-Country Adoption Law. However, this does not give

way to the technology developed by the medical community in assisting couples to have a child who is biological theirs. Gestational surrogacy is one of the ways the medical community has developed to provide for the need of those couples to have their own biological child. In order to establish the grounds of legalizing gestational surrogacy in the Philippines, international laws which the Philippines is a state party will be analyzed. While doing such

differentiation of gestational surrogacy from somewhat similar concepts or acts of surrogacy in the Philippines will be done to further understand what gestational surrogacy is. With the legalization of gestational surrogacy in the Philippines it would provide a legal basis for a couples right over the child, provide legal remedies for couples in case of breach of contract, provide legal remedies in case of violation of surrogates rights, and help reduce child trafficking cases.

Married couples whose wife has difficulty carrying a child due to health/medical conditions(s)

Simulation of Birth Child Trading/Baby Selling Adultery Concubinage Baby Maker Artificial Insemination

Legalization of gestational surrogacy in the Philippines

Provides a legal basis for a couples right over the child Provide legal remedies for couples in case of breach of contract

Freedom of a couple/woman to decide on how to start a family as a reproductive right

Gestational Surrogacy affords a couple to have a child who has a biological link to them

No laws regarding gestational surrogacy as exercise of reproductive rights

Provide legal remedies in case of violation of surrogates rights Reduction of Child Trafficking

Adoption affords a couple to have a child who has no biological link to them

Philippines is a state party

R.A. 8552 Domestic Adoption Law Inter-country Adoption Law

Convention on the Elimination of Discrimination against Women (CEDAW) (1979) Convention on the Rights of a Child (1989) Universal Declaration on Human Rights (1948) International Convention on Civil and Political Rights (1966) International Covenant on Economic, Social and Cultural Rights (1966) International Convention on the Elimination of All Forms of Racial Discrimination (1965) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) Convention on the Rights of Persons with Disabilities (2006) Rome Statute of the International Criminal Court (1998)

Chapter 4: Research Methodology

The researchers will start the study by defining surrogacy and differentiating it with other ideas that are looks similar to gestational surrogacy. This will be then

supported by analyzing cases regarding them and researches on the medical and legal fields. The researchers will then help explain the consequential benefits of having gestational surrogacy legal in the Philippines. The researchers will be doing this

through analyzing international instruments and local laws that will help determine the rights of all the involved parties. At the end of this study, the researchers aim to propose a bill that intends to allow surrogacy in certain conditions for certain people. This is done in order to help in the process of analyzing the current surrogacy bills by the House of Senate. It will be also supported by surrogacy laws of countries already dealing with cases of gestational surrogacy and surrogacy in general. These are all in pursuant of helping create a better law which will legalize gestational surrogacy for certain conditions. Resultantly, it will help in dispelling the negative notions on the legal, moral and societal effects of gestational surrogacy.

Chapter 5 International Laws

The Universal Declaration of Human Rights
The Universal Declaration of Human Rights (UDHR), which was adopted by the United Nations (UN) General Assembly on December 10, 1948, was a result of the experiences from the World War II.261 It paved the way for the people to realize that people have certain rights that needs to be respected and treated dependent on their values, which may be either Western or Eastern rooted.262 The UDHR is one of the first international law that is considered to be not binding and yet continues to be part as one of the great documents of international laws ever created.263 The thrust of the declaration is to enunciate the civil, political, and socio-economic rights of the people264 and committing the international community to uphold dignity and justice for all of us.265 With 30 Articles, the UDHR enumerates the basic rights of the people wherein the State as its nurturing body promises to protect and further develop for it constituents. The first article of the UDHR lucidly words266, the general promise or aspiration of a human being which states, All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act

261

The Universal Declaration of Human Rights, available at http://www.un.org/en/documents/udhr/hr_law.shtml (last accessed October 1, 2011) 262 Id. 263 DAVID J. BEDERMAN, INTERNATIONAL LAW FRAMEWORKS 99 (2nd ed. 2006) 264 Id. 265 The Universal Declaration of Human Rights, available at http://www.un.org/en/documents/udhr/hr_law.shtml (last accessed October 1, 2011) 266 DAVID J. BEDERMAN, INTERNATIONAL LAW FRAMEWORKS 99 (2nd ed. 2006)

towards one another in a spirit of brotherhood.

267

With Articles 2 to 21, the UDHR

enlists the first generation rights or the civil and political rights of a human being, while Articles 22 to 30 enlists the second generation rights or the economic, social and cultural rights of a human being. As the United Nations continues to be the body that conform nations into further international development, it will continue to consider the UDHR, along with other international documents as a document with normative force or a customary international law. As the Philippines continues to be a member state of the United Nations, its pledge to uphold the belief of the United Nations continues to rang true and to consequently pledge itself to uphold the UDHR through domestic legislations. With the UDHR being generally agreed to be the foundation of international human rights law,268 it paved the way for other more binding international

instruments to be made. The major international instruments that helped made the UDHR as part of the customary international law where the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The two covenants where born instead of one because

some state find it hard to agree to the specificity that the covenants provide.269 Some states only agree on the provisions for the first generation rights and some only agrees on the provision for the second generation rights.270 Instances of which are states with authoritarian and totalitarian regimes does not agree on granting or providing for the

267 268 269 270

Universal Declaration of Human Rights, December 10, 1948 [hereinafter UDHR] Id. DAVID J. BEDERMAN, INTERNATIONAL LAW FRAMEWORKS 101-102 (2nd ed. 2006) Id.

enforcement of the civil and political rights of their citizens.271 Others like the United States do not agree on legally binding their government into providing for the social, economic and cultural rights of their citizens like education, work, social security, or culture because it was deemed incompatible with the system of ordered liberty.272 Both Covenants despite having separated the so-called first generation rights from the second generation rights continues to be equally important as held in the World Conference on Human Rights held in Vienna 1993.273

