SURROGACY: IS IT TIMELY TO

HAVE
SURROGATE/SURROGACY LAW
IN THE PHILIPPINES
Presented by: Zarah Jeanine M. Canuto and Anna Carmela Escalona
What is Surrogacy?
It is a method of assisted reproduction that helps intended parents start families when
they otherwise could not. Intended parents pursue surrogacy for several reasons and
come from different backgrounds.
Robynne Friedman defined surrogacy as Applies to parents who are unable to give
birth to a child because they are male, and to women who have a serious medical
condition which pregnancy will aggravate. Women who have had a hysterectomy or
those born without a uterus will also qualify.
Robynne Friedman is a surrogacy law specialist, attorney and chief adviser for
the Surrogacy Advisory Group

Source: Are you battling to conceive?, Sowetan South Africa (Lexis Nexis)
What is a surrogate mother?
A surrogate mother is a woman who agrees to carry someone elses baby. She
becomes pregnant using some form of assisted reproductive technology, frequently
IVF. The surrogate mother carries the baby to term, gives birth, and the baby is released
from the hospital to the intended parents.
Types of Surrogacy
In traditional surrogacy, a surrogate mother is artificially inseminated, either by the
intended father or an anonymous donor, and carries the baby to term. The child is
thereby genetically related to both the surrogate mother, who provides the egg, and
the intended father or anonymous donor.
In gestational surrogacy, an egg is removed from the intended mother or an
anonymous donor and fertilized with the sperm of the intended father or anonymous
donor. The fertilized egg, or embryo, is then transferred to a surrogate who carries the
baby to term. The child is thereby genetically related to the woman who donated the
egg and the intended father or sperm donor, but not the surrogate. Some lesbian
couples find gestational surrogacy attractive because it permits one woman to
contribute her egg and the other to carry the child.
Traditional v. Gestational
Traditional surrogacy is more controversial than Gestational surrogacy, in large part
because the biological relationship between the surrogate and the child often
complicates the facts of the case if parental rights or the validity of the surrogacy
agreement are challenged. As a result, most states prohibit traditional surrogacy
agreements.
Kinds of Surrogacy Motherhood
An altruistic surrogate is one who selflessly volunteers her reproductive services to
another, without receiving any sort of monetary gain in return. Altruistic surrogacy is
interpreted as an act of kindness and compassion. Some pregnancies conceived
through altruistic surrogacy are between family members, usually sisters or mothers who
volunteer their gestational services.
Commercial surrogacy is similar to a business agreement and includes a contract
between the surrogate and the intended parents, which includes coverage of her
medical costs and payment for her services.
What are the requirements to be
surrogate?
According to The American Society for Reproductive Medicine (provides guidelines to
Intended Parents),
Gestational carriers be at least 21
have delivered a child previously
The carrier should have no more than five previous vaginal deliveries and two previous
caesarean deliveries.

Source: A special delivery by JENNA JONES STAFF writer, The Orange County Register (Lexis Nexis)
Methods of Artificial Fertilization
IVF (In Vitro Fertilization) - is a medical procedure wherein an egg cell is retrieved
from the mothers ovaries to be fertilized with the sperm cell of the father in a
laboratory dish. The resulting embryo is implanted in either the mothers uterus or that of
a surrogate.
Artificial Insemination - is way of treating infertility. It involves direct insertion of semen
into a woman's womb. Intrauterine Insemination (IUI) is the most commonly used
method of artificial insemination, and it is the method with the best success rate,
measured by the number of live births.
Process of Surrogacy
1. Initial Consultation
2. Officially Becoming an Intended Parent
3. Screening and Selection Process for an Egg Donor
4. Screening and Selection Process for a Surrogate
5. Medical Screening
6. Legal Agreements
7. Medical Process
8. Pregnancy
9. Legal Representation
10. Birth
Expenses and Compensation in
Different Countries
In USA, Intended parents spend about an average of $100,000 to $150,000, which
covers agency fees, medical costs, health insurance, legal fees and surrogacy
compensation.
Source: A special delivery by JENNA JONES STAFF writer, The Orange County Register (Lexis Nexis)

In India, mothers get $6000 from the $28,000 total surrogacy procedure cost.
Source: Our takeaway babies by BEATRICE LE BOHEC, The Advertiser (Australia) (Lexis Nexis)
Countries Banned Surrogacy
Many European Countries including Germany, France and Switzerland.
Source: Two international babies born on same day at VVCH by Tomoya Shimura, Daily Press, Victorville,
Calif. Distributed by McClatchy-Tribune Business News January 25, 2012 Wednesday (Lexis Nexis)

