Samson, Charisma: Legal Issues concerning Sex Reassignment Surgery

Introduction

Wikipedia has defined sex reassignment surgery (initialized as SRS; also known as genital reconstruction surgery, sex affirmation surgery, or sex-change operation) as a term for the surgical procedures by which a person’s physical appearance and function of their existing sexual characteristics are altered to resemble that of the other sex. Other term for SRS that the site has stated are gender reassignment surgery, sex reconstruction surgery, genital reconstruction surgery, gender confirmation surgery, and more clinical terms, such as feminizing genitoplasty or penectomy, orcidectomy and vaginoplasty are used medically for trans women, with masculinizing genitoplasty often similarly used for trans men ^[1].

This kind of medical technology has gradually gained acceptance in the society most especially in the European countries. The first known male-to-female sex reassignment surgery was done in Germany on 1930 to a certain Lili Elbe. Lili Elbe went through five surgeries and died three months after the fifth operation ^[2]. This was followed by other successful surgeries, mostly male to female, in various part of the world. In the US, sex reassignment surgery first took place in 1966 at John Hopkins University and was performed by Dr. Elmer Belt ^[3]. In other countries also, they have already introduced guidelines governing Sex Reassignment Surgery which is only an indication of their willingness to accept transexualism and transgenders in their society. One example is Thailand. Most number of sex reassignment procedures had been done in Thailand, which must be the reason why it has already drafted laws governing the said procedure. In Iran, Filmmaker Tanaz Eshaghian discovered that the Iranian government’s “solution” for homosexuality is to endorse, and fully pay for, sex reassignment surgery ^[4]. The leader of Iran’s Islamic Revolution, Ayatollah Ruholla Khomeini, issued a fatwa declaring sex reassignment surgery permissible for “diagnosed transsexuals” ^[5]. In the United States, it is now a valid legal procedure for someone to have her name and sex in his birth record be changed on the basis of undergoing sex reassignment procedure.

In the Philippines, being a Christian country, there is difficulty in gaining popular acceptance in the introduction of this kind of technology. As of the moment, this kind of medical procedure has not yet been performed in this country. However, taking into account the increasing number of homosexuals and the influence of other countries to the Filipinos, sex reassignment surgery, is slowly penetrating into the Filipino society. Taking the moral issues aside, other matters that should be look into, in case sex reassignment surgery has finally taken its place in this country, are its legal implications and how our laws, specifically those governing the legal status and rights of a person will cope up to this kind of technology.

What are the legal reasons why a person who had undergone a sex reassignment surgery can’t just change his name and sex classification? What rights of a person that can be possibly affected? Will it be possible and fair to just have “transgender” sex classification, in addition to “male” and “female” classification in order to properly classify members of third sex who has undergone sex reassignment surgery? Is this the answer to eradicate the discrimination transgenders are experiencing right now? Will this violate fundamental laws and principles of the land? Can the Filipinos accept this kind of innovations? These are the issues that will be tackled in this paper.

Can a person validly change his first name and sex classification on the basis of having undergone a sex reassignment surgery under our jurisdiction? If so, what are the legal consequence attached to it?

The case of Silverio vs. Republic

The above given questions as to the legal matters concerning the issue of Sex Reassignment Surgery such as the validity of change of name and sex on the ground of undergoing the said procedure and the rights of a person that could be affected by the said change were properly addressed by the Supreme Court in its decision ^[6] rendered on 22 October 2007 on the petition filed by Rommel Jacinto Dantes Silverio to change his first name and sex classification in his birth certificate.
The petition was filed before the Regional Trial Court of Manila, Branch 8. In the said petition, petitioner Rommel Jacinto Dantes Silverio sought that his first name be change to “Mely” and his sex from male to “female” on the ground that he had successfully undergone sex reassignment surgery and had been living as a woman since then. The lower court granted the petition stating that the same would be more in consonance with the principles of justice and equity. It was further provided that “with his sexual [re-assignment], petitioner, who has always felt, thought and acted like a woman, now possesses the physique of a female. Petitioner’s misfortune to be trapped in a man’s body is not his own doing and should not be in any way taken against him.”

The said decision by the lower court was reversed by the Court of Appeals. Upon reaching the Supreme Court, the decision of the CA denying the petition became final and executory.

