IN THE EYES OF LAW WHO IS DEEMED THE MOTHER IN SURROGACY IN THE

PHILIPPINES
If A and B, who are married couple, agreed to hire C to implant their egg and sperm cells and
bear the child in Cs own womb, who is the deemed to be the mother of the child in the eyes of
the law in the Philippines?
It is apparent that A, B and C have entered into a contract of surrogacy. Surrogacy is the process
where another woman carries and delivers a child in behalf of another couple. It involves the
transplantation of the couples egg and sperm cells, usually through artificial insemination to the
surrogate mother. By nature, the surrogate mother becomes the replacement of the natural mother
of the child. In this case, A and B are considered to be the putative parents of the child while C
takes the role of the surrogate mother. In the absence of surrogacy law in the Philippines, the
legal issue now redounds to the question of who then becomes the mother of the child upon birth.
In the legal point of view, in the absence of law on surrogacy in the Philippines, C is deemed to
be the mother of the child. A and B as the putative parents have no vested right conferred upon
them by law to enforce a specific right that can be considered to be legally demandable and
enforceable as the right to be recognized as the parents of the child, more so for A (wife) to claim
as the lawful mother of the child that was born out of the womb of C. Thus, C is undisputedly
considered to be the biological mother of the child.
The Family Code of the Philippines mainly provides the specific provision in establishing the
paternity but not maternity relation to a child. Indeed, it is difficult to dispute the character of a
biological mother of a child from whose womb the latter came from. The paternity and filiation
provision in the Family Code of the Philippines that gave consideration in cases of artificial
insemination is found in Article 164 that provides:
Children conceived as a result of artificial insemination of the wife with the sperm of the
husband or that of a donor or both are likewise legitimate children of the husband and wife,
provided that both of them authorized or ratified such insemination in a written instrument
executed and signed by them before the birth of the child ..
It is clear from the letters of the law that the artificial insemination contemplated by the law is
that one made on the wife, giving no room for allowing a surrogate mother to whom the
insemination may be done. Under this premise, the law does not confer upon A and B the right to
claim parental right over the child that actually came from the womb of C to be considered as
their legitimate child, unless they resort to adoption.
Another argument that may be raised is there was a contract for surrogacy among A, B and C.
The said contract is against public policy and thus void ab initio. For a contract to be valid, the
Civil Code of the Philippines requires the following requisites in Article 1318:
1.
2.
3.

Consent of the parties

Object certain which is the subject matter of the contract
Cause of the obligation which is established

For an object to be a valid subject of a contract, Article 1347 of the Civil Code requires that the
same should be within the commerce of men. A child is not within the commerce of men and
thus cannot be an object of a contract. More so, the female reproductive organ is likewise beyond
the commerce of men and is therefore cannot be a valid object of a contract. Article 1352 of the
Civil Code of the Philippines provides that:
Contracts without cause or with an unlawful cause produce no effect whatever. The cause is
unlawful if it is contrary to law, morals, good customs, public order or public policy.
Therefore, it can be concluded that a child or a human being and a female reproductive organ
cannot be a lawful object of a contract, on the ground of unlawful cause as it is contrary to law,
against public policy and good customs.
Even the Organ Donation Act of 1991 in the Philippines only sustains the validity of donating
any part of the body of the donor only during such period of after or immediately before his
death (Section 4 (b) Organ Donation Act of 1991).
Owing to these existing provisions defined in the legal systems of the Philippines, C is the
mother of the child in the eyes of the law.
Espino, Donato: The Appreciation of Surrogate Mothers in the Philippine Legal System
A surrogate mother is defined by the Oxford Dictionary as a woman who bears a child on behalf
of another woman, usually by artificial insemination of her own egg by the other womans
partner. Surrogate is also known as substitute and it is derived from the Latin word rogo or
ask. In practical terms, it is the process of using a substitute mother in place of the natural
mother.
There are different types of surrogacy. The more common ones are traditional surrogacy and
gestational surrogacy. These two items are defined in Wikipedia as follows:
In traditional surrogacy (also known as the Straight method) the surrogate is pregnant with her
own biological child, but this child was conceived with the intention of relinquishing the child to
be raised by others such as the biological father and possibly his spouse or partner. The child
may be conceived via sexual intercourse (NI), home artificial insemination using fresh or frozen
sperm or impregnated via IUI (intrauterine insemination), or ICI (intracervical insemination)
which is performed at a fertility clinic. Sperm from the male partner of the commissioning
couple may be used, or alternatively, sperm from a sperm donor can be used. Donor sperm will,
for example, be used if the commissioning couple are both female or where the child is
commissioned by a single woman.
In gestational surrogacy (aka the Host method) the surrogate becomes pregnant via embryo
transfer with a child of which she is not the biological mother. She may have made an
arrangement to relinquish it to the biological mother or father to raise, or to a parent who is
unrelated to the child (e. g. because the child was conceived using egg donation, sperm donation
or is the result of a donated embryo). The surrogate mother may be called the gestational carrier.
Advanced countries of Christian origins (i.e. France, Belgium, Holland, Australia, Canada,
United Kingdom and Hungary) have made surrogacy illegal. Surrogacy is also banned in Japan
and Saudi Arabia, both non-Christian nations. In the United States, surrogacy is legal depending

