Surrogacy Term Paper

INTRODUCTION In October 8, 2012, the most controversial drama-series of ABS-CBN entitled “Ina, Kapatid, Anak” introduced surrogate parenting as its core theme to the Filipino viewers. Because of the success of the portrayal of surrogacy in this TV-series, many are now entertaining the idea that such market exists even in the Philippines where no law is in force to regulate it. There are approximately 370, 000 babies born every day worldwide (wikianswers). That is almost 4 children each second. For most people, having a newborn child is a fascinating event unfortunately, not all couples are given the physiological capacity to produce an offspring. According to Center for Social Research, infertility is a major problem of many married couples. About 1 out of 6 couples are affected by this problem. As a consequence of being unable to bear and raise children, many infertile couples are experiencing severe emotional and psychological struggles. Some feel guilty and worthless and worst they lose confidence of themselves. Infertility affects their most fundamental feelings about their identity and what their role in their family is. It is for this reason that many regard infertility as a major health problem. This makes it clear why people who cannot have children the natural way often look for other ways in order to become a parent (12). Many couples sorted out to a lot of scientific methods to reproduce an offspring. In some cases, many have tried and were unsuccessful in giving their hope in the assisted reproductive technology (ART), in-vitro fertilization (IVF) and even in the use of intrauterine injections (IUI); but all of which goes back to the remaining option, aside from adoption, which is surrogacy. These advances in medical sciences and technology 1

revolutionized the reproductive environment and have led the increase in popularity of surrogacy. Surrogate parenting is not a new concept in solving the problem of inability to conceive a child. In the Philippines, it has not been the focus of substantial media attention; not even the Commission on Human Rights and the DSWD had tackled nor discussed this issue. However, many countries are now recognizing surrogacy as a solution rather than a rising problem. Despite of this, in countries where surrogacy is legal, there are still issues that left unresolved. According to the Oireachtas Library & Research Service, amongst the very core issue raised is about legal parentage as parentage is the basis on many rights and protections for children. Uncertainties around legal parentage may have a serious consequence for children (2). This term paper plan to address the moral and ethical, religious and legal issues of surrogate parenthood. The areas to be included in this paper are: 1. What is surrogacy, the types of surrogacy and the methods of surrogate parenting? 2. In the perspective of morality, how is surrogacy perceived? 3. In the perspective of the Religion, how is surrogacy perceived? 4. In the perspective of the State and the laws governing the Philippines, how is surrogacy perceived?

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Background of Surrogacy Wikipedia defined surrogacy as an arrangement whereby a woman agrees to give birth to a baby for someone else. Generally, there are two types of surrogacy arrangement namely traditional and gestational surrogacy arrangement. In a traditional surrogacy arrangement, the surrogate mother uses her own eggs and she is therefore genetically related to the child she carries. In a gestational surrogacy arrangement, the mother does not use her own eggs, and she is therefore not genetically related to the child. In the latter case, various combinations of donated eggs and/or sperm may be involved via In-Vitro Fertilization (IVF). Although the term “surrogate parenting” has become widely used, it can refer to more than one method of achieving parenthood. According to Dana Bennett, there are five general methods of surrogate parenting and these methods are: 1. Artificial Insemination by Husband (AIH) The AIH method is an arrangement in which the surrogate, a woman other than the wife of the sperm donor, is artificially inseminated with the sperm of the husband of a married couple. 2. In-Vitro Fertilization (IVF) The IVF method is a process by which a sperm and an egg are joined in a laboratory and the fertilized egg is implanted in the surrogate. 3. Artificial Insemination by Donor (AID1) The AID1 method is a technique in which the surrogate is artificially inseminated with the sperm of a donor other than the contracting male. Such sperm is typically a specimen obtained from a sperm bank. 3

4. Artificial Insemination by Donor (AID2) The second AID method is a technique in which the wife is artificially inseminated with the sperm of a donor other than her husband. Such sperm is typically a specimen obtained from a sperm bank. 5. Natural Insemination (NI) The NI method involves a situation where sexual intercourse occurs between the surrogate and the husband of a married couple (2).

Of the five methods, the definition of IVF will be applied to the term “surrogate parenting” in this paper.

