Introduction
In the Philippines, family law is primarily governed by the Family Code of the Philippines (Executive Order No. 209, as amended), the Civil Code of the Philippines (Republic Act No. 386), and related statutes such as the Child and Youth Welfare Code (Presidential Decree No. 603) and the Domestic Adoption Act (Republic Act No. 8552). These laws emphasize the traditional nuclear family structure, with marriage defined exclusively as a union between a man and a woman. This framework creates significant challenges for same-sex couples and their children, particularly in areas of parental rights and inheritance. Same-sex relationships lack legal recognition, leading to disparities in rights compared to heterosexual married couples. Adopted children in such families may face additional complexities regarding legitimacy, custody, and succession.
This article explores the legal landscape surrounding parental rights for same-sex couples, the adoption process and its implications, and inheritance issues for both partners and adopted children. It highlights the limitations imposed by current laws, potential workarounds through legal instruments, and ongoing advocacy for reform.
Parental Rights for Same-Sex Couples
Legal Recognition of Same-Sex Relationships
The Philippine legal system does not recognize same-sex marriages or civil unions. Article 1 of the Family Code explicitly states that "marriage is a special contract of permanent union between a man and a woman." This definition, upheld by the Supreme Court in cases like Jesus Falcis III v. Civil Registrar General (G.R. No. 217910, 2019), where a petition to allow same-sex marriage was dismissed, means same-sex couples are treated as legal strangers. Consequently, they do not enjoy automatic spousal rights, including joint parental authority over children.
For same-sex couples raising children, parental rights are typically vested only in the biological or legally adoptive parent. The non-biological partner has no inherent legal authority, such as making decisions on education, healthcare, or travel for the child, unless granted through a court order or special power of attorney. This can lead to vulnerabilities, especially in emergencies or disputes.
Custody and Support Obligations
In cases of separation, custody battles for children in same-sex families are resolved under the best interest of the child principle, as outlined in Article 213 of the Family Code. However, since the relationship is not legally recognized, courts treat the situation akin to that of unmarried heterosexual couples. The biological parent generally holds primary custody, and the non-biological partner may need to prove a de facto parental role to seek visitation or shared custody. Factors considered include the child's emotional bond, financial stability, and moral fitness of the parties.
Child support is enforceable under Article 194 of the Family Code, which mandates support from parents to their children. A non-biological partner in a same-sex couple may be obligated to provide support if they have assumed a parental role, but this is not automatic and often requires judicial intervention. Republic Act No. 9262 (Anti-Violence Against Women and Their Children Act) may offer protection in abusive situations, but its application to same-sex couples is limited and case-specific.
Surrogacy and Assisted Reproduction
Surrogacy is not regulated in the Philippines, and there are no laws explicitly addressing assisted reproductive technologies (ART) for same-sex couples. If a same-sex couple uses ART, such as in vitro fertilization, the legal parent is typically the biological contributor or the gestational carrier. The non-biological partner must pursue adoption to gain rights, which is challenging for same-sex pairs. Ethical guidelines from the Philippine Obstetrical and Gynecological Society discourage commercial surrogacy, but informal arrangements occur, often leading to legal uncertainties.
Adoption by Same-Sex Couples and Rights of Adopted Children
Adoption Framework
Adoption in the Philippines is governed by Republic Act No. 8552 (Domestic Adoption Act) and Republic Act No. 8043 (Inter-Country Adoption Act). Joint adoption is restricted to legally married couples, excluding same-sex pairs due to the non-recognition of their unions. However, single individuals, including those identifying as LGBTQ+, can adopt under Section 7 of RA 8552, provided they meet qualifications such as being of legal age, in full possession of civil capacity, and capable of providing proper care.
For same-sex couples, a common strategy is for one partner to adopt as a single person, with the other later seeking to adopt the child as a step-parent. However, step-parent adoption requires marriage to the child's legal parent, which is impossible for same-sex couples. This leaves the non-adopting partner without legal ties, potentially complicating matters like school enrollment or medical consent.
