TITLE

Right to Life: The practice of surrogacy in the Philippines

ABSTRACT

Technology and research have progressed through time, particularly the means of conceiving a

child through various scientific methods. Childless couples can now choose among various methods

such as intrauterine insemination, in vitro fertilization and surrogacy.

Surrogacy has been practiced worldwide. Infertile couples now have an alternative option.

Instead of adopting or living a childless life, medical advances open to an opportunity of having a

child genetically related to them through surrogacy.

The first ever commercially transacted case of surrogacy in the Philippines took place last

October 2008. It was arranged by a foreign company between a Filipino married woman and a male

gay couple from Malaysia and Denmark.1 Today, the practice of surrogacy in the country is being

widely known. A number of prominent Filipino celebrities engaged in such method to bear

a child through a surrogate.

Philippine law currently holds no position with regard to the legality of the practice of

surrogacy and the rights given to the putative parents and the surrogate. Existing laws dictate

a child born from a surrogate mother will be treated as her legal child notwithstanding that it is the

biological putative parents' child. Considering all these factors, the issue of the legality the practice

of surrogacy must be addressed by legislation.

PROBLEM STATEMENT

From the first case of surrogacy in the Philippines to today, there is

an upsurge in surrogacy arrangements and no law to govern the same. The Philippine legal system

is silent as to its legality or illegality. With the continuous innovations in the medical field, it begs

to answer questions on whether domestic laws are updated to cater the practice of surrogacy.

1
Raissa Robles, Womb for Hire, ABS-CBN News, June 16, 2009, available at http://news.abs-cbn.com/special-
report/06/16/09/womb-hire-part-1

1
 PURPOSE

This study aims to identify the problems and define the legal bounds of the practice of

surrogacy and the parties engaging in such method. Taking into consideration that surrogacy is

becoming widely known, it is imperative that laws be formulated to govern the parties concerned.

SIGNIFICANCE OF THE STUDY

The Philippine constitution protects and ensures the State’s very basic institution, the family.

Filipinos are well-known to be very adaptive of the culture of strong family relations. Married

couples are well expected to have children. However, not all are fortunate and capable of having

their own child.

By defining the legality of the practice of surrogacy, people intending to

enter surrogacy arrangements will be able to determine a feasible method of confronting the

problem. Primary and secondary parties in a surrogacy arrangement will be made aware of their

rights and the risks they are exposed to as well as the liabilities resulting in their actions.

In view of the foregoing, struggling married couples will benefit from this study because they

will gain knowledge and ability to open their minds to various methods of reproduction. This study

also aims to support Philippine laws and jurisprudence with the modern updates of technology and

research that benefits the family as a basic autonomous social institution of the country.

BACKGROUND OF THE STUDY

The Philippine Constitution is the highest law of the land and all laws, orders, judicial decisions

must adhere to it. It is the people’s protection against the government. One of the institutions that

the Constitution safeguards is the family being regarded as the foundation of the nation. It states

that: The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall

strengthen its solitarily and actively promote its total development.2 The State recognizes the sanctity

of family life and shall protect and strengthen the family as a basic autonomous social institution. It

shall equally protect the life of the mother and the life of the unborn from conception. The natural

and primary right and duty of parents in the rearing of the youth for civic efficiency and the

development of moral character shall receive the support of the Government.3

2
PHILIPPINE CONSTITUTION, Article XV Section 1
3
PHILIPPINE CONSTITUTION, Article II Section 12

2
 Undeniably, there has been an upsurge in surrogacy arrangements in the country and no laws

to govern the same. The legal system is silent as to its legality or illegality. Nevertheless, many

Filipinos have been known to contract in surrogacy arrangements as a solution to their sterility.

Foreigners take advantage of engaging in surrogacy here in the Philippines because of its lawless

status compared to other countries wherein surrogacy is an illegal practice.4 Consequently, Filipinos

privy to such agreement are left with no idea of their rights and liabilities which may or may not

arise upon agreeing to a surrogacy arrangement.

Currently, the Civil Code only provides for the legitimacy status of children conceived through

artificial insemination of a wife with the sperm of the husband or that of a donor provided that both

of them authorized or ratified such insemination in a written instrument.5 It does not cover the

legality, boundaries, and limitations of the act and the corresponding rights due to the putative

parents, the child and the surrogate, if any. The Philippines has laws protecting the rights and

interests of children but in this scenario, such rights and interest are left ignored due to the absence

of surrogacy laws.