International Covenant on Civil and Political Rights

The International Covenant on Civil and Political Rights was opened for signature on December 19, 1966. It is an open multilateral treaty wherein more than two states oblige themselves to give the exact same treatment as stated in the treaty except when reservations by a state were made.274 The ICCPR today has a total of 167 parties with a total of 74 signatories.275 It was made to protect the first generation rights of a

human being such as the rights to freedom of association,276 the right to liberty and security to person277 and the right to against arbitrary arrest278 to name a few. The

271 272

Id. Id. 273 UN General Assembly, World Conference on Human Rights, available at http://www.unhcr.org/refworld/docid/3b00f0a514.html (last accessed October 1, 2011) 274 International Legal Research Tutorial available at http://www.law.duke.edu/ilrt/treaties_6.htm (last accessed October 1, 2011) 275 United Nations, UNTC available at http://treaties.un.org/Pages/ViewDetails.aspx?src=UNTSONLINE&tabid=3&mtdsg_no=IV4&chapter=4&lang=en#Participants (last accessed October 1, 2011) 276 International Covenant on Civil and Political Rights, December 16, 1966, U.N.T.S art. 22 [hereinafter ICCPR] 277 Id. art.8 9 278 Id. art. 17

ICCPR has also been regarded as the more specific in its obligation and the more burdensome for governments.279 Part IV of the Covenant provides for the establishment of the Human Rights Committee with its main purpose to monitor the implementation of the Covenant.280 State parties of the covenant are obliged to file a report to the Committee every year detailing the steps the State parties have done in providing for the enjoyment of the civil and political rights of the people.281 Also, under Article 41 of the Covenant, it

provides for the Committee to consider inter-state complaints,282 which the First Optional Protocol to the Covenant gives competence to the Committee to examine individual complaints with regards to alleged violations of the Covenant by State parties.283 The Committees full competence was extended to the Second Optional

Protocol to the Covenant on the abolition of the death penalty with regard to States who have accepted the Protocol.284 Article 2(1) of the Covenant provides for the obligation of the State parties to immediately implement and recognize the human rights guaranteed by the Covenant to the governed people of the State parties. Article 2(1) of the Covenant states:
Each State Party to the present Covenant undertakes to respect and to ensure to a ll individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language,

279 280

DAVID J. BEDERMAN, INTERNATIONAL LAW FRAMEWORKS 101 (2nd ed. 2006) OCHR Human Rights Committee available at http://www2.ohchr.org/english/bodies/hrc/ (last accessed October 1, 2011) 281 ICCPR, supra note 276, art. 40 282 Id. art. 41 283 OCHR Human Rights Committee available at http://www2.ohchr.org/english/bodies/hrc/ (last accessed October 1, 2011) 284 Id.

religion, political or other opinion, national or social origin, property, birth or other status.285

For the Covenant to advance into the domestic level, Article 2(2) of the Covenant provide for the implementation of legal measures for its advance to the domestic level of each state parties. Article 2(2) of the Covenant states:
Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.286

This Covenant was signed by the Philippines on December 19, 1966 and was ratified on October 23, 1986. Also, upon ratification the Philippines has made a

statement on the recognition of the full competence of the Human Rights Committee which is stated by the following:
The Philippine Government, in accordance with article 41 of the said Covenant, recognizes the competence of the Human Rights Committee set up in the aforesaid Covenant, to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the Covenant.287

285 286

ICCPR, supra note 276, art. 2(1) Id. art. 2(2) 287 United Nations Treaty Collection available at http://treaties.un.org/Pages/ViewDetails.aspx?src=UNTSONLINE&tabid=2&mtdsg_no=IV4&chapter=4&lang=en#Participants (last accessed October 1, 2011)

International Covenant on Economic, Social and Cultural Rights

The International Covenant on Economic, Social and Cultural Rights was opened for signature on December 19, 1966. The Covenant is also an open multilateral treaty

which to date has a total of 160 State parties and a total of 70 signatories. The ICESCR was drafted by the Economic and Social Council (ECOSOC) to protect the second generation rights or the economic, social and cultural rights of a human being such as the right to social security including social insurance,288 the right to education289, health,290 the right to work291 and the right to enjoy the benefits of scientific progress and its applications292 to name a few. The Covenant, as said by South African Human Rights Commissioner Anthea van der Burg, is an important mechanism to intensify efforts to reduce poverty and social inequality.293 This is shown in its different articles of the Covenant. And to ensure such right to be protected state parties are obliged to report to the Economic and Social Council (ECOSOC) through the Committee on Economic, Social and Cultural Rights, the steps undertaken by each State to help ensure and protect the economic, social and cultural rights of the people. Under Part IV of the Covenant is the statement that measures what a State will oblige itself to act upon to ensure that the protection and development of the rights enumerated therein would be followed through. The system that monitors the

implementation of the Covenant was further strengthened by the ECOSOC Resolution

288

International Covenant on Economic, Social and Cultural Rights, December 16, 1966, UNTS art. 9 [hereinafter ICESCR] 289 Id. art. 13 290 Id. art. 12 291 Id. art. 6 292 Id. art. 15 293 Kritin Palitza, CSOs Urge Binding Commitment on Socio-Economic Rights available at http://ipsnews.net/news.asp?idnews=52848 (last accessed October 10, 2011)