On the cited case of Silverio vs. Republic, the Supreme Court ruled that a person cannot change his first name on the ground of sex reassignment. According to the court, before a person can legally change his given name, he must present proper or reasonable cause or any compelling reason justifying such change. In addition, he must show that he will be prejudiced by the use of his true and official name. In this case, petitioner failed to show, or even allege, any prejudice that he might suffer as a result of using his true and official name. The court also added that the use of petitioner’s true and official name does not prejudice him at all.

As to the change of his sex, the court likewise ruled in the negative. It reasoned that Under RA 9048, a correction in the civil registry involving the change of sex is not a mere clerical or typographical error. It is a substantial change for which the applicable procedure is Rule 108 of the Rules of Court. The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the Rules of Court are those provided in Articles 407 and 408 of the Civil Code. However, the court concluded that the said articles do not cover the correction on the ground of sex reassignment. Sex reassignment is not among those acts or events mentioned in Article 407. Neither is it recognized nor even mentioned by any law, expressly or impliedly. Moreover under the Civil Register Law, a birth certificate is a historical record of the facts as they existed at the time of birth. Thus, the sex of a person is determined at birth, visually done by the birth attendant (the physician or midwife) by examining the genitals of the infant. Considering that there is no law legally recognizing sex reassignment, the determination of a person’s sex made at the time of his or her birth, if not attended by error, is immutable. Further, since the statutory language of the Civil Register Law was enacted in the early 1900s and remains unchanged, it cannot be argued that the term “sex” as used then is something alterable through surgery or something that allows a post-operative male-to-female transsexual to be included in the category “female.” For these reasons, while petitioner may have succeeded in altering his body and appearance through the intervention of modern surgery, no law authorizes the change of entry as to sex in the civil registry for that reason. Thus, there is no legal basis for his petition for the correction or change of the entries in his birth certificate.

The issues on the rights of a person that can be affected in case petitioner has successfully changed his name are likewise discussed in the said case. It is worthy to note that the lower court granted the petition on the ground of equity believing that the change sought by the petitioner would cause no harm, injury or prejudice to anyone. However, Supreme Court disagreed on the said ruling arguing that allowing the petition will have serious and wide-ranging legal and public policy consequences. The court cited as the first example the eventual marriage of the petitioner to his male fiancé. Under our law, marriage is a special contract of permanent union between a man and woman and as such, one of its essential requisites is the legal capacity of the contracting parties who must be a male and a female. The court said that to grant the change sought by petitioner will substantially reconfigure and greatly alter the laws on marriage and family relations because it will allow the union of a man with another man who has undergone sex reassignment (a male-to-female post-operative transsexual).

Second, the court likewise pointed out various laws that will be greatly and substantially affected by the grant of the petition, which consist mainly of those granting special rights to women. Examples given are provisions of the Labor Code on employment of women, certain felonies under the Revised Penal Code and the presumption of survivorship in case of calamities under Rule 131 of the Rules of Court, among others. “These laws underscore the public policy in relation to women which could be substantially affected if petitioner’s petition were to be granted”, the court said. In conclusion, the court said that, in our jurisdiction, there is no law conferring to a person who has undergone a sex reassignment surgery the privilege to change his name and sex on such ground.

The case of Republic vs. Cagandahan

People who are familiar and sympathetic with the case of Silverio has mistakenly compared it with another case which is seemingly related to Silverio vs. Republic. The said case was entitled Republic vs. Cagandahan ^[7] and was decided on 12 September 2008. In this case, petitioner Jennifer B. Cagandahan seeks to change her first name to “Jeff” and gender from “female” to “male”. Her basis was that, while growing up, she developed secondary male characteristics and was diagnosed to have Congenital Adrenal Hyperplasia (CAH) which is a condition where persons thus afflicted possess both male and female characteristics. At age thirteen, tests revealed that her ovarian structures had minimized, she has stopped growing and she has no breast or menstrual development. She then alleged that for all interests and appearances as well as in mind and emotion, she has become a male person. Thus, she prayed that her birth certificate be corrected such that her gender be changed from female to male and her first name be changed from Jennifer to Jeff. The petition was granted by the lower court in its decision rendered on 12 January 2005 reasoning that the petitioner has convinced the court that he is entitled to the reliefs prayed for. This decision by the trial court was upheld by the Supreme Court. According to SC “in deciding this case, they considered the compassionate calls for recognition of the various degrees of intersex as variations which should not be subject to outright denial. “It has been suggested that there is some middle ground between the sexes, a `no-man’s land’ for those individuals who are neither truly `male’ nor truly `female’.” The current state of Philippine statutes apparently compels that a person be classified either as a male or as a female, but the Court is not controlled by mere appearances when nature itself fundamentally negates such rigid classification. The Court is of the view that that where the person is biologically or naturally intersex the determining factor in his gender classification would be what the individual, like respondent, having reached the age of majority, with good reason thinks of his/her sex. Respondent here thinks of himself as a male and considering that his body produces high levels of male hormones (androgen) there is preponderant biological support for considering him as being male. Sexual development in cases of intersex persons makes the gender classification at birth inconclusive. It is at maturity that the gender of such persons, like respondent, is fixed”.