SCOPE AND LIMITATIONS

This study will examine the present setting and legality of surrogacy arrangements by Filipinos

party to it. This study will only cover the relationship between the married couple and the surrogate.

It will not include the rights and liabilities as well as the legal consequences of the parties. The duties

and liabilities of doctors, nurses and other medical institutions in facilitating surrogacy arrangements

will not be discussed as well.

BASIC ASSUMPTIONS

This study will answer the question of legality of the practice of surrogacy in the Philippines.

It aims to explain as to why surrogacy is legal or illegal.

4
Raissa Robles, Womb for Hire, ABS-CBN News, June 16, 2009, available at http://news.abs-cbn.com/special-
report/06/16/09/womb-hire-part-1
5
An Act to Ordain and Institute the Civil Code of the Philippines, Republic Act No. 386, Article 164

3
 METHODOLOGY

This study will first define and contrast surrogacy and its forms and determine the legal

possibilities of institutionalizing and regulating the practice of surrogacy in the country.

This will be supported by analyzing cases and researches on the medical and legal fields.

This study will adopt a qualitative research method analyzing the current development

in the science of surrogacy. This study will also explain Filipino customs and morals on the

idea of a family.

At the end of this study, the researcher aims to determine whether the practice of

surrogacy is legal or illegal in the Philippines. This is done in order to fill the void of lack

of supporting laws and jurisprudence outlining the practice of such scientific method. It will

also be supported by provision of laws applicable to interpret cases when the law is silent.

DEFINITION OF TERMS

Artificial Insemination - It is the introduction of semen into the vagina or cervix of a female by any method

other than sexual intercourse. The procedure is widely used in animal breeding and is used in humans when a

male is sterile or impotent or when a couple suffers from unexplained infertility (when the cause of infertility

cannot be identified). Impregnation of a woman through artificial insemination may also be used by women

or men in same-sex partnerships who wish to produce children of their own. 6

Assisted Reproductive Technology (ART) - is used to treat infertility. It includes fertility treatments that

handle both a woman's egg and a man's sperm. It works by removing eggs from a woman's body. The eggs

are then mixed with sperm to make embryos. The embryos are then put back in the woman's body. In vitro

fertilization (IVF) is the most common and effective type of ART. 7 ART procedures sometimes use donor

eggs, donor sperm, or previously frozen embryos. It may also involve a surrogate or gestational carrier. A

surrogate is a woman who becomes pregnant with sperm from the male partner of the couple. A gestational

carrier becomes pregnant with an egg from the female partner and the sperm from the male partner. 8

Gestational Surrogacy - is when the embryo is actually created by using both the biological father’s sperm

and the biological mother’s egg through a process called in vitro fertilization. 9 With this, the surrogate’s eggs

are not used therefore, the child will not be related to the surrogate biologically. It is after the biological

mother’s egg is fertilized that the embryo is transferred to the uterus of the surrogate. Once the embryo has

6
Artificial Insemination, available at https://www.britannica.com/science/artificial-insemination
7
Assisted Reproductive Technology, available at https://medlineplus.gov/assistedreproductivetechnology.html
8
Ibid.
9
Id.

4
 successfully been placed into the surrogate’s uterus, the surrogate will carry the embryo through the pregnancy

term until its birth.10

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.11

Surrogacy - involves using one woman's uterus for the purpose of implanting and carrying an embryo in

order to deliver a baby for another person or couple. The woman who will carry the embryo is known as the

surrogate12

Surrogate Agreement - 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. 13

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.14

REVIEW OF RELATED LITERATURE

Historical Background

In 1884, the first successful artificial insemination of a woman was completed and paved the

way for future artificial inseminations used in the surrogacy process.15

In 1975, the first ethically completed In-Vitro Fertilization (IVF) embryo transfer was

successful. The following year, a lawyer named Noel Keane, brokered the first legal surrogacy

agreement. This was a traditional surrogacy and the surrogate did not receive any compensation for

the transaction.16

In 1978, the world’s first baby to be conceived via IVF was born in Manchester, England.

Louise Joy Brown was the first test tube baby.17 Although there was no surrogate mother, this case

was considered as an outbreak in the medical treatment for infertility.