on the state concerned. Surrogacy is legal in Israel under their Embryo Carrying Agreements
Law passed in 1996.
The only major nation where surrogacy is legal is India. In a 2008 case involving a Japanese
baby, the Supreme Court of India held that commercial surrogacy is allowed in India.
Commercial surrogacy is now a lucrative business in India, where the cost of a cycle is between
US$14,000.00 to US$25,000.00. The industry is now estimated to be worth US$500.0 Million
per year (Indian Business Report, BBC World, March 18, 2009). Success, however, is not
assured because the average success rate is only 50%.
Advocates of surrogacy contend that this procedure helps save lives because of female infertility
or other medical issues which makes the pregnancy or delivery risky.
Critics of surrogacy contend that the procedure is unethical and undermines the legal provisions
on adoption.
Constitutional or Statutory or Treaty Prohibitions
In our jurisdiction the legal status of surrogacy has not yet been settled. The 1987 Constitution
has no outright prohibition of surrogacy. Section 12, Article II of the 1987 Constitution merely
provides the following:
Section 12. 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.
The closest law the Philippines has regarding surrogacy is in The Family Code of the Philippines
(Family Code). The Family Code, however, is silent about surrogacy but has provisions
regarding artificial insemination or adoption.
Articles 163 and 164 of the Family Code provides:
Art. 163. The filiation of children may be by nature or by adoption. Natural filiation may be
legitimate or illegitimate.
Art. 164. Children conceived or born during the marriage of the parents are legitimate.
Children conceived as a result of artificial insemination of the wife with the sperm of the
husband or that of a donor or both are likewise legitimate children of the husband and his wife,
provided, that both of them authorized or ratified such insemination in a written instrument
executed and signed by them before the birth of the child. The instrument shall be recorded in the
civil registry together with the birth certificate of the child.
Surrogacy as a Status
A. Citizenship of the Child

