February 3, 2013

Ms. Serena Gonzales

2813, Cabrera St.
San Roque, Pasig City

Dear Mrs. Gonzales:

RE: REQUEST FOR LEGAL OPINION ON THE

LEGAL CLAIM ON PRINCESS AND ACTIONS
AGAINST OFELIA.

Provided in this letter is my legal opinion and analysis

regarding the situation involving your daughter, Princess, and
your sister, Ofelia. First, I shall restate the facts as they are known
to me for your confirmation and I shall proceed with an
explanation of the issues and the corresponding laws which apply
to them in your case. Lastly, I shall give you my legal opinion on
whether you may impugn Princess legitimacy as Ofelia and Rex
daughter and as to whether it is possible to get your daughter
back.
Sometime in 1995, you and your husband, Julio Gonzales,
agreed to the use of in vitro fertilization as a means to conceive a
child. However, since your uterus is not capable of bearing a
child, you and your husband further agreed to ask your sister,
Ofelia, to be the surrogate mother of your child. Ofelia agreed to
your request on the condition that she be paid P100,000.00 to
which you complied. Regidor, Ofelias husband, did not know of
this arrangement and that on the third month of Ofelias
pregnancy, Regidor died. You lost all forms of communications
with Ofelia after such incident for almost 18 years and were only
able to talk to her again when you saw her in Greenbelt 5 last
January 20, 2013. Upon confronting her, she refused to give you
Princess after revealing to you that she has married a certain Rex,
three months after Regidor died. She asserts that Princess is her
legitimate daughter with Rex.
The main issues of concern in your case are clear: whether
or not Princess is Ofelia and Rex legitimate daughter and whether
or not you may claim Princess as your own legitimate daughter.
Additionally, it is of concern as to whether or not you may recover
the P100,000.00 you paid Ofelia.

Pertinent Law Provisions

The Family Code of the Philippines clearly provides that
children conceived or born during the marriage of the parents
are legitimate.1 As such, there exists, in our laws the legal
presumption that a child who is born to a valid, or even a voidable
marriage, is the legitimate child of the couple. However, this
presumption is not absolute; hence, may be rebutted or impugned
on several grounds.
One provision of law which enumerates grounds for
impugning a childs legitimacy is Art. 166 of the Family Code,
which includes in it impugning a childs legitimacy on the ground
that some biological or scientific evidence or reason is offered to
prove that the child is not conceived through the union of the
husband with his wife.2 A childs legitimacy may also be
questioned under the presumption of fact provided for in Art. 168,
considered when the previous marriage by the mothers child is
terminated and she enters into a subsequent marriage. It is
contemplated that if a child is born BEFORE six (6) months or 180
days after the subsequent marriage, the child is deemed to be
conceived in the previous marriage. If a child, however, is born
AFTER six (6) months or 180 days after the celebration of the
subsequent marriage, the child is deemed to be the conceived
during the subsequent marriage.3
It must be noted that in both instances that the right to
impugn is reserved only to the husband. As a rule, impugning the
legitimacy of the child is a strictly personal right of the husband
for the simple reason that he is the one directly confronted with
the scandal and ridicule4 A husbands right to impugn a childs

