The Legality of Surrogacy in the Philippines: A Comprehensive Overview

Introduction

Surrogacy, a reproductive arrangement where a woman carries and delivers a child for another person or couple, has become a global phenomenon driven by advances in assisted reproductive technologies (ART). In the Philippines, a predominantly Catholic nation with strong cultural emphases on family and motherhood, surrogacy occupies a precarious legal position. Unlike countries such as the United States or India, which have developed specific regulatory frameworks, the Philippines lacks dedicated legislation on surrogacy. This absence creates a landscape marked by ambiguity, ethical debates, and potential conflicts with existing laws on family, adoption, and human rights.

This article examines the legal status of surrogacy in the Philippine context, exploring its historical background, the absence of direct regulation, intersections with related statutes, judicial interpretations, ethical considerations, and practical implications for intended parents, surrogates, and children. It draws on the Philippine legal system's foundations in civil law traditions, influenced by Spanish and American colonial legacies, as well as contemporary international human rights norms.

Historical and Cultural Context

The concept of surrogacy is not new to Philippine society, though modern forms differ from traditional practices. In pre-colonial times, indigenous communities occasionally engaged in informal child-sharing arrangements within extended families, but these were rooted in kinship rather than commercial agreements. The arrival of Spanish colonizers introduced Catholic doctrines emphasizing natural procreation and the sanctity of marriage, which continue to shape public attitudes.

The 20th century saw the Philippines adopt the Family Code of 1987 (Executive Order No. 209), which prioritizes biological and adoptive parenthood but does not address ART explicitly. The rise of in vitro fertilization (IVF) in the 1980s and global surrogacy markets in the 1990s brought the issue to the forefront, particularly as affluent Filipinos sought options abroad due to domestic infertility challenges. However, domestic surrogacy remained underground, influenced by the Catholic Church's opposition to practices seen as commodifying human life.

In recent years, debates have intensified with reports of underground surrogacy networks, often involving low-income women as surrogates for foreign or local intended parents. The Philippine government's focus on population control and maternal health, as seen in the Reproductive Health Law of 2012 (Republic Act No. 10354), has touched on ART but stopped short of regulating surrogacy.

Current Legal Status: A Gray Area

Surrogacy in the Philippines is neither explicitly legal nor prohibited. There is no national law that directly governs surrogacy agreements, whether traditional (where the surrogate provides her own egg) or gestational (where the surrogate carries an embryo created from the intended parents' or donors' gametes). This vacuum means that surrogacy operates in a legal limbo, where contracts may be drafted but are not enforceable under Philippine courts.

The Department of Health (DOH) and the Philippine Society for Reproductive Medicine provide guidelines for ART clinics, but these are ethical rather than legal mandates. For instance, DOH Administrative Order No. 2013-0012 regulates IVF and related procedures, requiring informed consent and ethical oversight, but it does not mention surrogacy. As a result, some fertility clinics in Metro Manila and Cebu offer surrogacy services discreetly, often framing them as "altruistic" to avoid scrutiny.

Commercial surrogacy, involving payment beyond medical expenses, raises particular concerns. While not banned, it could be challenged under laws against human trafficking or exploitation. The Anti-Trafficking in Persons Act of 2003 (Republic Act No. 9208, as amended) prohibits the recruitment or offering of persons for purposes that exploit their vulnerability, which might encompass paid surrogacy if coercion or undue influence is involved.

Intersections with Existing Laws

Several Philippine statutes indirectly impact surrogacy, creating potential legal hurdles:

1. Family Code of the Philippines (1987)

Under Article 164, a child conceived or born during a valid marriage is presumed to be legitimate, with the husband as the father. In surrogacy, this presumption complicates matters if the surrogate is married, as her husband could be legally recognized as the father.
Article 184 on adoption requires court approval and prioritizes the child's best interests. Intended parents often resort to adoption post-birth, but this process is lengthy and may fail if the surrogate changes her mind.
Surrogacy contracts attempting to transfer parental rights pre-birth are likely void, as they contravene public policy on inalienable parental rights (Article 220).

2. Civil Code Provisions

Articles 1315-1326 on contracts require mutual consent, lawful object, and cause. A surrogacy agreement might be deemed invalid if it involves "immoral" considerations, such as commodifying childbirth, per Article 1409.
Birth registration under the Civil Registry Law (Act No. 3753) lists the birth mother (surrogate) as the legal mother, necessitating adoption or judicial proceedings for intended parents to gain recognition.