1985/17 of May 28, 1985.294 The ECOSOC Resolution establishes the Committee on Economic, Social, and Cultural Rights to carry out the monitoring functions assigned to the ECOSOC in Part IV of the Covenant.295 All State parties are required to regularly submit reports to the Committee on how the rights in each State are being implemented as to examine and address any concerns and recommendations brought upon while implementing the economic, social and cultural rights of the people.296 The Committee has gained competence in receiving and considering individual complaints when the UN General Assembly has decided to adopt an optional protocol to the Covenant on December 10, 2008.297 Aside from the Committee, other committees with competence can consider individual communications involving issues related to the economic, social and cultural rights connected to the Covenant.298 Article 2(1) of the ICESCR provides for the basis in which State parties are obliged to follow through with the Covenant. Article 2(1) of the Covenant states,
Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.299

However, conflicting thoughts on the interpretation of such article of the Covenant has risen in which the CESCR General Comment 3 is to answer. The General Comment 3 on
294

Committee on Economic, Social and Cultural Rigths available at http://www2.ohchr.org/english/bodies/cescr/ (last accessed October 15, 2011) 295 Id. 296 Id. 297 Id. 298 Id. 299 ICESCR, supra note 288, art. 2(1)

the ICESCR understands that while the Covenant provides for progressive realization and acknowledges the restraints due to limited available resources, it also imposes various obligations which are of immediate effect.300 The principle known as

progressive realization takes in to effect wherein the recognition that the full realization of all second generation rights will not be achieved in a short amount of time301 and that some States may become subject to some resource constraints. But, the Article 2(1) of the Covenant also states that all appropriate means, including particularly the adoption of legislative measures has to be observed by all State parties in recognition of the instances wherein legislation is highly desirable and in some cases indispensable in ensuring the protection and development of human rights.302 It is then implied that lack of available resources does not excuse any State parties from providing for the second generation rights of its citizen. It is as said in the paragraph

10 in the General Comment 3 of the Covenant at least minimum core obligations of the State parties must be met despite the lack of available resources. Having the Philippines sign the Covenant on December 19, 1966 as a State party and ratified it on June 7, 1974, it gives more emphasis on the obligations of the Philippines to ensure the protection of and provide for the economic, social and cultural rights of its citizens.

300

ICESCR General Comment 3, UN OHCHR, par. 1 available at http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CESCR+General+comment+3.En?OpenDocument (last accessed October 15, 2011) 301 Id. par. 10 302 Id. par. 3

The Vienna Convention on the Law of Treaties

The Vienna Convention on the Law of Treaties (VCLT) was done on May 23, 1969 and was entered into force on January 27, 1980. It is an open multilateral

Convention which to date has 111 State parties and a total of 45 Signatories. This is with Philippines one of the State parties who signed it on May 23, 1969 and was ratified on November 15, 1972. The VCLT codifies the rules that guide the treaty relations between States.303 The Convention also provides for the international legal

framework for these relations in times of peace.304 The frameworks provided for by the Convention to promote the purposes of the UN includes the rules on the conclusion and entry into force of treaties, their observance, application, interpretation, amendment and modification, and rules on the invalidity, termination and suspension of the operation of treaties. Under this Convention the term Treaty was defined as an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.305 Any use of the terms ratification,

acceptance, approval and accession in case of international act would mean that a State establishes on the international plane its consent to be bound by a treaty.306 It would also mean that the treaty is in forced in the State partys territory. Relatively,

303

United Nations, Law of Treaties, Vienna, 1968-1969 available atk http://untreaty.un.org/cod/diplomaticconferences/lawoftreaties-1969/lawoftreaties-1969.html (last accessed October 15, 2011) 304 Id. 305 Vienna Convention on the Law of Treaties, May 23, 1969, art. 2, 1(a), 1155 U.N.T.S. 331 [hereinafter VLCT] 306 Id.

every treaty in force is binding upon the parties to it and must be performed by them in good faith as regarding to pacta sunt severanda of any treaty.307 As provided for by drafters of the ICESCR and held by the VCLT, the internal workings of the state are not excuses for non-compliance to a treaty. This is then supported by Article 27 of the VCLT which states, A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46.308 The above mentioned provisions ensures that treaties are entered into by States freely and said States freely bind themselves to the provisions in the treaty and to ensure that each treaty is incorporated into the legal system of their jurisdiction for the fulfillment of the aspirations and goals of the treaty. As the Philippines having been State parties to the ICCPR and the ICESCR, the Philippines now has the obligation to ensure that the observance of such treaties are found in the domestic legal jurisdiction of the Philippine. This is done through the

domestic legalization of the treaties. Domestic legalization of treaties though can be done either through incorporation or transformation of the treaties sometimes the use of both approach is done. The doctrine of transformation is
based upon the perception of two quite distinct systems of law, operating separately, and maintains that before any rule or principle of international law can have any effect within the domestic jurisdiction, it must be expressly and specifically transformed into municipal law by the use of appropriate constitutional machinery such as an Act of the Parliament or Legislature.
309

307 308 309

Id. art. 26 Id. art 27 SHAW, supra note 115 at 139

The transformation approach grew from the procedure whereby ratification by the sovereign or the Legislature of the treaties must be done before the international agreement may be deemed adopted or operatively valid within the internal legal order of any State.310 The doctrine of incorporation on the other hand, holds that international law is part of the municipal law automatically without the necessity for the interpositions of a constitutional ratification procedure.311 An example of which are customary laws. However, the VCLT grants the option of reservation in the instance a State party does noe necessarily agree with a specific provision of the treaty. Article 2(d) of the VCLT provides:
reservation means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State312

With that being said, adaptation of the treaties signed by the Philippines as a State party, (i.e. ICCPR, ICESCR, CEDAW) to the legal system of the Philippines is mandatory and fully binding for the Philippines did not made any reservations on such treaties. And to ignore or commit any inaction towards any provisions of such treaties is to constitute a breach of the treaty which also constitutes an international wrong. Under Article 60 of the VCLT, any breach of a treaty consists of the violation of the provision essential to the accomplishment of the object or purpose of the treaty.313 And

310 311 312 313

Id. SHAW, supra note 115, at 140 VCLT, supra note 305, art 2(d) Id, art 60(3)

such, Article 60 of the VCLT also provides that for any material breach of any treaty may lead to the termination of such treaty. Article 60 of the VCLT states:
2. A material breach of a multilateral treaty by one of the parties entitles: (a) the other parties by unanimous agreement to suspend the operation of the treaty in whole or in part to terminate it either: (i) in the relations between themselves and the defaulting State; or (ii) as between all parties.314

It is therefore vital that implementation of the two discussed Covenants and others alike to the domestic legal framework of the Philippines be done immediately because of their binding nature.