In the Philippines, Surrogacy is not accepted. According to Dr. Anthony Ancheta, an

OB-GYN at the Medical City, Ortigas, The Philippine Society of Reproductive Medicine
(PSRM) has decided that its unethical.
Source: When age does matter: On IVF, surrogacy,and Obando by Nickky Faustine P. de Guzman of
Business World June 17, 2016 Friday (Lexis Nexis)
The United States as a Surrogacy
Destination
Aside from developing countries like India, the United States has also emerged as an
international surrogacy destination.
Sir Elton John and his partner, arguably the most famous reproductive tourists, recently
made international headlines by traveling from their native England to California to
commission a child using a gestational surrogate.
Elton John chose California as his surrogacy destination because England does not
allow commercial surrogacy. Despite the high costs for commercial surrogacy in
California, many regard the state as "the nation's hub for surrogate pregnancies"
because of "its well-established network of sperm banks, fertility clinics and social
workers" and regulations favoring intended parents.
Source : Stateless Babies & Adoption Scams: A Bioethical Analysis of International Commercial Surrogacy by Seema Mohapatra Berkeley Journal of
International Law 30 Berkeley J. Int'l L. 412 2012
Legal Landscape of Surrogacy in the
US
Some states specifically prohibit gestational surrogacy. Other states only recognize
surrogacy that is noncommercial or "altruistic." Some states allow commercial
surrogacy, i.e., where surrogates may be paid compensation over and above medical
expenses. Finally, numerous states have yet to address surrogacy agreements in either
case law or by statute.
New York has ruled all surrogacy agreements void, unenforceable, and contrary to the
public policy of the state regardless of their commercial or altruistic nature.
All types of surrogacy remain illegal in Delaware, Indiana, Louisiana, Michigan,
Nebraska, North Dakota, and Washington DC.
In Nevada, "it is unlawful to pay or offer to pay the surrogate except for the medical
and necessary living expenses related to the birth of the child as specified in the
contract."
In Florida, a surrogate mother can only receive the "reasonable living, legal, medical,
psychological, and psychiatric expenses of the gestational surrogate that are directly
related to prenatal, intra-partum, and postpartum periods."
Legal Landscape of Surrogacy in the
US
Although some states see a clear line between commercial and altruistic surrogacy, others do not
differentiate between the two and consider both types to be legal and contractually enforceable. For
example, Arkansas state law specifically mandates that when a surrogacy agreement is in place, the
intended parents, not the surrogate, are the legal parents of the child.
Arkansas thus has "some of the most liberal laws in the country with regard to surrogacy agreements
Illinois similarly permits commercial surrogacy agreements. In 2004, the Illinois state legislature passed the
Gestational Surrogacy Act, n110 which allows the surrogate mother to receive reasonable
compensation.
California is the capital of commercial surrogacy in the United States, and many California courts have
upheld surrogacy agreements.
In one of the most notable cases, Johnson v. Calvert, 851 P.2d 776, 782 (1993), the Supreme Court of
California ruled that commercial surrogacy agreements were enforceable.
In Johnson, the court determined that in cases of gestational surrogacy agreements, the conflict of rights to
the child between the egg donor and the surrogate must be resolved by looking to the intent of the parties
at the time of the surrogacy arrangement.
Therefore, the names of unrelated intended parents may be placed on a birth certificate without an
adoption procedure. Additionally, California law provides a variety of procedures prior to the finalization of a
surrogacy arrangement. For example, a surrogacy facilitator directs the intended parents to place funds in
either an independent, bonded escrow depository or a trust account maintained by an attorney.
"Baby Selling Ring"
Theresa Erickson and Hillary Neiman, two well-known surrogacy law attorneys, and
Carla Chambers, a six-time surrogate, recruited American and Canadian women
between the years 2005 and 2011 to purportedly serve as surrogates.
the three women arranged for the surrogates to fly to Ukraine to be implanted with
embryos from donor eggs and donor sperm.
Erickson, Chambers, and Neiman also promised these recruits between $ 38,000 and $
45,000 for their services, which is a much higher rate than is typical for surrogates in the
United States.
Erickson, Chambers, and Neiman likely picked Ukraine as a destination because of its
lax regulations, the availability of white egg and sperm donors, and willingness of local
clinics to implant women with embryos without proof of a surrogacy agreement.
 At the time these embryos were implanted and for months afterward, these
"surrogates" carried fetuses for which there were no intended parents or
surrogacy agreements. Instead, Erickson, Chambers, and Neiman waited until
the women were in their second trimester of pregnancy, when the chance of
miscarriage was smaller, and advertised to potential adoptive parents that a
"Caucasian" infant was available, with "high expenses" due to a surrogacy
arrangement that "fell through."
The women told the same story-that the intended parents no longer wanted
the baby-to numerous potential adoptive parents over six years.
Additionally, they informed prospective parents that the parents would be
able to choose their not-yet-born child's gender. This arrangement led to the
placement of at least a dozen babies, and potential adoptive parents paid
from $ 100,000 to $ 150,000 to assume the supposedly failed surrogacy
arrangements.
The Law
Under California law, it is legal to pay a surrogate to carry a child as long as a surrogacy
agreement is in place prior to conception. However, if a woman is carrying a child and
wishes to give it up for adoption, it is illegal to pay her beyond her medical expenses.
The reason for the distinction is that it is considered human trafficking to seek to adopt a
baby for a price after its conception.
To avoid these regulations, the women flew the "surrogates" to Ukraine for their implantation.
Erickson then pre-dated the surrogacy agreements and falsely represented to the San Diego
Superior Court that the infants were the result of surrogacy arrangements in place at the
time of conception.
Although California has a very sophisticated legal system relating to family building via
surrogacy and adoption, the women picked California as the place where the surrogates
would give birth because of one particularly permissive requirement. Unlike in most US states,
in California intended parents of a biologically unrelated baby carried by a surrogate may
be listed on a birth certificate without going through a legal adoption.
The Case of Baby M
A custody case that became the first American court ruling on the validity
of surrogacy. The case attracted much attention as it demonstrated that the
possibilities of third party reproduction raise novel legal and social questions
about the meaning of parenthood and the possibility of contracting around
issues of pregnancy and childbirth.
The New Jersey court's finding that no contract can alter the legal position of
a woman who bears a child as that child's mother seemed to settle the
question of the status of surrogacy contracts in America, at least until
technological advances permitting gestational surrogacyin which a woman
can bear and birth a child to whom she has no genetic relationreopened
the question in many jurisdictions.
The Case of Baby M

