Tarlac City, Tarlac PH

email: m&mlawoffice@gmail.com

November 27, 2023

Dear Spouses X & Y:

This legal opinion seeks to answer your questions on surrogacy under Philippine law
after having entered into an agreement.

THE FACTS

Per our discussion, both of you are Filipino citizen and residents of the Philippines
who wish to have a child. You entered into an agreement with A & B who are both females,
Filipino citizens and residents of the Philippines, are of legal age, and are not related to you.
The agreement is for A to act as the surrogate mother to an embryo created by way of In
Vitro Fertilization (IVF) using your (X) sperm and the egg cell of B.

With surrogacy, there are two general types: traditional and gestational.

As defined by the Cleveland Clinic, "Gestational surrogacy is when another person

carries and delivers a child for another couple or person. Most pregnancies carried by a
gestational surrogate are achieved through in vitro fertilization (IVF). IVF is when an embryo
is created in a lab using an egg and sperm from the intended parents or an egg and/or
sperm donor. The embryo is then transferred to the carrier ’ s uterus. Because the
gestational carrier doesn ’ t provide an egg, there's no genetic connection between the
carrier and the child."

Atty. Karen Patricia P. Montero

Legal Counsel - Atty-at-Law
San Sebastian, Tarlac City
Office No. (045) 123-4567
 Tarlac City, Tarlac PH

email: m&mlawoffice@gmail.com

That said, your case is classified as gestational surrogacy as you (X) and your
spouse (Y) entered into an agreement to hire the services of A and B.

You now seek my legal opinion on the following issues:

THE ISSUES

1. Whether the surrogacy contract is created; whether the surrogacy contract is valid.

2. What is the status of the child?

3. How is the birth of the child registered?

4. Is adoption possible?

THE ANALYSIS AND RECOMMENDATION BASED ON APPLICABLE LAWS

1. Whether the surrogacy contract is created; whether the surrogacy contract is valid.

While a surrogacy bill has recently been filed by a solon, there is no enacted law in
the Philippines as of yet. As such, surrogacy or egg donation agreements are not
specifically declared unlawful in the country so long as the requisites stated in the Civil
Code of the Philippines are fulfilled.

Atty. Karen Patricia P. Montero

Legal Counsel - Atty-at-Law
San Sebastian, Tarlac City
Office No. (045) 123-4567
 Tarlac City, Tarlac PH

email: m&mlawoffice@gmail.com

Art. 1318. There is no contract unless the following requisites concur:

(1) Consent of the contracting parties;

(2) Object certain which is the subject matter of the contract;

(3) Cause of the obligation which is established. (1261)

The requisites of things as objects of a contract are the following:

a. The thing must be within the commerce of man (Art. 1347).

b. It must not be impossible, legally or physically (Art. 1348).

c. It must be in existence or capable of coming into existence (Arts.

1461, 1493 and 1494).

d. It must be determinate or determinable without the need of a new

contract between the parties (Arts. 1349, 1460).

However, such service contracts may be classified as unenforceable contracts as

their legitimacy can depend on whether the service provided or demanded is right or wrong.
This implies that even if an agreement has been duly created and signed by both parties, its
validity is not guaranteed. In the event that a trial ensues, the aforementioned contract may
not be upheld as legally binding.

Atty. Karen Patricia P. Montero

Legal Counsel - Atty-at-Law
San Sebastian, Tarlac City
Office No. (045) 123-4567
 Tarlac City, Tarlac PH

email: m&mlawoffice@gmail.com

2. What is the status of the child?

a) Legitimacy of the Child

Articles 164 to 165 provide that children conceived or born during the marriage of the
parents are legitimate whereas those conceived and born outside a valid marriage are
illegitimate unless otherwise provided in the Family Code of the Philippines as shown below:

Art. 164. Children conceived or born during the marriage of the parents are
legitimate.

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 his 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.

Art. 165. Children conceived and born outside a valid marriage are illegitimate
unless otherwise provided in this Code.