314

Id. art 60(2)

Chapter 6 Reproductive Rights

The Right to Life
The Right to Life is one of the inherent rights of every person. Children were taught that every living thing has the right to live and that is what the laws of society have tried to protect and to help flourish. Examples of those laws that recognize that every human has a right to life are Article 3 of the UDHR which states, Everyone has the right to life315; Article 6(1) of the ICCPR which state, Every human being has the inherent right to life. This right shall be protected by law. 316; Article 6 of the Convention on the Rights of the Child (CRC) which states, (1) State parties recognize that every child has the inherent right to life. (2) State Parties shall ensure to the maximum extent possible the survival and development of the child 317; Article 10 of the Convention on the Rights of the Persons with Disabilities (CRPD) which State Parties reaffirm that every human being has the inherent right to life and shall take all necessary measure to ensure it effective enjoyment by persons with disabilities on equal basis with others.318; and the most binding of all in the Philippines juridical territory is the Philippine Constitution which states under Section 1 of the Bill of Rights that No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.319 All of these

315 316

UDHR, supra note 267, art. 3 ICCPR, supra note 276, art. 6(1) 317 Convention on the Rights of a Child, November 20, 1989, U.N.T.S., art. 6 [hereinafter CRC] 318 Conventions on the Rights of Persons with Disabilities, December 13, 2006, U.N.T.S. art. 10 [hereinafter CRPD] 319 PHIL. CONST. art. III, 1

provisions of the law help realize that everyone may be it a child, a person with disability or a woman has the right to live. The right to life is one of the major reason for pro-life advocates in hindering abortion, euthanasia, death penalty and others which talks of taking anothers life. Pro life advocates or people whom gives a high value and morality for enjoyment of life and believes that life should not be taken away by others. However, the right to life

argument in cases of abortion and euthanasia is being weakened by the right of people to choose and cases of wherein the reproductive right of a person is raised. This is because a person has his/her own choice as to what to do with his/her life. Relatively, the person using his/her reproductive right can make choices intelligently on when and how many children to have to provide for the childrens best future given the current situation that person has. Life as defined by Justice Cruz320 help in understanding that through advocating ones reproductive you are also advocating the right to life of not only the child but of also the right to life of the parents. Exercise of ones reproductive right through reproductive health programs and legislature helps protect the life of the child and of the parents. Through reproductive health programs and legislature parents can make intelligent choices concerning the life of the children they decide to give life to and prevent situations wherein having a child could not only harm the future of the child but also of the parents especially of the mother. The right to life of a person is protected by the Due Process Clause of the Philippine Constitution supported by newer legislation

320

Supra Constitutional Background

where the welfare of a child and a mother is protected through the likes of the Philippine Magna Carta of Women and the Anti-Violence Against Women and Children.

The Right to Liberty and Security of a Person

The right to liberty and Security of a Person is recognized by various legislations as one of the inalienable rights of a person. Article 3 of the UDHR, Article 9(1) of the ICCPR and Article 14 of the CRDP ensures that in the international plane the right to liberty and security of a person is exercised and protected by every State party to it. The same with the right to life, the right to liberty and security of a person is generally protected by the Due Process Clause of the Philippines.321 The right to Liberty and Security of a Person can be exercised by all persons whether they are a woman, a man, a child, an elder or even a person with disabilities so long they are persons.322 The reproductive right is based on such right because through the exercise of ones freedom and security, parents especially the woman can decide on how to have a child and when. This is vital because it is their body that is going through the changes that pregnancy would bring and risking their health for the joy of parenthood.

The Right to Health, including sexual and reproductive health

The right to Health, including sexual and reproductive health is quite controversial nowadays, because of people especially women fighting for a better legislature and program on the reproductive health. From Article 10(1) of the UDHR, to Articles 10(2) and 12 of the ICESCR, Article 5 of the International Convention on the

321 322

Supra Constitutional Background Id.

Elimination of All Forms of Racial Discrimination (ICEARD),323 to Articles 12 and 14(1) of the Convention on the Elimination of All Kinds of Discrimination Against Women (CEDAW)324 and Article 24 of the CRC to Article 25 of the CRDP, all recognize that everyone has the right to the enjoyment of the highest attainable standard of physical and mental health.325 Especially in instances wherein the reduction of infant and child mortality326 can be achieved by providing for the special protection to mothers during a reasonable time before and after childbirth327 including those related to family planning328. Examples of those ways are appropriate services in connection with

pregnancy, confinement and the post-natal period, granting free services when necessary, as well as adequate nutrition during pregnancy and lactation329. Another is when women be given access to adequate health care facilities, including information, counseling and services in family planning .330

The Right to decide the number and spacing of Children

With the current era supporting more of womens rights, the idea of recognizing that not only men but also the women has the right to decide on the number and spacing of Children. Articles 16(1) of the CEDAW and Article 23(1) can attest to the fact that planning on how many children to have and when to have it is a right that are

