Lao, Camille Annika O.

| 3A | Fundamentals of Thesis I | Midterms Submission

Thesis title: I Want My Mommy!: Recognizing that the Relationship of the Parents of a
Surrogate Child Begin from Fertilization.

Legal Issue: As the law currently stands, a child born from a surrogate mother will be treated
as her legal child, notwithstanding the fact that it is biologically the putative parent's child.
There is an apparent gap in the law. It is not enough to require the putative parents to legally
adopt the child, because the interregnum between the agreement and the granting of the
adopting leaves all parties vulnerable. Considering the prevalence of surrogacy agreements,
this situation should be addressed by law.

Thesis topic: In surrogacy agreements, the surrogate child should automatically be

considered the child of the putative parents. Requiring the putative parents to undergo
adoption proceedings for their surrogate child is both a burden on all parties, but also exposes
them to risk in case of default.

Thesis Statement: Requiring putative parents to legally adopt their surrogate child before
being considered their legitimate child under the law is an unnecessary burden on both the
putative parents and the surrogate mother, and it leaves the child unprotected. This thesis
aims to expose the risk such situation may bring to the abovementioned parties such as when
the putative parents refuse to adopt the child and leave the child with the surrogate mother,
may make the putative parents liable for the offense of simulation of birth, and may deprive
the child of its legitime from the putative parents, and the like. Instead, a law should be
passed making the surrogate child automatically the child of the putative parents to remove
such risks.

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 Preliminary Outline

I. Due to modern technology and research, couples are now given the option to have
children via means that were heretofore deemed impossible. Couples can choose between
intrauterine insemination, in vitro fertilization, using donor embryos, and finally,
surrogacy.
A. Background of the study
i. The Philippine Constitution states that the family is the basic autonomous
social institution of the country.1
a. The State should ensure that all possible situations a family may
experience should be protected or regulated, or else the very basic
institution of the country will be put at risk.
ii. Even with the upsurge in surrogacy agreements among Filipinos, there are
no laws in place to govern the same. The Philippine legal system is silent
as to the legality or illegality of surrogacy arrangements.
a. Notwithstanding this absence, citizens have been known to engage
in surrogacy as a solution to their birthing concerns.
1. Citizens of countries where surrogacy is illegal have taken
advantage of this situation by engaging their surrogacy
activities in the Philippines.2
i. Filipinos who become parties to this activity are left
unprotected due to the absence of any law defining
and protecting their rights. This leaves them open to
abuse.
b. Parties to surrogacy agreements are left to grapple with laws that
do not envision their situation.
1. This may leave the parties vulnerable to harm, which could
have been prevented if laws were enacted to govern the
surrogacy agreements.
c. Due to the current formation of the law, the surrogate child is
deemed as the child of the surrogate mother, notwithstanding the
lack of any biological or genetic connection between the two.
1. The best interests of the child are left ignored due to the
inexistence of surrogacy laws.
i. The surrogate children are put at risk because their
family relationship in the eyes of the law are made
dependent on the success of the putative parents
adoption proceedings.
ii. If the putative parents are rejected in the adoption
proceedings, then the surrogate child will be left at
the hands of the surrogate mother.
B. Thesis Statement
i. Requiring putative parents to legally adopt their surrogate child before
being considered their legitimate child under the law is an unnecessary
burden on both the putative parents and the surrogate mother, and it leaves
1 PHIL. CONST. art II 12.

2 Raissa Robles, Womb for Hire, ABS-CBN News, June 16, 2009, available at http://www.abs-
cbnnews.com/special-report/06/16/09/womb-hire-part-1 (last accessed Aug. 11, 2014).