In the 1980s, the case of “Baby M” involving a traditional surrogacy occurred.18 The surrogate

mother refused to sign over her parental rights and started a long custody battle which played a key

10
Modern Family Surrogacy Center, What are the Different Types of Surrogacy and What are They Called?,
available at http://www.modernfamilysurrogacy.com/page/different_types_of_surrogacy
11
Domestic Adoption Act of 1998, Republic Act No. 8552, Section 3
12
Id.
13
Black’s Law Dictionary 1459 (Brian A. Garner ed., 1999)
14
Black’s Law Dictionary 1458 (Brian A. Garner ed., 1999)
15
About Surrogacy, From the Bible to Today: The History of Surrogacy, available at
https://surrogate.com/about-surrogacy/surrogacy-101/history-of-surrogacy/
16
Ibid.
17
This Day in History: World’s First Test Tube Baby Born, available at https://www.history.com/this-day-in-
history/worlds-first-test-tube-baby-born
18
Id.

5
 role in the development of some of the stricter surrogacy laws in the United States. It was held that

the surrogacy agreement between the surrogate mother and the putative parents was illegal and,

therefore, restored the parental rights of the surrogate mother. The putative parents were granted

visitation rights over “Baby M”. This case marked a huge turning point in the history of surrogacy

resulting to professionals moving toward the use of gestational surrogacy to avoid legal

predicaments.

In the Philippines, the idea of surrogacy is still new and only a handful can be said to have the

privilege to access such modern method of assisted reproductive technology. In fact, there is a thin

line separating surrogacy from simulation of birth as a result of child trafficking. During the second

regular session of the 13th Congress of the Republic of the Philippines, Senator Manny Villar

introduced a bill prohibiting surrogate motherhood including infant selling.19

Defining Surrogacy

Surrogacy involves using one woman's uterus for the purpose of implanting and carrying an

embryo in order to deliver a baby for another person or couple. The woman who will carry the

embryo is known as the surrogate.20 There are two primary types of surrogacy: Traditional

Surrogacy and Gestational Surrogacy. Traditional Surrogacy is when the surrogate acts as both the

egg donor and as the actual surrogate for the embryo, and she is impregnated using a process known

as intrauterine insemination (IUI).21 In this type of surrogacy, the doctor will transfer sperm from

the putative father to the surrogate’s uterus. Gestational Surrogacy is when the embryo is actually

created by using both the biological father’s sperm and the biological mother’s egg through a process

called in vitro fertilization.22 With this, the surrogate’s eggs are not used therefore, the child will not

be related to the surrogate biologically. It is after the biological mother’s egg is fertilized that the

embryo is transferred to the uterus of the surrogate. Once the embryo has successfully been placed

into the surrogate’s uterus, the surrogate will carry the embryo through the pregnancy term until its

birth.23 There are at least three primary parties involved in every surrogacy agreement: the putative

father, mother, and surrogate mother.

19
Senator Manny Villar, Senate Bill No. 2344, An Act Prohibiting Surrogate Motherhood Including Infant
Selling and Providing Penalties Therefor, available at, https://www.senate.gov.ph/lisdata/54884531!.pdf
20
Id.
21
Id.
22
Id.
23
Id.

6
Surrogacy in the Philippines

The Philippine Constitution protects the institution of the family. The State recognizes the

Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and

actively promote its total development.24

Presently, the surrogate child is considered the legitimate child of the surrogate mother. This is

however refuted when the putative parents execute and sign a written instrument authorizing or

ratifying such insemination, making the child a legitimate child of the putative parents.25 In this kind

of arrangement, the legitimacy of the child belongs to the putative parents notwithstanding the fact

that one of the parties may not have contributed to its genetic reproduction.

The Civil Code states that contracts entered into by parties should not be contrary to law,

morals, good customs, public order, or public policy.26 Surrogacy agreements, whether traditional

or gestational may be in violation of the state’s morals, good customs or public policy. The

enforceability of such agreement may be questioned.