323

International Convention on the Elimination of All Forms of Racial Discrimination, March 7, 1966, U.N.T.S. [hereinafter ICEARD] 324 Convention on the Elimination of all Kinds of Discrimination Against Women, December 18, 1979, U.N.T.S. [hereinafter CEDAW] 325 ICESCR, supra note 288, art. 12(1) 326 CRC, supra note 317, art. 24(2) 327 ICESCR, supra note 288, art. 10(2) 328 CEDAW, supra note 324, art. 12(1) 329 Id. art. 12(2) 330 Id. art 14(2)

recognized to be not only for the man of the family to decide but also for the women. And to help in such decisions access to age-appropriate information, reproductive and family planning education331 should be provided together with other means such as education to exercise these rights freely.
332

The Right to Consent to Marriage and to Equality in Marriage

The right to consent to marriage and to equality in marriage is something is inherent in every marriage. It gives rise that men and women are equal and that they should be given the liberty to consent to marriage and decide equally in what to do in a marriage such as concerns regarding reproduction. Article 16 of the UDHR, Article 23 of the ICCPR, Article 10 (1) of the ICESCR, Article 16 of CEDAW, Article 23 of the CRPD and the Philippine Family Code recognizes that free and full consent to marriage is necessary to have equality in a marriage and to ensure that liberty of both spouses are not disregarded since they have bound themselves to be one in the institution of marriage. This right is a legal framework for the reproductive right because it implies that the ways on how to have a child, when to have a child and what to do when they have a child is not solely dependent on one parent. Both parents have the equal say on what to do in their ways on reproducing and to ensure that both parents are healthy to take care and ensure that their child would be also healthy and protected.

331 332

CRDP, supra note 318, ART. 23(1) CEDAW, supra note 324, art. 16(1)

The Right to Privacy

The right to privacy is an inherent right of any human being that is being recognized by Article 17 of the ICCPR, Article 16 of the CRC, Article 22(1) of the CRPD and the Civil Code of the Philippines. The three mentioned international treaty rises the obligation for Philippines to adopt its provisions on the Philippine territory since the Philippines is one of the states who signed and ratified such treaties. The reproductive right is founded on the right to privacy because the right to privacy enables persons to decide freely and intelligently on how to reproduce without the criticism of other people.

The Right to Equality and Non-discrimination

The right to equality and non-discrimination is a resultant of the aspirations of the United Nations to have equality and non-discrimination between men, women, children, races and life stature. To help such aspirations, Article 2 of the UDHR, Article 2 of the ICCPR, Article 2(2) of the ICESCR, Articles 1, 3, and 11(2) of the CEDAW, Articles 2 and 5 of the CRC together with Article 6(1) of the CRPD was drafted in the international plane to help other States realize that discrimination is hindering development and equal treatment of others would help in the development of their own State. Another reason for the need for those provisions to be drafter is to ensure that racial discrimination that fueled World War II be never again witnessed by the world. The right to equality and non-discrimination help back up the reproductive rights of the people especially in application to women. It is not only the man who decide on the reproductive measures the woman should and will take but also the woman. This

helps that all opinions of the sexes, races and ages are considered on deciding for the future in every relationship.

The Right to be free from practices that harm women and girls
The right to be free from practices that harm women and girls is a resultant factor that women and children are more abused than women. This is due to the belief that women and children are weaker physically against men. And so, to help eradicate abuse against women and children especially girls, Article 2(f) and 5(a) of the CEDAW and Article 24.3 of the CRC were drafted. The reproductive rights are backed up by the right to be free from practices that harm women and girls because more often than not women and girls are abused sexually. Through exercise of reproductive rights indirect abuse of a woman or child can be diminished. Without the exercise of the reproductive rights through

reproductive health programs, women would be treated as if they are breeding animals by repeatedly getting them impregnated by their lover. In another instance, the exercise of reproductive rights through reproductive health would ensure that girls would have access to age appropriated information regarding the changes their body are undergoing and know when other people are using them.

The Right to not be subjected to Torture or Other Cruel, Inhuman, Degrading Treatment or Punishment
The right to not be subjected to torture or other cruel, inhuman, degrading treatment or punishment was a resultant of the World War II. In order to ensure that such rights is protected, Article 5 of the UDHR, Article 7 of the ICCPR, Article 1 of the

Convention Against Torture, Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention), Article 37(a) of the CRC, and Article 15 of the CRPD were made. Article 1 of the Torture Convention defines torture as
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity .. 333

This means that any infliction of severe pain or suffering whether physical or mental is intentionally inflicted is considered to be a violation of such right. Example for which is treating women as breeding animals, continuously making the women to undergo the physical and mental exhaustion of giving birth. This is without giving them the time to heal properly from previous child birth and slowly deteriorates the heath of the woman through the stress of childbirth.

The Right to be free from Sexual and Gender-based Violence

The right to be free from sexual and gender-based violence is protected by Articles 5(a) and 6 of the CEDAW, Article 19(1) and 34 of the CRC, and Article 16(1) of the CRPD. By exercising the reproductive right of a person through a proper legislative supporting reproductive health programs, women who are victims of sexual and gender-based violence may prevent further damage to their physical and mental health by avoiding having a child through unwelcome means. Also, it would prevent any

333

Convention Against Torture, Cruel, Inhuman or Degrading Treatment or Punishment, December 10, 1984, U.N.T.S. [hereinafter Torture Convention]

mental health issue that might be developed by the child because of the childs unplanned birth.

The Right to access Sexual and Reproductive Health Education and Family Planning Information
The right to access sexual and reproductive health education and family planning information is ensured by Article 10 of the CEDAW and Article 23(1) of the CRPD. This ensures that the above mentioned rights and the benefits it brings would be carried out. However, with the Philippine culture and beliefs it slightly hinders this right due to the Philippines having a more conservative point of view and this right to be more inclined to be a result of liberalist ideas.