The modes of acquiring Philippine citizenship are enumerated in the 1987 Constitution. Section
1, Article IV provides the following:
Section 1. The following are citizens of the Philippines:
Those who are citizens of the Philippines at the time of the adoption of this Constitution;
Those whose fathers or mothers are citizens of the Philippines;
Those born before January 17, 1973, of Filipino mothers, who elect Philippine Citizenship upon
reaching the age of majority; and
Those who are naturalized in the accordance with law.
The enumeration therein is considered as exclusive. Not even adoption, which is considered as a
simulation of nature, can confer Philippine citizenship to an alien adoptee even if the adopters
are citizens of the Philippines. There appears to be no question of citizenship if both the
surrogate mother and the putative mother are citizens of the Philippines. A problem therefore
arises when the surrogate mother is an alien while the putative mother is a Philippine citizen. Is
the child born of the surrogate mother an alien or a citizen of the Philippines? Will the baby be
considered as a stateless citizen? Republic Act 9225 (AN ACT MAKING THE CITIZENSHIP
OF PHILIPPINE CITIZENS WHO ACQUIRE FOREIGN CITIZENSHIP PERMANENT
AMENDING FOR THE PURPOSE COMMONWEALTH ACT. NO. 63, AS AMENDED AND
FOR OTHER PURPOSES) expressly provides for derivative citizenship under its section 4, as
follows:
Section 4. Derivative Citizenship The unmarried child, whether legitimate, illegitimate or
adopted, below eighteen (18) years of age, of those who re-acquire Philippine citizenship upon
effectivity of this Act shall be deemed citizenship of the Philippines
This provision of law, however, is limited only to the process of naturalization.
In point is the well-publicized citizenship battle of Baby Manji, who was born of a surrogate
mother but whose parents are Japanese nationals. Before the baby was born, however, the
Japanese couple separated with the wife not willing to accept the child. The surrogate mother
also abandoned the baby. Indian authorities refused to issue Baby Manji an Indian passport,
contending that he is not an Indian citizen. Fortunately for humanitarian reasons, the Japanese
government issued a one-year visa after the Indian government had granted the baby a travel
certificate in compliance with a recent ruling of the Indian Supreme Court. According to
Japanese authorities, Baby Manji may be given Japanese citizenship once a parent-child
relationship is established through recognition of paternity or through adoption.
Constitutional or Statutory or Treaty Prohibitions
In our jurisdiction the legal status of surrogacy has not yet been settled. The 1987 Constitution
has no outright prohibition of surrogacy. Section 12, Article II of the 1987 Constitution merely
provides the following:
Section 12. 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.
The closest law the Philippines has regarding surrogacy is in The Family Code of the Philippines
(Family Code). The Family Code, however, is silent about surrogacy but has provisions
regarding artificial insemination or adoption.
Articles 163 and 164 of the Family Code provides:
Art. 163. The filiation of children may be by nature or by adoption. Natural filiation may be
legitimate or illegitimate.
Art. 164. Children conceived or born during the marriage of the parents are legitimate.
Children conceived as a result of artificial insemination of the wife with the sperm of the
husband or that of a donor or both are likewise legitimate children of the husband and his wife,
provided, that both of them authorized or ratified such insemination in a written instrument
executed and signed by them before the birth of the child. The instrument shall be recorded in the
civil registry together with the birth certificate of the child.
Surrogacy as a Status
A. Citizenship of the Child
The modes of acquiring Philippine citizenship are enumerated in the 1987 Constitution. Section
1, Article IV provides the following:
Section 1. The following are citizens of the Philippines:
Those who are citizens of the Philippines at the time of the adoption of this Constitution; Those
whose fathers or mothers are citizens of the Philippines; Those born before January 17, 1973, of
Filipino mothers, who elect Philippine Citizenship upon reaching the age of majority; and Those
who are naturalized in the accordance with law. The enumeration therein is considered as
exclusive. Not even adoption, which is considered as a simulation of nature, can confer
Philippine citizenship to an alien adoptee even if the adopters are citizens of the Philippines.
There appears to be no question of citizenship if both the surrogate mother and the putative
mother are citizens of the Philippines. A problem therefore arises when the surrogate mother is
an alien while the putative mother is a Philippine citizen. Is the child born of the surrogate
mother an alien or a citizen of the Philippines? Will the baby be considered as a stateless citizen?
Republic Act 9225 (AN ACT MAKING THE CITIZENSHIP OF PHILIPPINE CITIZENS
WHO ACQUIRE FOREIGN CITIZENSHIP PERMANENT AMENDING FOR THE PURPOSE
COMMONWEALTH ACT. NO. 63, AS AMENDED AND FOR OTHER PURPOSES)
expressly provides for derivative citizenship under its section 4, as follows:

Section 4. Derivative Citizenship The unmarried child, whether legitimate, illegitimate or

adopted, below eighteen (18) years of age, of those who re-acquire Philippine citizenship upon
effectivity of this Act shall be deemed citizenship of the Philippines
This provision of law, however, is limited only to the process of naturalization.