Be it noted that in the instant case, the Court emphasized the fact that the respondent did not take any unnatural procedure or treatment in order to correct or to, as the court has worded, interfere with what he was born with. He let the nature take its own course, in other words. In this case, the Court recognized and acknowledged the choice of the respondent to live in his preferred gender which is as a male. The Court further said “to him belongs the human right to the pursuit of happiness and of health. Thus, to him should belong the primordial choice of what courses of action to take along the path of his sexual development and maturation”.

Evaluation of Silverio vs. Republic and Republic vs. Cagandahan

Although both case deals with the issue of changing of first name and gender, I think their big difference lies with the basis of their petitions. In Silverio vs. Republic, the petitioner sought to change his name and gender on the ground that he has undergone a sex reassignment surgery. Silverio wants to make his name and gender be compatible with his present identity after undergoing the said procedure. Silverio is originally a male. Although in emotion and mind petitioner is like a female, there is nothing wrong or unusual with his anatomical structure. Without the human intervention, based on the manner the person is to be classified, Silverio is still considered, without any doubt, as a male.

On the other hand Cagandahan wants to change his name and gender on the ground that he has the so called Congenital Adrenal Hyperplasia (CAH) wherein a person thus afflicted possess both female and male characteristics. When he was born maybe it was his female organ that is more apparent and that is what the midwife or the nurse saw and as such he was classified as female. While he is growing up however, his body started to produce more androgen, a male hormone, and thus giving him characteristics and appearance of that of a male.

Obviously, the matter that is being settled in both cases is that as a general rule, under our jurisdiction, no person can change his first name and gender upon his own “desire”. No one is allowed to change his identity from someone to another one or from female to male because he opted so or he feels so. There must be a valid basis before such change be allowed and such basis is cannot be manipulated by any procedure in order to be considered as valid by the court. However, this rule accepts an exception which is if the person seeking for the change of name and gender is an intersex individual like the case of Cagandahan.

I think Cagandahan’s case was considered as an exception because in his situation, it was the nature that took its own course in his development. It was something that is not his fault and beyond his control. It was very different from the case of Silverio. Silverio was not an intersex individual. He is a transgender/transexual. His body structure was clearly that of a male when he was born. His anatomical structure does not possess any female characteristic. He achieved his female appearance only by way of a medical procedure. And such unnatural procedure of transforming one’s self from one gender to another is not honored under this jurisdiction. Hence, Silverio’s case should not be compared with Cagandahan. They are distinct with one another.

Response with the decision on Silverio case

The question can a person validly change his first name and gender on the ground of sex reassignment was answered by the court in the negative. I agree with this decision by the Court.

The identity of a person is impressed with public purpose, hence must be regulated by the State. That is the reason why our law provides that such change can only be done with judicial authority – meaning must be approved by the court. If sex reassignment surgery be considered as a ground for change of name and gender, then it will be very easy for some to change his name and gender just by undergoing the procedure. The purpose of regulating the change of such will no longer be served. It can be used as tool for others for them not to be identified or to change identity in order to escape obligations.

Moreover, it will make possible for a man to acquire rights granted only to a woman. One of the reasons why our laws provide special rights and privileges to a woman because it consider the fact that women are having more physical ordeals to deal with than men. They became pregnant, physically men are stronger than them, they are having monthly menstrual cycle which sometimes causes them pain and other sickness. Admittedly, the nature has granted more physical strength to men than women. The way our God or to others, the nature has molded man and woman’s bodies are different. Men are created to do task for a man, same with women who are molded to do task handed over to a woman. However, our changing time admits that in spirit, emotion and intellectually, man and woman are equal. And in order to make things more equal for both species, our society has created laws acknowledging the physical difference of man and woman and thus granting special rights and privileges to women. Going straight to the point, what I mean to say is that if change of gender will be allowed on the ground of sex reassignment surgery, it will make possible that a person having the physical strength and abilities of a man will be granted with a right entitled only to person having the physical built, strength and abilities of a woman. A person who has undergone the sex reassignment procedure will still be a man, although in appearance he will loss all the distinguishing marks of him being a man, he will still possess that physical strength and abilities God has purposely given to a man. In the end, the law that was created to make the playing field equal for man and woman will not be equal anymore, if somebody, through the intervention of modern science can just change his or her gender. And I believe that no medicine or treatment can totally and wholly change a person’s body, the way the nature has molded it, from one gender to another.