Atty. Karen Patricia P. Montero

Legal Counsel - Atty-at-Law
San Sebastian, Tarlac City
Office No. (045) 123-4567
 Tarlac City, Tarlac PH

email: m&mlawoffice@gmail.com

b) Citizenship of the Child

The modes of acquiring Philippine citizenship are enumerated in the 1987

Constitution. Section 1, Article IV provides the following:

Section 1. The following are citizens of the Philippines:

Those who are citizens of the Philippines at the time of the adoption of this
Constitution;

Those whose fathers or mothers are citizens of the Philippines;

Those born before January 17, 1973, of Filipino mothers, who elect Philippine
Citizenship upon reaching the age of majority; and

Those who are naturalized in accordance with law.

Thus, the status of children conceived and born through gestational surrogacy is
"illegitimate" under the Philippine Law. In your case, the status of the child shall be
illegitimate while his or her citizenship shall be Filipino, being born to a biological mother
who is a citizen of the Philippines.

Atty. Karen Patricia P. Montero

Legal Counsel - Atty-at-Law
San Sebastian, Tarlac City
Office No. (045) 123-4567
 Tarlac City, Tarlac PH

email: m&mlawoffice@gmail.com

3. How is the birth of the child registered?

Since there is no existing law on surrogate motherhood, the filiation of a child to his
or her mother is determined by childbirth as specified in the Civil Registry Act.

Section 5. Registration and Certification of Birth. – The declaration of the

physician or midwife in attendance at the birth or, in default thereof, the
declaration of either parent of the newborn child, shall be sufficient for the
registration of a birth in the civil register. Such declaration shall be exempt
from the documentary stamp tax and shall be sent to the local civil registrar
not later than thirty days after the birth, by the physician, or midwife in
attendance at the birth or by either parent of the newly born child.

In such declaration, the persons above mentioned shall certify to the following
facts: (a) date and hour of birth; (b) sex and nationality of infant; (c) names,
citizenship, and religion of parents or, in case the father is not known, of the
mother alone; (d) civil status of parents; (e) place where the infant was born; (f)
and such other data may be required in the regulation to be issued.

To reiterate, the birth of a child through surrogacy shall be registered as the

biological son or daughter of the surrogate mother. As for paternity, this can be obtained
through marriage with the biological mother or through a written acknowledgment of the
child by the father.

Atty. Karen Patricia P. Montero

Legal Counsel - Atty-at-Law
San Sebastian, Tarlac City
Office No. (045) 123-4567
 Tarlac City, Tarlac PH

email: m&mlawoffice@gmail.com

4. Is adoption possible?

Insofar as the law is concerned, adoption is possible in this case so long as the
following provisions are met.

Art. 163 of the Family Code provides that "The filiation of children may be by
nature or by adoption. Natural filiation may be legitimate or illegitimate."

Although the Philippine law is silent on surrogacy, the law provides that the
filiation may be obtained by adoption provided that the requirements
stipulated in REPUBLIC ACT NO. 11642, also known as the Domestic
Administrative Adoption and Alternative Child Care Act, are met. Section 5 of
the said law declares the following:

Section 21. Who May Adopt. – The following may adopt:

(a) Any Filipino citizen at least twenty-five (25) years of age, who is in
possession of full civil capacity and legal rights; has not been convicted of any
crime involving moral turpitude; is of good moral character and can model the
same; is emotionally and psychologically capable of caring for children; at
least sixteen (16) years older than the adoptee; and who is in a position to
support and care for adopted children in keeping with the means of the family:
Provided, That the requirement of sixteen (16)-years difference between the
age of the adopter and the adoptee may be waived when the adopter is the
biological parent of the adoptee, or is the spouse of the adoptee’s parent;

Atty. Karen Patricia P. Montero

Legal Counsel - Atty-at-Law
San Sebastian, Tarlac City
Office No. (045) 123-4567
 Tarlac City, Tarlac PH

email: m&mlawoffice@gmail.com

In summary, to ensure the legitimacy and the desired filiation of the child, I
recommend that you conduct the necessary preparations in order to meet all the requisites
for registration and adoption prescribed under the Philippine Law.

I am grateful for the chance to offer you advice on this. Please let me know if you
would like to discuss any of these issues in more detail.

Yours Faithfully,

Karen Patricia P. Montero

Atty. Karen Patricia P. Montero

Legal Counsel

Atty. Karen Patricia P. Montero

Legal Counsel - Atty-at-Law
San Sebastian, Tarlac City
Office No. (045) 123-4567