In point is the well-publicized citizenship battle of Baby Manji, who was born of a surrogate
mother but whose parents are Japanese nationals. Before the baby was born, however, the
Japanese couple separated with the wife not willing to accept the child. The surrogate mother
also abandoned the baby. Indian authorities refused to issue Baby Manji an Indian passport,
contending that he is not an Indian citizen. Fortunately for humanitarian reasons, the Japanese
government issued a one-year visa after the Indian government had granted the baby a travel
certificate in compliance with a recent ruling of the Indian Supreme Court. According to
Japanese authorities, Baby Manji may be given Japanese citizenship once a parent-child
relationship is established through recognition of paternity or through adoption.
Another case decided by Indias Supreme Court is the citizenship issue of twin babies born of an
Indian surrogate mother in India. The babies parents are German nationals. They were issued
passports by the authorities but these were later returned upon request of the authorities because
the twin babies Indian citizenship has not yet been settled. An action was brought before the
Indian Supreme Court for the return of the passports. The parents contend that they needed the
passports so they can apply for a German visa for the twin babies. The Indian Supreme Court
ruled that the twin babies are citizens of India so their passports should be returned. Hereunder
are excerpts of the Supreme Court decision dated November 11, 2009 under Civil Application
No. 11364 of 2009:
6. Detailed counter affidavit has been filed on behalf of the Regional Passport Officer at
Ahmedabad on 25.3.2008 and 4.11.2009, stating that surrogate mother cannot be treated as
mother of the babies, and children born out of surrogacy, though in India, cannot be treated as
Indian citizens within the meaning of Section 3 of the Citizenship Act, 1955. Further it is also
stated that parents of the children are not Indian citizens and therefore, children are also not
Indian citizens as per Section 3(1) (b) of Citizenship Act, 1955. Further it is also stated that as
per Passport Act, 1967, only Indian citizens can apply for Indian Passport and as per Section 6
(2) (a) of the Act, Passport cannot be issued to non-citizens. Further it is also stated that as per
direction of the Government of India, Ministry of External Affairs, Passport Authority can issue
identity certificate, showing name of surrogate mother, which does not entail citizenship to the
children but would enable him to take his children out of India. Further, it was also pointed out
that the Central Government is yet to legalize surrogacy and hence, children born out of
surrogacy, though in India, cannot be treated as Indian citizens.
7. Learned counsel appearing for the petitioner Mr. Dhaval C. Dave submitted that since both the
children are born in India, they are Indian citizens by birth as per Section 3 of the Citizenship
Act, 1955 and therefore, entitled to have all the rights of Indian citizens and the Passport
Authorities are legally obliged to issue Passports to them under the Indian Passports Act, 1967.

Learned counsel submitted that surrogacy is not prohibited in India and admittedly, children are
born in India to a surrogate mother who herself is an Indian citizen. Learned counsel submitted
that petitioner and his wife are German citizens but as the children are not born in Germany, they
would not get German citizenship, especially when German law does not recognize surrogacy.
Learned counsel submitted that for the purpose of obtaining VISA from the Consulate of United
Kingdom, it is necessary that children should have an Indian Passport since they are born in
India and not in Germany.
8. Learned counsel Mr. Anshin Desai appearing for the Passport Authority submitted that
children are not Indian citizens and therefore, not entitled to get Passport under the Indian
Passport Act. Learned counsel submitted that petitioners intention is to acquire German
citizenship and in order to facilitate that he is seeking Indian citizenship for the children. Learned
counsel submitted that in exceptional cases Passport Authorities can issue certificate of identity
as was done in the case case of one Baby Manju Yamada. Learned Counsel also referred to the
judgment of the Apex Court in Baby Manju Yamada Vs. Union of India (2008) 13 SCC 518
where the Passport Authorities have issued only certificate for permission to travel out of India.
9. We may at the outset point out that lot of legal, moral and ethical issues arise for our
consideration in this case, which have no precedents in this country. We are primarily concerned
with the rights of two new born innocent babies, much more than the rights of the biological
parents, surrogate mother, or the donor of the ova. Emotional and legal relationship of the babies
with the surrogate mother and the donor of the ova is also of vital importance. Surrogate mother
is not the genetic mother or biologically related to the baby, but, is she merely a host of an
embryo or a gestational carrier? What is the status of the ova (egg) donor, which in this case an
Indian national but anonymous. Is the ova donor is the real mother or the gestational surrogate?
Are the babies motherless, can we brand them as legal orphans or Stateless babies? So many
ethical and legal questions have come up for consideration in this case for which there are no
clear answers, so far, at least, in this country. True, babies conceived through surrogacy,
encounter a lot of legal complications on parentage issues, this case reveals. Legitimacy of the
babies is therefore a live issue. Can we brand them as illegitimate babies disowned by the world.
Further, a host of scientific materials are made available to us to explain what is traditional
surrogacy, gestational surrogacy, altruistise surrogacy, commercial surrogacy etc. and also the
response of various countries with regard to the surrogacy, especially commercial surrogacy.