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MORAL ISSUES Like Prostitution, It Should Be Prohibited Because No Woman Can Rationally Choose It According to Jean Sera, surrogacy is said to be the payment of a fee for the use of the body. Andrea Dworking, a famous feminist, argues that surrogacy is like prostitution because the surrogate has no choice. Like prostitution, surrogacy allows society to equate women with sex and nothing more. In support to Andrea Dworking’s arguments, Gena Corea, another feminist argue that while prostitutes sell the use of the vagina, rectum or mouths, surrogates sell the use of other body parts such as wombs, ovaries and eggs. Corea envisions a scenario where some women are kept together as a class of breeders, just as prostitutes are kept together in brothels (318). The problem with these arguments begins with a basic response to what constitutes false consciousness. If women indeed suffer from false consciousness, how then can they make free choices about anything if they don’t know what they’re doing? Another problem with these arguments is that we based our comprehension about surrogacy on sketchy factual bases wherein the image of enslaved women making babies emerges. The response to this argument is that the benefits of surrogacy actually outweigh the possibility of these harms, harms which can be addressed when realized. These arguments are a classic example of a “most feminist” perspective. But the analogy of relating surrogacy to prostitution is debatable because not many people are adopting this belief. Surrogacy is surrogacy and prostitution is prostitution. Two different things cannot be reconciled to meet a common notion.

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Like Prostitution, It Should Be Prohibited Because It Commodifies a Woman’s Body and Is Degrading In 2007, Senator Manny Villar in the explanatory note attached to Senate Bill 2344 manifested that surrogate parenthood is nothing but baby selling. It is similar to the generic experiments that are done with animals that are bred for certain purposes. Infertility is a real crisis for many married couples but according to Senator Villar, the desires of infertile couples to have a baby should not be met at the expense of transforming human reproduction into a utilitarian enterprise. He further argued that the idea of negotiating pregnancy by commercial contract should be abhorrent to anyone who believes in the dignity of human life (1). In the book Explorations in the Law of Surrogacy, Barbara Kopytoff explained that the payment in surrogacy commodifies something that should not be sold and thereby degrades the participants. She argued that both children and life essentially become commodified through surrogacy. Kopytoff was further supported by Cass Sunstein who stands that surrogacy and prostitution result in an improper way of valuing human beings. These arguments are another classic examples of an extreme feminist perspective. In countries where surrogacy is legal, not everybody can become a surrogate. There are medical tests that need to be complied with in order to identify whether a person is suit to be a surrogate mother or not. It is true that majority of those who became a surrogate mother are economically disadvantaged women but there are also those who are not. This view was taken from historical partiality because in the past, it was the poor woman who had to sell her body and her charms to survive. Similarly, it is poor women who often are driven by financial need to sell their child-producing services. Again this is non sequitur. 6

Surrogacy does not degrade a woman nor made children and life a commodity. What surrogacy is trying to solve is the problem of couples who could not be able to produce an offspring of their genetic origin. It is true that babies are not products like ovens and automobiles and that pregnancy should never be reduced to a commercial service but that is not what surrogacy is. The bearing of a child of another can be a deliberate and thoughtful act of generosity on the part of one woman to another. Surrogacy, in fact, offers some couples their only chance of having a child that is genetically related to one or both of them. Brought by the advancement of science and technology, what was conservatively impossible in the past is now practically possible and who would not want to embrace change? It seems that whenever there is a proposal for taking something out of the traditional realm and a market is created for it, opposition will likely follow. People may have an intuitive reaction against changing tradition. In the long run, however, if there are benefits, necessity or demand, this opposition will fade. This may be the case for surrogacy. Once the demand begins to rise and people begin to see the benefits, the opposition, on the basis of this service would subside. Surrogacy in itself is not evil. The benefits of surrogacy should be reassessed in light of today’s technological developments without the shadow of uncertainty cast upon its morality.

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THE STAND OF THE RELIGIOUS SECTOR The Catholic Church is against surrogacy in all its forms including gestational surrogacy. Natural Moral Law is one basis of her teaching on surrogacy. It simply states that we can know good by what we can know by reason. The Congregation for the Doctrine of the Faith has issued documents such as Donum Vitae (“The Gift of Life”) (1987) and Dignitas Personae (2008) which addressed moral and ethical issues about fertility. The document Donum Vitae states that surrogacy “is contrary to the unity of marriage and to the dignity of the procreation of the human person. Surrogate motherhood represents an objective failure to meet the obligations of maternal love, of conjugal fidelity and of responsible motherhood; it offends the dignity and the right of the child to be conceived, carried in the womb, brought into the world and brought up by his own parents; it sets up, to the detriment of families, a division between the physical, psychological and moral elements which constitute those families.” In another document Dignitas Personae, it declares: “with regard to the treatment of infertility, new medical techniques must respect three fundamental goods namely a) right to life and to physical integrity of every human being from conception to natural death; b) the unity of marriage, which means reciprocal respect for the right within marriage to become a father or mother only together with the other spouse; and c) the specifically human values of sexuality which require that the procreation of a human person be brought about as the fruit of the conjugal act specific to the love between spouses.” And finally the Catechism of the Catholic Church (CCC) affirms: Techniques that entail the dissociation of husband and wife, by the intrusion of a person other than the couple (donation of sperm or ovum, surrogate uterus) are 8