1 Family Code of the Philippines. Art. 164

2 Ibid. Art. 166 (2)

3 Ibid. Art. 168

legitimacy, however, is limited by law up to only one year after
the knowledge of the childs birth.5
Impugning the legitimacy of a child affects only the childs
legal filiation with the parent, more particularly with the father
who impugns the legitimacy. This does not provide any effect on
third persons who may claim natural or legal filiation with the
child.
Nonetheless, certain circumstances where natural and
legitimate filiations are allowed by law as may be illustrated in
Art. 164(2) where a child conceived through artificial insemination
is deemed a legitimate child of the husband and his wife. It must
be noted that the under the same provision of law, the child is
only legitimate when the following requisites are satisfied: (1)
conception is done through artificial insemination of sperm into
the womb of the wife; (2) sperm inseminated may either be that
of the husband's or a donor's or both; (3) insemination is
authorized or ratified in a written instrument executed and signed
by both husband and wife; (4) the instrument is recorded in the
civil registry together with the birth certificate of the donor.
Clearly, artificial insemination is different from surrogacy or
the entering into a surrogate-mother contract. For one, the first
requisite of artificial insemination is that the sperm is inseminated
into the womb of the wife. Atty. Elmer Rabuya defines surrogate-
mother contract as any agreement in which a woman agrees to
conceive or carry a child for another individual or a couple, either
free of charge or for a consideration." 6 While artificial
insemination is expressly recognized by law, surrogacy is not on
the basis that it is contrary to law, morals and public policy. As
such, there is no law recognizing or creating filiation between the
contracting husband and wife and the child carried by the
surrogate mother (unless the child is legitimated through
adoption).7
4 Atty. Elmer Rabuya, The Law on Persons and Family Relations (Quezon City: Rex

Printing Company Inc., 2006), 532

5 Ibid. Art. 170

6 Ibid. 529

7 Ibid
 Being contrary to law, morals and public policy, a surrogate-
mother contract is a void or non-existent contract since it goes
against the provision of the Civil Code which determines what
may be considered as valid contracts. The Civil Code provides, as
a consequence of entering into any invalid contract where both
contracting parties are at fault, that no party may recover what
he has given by virtue of the contract, or demand the
performance of the others undertaking. 8 Thus, what was given
may no longer be recovered and neither may the other
contracting party be compelled to perform his end.

Analysis
Based on the foregoing facts and pertinent provisions, the
following may be deduced:
1. Applying the presumption of legitimacy of a child born in a
valid marriage, Princess is presumed, by law, to be the
legitimate daughter of Ofelia and Rex.
2. The right to impugn the legitimacy of Princess is granted
only to Rex, being Ofelias husband upon whom legitimacy is
conferred under the presumption in Art. 164 of the Family
Code. However, this same right lost for having prescribed a
year after Princess was born and Rex did not file or institute
any action that would question Princess legitimacy.
3. Princess, conceived through surrogate-mother contract and
not through artificial insemination, is NOT legitimately
filiated with you or with Mr. Gonzales since no laws recognize
the creation of legitimate filiation between a husband and
wife and the child conceived by a surrogate mother; because
a surrogate-mother contract is against law, morals and
public policy. It is undeniable, however, that you have blood
relations, thereby giving you natural filiation, although
making her your illegitimate daughter.
4. The contract you entered into with Ofelia is void and non-
existent; therefore, the return of the P100,000.00 cannot be
demanded and neither may she be required to perform her
end of what was agreed upon.

Recommendations
8 Ibid. Art. 1412
 It is almost unconscionable for parents to be separated from
their child. Children are, after all, the source of any parents joy
and pride. However, in instances where parents go through
extreme measures to take a part in bringing into the world
another human being born out of their love, the law imposes
reasonable restrictions to maintain the public order and the
countrys morals. Dura lex, sed lex (It may be harsh, but it is the
law).
It is my legal opinion that no other legal action that would
allow you or Julio to impugn Princess legitimacy is available since
this right is reserved only to Rex; and the same right is already
lost even to him because of prescription.
It is also my opinion that the only relief available to you and
Julio would be to adopt Princess as your own daughter in
pursuance of Section 8(c) of the Domestic Adoption Act which
allows you to adopt any person to whom you are naturally filiated
(blood related) without prejudice to her consent which is required
under Art. 188 of the Family Code.
As to the P100,000.00 it has been stated that it may no
longer be demanded since the contract you entered into was not
valid. Although the law does not tolerate the unjust enrichment of
one at the expense of the other, it is also the most inviolable
principle of the law that none which go against law, morals and
public policy may be tolerated since it is the law which maintains
the order of our country and society. May you see the
uncompensated amount as a form of goodwill to no one else less
than your sister.
If you have any questions or clarifications, I would be glad to
assist you in whatever way I can and for whatever decision you
may wish to take regarding your current legal endeavor.

Sincerely,

Atty. Omar Kareem V. Mauricio