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 the child unprotected. This thesis aims to expose the risk such situation
may bring to the abovementioned parties such as when the putative parents
refuse to adopt the child and leave the child with the surrogate mother,
may make the putative parents liable for the offense of simulation of birth,
and may deprive the child of its legitime from the putative parents, and the
like. Instead, a law should be passed making the surrogate child
automatically the child of the putative parents to remove such risks.
C. Objectives of the Study
i. The study aims to identify the problems that all parties are exposed to
when entering into surrogacy agreements, and to propose a solution that
can eliminate the same.
a. Considering the increase in surrogacy arrangements in the
Philippines, it is imperative that laws be formulated to govern these
arrangements.
D. Significance of the Study
i. By defining the perils that parties to a surrogacy agreement are exposed to,
one will be able to determine the most viable method of addressing the
problem.
a. Parties will be made aware to the risks they are exposing
themselves to, as well as the possible legal effects of their actions.
ii. By being able to formulate an adequate remedy to the problems of
surrogacy, parties to surrogacy agreements will be comforted in the
knowledge that their rights will be protected and enforceable in the
Philippine setting.
E. Scope and Limitations
i. Scope:
a. The study will tackle the current situation of Filipinos who are
parties to surrogacy agreements.
b. The major risks of surrogacy agreements will be discussed at
length, as well as the legal repercussions or violations of the
parties.
1. The following situations will be discussed:
i. Situations wherein the putative parents refuse to
uphold their agreement to adopt the child after birth.
ii. Situations wherein the surrogate mother refuses to
give the child up for adoption.
iii. Residual effects if the need for adoption
proceedings after birth.
ii. Limitations:
a. The study will not delve into the legality of surrogacy agreements.
1. The mere fact that surrogacy exists in the country and that
Filipinos are exposed to such arrangements necessitates the
need to regulate the same through adequate legislation.
b. Surrogacy agreements and operations engaged outside the
Philippines are outside the scope of this study.
F. Methodology
i. The study will analyze the current framework of the Philippine legal
system vis--vis the prevailing risks of surrogacy arrangements in order to
determine how protected the parties are.

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 a. To determine the current situation of surrogacy in the Philippines, a
study will be made covering jurisprudence, application of present
laws and statutes, current events and the like.
b. A surrogacy agreement will be studied from all legal angles.
ii. To establish the best solution, an analysis will be made of various
international surrogacy laws as well as its effectivity in curbing the risks.
a. Foreign jurisprudence will be studied to get a grasp on the
treatment of various courts of their own surrogacy laws.
G. Definition of Terms
i. Artificial insemination
ii. Embryo transfer
iii. Fertization
iv. Insemination
v. In vitro fertilization
vi. Putative parents
vii. Surrogacy
viii. Surrogacy agreement
ix. Surrogate mother
x. Surrogate child
II. Review of Related Literature
A. Defining Surrogacy
i. There are two types of surrogacy at present: Gestational surrogacy and
traditional surrogacy.3
a. Gestational surrogacy is when the surrogate mother is inseminated
with an embryo made up of the sperm and egg of the putative
parents.4
b. Traditional surrogacy is when the surrogate mother is inseminated
with an embryo made up of the sperm of the putative father and the
egg of the surrogate mother.5
ii. There are at least three parties in every surrogacy agreement: the putative
father, the putative mother, and the surrogate mother.
B. Surrogacy in the International Setting
i. Treaties and conventions on surrogacy
a. The Hague Conference on Private International Law is considering
the viability of creating a new global convention that will tackle
surrogacy.6
ii. Surrogacy laws in international countries

3 Creative Love, What is Gestational vs Traditional Surrogacy, available at

http://www.cledp.com/what-is-gestational-vs-traditional-surrogacy.html (last accessed
Aug 12, 2014).

4 Id.

5 Id.

6 Hague Conference on Private International Law, The private international law issues surrounding the status
of children, including issues arising from international surrogacy arrangements, 2011-2015, available at
http://www.hcch.net/index_en.php?act=text.display&tid=183 (last accessed Aug. 12, 2014).