The Right to Enjoy the Benefits of Scientific Progress

The right to enjoy the benefits of scientific progress ensures that problems with the reproductive health helped cured by scientific progress be enjoyed by the people having such problems. Examples of which are couples who cannot have children due to medical conditions. With the scientific progress nowadays, process of IVF and Gestational surrogacy,

Gestational Surrogacy can give what those couples need.

specifically is a result of scientific progress and the benefits it would give to those couple who cannot carry a child is quite benefiting for them.

Chapter 7 Gestational Surrogacy

There is nothing more hurting for a married couple than to be branded sterile in a country that puts so much emphasis and importance on family. However, because of modern technology, Gestational Surrogacy gives hope to these couples specifically thru In Vitro Fertilization. In Vitro Fertilization includes a sequence of highly coordinated steps that begins by giving hormones to a woman, to stimulate her ovaries so that it may produce large amounts of mature eggs.334 These eggs are then retrieved under transvaginal ultrasound guidance. Unlike in spontaneous conception, where the eggs are fertilized within the females fallopian tubes, in IVF, fertilization happens in a container hence the term in-vitro.335 After 3 to 5 days of incubation in a special solution, the developing embryos are then returned by way of the cervix into the uterus where they are expected to grow into full-term infants in 9 months time.336 In Singapore, the In Vitro Fertilization program began in 1982 with the commitment to improve fertility and management through Assisted Reproductive Techniques (ART).337 The IVF technology in Singapore has the latest emphasis on extended embryo culture, thus it has maintained a clinical pregnancy rate of 38% per embryo transfer.
338

The cost for this procedure could reach as much as Singapore

$8,000 or Php 240,000.00. In India, the prices of surrogacy continuously increase as the demand for surrogates also increase. 339 Clinics now, charge patients between $10, 000 and $28, 000 for the whole package.340

334

Asian Hospital and Medical Center, IVF Resolution, available at http://www.asianhospital.com/healthdigestitem.aspx?qy=134 (last accessed October 27, 2011) 335 Id. 336 Id. 337 Id. 338 Id. 339 Shilpa Kannan, Regulators eye India's surrogacy sector available at http://news.bbc.co.uk/2/hi/business/7935768.stm ( last accessed October 28, 2011) 340 Id.

Not all women who undergo IVF gets pregnant, and of those that do, not everyone ends up with full term babies.341 Approximately, 18% of these pregnancies result in miscarriages, still birth and ectopic pregnancies.342 This is because of the chances vary depending on the age of the woman, or more precisely, the age of the egg.343 Normally women who are below 35 years old, have a higher chance to a successful pregnancy.344 The pregnancy rate for these women is said to be 43% per cycle with a 37% chance to live birth of the baby.345 However, for those women who are over 42 years old, the rate of pregnancy drastically drops to 4%.346 Aside from the age, there are other factors that minimize the success rates of the practice.347 The major complication of IVF is the risk of multiple births since the practice involves transferring multiple embryos to improve the chances of successful pregnancies.348 This is most common to older patients.349 Consequently, with multiple pregnancies, the woman is more at risk to have hypertension, diabetes mellitus, anemia and heart failure.350 Moreover, it increases the chances for surgical intervention such as caesarean delivery.351 Apart from the medical complications accompanying the practice, is the emotional.352 Some surrogates find the phase of letting the baby go difficult.353 The commissioning couple not only faces the anxiety of having the child, but also the legal and ethical complications that goes with it.354 In addition, the couple and the surrogate

341 342

Supra note 334 Id. 343 Id. 344 Id. 345 Id. 346 Id. 347 Id. 348 Id. 349 Id. 350 Id. 351 Id. 352 Fertility treatment: Surrogacy available at http://www.babycenter.com.ph/preconception/fertilitytreatments/surrogacy/ (last accessed October 27, 2011) 353 Id. 354 Id.

may not have mutual decisions about certain matters like how to manage the pregnancy, labour and delivery.355 The success rates of IVF procedures are usually given as pregnancy rates and delivery rates.356 There is a difference between the two, but both rates vary depending on a lot of factors. Delivery rates are usually referred to as take -home-baby rates.357 This is the rate of success.

Surrogacy in other countries

Not all countries approve of Gestational Surrogacy. In China, the Ministry of Health issued new regulations concerning human assisted reproduction technology.358 These regulations include that Gestational Surrogacy be banned.359 The regulations were deliberated by eight sessions of experts in various fields to try to match human assisted reproduction technology with social ethics, morality and the laws of the land.360 The ministry then concluded that Gestational Surrogacy, enabled by human-assisted reproduction technology embodies unavoidable social and ethical issues.361 In addition to that, in terms of genetics, the newborn baby belongs to the individuals who provided the sperm and the egg.362 However, when it comes to the law it will be very difficult to judge who legally the real mother of the baby is.363 The highest court in France ruled in 1991, regarding the banning of Commercial Surrogacy stating that, the human body is not lent out, is not rented out, and is not sold.364

355 356

Id. Supra note 334 357 Id. 358 Gestational Surrogacy Banned in China available at http://www.china.org.cn/english/2001/Jun/15215.htm (last accessed October 28, 2011) 359 Id. 360 Id. 361 Id. 362 Id. 363 Id. 364 Stanford University, Surrogacy Contracts available at http://www.stanford.edu/group/womenscourage/Surrogacy/surrogacy_contracts.html (last accessed October 28, 2011)

In Delaware, one of the states in the US, there are no direct laws banning surrogacy.365 However, one case in 1988 suggests that Gestational surrogacy is prohibited because it involves the termination of parental rights of the surrogate mother to the baby.366 In view thereof, the court ruled that termination of parental rights is against the public policy of the state.367 In view of the foregoing, it can be said that the practice of gestational surrogacy is mostly banned because of the ethical and social issues that goes with it. Furthermore, allowing it will only complicate the application of the present laws that may have something to do with it.