In March 1984, Mary Beth Whitehead responded to an ad placed by the Infertility

Center of New York in the Asbury Park Press seeking women willing to help infertile
couples have children. She was a high school drop-out who had married Richard
Whitehead, a waste collector, with whom she had two children, Ryan and Tuesday.
Elizabeth "Betsy" Stern was not technically infertile, but had multiple sclerosis and was
concerned about the potential health implications of pregnancy, including temporary
paralysis.
William "Bill" Stern and Mary Beth Whitehead entered into a "surrogacy contract,"
according to which Mary Beth would be inseminated with Bill's sperm, bring the
pregnancy to term, and relinquish her parental rights in favor of Bill's wife, Betsy.
The Case of Baby M
According to later terminology, Mary Beth would be considered a traditional surrogate,
as opposed to a gestational surrogate, because she was the genetic mother of the
child. At the time, the technology for gestational surrogacy was not yet in common
use.

On March 27, 1986, Mary Beth gave birth to a daughter, whom she named Sara
Elizabeth Whitehead. However, within 24 hours of transferring physical custody to the
Sterns, Mary Beth went to them and demanded that the baby be given back to her,
allegedly threatening suicide. Mary Beth subsequently refused to return the baby to the
Sterns and left New Jersey, taking the infant with her. The Sterns had the Whitehead
family's bank accounts frozen and sought warrants for their arrest.
The Case of Baby M
On March 31, 1987, New Jersey Superior Court Judge Harvey R. Sorkow formally
validated the surrogacy contract and awarded custody of Baby M to the Sterns under
a "best interest of the child analysis
On February 3, 1988, however, the Supreme Court of New Jersey, led by Chief
Justice Robert Wilentz, invalidated surrogacy contracts as against public policy but in
dicta affirmed the trial court's use of a "best interest of the child" analysis and
remanded the case to family court. On remand, the lower court awarded the Sterns
custody and Whitehead was given visitation rights.

