Surrogate motherhood and the law

The nation welcomed with curiosity the recent news about the birth of twins to a celebrity couple. What made the news interesting was less about the parentage of the twins, and more about the fact that they were born to a surrogate mother—a host body to a fertilized ovum coming from the sperm of a male donor and the egg of a female donor. The fertilized egg is implanted into the the surrogate mother, who bears the child until the baby is ready for delivery into the outside world.

The conception and delivery of the surrogate twins presents a legal conundrum. For purposes of the Civil Register Act, who would be considered the mother of the twins? Is it the surrogate mother who delivered them, or is it the donor of the egg implanted after the in vitro fertilization? If the donor of the fertilized ovum would register the child as hers, would that not amount to simulation of birth, which is a criminal act because she never delivered the child in the first place?

Unfortunately, the country does not yet have a legal framework for surrogate motherhood. The traditional or conventional notion of a mother is one who conceives, bears and delivers a child, either by normal or C-section procedure. It is likewise the legal notion of motherhood. Thus, the filiation of a child to his or her mother is determined by childbirth. Under this legal framework, the surrogate mother would be the registrable mother as contemplated by the Civil Register Act.

As for paternity, the legal framework is rather simple: through marriage with the mother of the child, or acknowledgment of the child by the father in a public document. The father need not prove he impregnated the mother. The diverse requirements for filiation obviously reveal a paternalistic bias in the law.

Fortunately for the surrogate twins of the celebrity couple, they were delivered in the United States, which follows both the principles of jus soli and jus sanguinis on citizenship. Jus soli is citizenship by place of birth, while jus sanguinis is citizenship by parentage. The surrogate twins are thus both Americans and Filipinos by birthright—the latter being determined, at least, by their Filipino paternity.

There might be an extant legal framework in the United States allowing  surrogate motherhood where the egg donor would be recognized as the biological mother and the sperm donor as the biological father of the surrogate twins. Thus, they could be registered in the United States as its citizens, with the egg and sperm donors as their biological parents. Then, under Republic Act No. 9225 or the Citizenship Retention and Re-acquisition Act of 2003, or even under the Civil Register Act, the births of the surrogate twins can be registered in a local civil registry in the Philippines, with the celebrity couple as their biological parents.

The legal vacuum for surrogate motherhood creates an opportunity for

women’s rights advocates in both chambers of Congress to espouse the enactment of a law that would recognize motherhood by proxy. A Filipino woman would thus be empowered to choose another woman who would bear and deliver the former’s child, for medical or other reasons. Such a framework, however, might create a legal absurdity. If a Filipino

woman could be empowered to choose her child’s surrogate mother, why would she be denied the right to choose another husband, simply because the country eschews divorce?

Frank E. Lobrigo is a retired regional trial court judge and the incoming president of the IBP Sorsogon Chapter.