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 iii. International jurisprudence.
C. Surrogacy in the Philippine setting
i. The 1987 Constitution of the Philippines contains laws that protect the
institution of the family.
a. The State is mandated to protect family life and to strengthen the
family.7
b. Since the Filipino family is considered the foundation of the nation,
the State should strengthen its solidarity and actively promote its
total development.8
ii.
a. As the law stands, the surrogate child is considered the legal child
of the surrogate mothernotwithstanding their lack of blood
relation.
1. This is a violation of Article 40 because considering the
child as that of the surrogate mothersomeone not
genetically related to him or her or with the intention of
keeping the childis not favorable to the surrogate child.
2.
iii. The Family Code contains provisions that govern the relationship between
the parents and the children.
a. Article 40, as amended by the Child and Youth Welfare Code,
declares that the civil personality of a child will commerce from
the time of his conception for all purposes favorable to it.
b. Article 147 covers situations wherein parents use artificial
insemination to procure a child. It declares that such child is
considered the legitimate child of both parents.9
1. Children born through artificial insemination will be
considered the legitimate child of the parents
notwithstanding the fact that one of the spouses may not
have contributed to its genetic makeup.
iv. The Civil Code states that contracts entered into by parties should not be
contrary to law, morals, good customs, public order, or public policy.10
a. Surrogacy agreements may be argued as being contrary to morals
and good custom.
1. Enforceability under a surrogacy agreement may be
impossible in the Philippine setting.
v. The Philippines, having ratified the Convention on the Rights of the Child,
undertakes to abide by the provisions enshrined therein.
a. Pertinent provisions are Article 8 and Article 9, where the State
promises to respect the childs right to preserve his or her identity
7 PHIL. CONST. art II 12.

8 PHIL. CONST. art XV 1.

9 An Act to Ordain and Institute the Civil Code of the Philippines [CIVIL CODE], Republic Act No. 386, art.
147.

10 Civil Code, Art. 1306.

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 as recognized by law without unlawful interference and to ensure
that a child shall not be separated from his or her parents against
their will, except in certain circumstances.11
III. Analysis: By requiring the putative parents to undergo adoption proceedings before they
can gain custody and be considered the legal parents of the surrogate child, it leaves all
parties vulnerable to risk.
A. During the interregnum between the birth of the child until the finality of adoption
proceedings, various situations may occur that put all parties at risk.
i. The putative parents may refuse to uphold the agreement to adopt the child
after it has been born.
a. The surrogate mother will be left with the surrogate child, a child
that she may not have the intention of keeping.
1. The surrogate mother, relying on the putative parents
promise to adopt the child, may not have expected to be
given the responsibility of caring for the child past
pregnancy.
i. There exists a likelihood that the surrogate mother
will be unable or not have the means to care for the
child.
ii. The best interests of the child will not be protected
because he or she will be forced into an situation
where he or she is unwanted or be raised in an
environment which is not conducive for child-
rearing.
iii. Instead of being with the putative parents, the child
may be put up for adoption instead.
b. There will be no way for the surrogate mother to force the putative
parents to consider the child as their own because Philippine law
does not declare any legal relationship between the two.
c. Child will be prejudiced because he or she will be deprived of their
rightful legitime from the putative parents.12
1. As the child will be legally considered the legitimate child
of the surrogate mother, said child will be entitled to the
legitime as transmitted upon the death of the surrogate
mother.13
2. It opens the possibility that the surrogate child will be
considered both the legitimate child of one party (either the
surrogate mother or the adoptive parents) and the
illegitimate child of the putative parents (if the child
initiates filiation proceedings).14