Will it be possible and fair to just have “transgender” sex classification, in addition to “male” and “female” classification in order to properly classify members of third sex who has undergone sex reassignment surgery? Is this the answer to eradicate the discrimination transgenders are experiencing right now? Will this violate fundamental laws and principles of the land?

Let me quote some passages that were laid by the Court in Silverio case:

“In our system of government, it is for the legislature, should it choose to do so, to determine what guidelines should govern the recognition of the effects of sex reassignment. The need for legislative guidelines becomes particularly important in this case where the claims asserted are statute-based.
To reiterate, the statutes define who may file petitions for change of first name and for correction or change of entries in the civil registry, where they may be filed, what grounds may be invoked, what proof must be presented and what procedures shall be observed. If the legislature intends to confer on a person who has undergone sex reassignment the privilege to change his name and sex to conform with his reassigned sex, it has to enact legislation laying down the guidelines in turn governing the conferment of that privilege.

It might be theoretically possible for this Court to write a protocol on when a person may be recognized as having successfully changed his sex. However, this Court has no authority to fashion a law on that matter, or on anything else. The Court cannot enact a law where no law exists. It can only apply or interpret the written word of its co-equal branch of government, Congress”.

As pronounced by the Supreme Court, it could only be possible for transgenders in this country to have their name and sex in their birth record be changed if the legislature has already passed the law covering the said issue. As of now, our laws pertaining to the permissibility of changing one’s name and sex does not include as a ground the sex reassignment surgery. I think the reason for this is that this kind of procedure has not really taken its place in our society considering the fact that the procedure has not yet been done in this country. Most Filipino trangenders has undergone the procedure in other countries such as Thailand.
In line with the above pronouncement, it can be deduced that having “transgender” as a gender classification in addition to “male” and “female” is an issue that can only be addressed by the Congress. If this idea will be given realization, our country will be first in the world to have a three gender classification. At first glance, it can be said that having “transgender” as an additional gender classification will not violate any fundamental laws and principles of the land being only a mere method of identifying and classifying one’s gender.

However, if the changing of one person’s gender is already considered by the Supreme Court as a serious and wide-ranging legal and public policy consequences, I think more so with having “transgender” sex classification. One legal consequence that will be raised if this idea is pursued is the issue on Marriage. Marriage is defined under this jurisdiction as a special contract of permanent union between a man and a woman. One of its essential requisites is the legal capacity of the contracting parties who must be a male and a female. If we allowed transgender to be classified as such – being neither a male nor a female, will they be entitled to contract marriage? Moreover, what rights or privileges that should be applicable to them and what should not be since they have needs that should be addressed differently? These are only few of the many legal confusion that the idea will create.

I also think that classifying transgender as such will not eradicate the discrimination transgenders are experiencing. More so, classifying them would only be a manifestation that they cannot be accepted in both sexes.

Transexualism is really a very sensitive area of discussion. Being a Christian country, it is very difficult for us to accept this kind of modern technology more so, to formulate laws that will give way to its gradual acceptance in this society. Recently, the Supreme Court granted the petition of Ang Ladlad to be considered as a party list representing our brothers and sisters belonging to the so-called third sex. This is an indication that we are willing to accept innovations. Provided however that such innovations will not highly contradict our moral values as a Christian.

---

Endnotes

^[1] Sex Reassignment Surgery. Wikipedia, the free encyclopedia. http://en.wikipedia.org/wiki/Sex_reassignment_surgery

^[2] Sex Reassignment Surgery (male to female). Wikipedia, the free encyclopedia. http://en.wikipedia.org/wiki/Sex_reassignment_surgery_%28male-to-female%29

^[3] Ibid.

^[4] Sex Reassignment Surgery. Wikipedia, the free encyclopedia. http://en.wikipedia.org/wiki/Sex_reassignment_surgery

^[5] Ibid.