11. Ukraine Surrogacy Laws are very favourable and fully support the individuals reproductive
rights. Clause 123 of the Family Code of Ukraine and Order 771 of the Health Ministry of
Ukraine regulate surrogacy. Ukraine laws permit commissioned parents to choose the gestational
surrogacy, ova, or sperm donation embryo, adoption, programmes for which no permission is
required. Legislation also provides for a commercial surrogacy agreement between the parties.
Child born legally belongs to the commissioned parents and the surrogate mother cannot keep
the child to herself. California is also accepting the surrogacy agreements, which has no statute
directly dealing with surrogacy. Courts generally rely on Uniform Parentage Act to deal with
various surrogacy agreements. California Supreme Court in Johnson Vs. Calvert (1993) 5 CAL
4th 484 held that gestational surrogate has no parental rights to a child born to her since a

gestational surrogacy contract is legal and enforceable and the intended mother is the natural
mother under the Californian law. In the above case the intended mother donated the egg and a
surrogate mother gave birth, in such a case the Court held that the person who intended to
procreate should be considered as the natural mother. In another case decided by the U.S Court in
the year 1998 Buzzanca Vs. Buzzanca 1961 CAL. Appl.4th 1410 (1998), the Court considered
the issue of traditional surrogacy agreements. That was a case where the surrogate mother has
been artificially inseminated i.e. a surrogate mother was impregnated by using her ova and
anonymous sperm, meaning thereby the intended parents had a genetic link to the child. Court
held that when a married couple uses non-genetically related embryo and sperm implanted into a
surrogate intended to procreate a child, they are lawful parents of the child. In another U.S case
decided in 1998, In Re Marrijo Moschetta awarded legal parent rights to the intended father and
surrogate mother. In another U.S case considered by the New Jersy Supreme Court, In Re Baby
537 A.2d 1227 (NJ.02/03/1988), gave custody to the natural father of the child, but rights of the
adopted mother was denied. Surrogate mother who conceived the child via artificial insemination
was granted visitation rights.
12. Japan has taken a different legal stand in respect of surrogacy. Supreme Court of Japan, on
March 23, 2007, denied parenthood to genetic parents since the twin babies were born to a
surrogate mother at United States. Interpreting the Civil Code of Japan, the Supreme Court, held
a mother who physically gives birth to a child is the legal mother. There is no provision in the
Code to recognize the genetic mother as the legal mother. There exists no specific laws in Japan
concerning parent-child relationship for artificial insemination, and the mother and child
relationship will be based on the fact of delivery. The issue of Citizenship status of such an infant
is also a burning problem in Japan. The Japan Supreme Court rejected the Japanese
commissioning parents bid to register their twins born to a U.S surrogate mother in Japan, on the
ground that the law presumes the woman, who gives birth to a child as its mother.
13. Germany, as law stands today, does not recognize surrogacy agreements. Law also prohibits
egg donation and advocates for embryo procreation. Medical practitioners are also prevented
from performing artificial insemination or embryo donation, which are all criminal offences.
Same seems to be the situation in Sweden, Norway, Italy and so on. But countries like Belgium,
Netherlands and Great Britain are little more liberal. Reference may be made to the decisions of
the High Court of Justice, Family Division, Rex & Y (Foreign Surrogacy) 2008 EWHC 3030
(Fam) U.K.
14. We have indicated, in India there is no law prohibiting artificial insemination, egg donation,
lending a womb or surrogacy agreements. No civil or criminal penalties are also imposed. Public
pressure, for a comprehensive legislation defining the rights of a child born out of surrogacy
agreement, rights and responsibilities of a surrogate mother, egg donor, commissioning parties,
legal validity of the surrogacy agreement, the parent child relationship, responsibilities of
Infertility Clinic etc. are gaining momentum. Legislature will have to address a lot of emotional,
legal and ethical issues. Question as to whether surrogacy can be seen as a ray of hope to
otherwise a childless couple, so as to build up a family of their own, necessary for human
happiness and social stability also calls for attention. Few are the case laws and precedents
defining the rights of those who have a vital role to play in this reproductive technology. One
case law worth mentioning in India is Baby Manjes case decided by the apex Court of India