gravely immoral. These techniques (heterologous artificial insemination and fertilization) infringe the child’s right to be born of a father and mother known to him and bound to each other by marriage. They betray the spouses’ rights to become a father and a mother only through each other. A child is not something owned to one, but is a gift. The supreme gift of marriage is a human person. A child may not be considered a piece of property, an idea to which an alleged “right to child” would lead. In this area, only the child possesses genuine rights: the right to be the fruit of the specific act of the conjugal love of his parents and the right to be respected as a person from the moment of his conception. We can adduce several points from the documents of the Church. First, the child should be conceived as an act of love in the fruitfulness and within the context of marriage. Second, the child has the right to be conceived through the natural act of love that demonstrates the ultimate source of love – GOD. Third, a child engendered through technology is a violation of the sacred gift of creation. And finally, a child is a gift, not a right. The method of in-vitro fertilization in surrogacy makes one play GOD. This is because after the conception of a child in a petri dish or test tube, a technician is the one that determines who is going to live or die. The said method involves the selection of the technician of which embryos will be implanted in the surrogate mother based on the guidelines or grading criteria. The embryos that are not implanted are either frozen or killed. These embryos are human beings or persons who have inalienable rights such as the right to life and the church condemns this act. 9

LEGAL ISSUES In the legal point of view, no law is in force to regulate surrogacy in the Philippines and in the absence of law on surrogacy it raises several legal questions among which are: 1. Who is the mother of the unborn child through surrogacy? 2. Who is the father of the unborn child through surrogacy? 3. Is it legal to enter into a contract of surrogacy? 4. Is the contract enforceable? 5. Is the contract valid? 6. Can the contract provide a transfer of parental rights motu propio to the contracting parties without adoption? When a married couple entered into a contract of surrogacy, by nature, the surrogate mother becomes the replacement of the natural mother of the child. In this situation the contracting parties are considered putative parents of the unborn child. In the absence of the law on surrogacy in the Philippines, these 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. Thus, the surrogate mother is indisputably considered the biological mother of the child. The Family Code provides a specific provision in paternity and filiation in consideration of cases of artificial insemination and it is found in Article 164. Article 164 provides: “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

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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 law is clear that the artificial insemination contemplated under the Family Code is that one made on the wife and not on the surrogate mother. In a case of surrogate parenting, the law does not confer upon the contracting husband and wife the right to claim parental right over the child that actually came from the womb of the surrogate mother to be considered as their legitimate child unless they adopt the child. Another legal concern about this issue is the contract of surrogacy. This contract is against public policy and is void ab initio because of the provisions of the Civil Code pertaining to the requisites to make a contract valid. Article 1318 provides three requisites namely consent of the parties; object certain which is the subject matter of the contract; and cause of the obligation which is established. Article 1347 of the Civil Code provides for the requirements in order for an object to be a valid subject of a contract and it should be within the commerce of men. A child is not within the commerce of men and thus cannot be an object of a contract nor the female reproductive organ is likewise beyond the commerce of men and so it should not be a valid object of a contract. For the third requisite, Article 1352 of the Civil Code provides: “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.” From this provision, it can be concluded that a child and a female reproductive organ cannot be a lawful object of a contract on the grounds of unlawful cause as it is contrary to law and against public policy and good customs. 11

CONCLUSION This paper has shown that surrogacy provides a lot of benefits that are often hidden in the writings and expressions of those that oppose it. In light of its morality, arguments raised against surrogacy are somewhat overstated. Analogizing prostitution to surrogacy is not appropriate for it never became the intention of surrogacy to be equated as such. In view of the church perspective, surrogacy violated the natural law of creation for through surrogacy, fertilized embryos represent an unnatural way of developing life and these embryos are considered by the church as human beings or persons who have inalienable rights such as the right to life. In the legal point of view in the Philippines, no law is in force to support surrogacy. Philippine laws are clear in stating that the one who conceived, carried for nine months and delivered is the mother of the child. Likewise, Philippine laws are clear that surrogacy arrangement is illegal because the contents, objects of contract and purpose are contrary to public policy, morals and good customs. The aim of this paper is to show the reasons why many are protesting against surrogacy. The arguments raised in consideration of its morality was proven to be weak and has been exaggerated; the stand of the church focus on the traditional teachings of our religious belief which is subjective in nature; and the law in the Philippines is silent about this issue and so it is viewed not legal to enter into any arrangement regarding surrogacy. Surrogacy must be reconsidered and understood by our lawmakers in light of today’s technological developments without any doubt cast upon its purpose.

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