^[6] Silverio vs. Republic, 537 SCRA 373

^[7] Republic of the Philippines vs. Jennifer B. Cagandahan, G.R. No. 166676, September 12, 2008, http://elibrary.supremecourt.gov.ph/decisions.php

Espino, Donato: The Appreciation of Surrogate Mothers in the Philippine Legal System

A surrogate mother is defined by the Oxford Dictionary as a “woman who bears a child on behalf of another woman, usually by artificial insemination of her own egg by the other woman’s partner”. Surrogate is also known as “substitute” and it is derived from the Latin word rogo or “ask”. In practical terms, it is the process of using a substitute mother in place of the natural mother.

There are different types of surrogacy. The more common ones are traditional surrogacy and gestational surrogacy. These two items are defined in Wikipedia as follows:

In traditional surrogacy (also known as the Straight method) the surrogate is pregnant with her own biological child, but this child was conceived with the intention of relinquishing the child to be raised by others such as the biological father and possibly his spouse or partner. The child may be conceived via sexual intercourse (NI), home artificial insemination using fresh or frozen sperm or impregnated via IUI (intrauterine insemination), or ICI (intracervical insemination) which is performed at a fertility clinic. Sperm from the male partner of the ‘commissioning couple’ may be used, or alternatively, sperm from a sperm donor can be used. Donor sperm will, for example, be used if the ‘commissioning couple’ are both female or where the child is commissioned by a single woman.

In gestational surrogacy (aka the Host method) the surrogate becomes pregnant via embryo transfer with a child of which she is not the biological mother. She may have made an arrangement to relinquish it to the biological mother or father to raise, or to a parent who is unrelated to the child (e. g. because the child was conceived using egg donation, sperm donation or is the result of a donated embryo). The surrogate mother may be called the gestational carrier.

Advanced countries of Christian origins (i.e. France, Belgium, Holland, Australia, Canada, United Kingdom and Hungary) have made surrogacy illegal. Surrogacy is also banned in Japan and Saudi Arabia, both non-Christian nations. In the United States, surrogacy is legal depending on the state concerned. Surrogacy is legal in Israel under their “Embryo Carrying Agreements Law” passed in 1996.

The only major nation where surrogacy is legal is India. In a 2008 case involving a Japanese baby, the Supreme Court of India held that commercial surrogacy is allowed in India. Commercial surrogacy is now a lucrative business in India, where the cost of a cycle is between US$14,000.00 to US$25,000.00. The industry is now estimated to be worth US$500.0 Million per year (Indian Business Report, BBC World, March 18, 2009). Success, however, is not assured because the average success rate is only 50%.

Advocates of surrogacy contend that this procedure helps save lives because of female infertility or other medical issues which makes the pregnancy or delivery risky.

Critics of surrogacy contend that the procedure is unethical and undermines the legal provisions on adoption.

Constitutional or Statutory or Treaty Prohibitions

In our jurisdiction the legal status of surrogacy has not yet been settled. The 1987 Constitution has no outright prohibition of surrogacy. Section 12, Article II of the 1987 Constitution merely provides the following:

Section 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government.

The closest law the Philippines has regarding surrogacy is in The Family Code of the Philippines (Family Code). The Family Code, however, is silent about surrogacy but has provisions regarding artificial insemination or adoption.

Articles 163 and 164 of the Family Code provides:

Art. 163. The filiation of children may be by nature or by adoption. Natural filiation may be legitimate or illegitimate.

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.

Surrogacy as a Status

A. 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:

1. Those who are citizens of the Philippines at the time of the adoption of this Constitution;
2. Those whose fathers or mothers are citizens of the Philippines;
3. Those born before January 17, 1973, of Filipino mothers, who elect Philippine Citizenship upon reaching the age of majority; and
4. Those who are naturalized in the accordance with law.