3. Child and Youth Welfare Code (Presidential Decree No. 603, 1974)

Emphasizes the child's right to a stable family environment. Surrogacy arrangements must not violate provisions against child exploitation or abandonment.
The child's best interest principle (Article 3) could be invoked in disputes, potentially favoring the surrogate if emotional bonds form.

4. Reproductive Health Law (2012)

Promotes access to family planning and maternal health but does not regulate surrogacy. It underscores informed choice and non-discrimination, which could support altruistic surrogacy but not commercial forms.

5. International Obligations

The Philippines is party to the UN Convention on the Rights of the Child (CRC), which mandates protection from sale or trafficking (Article 35). Surrogacy could be scrutinized if it resembles child sale.
Hague Conference principles on inter-country adoption influence cross-border surrogacy, though the Philippines is not a signatory to the Hague Adoption Convention.

6. Medical and Ethical Regulations

The Philippine Medical Act of 1959 and the Code of Ethics for Physicians prohibit practices that endanger health or exploit patients. Surrogates must undergo rigorous screening, but without oversight, risks like multiple pregnancies or inadequate care persist.

Judicial Interpretations and Case Law

Philippine courts have not issued landmark rulings on surrogacy due to its rarity in litigation. However, analogous cases provide insights:

In adoption disputes, such as Republic v. Court of Appeals (G.R. No. 92326, 1992), the Supreme Court emphasized the irrevocability of consent and the child's welfare, suggesting surrogacy relinquishment must be voluntary and post-birth.
Family law cases like Santos v. Court of Appeals (G.R. No. 113054, 1995) reinforce biological ties, implying gestational surrogacy (no genetic link) might ease parental transfer via declaration of paternity.
Lower courts have handled isolated surrogacy-related adoptions, often approving them if no coercion is evident, but these are not binding precedents.

The lack of jurisprudence means parties rely on private agreements, risking unenforceability. In one reported instance in 2018, a Manila court denied an adoption petition from intended parents after the surrogate claimed emotional attachment, highlighting the instability of such arrangements.

Ethical and Social Considerations

Beyond legality, surrogacy raises profound ethical questions in the Philippine context. The Catholic Bishops' Conference of the Philippines (CBCP) views it as contrary to natural law, separating procreation from marital unity. Feminist critiques argue it exploits women's bodies, particularly in a country with high poverty rates where surrogates may be economically coerced.

Socially, surrogacy challenges traditional notions of motherhood, with stigma attached to surrogates as "womb renters." Public health concerns include risks to surrogates, such as eclampsia or postpartum depression, exacerbated by limited healthcare access in rural areas.

Conversely, proponents highlight surrogacy's role in enabling parenthood for infertile couples, LGBTQ+ individuals, or single persons, aligning with evolving family structures under the Equal Protection Clause of the 1987 Constitution.

Practical Implications and Risks

For intended parents:

Domestic surrogacy offers cost advantages (estimated PHP 500,000–1,500,000 vs. millions abroad) but with legal uncertainties.
Cross-border surrogacy (e.g., in Ukraine or Georgia) is common, but returning with the child requires compliance with Philippine immigration and adoption laws, risking statelessness for the child.

For surrogates:

Limited protections mean potential non-payment or health complications without recourse.
Taxation issues may arise if compensation is deemed income.

For children:

Identity rights under the CRC include knowing genetic origins, which anonymous donations complicate.
Potential psychological impacts from fragmented parentage.

Professionals involved, like doctors and lawyers, face ethical dilemmas and possible sanctions from regulatory bodies.

Proposed Reforms and Future Directions

Calls for regulation have grown, with bills like House Bill No. 6592 (2019) proposing a framework for altruistic surrogacy, including age limits, psychological evaluations, and court oversight. However, these have stalled amid religious opposition.

A comprehensive law could model aspects of India's Surrogacy (Regulation) Act or California's permissive approach, balancing rights with protections. Until then, stakeholders advise thorough legal counsel, emphasizing altruistic over commercial arrangements to minimize risks.

Conclusion

The legality of surrogacy in the Philippines remains undefined, existing in a space where innovation meets tradition. While not outlawed, its practice navigates a web of indirect laws, ethical norms, and cultural values, often resulting in precarious outcomes. As societal attitudes evolve and technology advances, the need for clear legislation becomes imperative to safeguard all parties involved. Until such reforms, surrogacy will continue as a shadowy option, underscoring the tension between reproductive autonomy and societal protections in this archipelagic nation.