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.
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.
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:
1. Those who are citizens of the Philippines at the time of the adoption of this Constitution;
2. Those whose fathers or mothers are citizens of the Philippines;
3. Those born before January 17, 1973, of Filipino mothers, who elect Philippine Citizenship upon
reaching the age of majority; and
4. 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
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.

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.
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.
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:
1. Consent of the contracting parties.
2. Object certain which is the subject matter of the contract.
3. 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.

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.

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).