11 Convention on the Rights of the Child, 1577 U.N.T.S. 3. (Nov. 20, 1989)., 8-9.

12 Civil Code, Art. 887.

13 Id.

14 Id, Art. 175.

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 i. Such situation is not contemplated nor covered by
Philippine laws.
ii. The surrogate mother may refuse to give the surrogate child up for
adoption to the putative parents.
a. As the law does not cover surrogacy agreements, the putative
parents are then left with no means to gain custody of the child that
is genetically theirs.
1. Any claim that they pursue will be rejected because
Philippine law does not recognize anyone other than the
birth mother as the legal mother of the child,
notwithstanding the fact that the latter may be biologically
created by the putative parents.
iii. The putative parents may be unaware of the need to formally adopt the
child. They may be able obtain the child with the consent of the surrogate
mother without having adopted the child.
a. The putative parents will then be committing the offense of
simulation of birth.15
1. Simulation of birth occurs where the child loses its civil
status in the family of the woman who has really given birth
to it and acquires a status to which he has no right.16
i. This action falls under simulation of birth because it
causes the surrogate child to lose his legal status as
legitimate child of the surrogate mother and be
placed in the custody of people who the law does
not deem as his legal relatives.
IV. Recommendation and Conclusion
A. As the Philippines recognizes the family as the basic social institution, the need to
address all situations of the creation of children is imperative.
i. The current framework of our country, as discussed, does great danger to
situations wherein parties engage in surrogacy because there exist no laws
to regulate the same.
ii. Families may suddenly find themselves grappling with a situation they did
not envision due to the other partys breach.
a. The family of the parties may either find themselves lacking a child
which they expected to raise, or be put in the position of raising a
child which they had no intention of having.
B. A child born through surrogacy should be considered the legitimate child of the
putative parents, without need of engaging in adoption proceedings.
i. If Article 164 of the Family Code grants an artificially inseminated child
legitimate status with regard to the parents, regardless of whether or not
the sperm and egg was derived from both of them, then it is logical to
arrive to a conclusion that a child who is created from a couples sperm
and egg should also be considered their legitimate child.

15 An Act Revising the Penal Code and Other Penal Laws [Revised Penal Code], Act No. 3815, art. 347
(1932).

16 Luis B. Reyes, The Revised Penal Code Criminal Law Book Two, 2012.

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ii. This solution will remove all likelihood of anyone of the above-discussed
risks occurring as the surrogate child will automatically be considered that
of the putative parents.
a. The surrogate mother will legally have no relation or claim on the
surrogate child.
b. Dangers of breach or refusal to uphold the agreement will no
longer be an issue.

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 BIBLIOGRAPHY

1987 Philippine Constitution

PHIL. CONST. art. II 12.

PHIL. CONST. art XV 1.

Philippine Statutes

An Act Revising the Penal Code and Other Penal Laws [REVISED PENAL CODE], Act No.
3815, art. 347 (1932).

An Act to Ordain and Institute the Civil Code of the Philippines [CIVIL CODE], Republic
Act No. 386, arts. 147, 149, 164-167, 175, 887, 1306 (1949).

The Child and Youth Welfare Code [CHILD AND YOUTH WELFARE CODE], Presidential
Decree No. 603 (1974).

An Act Establishing the Rules and Policies on the Domestic Adoption of Filipino Children
and for Other Purposes [DOMESTIC ADOPTION ACT], Republic Act No. 8552
(1998).

Philippine Jurisprudence

Noble v. Noble, 18 SCRA 1104 (1966).

Benitez-Badua v Court of Appeals, 229 SCRA 468 (1994).

Marquino v Intermediate Appellate Court, 233 SCRA 348 (1994).

People v Patriarca, 319 SCRA 96 (1999).

People v Tipay, 329 SCRA 52 (2000).

People v. Collado, 353 SCRA 381 (2001).

International Treaties

Convention on the Rights of the Child, 1577 U.N.T.S. 3. (Nov. 20, 1989).

Hague Conference on Private International Law, The private international law issues
surrounding the status of children, including issues arising from international
surrogacy arrangements, 2011-2015, available at http://www.hcch.net/index_en.php?
act=text.display&tid=183 (last accessed Aug. 12, 2014).

Books

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Bernas, Joaquin, The 1987 Constitution of the Republic of the Philippines: A commentary.
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Cook, Rachell. Surrogate motherhood: international perspectives. Oxford, 2003.

Reyes, Luis B. The Revised Penal Code Criminal Law Book Two, 2012.

Paras, Eduardo. Civil Code of the Philippines Annotated, Vol. 1. 2008.

Sta. Maria, Melencio. Persons and Family Relations Law. 2004.

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Boers, Paul. "Surrogacy: The emergency alternative to starting a family." Nicholes Law. 2011.
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Brinsden, Peter. "Gestational surrogacy." Human Reproduction Update (Oxford Journals) 9,

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Spar, Debora. The baby business: how money, science, and politics dive the commerce of
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