(2008) 13 SCC 518. Various issues which we have highlighted in this case were not discussed or
answered in that case. That was a case where the Japanese Embassy in India refused to grant the
child, born to surrogate Indian mother, VISA or Passport on the ground that the Japanese Civil
Code recognizes a mother only to be a woman who gives birth to a baby. Attempts made to adopt
Manji also did not fructify since Guardian Wards Act, 1890 did not allow single man to adopt
those babies. Efforts were made to obtain Indian Passport, which also required a birth certificate.
Question arose as to who was the real mother whether it was anonymous egg donor or the
surrogate mother. Birth certificate was then issued by the local Municipality, by showing the
fathers name. Later the Regional Passport Office, Rajasthan issued a certificate of identity as
part of a transit document and not the Passport. Certificate did not contain nationality, mothers
name or religion of the baby.
15. Mother child relationship is fraught with various problems, emotional, moral, ethical, legal,
social etc. Study conducted by some organizations reveal that surrogate mothers have little
difficulty in relinquishing their rights over a surrogate child to the intending parents and that the
majority of surrogates are satisfied with their surrogacy experience and do not bother upon their
bonding with the child they gave birth. Few other studies state that the surrogate mothers at time
depict deep emotional attachment to the babies they give birth. Conflicting views have also been
highlighted. Further elaboration on these ethical, psychological or moral issues are not necessary
for our purpose.
16. We are in this case primarily concerned with the relationship of the child with the gestational
surrogate mother, and with the donor of the ova. In the absence of any legislation to the contrary,
we are more inclined to recognize the gestational surrogate who has given birth to the child as
the natural mother, a view prevailing in Japan. Anonymous Indian woman, the egg donor, in our
view, is not the natural mother. She has of course a right to privacy that forms part of right to life
and liberty guaranteed under Article 21 of the Constitution of India. Nobody can compel her to
disclose her identity. Babies born are not in a position to know who is the egg donor and they
only know their surrogate mother who is real. Wife, of the biological father, who has neither
donated the ova, nor conceived or delivered the babies cannot in the absence of legislation be
treated as a legal mother and she can never be a natural mother. In our view, by providing ova, a
woman will not become a natural mother. Life takes place not in her womb, nor she receives the
sperm for fertilization. Human fertilization is the union of a human sperm and egg usually
occurring in the ampulla of the urine tube. Process involves development of an embryo. Process
in this case followed is In Vitro Fertilization, a process by which egg cells were fertilized by
sperm outside the womb in vitro. Resultantly, the only conclusion that is possible is that a
gestational mother who has blood relations with the child is more deserving to be called as the
natural mother. She has carried the embryo for full 10 months in her womb, nurtured the babies
through the umbilical cord. Even if we assume that the egg donor is the real natural mother, even
then she is an Indian national so revealed before the learned Single Judge, we are told. Both the
egg donor as well as the gestational surrogate are Indian nationals, and hence the babies are born
to an Indian national.
17. The Registrar, Birth and Deaths functioning under the Registration of Births and Deaths Act,
1969 has already issued certificate of birth to the children stating that they are born within the
local area of Anand Nagar Palika, and showing mothers name as Marthaben Immanuel Khristi

and fathers name as the petitioner. Be that as it may, for the purpose of issuance of the Birth
Certificate. Factum of birth of the babies has been established and that too in India to an Indian
mother, whether to a gestational surrogate or donor of an ova. In the application for Passport, we
have already indicated that petitioner has shown Khristi Marthaben Immanuel as mother
gestational surrogate who is admittedly an Indian national. Egg donor is also reported to be an
Indian woman, of course her identity is not disclosed. Either way the mother of the babies is an
Indian national. Petitioner, it is true, has not married Khristi Marthaben Immanuel, surrogate
mother of the children or the egg donor. Children are born not out of a subsisting marriage. Even
if the children are described as illegitimate children, even then they are born in this country to an
Indian national and hence, they are entitled to get Citizenship by birth as per Section 3(1)(c)(ii)
of the Citizenship Act, 1955, since one of their parent is an Indian citizen. Relevant portion of
Sec.3 is extracted hereunder for easy reference.