Source: IN THE MATTER OF BABY M, A PSEUDONYM FOR AN ACTUAL PERSON Docket No. FM-25314-86E A-39-87 Superior Court of New Jersey, Chancery Division,
Family Part, Bergen County
A picture of
Baby M
Baby M
(Melissa
Stern) with
Biological
Father Mr.
William Stern
Surrogacy : Ethical or not?
The deep desire for a child does not justify the exploitation of another woman's body.
Children are not commodities to be bought and sold, and women are not containers
to be used as baby makers.
I suggest we call out this cruel business for what it is: trafficking in babies; reproductive
slavery; a violation of the human rights of both the birth mother and her offspring.
Can Surrogacy be Ethical? By Renate Klein, ABC Religion and Ethics,
http://www.abc.net.au/religion/articles/2015/05/18/4237872.htm
While there are many religious organizations that frown upon the process of surrogacy,
this concept is oftentimes the only option for some individuals to start a family. It is for
this reason that some highly controversial and key ethical issues be addressed.
Attachment with the Gestational Mother
Involvement with the Gestational Mother
Identity of the Child
Ethical Issues of Surrogacy, Modern Family Surrogacy Center,
http://www.modernfamilysurrogacy.com/page/surrogacy_ethical_issues
 "It's taboo to discuss infertility because it puts you in a class or a special category which
is less than what is normal," Dr. Anthony Marc B. Ancheta, section chief of reproductive
medicine, infertility and gynecologic endoscopy at The Medical City.
BusinessWorld, May 15, 2015 Friday, Pg. S4/11, 1258 words, Zsarlene B. Chua
 Legitimacy of a child born by a
surrogate mother in the Philippines
Biologically, the child may carry the mother and fathers DNA, genes and traits (although
some scientists say the surrogates genes may be present as well), but the law recognizes as
mother only the woman who carried the child to term.
The law does not confer upon A and B (the donor parents) the right to claim parental right
over the child that actually came from the womb of C (the surrogate) to be considered as
their legitimate child, unless they resort to adoption,
Surrogacy and the Law, Rina Jimenez-David, Inquirer.Net,
http://opinion.inquirer.net/77435/surrogacy-and-the-law#ixzz4QCL8u5Ak

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.
Atty. Evelyn, Talk About Philippine Law, http://talkaboutphilippinelaw.blogspot.com/2013/08/in-eyes-
of-law-who-is-deemed-mother-in_28.html
Article 164 of The Family Code
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 . The
instrument shall be recorded in the civil registry together with the birth certificate of the
child.

This provision establishes 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.
 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. Because for
a contract to be valid, it must satisfy the requisites in Article 1318 of the Civil Code.
Article 1347 of the Civil Code requires that the same should be within the commerce of
men. A child or a female reproductive organ is not within the commerce of men and
thus cannot be an object of a contract.

Article 1352 of the Civil Code:

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.
Atty. Evelyn, Talk About Philippine Law, http://talkaboutphilippinelaw.blogspot.com/2013/08/in-eyes-of-law-
who-is-deemed-mother-in_28.html
Surrogacy Platforms
FindSurrogateMother.com was designed to help educate and provide a social arena
where hopeful parents can individually match with surrogate mothers, egg donors,
sperm donors, surrogacy agencies and fertility lawyers without agency interference or
any fees associated with the typical surrogacy matching services.
The site allows these individuals to create a free profile, blog their journey and
experiences, get up-to-date surrogacy information and news, and explore the
magnificent world of surrogacy and all that it encompasses.
The site provides comprehensive guides on surrogacy, egg donation, IVF,
gay surrogacy, surrogacy laws, and pregnancy.
Members of the FindSurrogateMother.com community are braving a journey that has
brought new friends, new hope, new stories, and the inspiration to never stop pushing
forward. These are real individuals with real stories.
 Very few surrogacy platforms offer the service ethos that FindSurrogateMother.com does.
And fewer are prepared to work with intended parents in virtually any country in the world.
The company has witnessed intended parents from the United States, United Kingdom,
Canada, Kenya, France, India, the Philippines, Spain and 46 more countries across the
globe.

There is a difference between being successful and being significant. We are delighted
with the reception this exciting new platform has received," states Brandie Umar, Founder
and Executive Director for FindSurrogateMother.com.
"We created FindSurrogateMother.com to make a difference in the world and leave a tiny
footprint - by sharing freely in the hope and faith of many intended parents across the
globe."

FindSurrogateMother.com: Hopeful Parents Matched with Surrogate Mothers at No Cost

India Pharma News, February 28, 2014
 FILIPINOS WHO ARE
KNOWN TO HAVE
UNDERGONE SURROGACY
Vicki Bello + Hayden Kho = Scarlet Snow
Joel Cruz