If A and B, who are married
couple, agreed to hire C to implant their egg and sperm cells and bear the
child in C’s 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 couple’s 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.
Consent of the parties
2.
Object certain which is the subject
matter of the contract
3.
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.
Thank you for your interesting piece, however, even if C is the mother of the child in the eyes of the law, what about the child's citizenship? If the parents are from a foreign country (which surrogacy is legal), the embryo of the child was formed in the foreign country, the implantation was performed at the foreign country. The surrogate then travels to the Philippines and has the baby in the Philippines. If the surrogate is not a citizen of the foreign country, then does that make the baby a citizen of the country of birth? Even if all the procedure was performed in the foreign country? I'd like to know your thoughts. If the Philippines is a country that believes life begins at conception (when the embryo was formed), then wouldn't the real birth mom be B instead of C. C was only the carrier of the baby and she was not the source. When we say that a person gave birth to the child, scientifically, birth means - the Egg, and if the Egg came from B - then B has a claim and a case as the real mother?
ReplyDelete@Unknown, if I'm not mistaken the citizenship of the baby whether he/she comes from a foreign country will be dependent to where the surrogate mother gave birth. By the way, where should I find the best Philippine attorneys.
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ReplyDeleteA surrogate mother should not have the right over the real mother who owns the the eggs that was used to make the child. In the first place, she only did it on purpose as a money making business. That's only my opinion, I don't know how lawyers in Manila thinks about it.
ReplyDeleteIS THE SPERM DONOR, EGG DONOR, AND THE COMMISSIONING PARENTS OBLIGATED TO PAY CHILD SUPPORT IN CASE THE SURROGATE MOTHER DECIDES TO KEEP THE BABY UNDER THE FAMILY CODE?
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