3. Citizenship by birth (1) Except as provided in sub-section (2), every person born in India,
(a) ..
(b) .
(c) on or after the commencement of the Citizenship (Amendment) Act, 2003, where
(i)
(ii) one of whose parents is a citizen of India and the other is not an illegal migrant at the time of
his birth,shall be a citizen of India by birth.
Section 3 uses the expression every person born and the emphasis is on the expressions person
and born. Person means a natural person. In Webster V. Reproduction Health Services etc.__
(1989) 492 U.S 490, the Court held the word personal within 14th Amendment means a human
being after birth and not a foetus. Blacks Legal Dictionary, Sixth Edition defines the word born
as an act of being delivered or expelled from mothers body whether or not placenta has been
separated or cord cut. Both the babies in this case are persons born in India, indisputedly one of
their parents is an Indian citizen, a surrogate mother. The two babies have therefore satisfied the
ingredients of Section 3(1)(c)(ii) and hence they are Indian citizens by birth. Passport to travel
abroad therefore, cannot be denied to those babies, who are Indian citizens, which would
otherwise be violative of Article 21 of the Constitution of India. Section 6 of the Passport Act
refers to the grounds for refusal of Passport. Section 6 (2)(a) says that Passport can be denied if
the applicant is not a citizen of India. In the instant case, we have already found that two babies
born to the surrogate mother are Indian citizens by birth and hence entitled to get Passports.
18. Passport Authorities are willing to issue a certificate of identity under Section 4(2)(b) of the
Passports Act, which is issued only for the purpose of establishing the identity of a person. In the
instant case, the identity of the two babies has already been established, they are born in this

country to a surrogate mother, an Indian national, and hence citizens of India within the meaning
of Section 3(1)(c)(ii) of the Citizenship Act.
19. A comprehensive legislation dealing with all these issues is very imminent to meet the
present situation created by the reproductive science and technology which have no clear
answers in the existing legal system in this country. Views expressed by us, we hope, in the
present fact settings, will pave way for a sound and secure legislation to deal with a situation
created by the reproductive science and technology. Legislature has to address lot of issues like
rights of the children born out of the surrogate mother, legal, moral, ethical. Rights, duties and
obligations of the donor, gestational surrogate and host of other issues.
20. Further, under the Indian Evidence Act, no presumption can be drawn that child born out of a
surrogate mother, is the legitimate child of the commissioning parents, so as to have a legal right
to parental support, inheritance and other privileges of a child born to a couple through their
sexual intercourse. The only remedy is a proper Legislation drawing such a presumption
including adoption. Further the question as to whether the babies born out of a surrogate mother
have any right of residence in or citizenship by birth or mere State orphanage and whether they
acquire only the nationality or the biological father has to be addressed by the legislature.
21. Indian Council of Medical Research (ICMR) has issued certain guidelines on surrogacy and
Assisted Reproductive Technology (ART) in 2005. The new Bill ART (Regulation) Bill and
Rules, 2008 is yet to become law, and there is extreme urgency to push through the legislation
answering all these issues.
22. We, in the present legal frame-work, have no other go but to hold that the babies born in
India to the gestational surrogate are citizens of this country and therefore, entitled to get the
Passports and therefore direct the Passport Authorities to release the Passports withdrawn from
them forthwith.
23. Special Civil Application is accordingly allowed. Appeal and the Civil Application stand
disposed of accordingly. Interim orders stand vacated.
Maternity
A leading author and professor in Civil Law, Atty. Elmer Rabuya, in his book The Law on
Persons and Family Relations noted that the law is concerned with the establishment of paternity
only and not maternity. He further wrote that this is because nature always points out the mother
by evident signs, and, whether married or not, she is always certain.
In the case of a surrogate contract, who will be considered as the mother of the child? Is it the
surrogate mother or the putative mother? In as much as the child came out of the womb of the
surrogate mother, it may be concluded that the surrogate mother will be the mother of the child
in the eyes of the law.
Paternity

Paternity is the civil status of a father in relation to his child. In our Civil Code, he will be
considered the father of the child if he gives his consent to the artificial insemination in
accordance with Art. 164 of the Family Code. Applying by analogy this provision of law to
surrogacy, paternity may not be established if the father did not give his consent to the surrogacy
contract.
Filiation
Filiation is the civil status of a child in relation to his or her parents. The filiation of children may
be by nature or by adoption (Art. 163, FC). Natural filiation, which is established by blood
relationship, can either be legitimate or illegitimate (Id). The status of a marriage determines the
filiation (De Santos vs. Angeles, 251 SCRA 206). Thus, a child born within a valid marriage is
legitimate, as expressly provided by Art. 164 of the Family Code.
In Herrera v. Alba (G.R. No. 148220, June 15, 2005, 460 SCRA 197, 206-208.), the Court
summarized the laws, rules, and jurisprudence on establishing filiation, discoursing in relevant
part:
Laws, Rules, and Jurisprudence Establishing Filiation
The relevant provisions of the Family Code provide as follows:
ART. 175. Illegitimate children may establish their illegitimate filiation in the same way and on
the same evidence as legitimate children.
xxxx
ART. 172. The filiation of legitimate children is established by any of the following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private handwritten instrument
and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
(1) The open and continuous possession of the status of a legitimate child; or
(2) Any other means allowed by the Rules of Court and special laws.
The Rules on Evidence include provisions on pedigree. The relevant sections of Rule 130
provide:
SEC. 39. Act or declaration about pedigree. The act or declaration of a person deceased, or
unable to testify, in respect to the pedigree of another person related to him by birth or marriage,
may be received in evidence where it occurred before the controversy, and the relationship