Adopted children enjoy full rights equivalent to legitimate biological children under Article 189 of the Family Code, including the right to use the adopter's surname, receive support, and inherit. The adoption decree severs ties with the biological family (except in cases of adoption by relatives), granting the child legitimacy status.
Challenges for Adopted Children in Same-Sex Families
Children adopted by one member of a same-sex couple may face stigma or legal hurdles. For instance, if the adopting parent dies, the surviving partner has no automatic guardianship rights, and the child could be placed with biological relatives or state care unless a will or guardianship designation specifies otherwise. Republic Act No. 10165 (Foster Care Act) might provide temporary solutions, but it does not confer permanent rights.
International adoptions involving same-sex couples are further restricted, as the Philippines adheres to the Hague Convention on Inter-Country Adoption, which prioritizes placements in traditional family structures. Sending countries may also impose their own restrictions.
Inheritance Issues
Intestate Succession
Inheritance is regulated by Book III of the Civil Code. In intestate succession (dying without a will), heirs are divided into compulsory heirs (legitimate children, spouse, parents) and others. Same-sex partners are not considered spouses, so they receive nothing automatically. Adopted children, however, are treated as legitimate heirs of their adopter(s), entitled to the same share as biological children under Article 979.
If a same-sex couple has an adopted child through one partner, the child inherits from that parent but not from the non-adopting partner unless specified in a will. This can result in unequal treatment, where the child may inherit from one "parent" but not the other, potentially leading to financial instability.
Illegitimate children (those born outside marriage) have reduced inheritance rights—half that of legitimate children—but adopted children are legitimized through adoption.
Testate Succession and Workarounds
To mitigate these issues, same-sex couples can use wills under Articles 783-839 of the Civil Code. A holographic or notarial will can designate the partner as a legatee or devisee, provided it does not infringe on the legitime (reserved portion) for compulsory heirs. For example, a partner can bequeath up to the free portion (typically one-third to one-half of the estate) to their same-sex partner.
Life insurance policies, joint bank accounts with survivorship, or trusts can also transfer assets outside probate. Republic Act No. 10607 (Insurance Code amendments) allows designation of any beneficiary, including same-sex partners. However, estate taxes under Republic Act No. 10963 (TRAIN Law) apply, with exemptions for transfers to spouses not extending to same-sex partners.
For adopted children, a will can reinforce their inheritance, but it's unnecessary if they are already legitimate heirs. Disputes may arise if biological relatives contest the will on grounds like undue influence.
Taxation and Property Rights
Property acquired during the relationship is not considered conjugal, as there is no marriage. Instead, it falls under co-ownership rules (Articles 147-148 of the Family Code for void or non-marital unions), where contributions determine shares. Upon death, the surviving partner's claim depends on proof of contribution, often requiring litigation.
Donations between same-sex partners are subject to donor's tax, without the spousal exemptions available to married couples.
Judicial and Legislative Developments
While no major reforms have legalized same-sex unions, bills like the SOGIE Equality Bill (Senate Bill No. 689) aim to prohibit discrimination based on sexual orientation and gender identity, potentially indirectly benefiting family rights. Court decisions, such as in guardianship cases, sometimes recognize de facto families, but these are inconsistent.
Advocacy groups like Lagablab Network and Bahaghari push for inclusive laws, but conservative societal and religious influences hinder progress.
Conclusion
The Philippine legal system poses substantial barriers to parental rights and inheritance for same-sex couples and their adopted children, rooted in the non-recognition of their relationships. While adoption by singles offers a pathway, it leaves families incomplete legally. Inheritance relies heavily on proactive planning through wills and other instruments to protect partners and children. Until legislative changes occur, same-sex families must navigate a patchwork of laws, often seeking legal counsel to safeguard their interests. Comprehensive reform, aligning with international human rights standards like those in the Yogyakarta Principles, could address these inequities, ensuring equality for all families.