Gestational Surrogacy in the Philippines

The practice of Surrogacy in the Philippines is not done in the open. There are no documented practices of gestational surrogacy. However, In 2008, the first ever commercially transacted surrogacy in the Philippines took place in Manila.368 It was arranged in a foreign company, Singapore-based Asian Surrogates, between a Filipino married woman and a male gay couple from Malaysia and Denmark. 369 The company arranges both traditional and gestational surrogacy, but the one transacted in the Philippines was an example of the latter.370 The gay couple paid the company 45, 000 Singapore Dollars for the service, and of this amount 22, 000 Singapore dollars was given to the Filipina.371 As for In Vitro Fertilization in the Philippines, the first IVF center, RM lab, was established in1996.372 But even before, Filipino couples with infertility problems had been going to the United States and other nearby Asian countries like Singapore for the

365 366 367

Id. Id. 368 Raissa Robles, Womb For Hire Part1 available at http://www.abs-cbnnews.com/specialreport/06/16/09/womb-hire-part-1 (last accessed October 28, 2011) 369 Id. 370 Id. 371 Id. 372 Supra note 334

Hawkins v. Frye, 1988 Del. Fam. Ct. LEXIS 31 (Del. Fam. Ct. 1988).

procedure.373 At present, there are two centers in the country that peform IVF and other forms of assisted reproductive technology, namely RM lab and Victory ART, which are both located in Metro Manila.374

373 374

Supra note 334 Id.

Chapter 8 Analysis
Having discussed earlier that when a State signs, ratifies, ascends or succeeds to any international law that State bounds itself to fulfill the provisions and goals stated in the international law. This is done through adopting the provisions of the international law to the domestic legal framework of such State. The Philippines having signed, ratified, ascended and/or succeeded to many international treaties it has bound itself to fulfill its obligations and to fail to fulfill its obligation would constitute an international wrong. And to commit such international wrong is to commit a breach of those international treaties and to jeopardize the progress already gained in protecting and exercising the recognized human rights. To prove such point the following table will show that the Philippines have signed, ratified, ascended, and/or succeeded to the international treaties mentioned earlier.
Name of Treaty Date Signed Date of Ratification (R)/Accession (A)/Succession (S) October 23, 1986 (R) Reservations/Acknowled gement Recognizes the full competence of the Human Rights Committee

International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights Convention on the Elimination of All Forms of Discrimination Against Women Convention Against All Forms of Racial Discrimination Convention on the Rights of the Child Convention on the Rights of Persons with Disabilities

December 19, 1966

December 19, 1966

June 7, 1974 (R)

July 15, 1980

August 5, 1981 (R)

March 7, 1966

September 15, 1967 (R)

January 26, 1990 September 25, 2007

August 21, 1990 (R) April 15, 2008 (R)

Convention Against Torture, Cruel, Inhuman and Degrading Treatment or Punishment

------

June 18, 1986 (A)

With the 12 human rights keys discussed earlier as the legal framework for reproductive right being a human right, it could also be said that gestational surrogacy is a reproductive right to be enjoyed by the people especially by couple who have viable sperms and egg cells but could not carry a child to term. This is because gestational surrogacy promotes the legal framework of the reproductive rights. This is because gestational surrogacy provides life for the people who wanted to have a child, is a benefit from scientific progress which gives couples with pregnancy problems a solution to their problem, and most of all makes sure that the health of the woman and child involved would be taken care of.

Chapter 9 Conclusion and Recommendation

Conclusion
Gestational Surrogacy is a controversial practice all over the world. Case laws in different countries do not even have a unanimous ruling on how to treat this issue. Needless to say, different countries have different stands on this practice. However, if one looks closely to the foundation of this practice, it is merely just another way of practicing ones right to reproduce. Reproductive freedom is one of the rights that are protected and embodied in the United Nations Declaration of Human Rights (UDHR) and the resultant binding covenants to it (i.e. ICCPR and ICESCR). Since the Philippines is a State Party to these International Covenants, the legislature has the obligation to make sure that these right is protected and addressed in our country. However, the Philippine legislature has not yet done anything to address such right in the Philippines despite the obligations of the Philippines to accomplish the provisions stated for in these international treaties. Having stated that Gestational surrogacy is part of reproductive right, it is therefore right to conclude that not addressing the issue of the Philippines lacking legislative actions and programs for the exercise of Gestational surrogacy is a breach of the international obligations of the Philippines. And most importantly, it is a violation of the reproductive rights of its citizens.

Recommendation
After thorough research and analysis, it is recommended that legislative actions be made in order to provide for the protection and implementation of Gestational surrogacy as it is a reproductive right. A draft of the Gestational Surrogacy Act of 2011 is provided as an annex to help guide the legislature to develop an act which would promote such right further. The draft of the Act was based upon the Surrogacy Arrangement Act of the United Kingdom.