between the two persons is shown by evidence other than such act or declaration. The word
pedigree includes relationship, family genealogy, birth, marriage, death, the dates when and
the places where these facts occurred, and the names of the relatives. It embraces also facts of
family history intimately connected with pedigree.
SEC. 40. Family reputation or tradition regarding pedigree. The reputation or tradition
existing in a family previous to the controversy, in respect to the pedigree of any one of its
members, may be received in evidence if the witness testifying thereon be also a member of the
family, either by consanguinity or affinity. Entries in family bibles or other family books or
charts, engraving on rings, family portraits and the like, may be received as evidence of pedigree.
This Courts rulings further specify what incriminating acts are acceptable as evidence to
establish filiation. In Pe Lim v. CA, a case petitioner often cites, we stated that the issue of
paternity still has to be resolved by such conventional evidence as the relevant incriminating
verbal and written acts by the putative father. Under Article 278 of the New Civil Code,
voluntary recognition by a parent shall be made in the record of birth, a will, a statement before a
court of record, or in any authentic writing. To be effective, the claim of filiation must be made
by the putative father himself and the writing must be the writing of the putative father. A
notarial agreement to support a child whose filiation is admitted by the putative father was
considered acceptable evidence. Letters to the mother vowing to be a good father to the child and
pictures of the putative father cuddling the child on various occasions, together with the
certificate of live birth, proved filiation. However, a student permanent record, a written consent
to a fathers operation, or a marriage contract where the putative father gave consent, cannot be
taken as authentic writing. Standing alone, neither a certificate of baptism nor family pictures are
sufficient to establish filiation.
These procedures relate to filiation by nature and not to filiation by surrogacy. It is therefore not
settled within our jurisdiction on how filiation by surrogacy may be established.
Surrogacy as a Contract
In a surrogacy, the surrogate mother and the putative parents sign a contract that promises the
couple will cover all medical expenses in addition to the womans payment, and the surrogate
mother will hand over the baby after birth. The essential elements of a valid contract are consent,
cause and consideration. A surrogacy contract may be attacked that its object is beyond the
commerce of man.
Article 1318 of the Civil Code provides:
There is no contract unless the following requisites concur:
Consent of the contracting parties. Object certain which is the subject matter of the contract.
Cause of the obligation which is established. Per the Civil Code, the requisites of things as object
of a contract are the following:
a. The thing must be within the commerce of man (Art. 1347).

b. It must not be impossible, legally or physically (Art. 1348).

c. It must be in existence or capable of coming into existence (Arts. 1461, 1493 and 1494).
d. It must be determinate or determinable without the need of a new contract between the parties
(Arts. 1349, 1460).
By analogy, we can apply the case of Beltran et. al. vs. The Secretary of Health (GR no. 133640),
promulgated En Banc by the Supreme Court on November 25, 2005. Petitioners Beltran and
others, all operators of privately-owned commercial blood bank companies, questioned the
constitutionality of the National Blood Services Act of 1994 (R.A. 7719), which called for the
phase-out of all commercial blood bank companies within two years from the effectivity of the
Act. Among others, the law sought to encourage voluntary blood donations instead of persons
selling their blood to the commercial blood banks. It was learned that most of the persons who
sell their blood are poor so they make a livelihood selling their blood. The Supreme Court quoted
the petitioners as follows: xxx under the Civil Code, the human body and its organs like the
heart, the kidney and the liver are outside the commerce of man xxx.
It therefore appears that a human organ is a not a proper object of a valid contract. A females
vagina, uterus, fallopian tubes, cervix and ovary are part of her internal reproductive organ,
Being a human organ, it is beyond the commerce of man.