The Convention on the Rights of the Child promises to respect the right of the child to preserve

his or her identity, including nationality, name and family relations as recognized by law without

unlawful interference. It also ensures that a child shall not be separated from his or her parents

against their will, except in certain circumstances as provided.27

THEORETICAL FRAMEWORK

The theoretical framework of the study is based on the circumstance that there are married

couples having difficulties in carrying a child due to health or medical conditions. As our

Constitution protects the institution of family, married couples have the freedom to decide on

whether to bear a child or not. However, there are situations that prevent couples from carrying

children and not being able to enjoy the right of reproduction.

Although the Philippines allows domestic adoption through Republic Act 8552 or the Domestic

Adoption Act and Republic Act 8043 or Inter-Country Adoption Law, the changing times and

developing technologies in the medical field give couples another preference in having a child who

is biologically theirs.

24
PHILIPPINE CONSTITUTION, Article XV Section 1
25
Id.
26
Civil Code of the Philippines, Article 1306
27
Convention on the Rights of the Child, Articles 8 and 9, available at
http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx

7
 In determining the possible legality of surrogacy in the Philippines, it would provide basis on

the putative parents’ right over the child, remedies in cases of breach of contract, the surrogate’s

rights and the duties and liabilities of the medical professionals involved.

ANALYSIS

Reproductive Rights

The Right to Life

The Right to Life is one of the inherent rights of every person. Section 1 of the Bill of Rights

states 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 laws.28 Students, even in their early years, are

taught that every living thing has the right to live and that right is protected in the laws. This right

encompasses everyone may it be a child, a mother, a person with disability, insane or incapacitated

persons. It is one of the reasons as to why the country has diverse positions on the topics of abortion,

death penalty, and other circumstances which involves taking another’s life. However, the right to

life is also raised on cases wherein a person has his own choice as to what to do with his life. A

person claiming his right to life can make his own independent choices on when to have children in

order to provide adequately for the children’s future.

Through reproductive health programs and legislature, married couples can make intelligent

choices concerning the life of their children. They can decide on when to carry a child and prevent

situations where it could be detrimental to the child and also of the parents especially of the mother.

The Right to Information and Education

The Right to Information and Education includes access to full information on the benefits,

risks, and effectiveness of all methods of fertility regulation, in order that all decisions taken are

made on the basis of full, free and informed consent.29 Married couples face essential marital

obligations embraced in the provisions of the Family Code. In the case of Azcueta v. Republic 30,

the essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code.

It also discussed that one who is unable to support himself, much less a wife; one who cannot

independently make decisions regarding even the most basic matters that spouses face every day;

28 PHILIPPINE CONSTITUTION, Article III Section 1

29
The Right to Information and Education. What are the 13 sexual reproductive health rights? Available at
https:// doh.gov.ph/node/1377
30 Marieta C. Azcueta v. Republic of the Philippines and Court of Appeals, G.R. No. 180668, May 26, 2009

8
 and one who cannot contribute to the material, physical and emotional well-being of his spouse, is

psychologically incapacitated to comply with the marital obligations.

Marriage, being a special contract between a man and a woman, carries with it the obligation

of procreation to ensure the continuation of society. When a husband and wife lacks knowledge on

the benefits, risks and effectiveness of fertility regulation and inability to decide for the family, then

both have failed to comply with what is due to them as married individuals.

The Right to Information and Education helps married couples to freely and responsibly decide

the number and spacing of their children. This will ensure the future of not only the children they

plan to bring in this world but also their future as a family.

The Right to Enjoy the Benefits of Scientific Progress

The right to enjoy the benefits of scientific progress helps to answer the problems on fertility

of married couples. Examples of which are couples who cannot have children due to medical

conditions. With the progresses made on science and technology, there are now ARTs that may be

used in order to have children. Surrogacy is a result of scientific progress that benefits couples who

cannot carry a child.

Question of Law

When the law is silent

As mentioned, Philippine laws and jurisprudence are silent as to the legality or illegality of

the practice of surrogacy. The Civil Code states that No judge or court shall decline to render

judgment by reason of silence, obscurity or insufficiency of laws.31 Hence, when the law is silent,

the court should render a decision based on justice. “In case of doubt in the interpretation or

application of laws, it is presumed that the lawmaking body intended right and justice to prevail.”32

The surrogacy arrangement involved in this study is gestational surrogacy wherein a married

couple contracts a surrogate mother to bear their child. The embryo is created by using both the

biological father’s sperm and the biological mother’s egg through a process called in vitro

fertilization. The embryo then is transferred to the uterus of the surrogate and the surrogate will carry

the embryo though the pregnancy until its birth. With this, the surrogate’s egg was not used,

therefore, the child will not be related to the surrogate biologically. However, our laws do not

necessarily apply in gestational surrogacy arrangements. The Family Code only determines paternity

31 An Act to Ordain and Institute the Civil Code of the Philippines, Republic Act No. 386, Article 9
32 An Act to Ordain and Institute the Civil Code of the Philippines, Republic Act No. 386, Article 10

9
 and filiation and not the determination of maternity. This void in our laws must be filled to determine

the legality of surrogacy.