ANNNEX
Gestational Surrogacy Act
Section 1. Short Title This act shall be known as the Gestational Surrogacy Act of 2011. Section 2. Date of Effectivity. This act shall take its effect six (6) months after its promulgation. Section 3. Declaration of Principles/Policy. - It is hereby declared the policy of the State to ensure that every married couple be provided an option on how one could have a child. It is to help families in exhausting all options available in order to have a child biologically connected with them. Only when all natural options for becoming pregnant have been exhausted and failed that gestational surrogacy be considered by the married couple. Section 4. Rules and Regulations. The Department of Health together with the Department of Science and Technology and other government agencies charged with the administration and enforcement of this Act or any of its parts shall promulgate the necessary implementing rules and regulations. Such rules and regulations shall become effective fifteen (15) days after announcement of their adoption in newspapers and general circulation. Section 5. Gestational Surrogacy Arrangement. Gestational Surrogacy Arrangement is wherein a woman agrees to become a childs surrogate mother and in turn the intended couple will shoulder all expenses necessary for having a child or children to be born healthy. It must conform to the following: a. It must be made before a child is carried by the surrogate mother; b. Must be proven to be done only because of the biological mothers incapacity to carry the child to full term due to medical reasons; c. Reimbursement or allowance for the surrogate mother to ensure hers and the child a healthy child shall be made in so far as it is deemed necessary in carrying the child and ensuring that the surrogates mother is deemed healthy after birth; and d. Must be between a legally married couple and a surrogate mother. Section 6. Surrogate Mother. - A surrogate mother is a woman who carries a child in pursuant of an arrangement. In order for a woman to become a surrogate mother she must confirm to the following requirements: a. She must be physically fit to carry a child or children to full term; b. Agrees to hand over the child to the biological parents after giving birth; c. Agrees to be treated medically to carry from the injection of the embryo to the uterus to the delivery of the child; and d. If married, has the written consent of the spouse to undergo the gestational surrogacy arrangement.

Section 7. Intended Couple. An Intended Couple is a legally married couple who has viable sperm and egg cell but for some medical reason(s) cannot carry a child to full term. An intended couple to be allowed to be part of a gestational surrogacy arrangement must conform to the following: a. The intended couple must have tried and exhausted all means for a natural process of conceiving a child but failed; b. Must have the financial and emotional stability to provide for a children; and c. Has the financial capability to pay for the medical and living expenses necessary for the surrogate mother to carry Section 8. Exceptions . The following acts done in regards to Gestational Surrogacy shall be held legal: a. The act of handing over the child to the intended couple; and b. The intended couple to be registered as the legal parents of the child after birth Section 9. Payment or Expenses in an arrangement All expenses or payment incurred during the arrangement must be necessary, desirable and relative only to the pre-natal to postnatal care of both the child and the surrogate mother. Any person on behalf of any person concerned with a Gestational Surrogacy Arrangement or not, doing the following for a commercial basis shall be deemed in violation of the law: a. initiate or take part in any negotiations with a view to the making of a surrogacy arrangement; b. a person acting on behalf of a body of persons takes any part in negotiating or facilitating the making of a surrogacy arrangement in the Philippines; c. offer or agree to negotiate the making of a surrogacy arrangement, or d. compile any information with a view to its use in making, or negotiating the making of, surrogacy arrangements; and e. no person shall in the Philippines knowingly cause another to do any of those acts on a commercial basis. Section 10. Special Cases on Intended Couples. If proven through proper investigation that during the course of pregnancy the Intended Couple has developed ill intentions towards having a child and/or to the Surrogate Mother, the Surrogate Mother reserves the right to do the following: a. to not hand over the child after birth to the Intended Couple; b. to have monthly allowance from the Intended Couple to support the child, if possible; c. to hand over the child after birth for adoption; and d. to in no way abort the child. Section 11. Special Cases on Surrogate Mothers. If proven through proper investigation that during the course of pregnancy the Surrogate Mother has developed ill intentions towards having a child and/or to the Intended Couple, the Intended Couple reserves the right to do the following:

a. to ensure that the Surrogate Mother continues her healthy lifestyle to ensure that the child be born healthy; b. to ensure that the Surrogate Mother to not have an abortion; and c. to ensure that the Intended Couples child be handed over and named to them immediately after birth. Section 12. Gestational Surrogacy Resource and Referral Office. There shall be established a Gestational Surrogacy Resource and Referral Office under the Department of Health with the following functions: d. monitor the existence and number of Intended Couples undergoing fertility treatments and healthy women willing to become a Surrogate Mother so as to facilitate matching when needed; e. maintain a nationwide information and educational campaign on Gestational Surrogacy and being a Surrogate Mother; f. keep records of the people undergoing the Gestational Surrogacy treatment; g. Generate resources to help fertility doctors, clinics and organizations help in maintaining viability; and h. Do policy research in collaboration with regards to Gestational Surrogacy with other nations and other concerned agencies. The office shall be manned by fertility and Gestational Surrogacy experts from the public and private sectors. Section 13. Appropriations. Such sum as may be necessary for the implementation of the provisions of this Act shall be included in the General Appropriations Act of the year following its enactment into the law and thereafter. Section 14. Repealing Clause. Any law, presidential decree or issuance, executive order, letter of instruction, administrative order, rule, or regulation contrary to, or inconsistent with the provisions of this Act is hereby repealed, modified, or amended accordingly. Section 15. Separability Clause. If any provision of this Act is held invalid or unconstitutional, the other provision not affected thereby shall remain valid and subsisting.

Table 1: Surrogacy in Other Countries

Countries and States in the United States that allow and regulate Surrogacy Arkansas California Connecticut England Florida Illinois Kentucky Nebraska New Mexico Oklahoma North Carolina Rhode Island Tennessee Texas United Kingdom Utah Washington West Virginia Wisconsin

Countries and States in the United States that bans Surrogacy Michigan New York North Dakota Indiana Louisiana Spain

Countries and States in the United States that have unclear laws on Surrogacy Delaware Kansas Missouri Massachusetts Maryland Ohio

Countries and States in the United States that neither allows or bans Surrogacy Alaska Colorado Georgia Hawaii Maine Minnesota Mississippi Montana Wyoming

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