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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:
limited
of
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.
10. Commercial surrogacy is never considered to be illegal in India and few
of the countries like Ukrain, California in the United States. Law Commission
of India in its 220th Report on Need for Legislation to regulate Assisted
Reproductive Technology Clinics as well as rights and obligations of parents
to a surrogacy has opined that surrogacy agreement will continue to be
governed by contract among parties, which will contain all terms requiring
consent of surrogate mother to bear the child, agreement of a husband and
other family members for the same, medical procedures of artificial
insemination, reimbursement of all reasonable expenses for carrying the
child to full term, willingness to hand over a child to a commissioning parents
etc. Law Commission has also recommended that legislation itself should
recognize a surrogate child to be the legitimate child of the commissioning
parents without there being any need for adoption or even declaration of
guardian. Further it was also suggested that birth certificate of surrogate
child should contain names of the commissioning parents only and that the
right to privacy of the donor as well as surrogate mother should be
protected. Exploitation of women through surrogacy was also a worrying
factor, which is to be taken care of through legislation. Law Commission has
expressed its desire that Assisted Reproductive Technology Bill with all
safeguards would be passed in the near future.
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.
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.
(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.
SOURCE:
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