Morals and Public Policy

Morals and public policy help shape the legislation of laws. It reflects to the actions of the

government in funding priorities and the regulations in given positions, cultural ideals or accepted

rules. The question of the legality or illegality of surrogacy arrangements can be answered by

reviewing the country’s priority when it comes to family, marriage and welfare of children.

Filipinos are known for having strong family ties. Married couples are expected to have a child

or have children. Family members and the society dictates that a family cannot be called a family

without children.

In entering into surrogacy arrangements, the parties involved are vulnerable to great risks.

During the interval between the transfer of embryo to the birth of the child, various situations may

occur which will put all parties at risk. The surrogate mother may refuse to uphold the agreement

and intend to keep the child. There exists a likelihood that the best interests of the child will not be

protected because of the agreement in which he took no part in the first place.

RECOMMENDATION AND CONCLUSION

As the Philippines recognizes the family as the basic social institution, it is imperative that

the creation of children as part of the family and the society is addressed. The current framework of

our country when it comes to the practice of surrogacy does great danger because there exist no laws

to regulate the same.

The researcher believes that in order to protect the sanctity of marriage and the family, laws

must be passed declaring the illegality of the practice of surrogacy in the Philippines. The

Constitution itself protects the Filipino family and considers marriage as the foundation of the

family. By agreeing to surrogacy arrangements, the family may be put at risks in ways that could

lead to the destruction of the same.

Philippine laws and jurisprudence provide other options to have a child. Adoption laws both

domestic and inter-country have been in place for married couples who are facing hardships in

biologically conceiving a child.

10
 BIBLIOGRAPHY

1987 Philippine Constitution

Phil. Const. Art. II Sec. 12

Phil. Const. Art. III Sec. 1

Phil. Const. Art. XV Sec. 1

Phil. Const. Art. XV Sec. 12

Philippine Statutes

An Act to Ordain and Institute the Civil Code of the Philippines, Republic Act No. 386, Arts. 9, 10,

164, 1306

Domestic Adoption Act of 1998, Republic Act No. 8552, Section 3

Philippine Jurisprudence

Marieta C. Azcueta v. Republic of the Philippines and Court of Appeals, G.R. No. 180668, May 26,

2009

International Treaties

Convention on the Rights of the Child, Arts. 8, 9

Legislative Bills

An Act Prohibiting Surrogate Motherhood Including Infant Selling and Providing Penalties

Therefor, Senate Bill No. 2344, Thirteenth Congress of the Republic of the Philippines

Journals and Other Articles

About Surrogacy, From the Bible to Today: The History of Surrogacy, available at

https://surrogate.com/about-surrogacy/surrogacy-101/history-of-surrogacy/

Modern Family Surrogacy Center, What are the Different Types of Surrogacy and What are They

Called?, available at http://www.modernfamilysurrogacy.com/page/different_types_of_surrogacy

Raissa Robles, Womb for Hire, ABS-CBN News, June 16, 2009, available at http://news.abs-

cbn.com/special-report/06/16/09/womb-hire-part-1

The Right to Information and Education. What are the 13 sexual reproductive health rights?

Available at https:// doh.gov.ph/node/1377

11
This Day in History: World’s First Test Tube Baby Born, available at https://www.history.com/this-

day-in-history/worlds-first-test-tube-baby-born

Internet Sources

Artificial Insemination, available at https://www.britannica.com/science/artificial-insemination

Assisted Reproductive Technology, available at

https://medlineplus.gov/assistedreproductivetechnology.html

Black’s Law Dictionary 1458 (Brian A. Garner ed., 1999)

Black’s Law Dictionary 1459 (Brian A. Garner ed., 1999)

12