The enumeration therein is considered as exclusive. Not even adoption, which is considered as a simulation of nature, can confer Philippine citizenship to an alien adoptee even if the adopters are citizens of the Philippines. There appears to be no question of citizenship if both the surrogate mother and the putative mother are citizens of the Philippines. A problem therefore arises when the surrogate mother is an alien while the putative mother is a Philippine citizen. Is the child born of the surrogate mother an alien or a citizen of the Philippines? Will the baby be considered as a stateless citizen? Republic Act 9225 (“AN ACT MAKING THE CITIZENSHIP OF PHILIPPINE CITIZENS WHO ACQUIRE FOREIGN CITIZENSHIP PERMANENT AMENDING FOR THE PURPOSE COMMONWEALTH ACT. NO. 63, AS AMENDED AND FOR OTHER PURPOSES”) expressly provides for derivative citizenship under its section 4, as follows:

Section 4. Derivative Citizenship – The unmarried child, whether legitimate, illegitimate or adopted, below eighteen (18) years of age, of those who re-acquire Philippine citizenship upon effectivity of this Act shall be deemed citizenship of the Philippines

This provision of law, however, is limited only to the process of naturalization.

In point is the well-publicized citizenship battle of Baby Manji, who was born of a surrogate mother but whose parents are Japanese nationals. Before the baby was born, however, the Japanese couple separated with the wife not willing to accept the child. The surrogate mother also abandoned the baby. Indian authorities refused to issue Baby Manji an Indian passport, contending that he is not an Indian citizen. Fortunately for humanitarian reasons, the Japanese government issued a one-year visa after the Indian government had granted the baby a travel certificate in compliance with a recent ruling of the Indian Supreme Court. According to Japanese authorities, Baby Manji may be given Japanese citizenship once a parent-child relationship is established through recognition of paternity or through adoption.

Another case decided by India’s Supreme Court is the citizenship issue of twin babies born of an Indian surrogate mother in India. The babies’ parents are German nationals. They were issued passports by the authorities but these were later returned upon request of the authorities because the twin babies’ Indian citizenship has not yet been settled. An action was brought before the Indian Supreme Court for the return of the passports. The parents contend that they needed the passports so they can apply for a German visa for the twin babies. The Indian Supreme Court ruled that the twin babies are citizens of India so their passports should be returned. Hereunder are excerpts of the Supreme Court decision dated November 11, 2009 under Civil Application No. 11364 of 2009:

6. Detailed counter affidavit has been filed on behalf of the Regional Passport Officer at Ahmedabad on 25.3.2008 and 4.11.2009, stating that surrogate mother cannot be treated as mother of the babies, and children born out of surrogacy, though in India, cannot be treated as Indian citizens within the meaning of Section 3 of the Citizenship Act, 1955. Further it is also stated that parents of the children are not Indian citizens and therefore, children are also not Indian citizens as per Section 3(1) (b) of Citizenship Act, 1955. Further it is also stated that as per Passport Act, 1967, only Indian citizens can apply for Indian Passport and as per Section 6 (2) (a) of the Act, Passport cannot be issued to non-citizens. Further it is also stated that as per direction of the Government of India, Ministry of External Affairs, Passport Authority can issue identity certificate, showing name of surrogate mother, which does not entail citizenship to the children but would enable him to take his children out of India. Further, it was also pointed out that the Central Government is yet to legalize surrogacy and hence, children born out of surrogacy, though in India, cannot be treated as Indian citizens.

7. Learned counsel appearing for the petitioner Mr. Dhaval C. Dave submitted that since both the children are born in India, they are Indian citizens by birth as per Section 3 of the Citizenship Act, 1955 and therefore, entitled to have all the rights of Indian citizens and the Passport Authorities are legally obliged to issue Passports to them under the Indian Passports Act, 1967. Learned counsel submitted that surrogacy is not prohibited in India and admittedly, children are born in India to a surrogate mother who herself is an Indian citizen. Learned counsel submitted that petitioner and his wife are German citizens but as the children are not born in Germany, they would not get German citizenship, especially when German law does not recognize surrogacy. Learned counsel submitted that for the purpose of obtaining VISA from the Consulate of United Kingdom, it is necessary that children should have an Indian Passport since they are born in India and not in Germany.

8. Learned counsel Mr. Anshin Desai appearing for the Passport Authority submitted that children are not Indian citizens and therefore, not entitled to get Passport under the Indian Passport Act. Learned counsel submitted that petitioner’s intention is to acquire German citizenship and in order to facilitate that he is seeking Indian citizenship for the children. Learned counsel submitted that in exceptional cases Passport Authorities can issue certificate of identity as was done in the case case of one Baby Manju Yamada. Learned Counsel also referred to the judgment of the Apex Court in Baby Manju Yamada Vs. Union of India (2008) 13 SCC 518 where the Passport Authorities have issued only certificate for permission to travel out of India.

9. We may at the outset point out that lot of legal, moral and ethical issues arise for our consideration in this case, which have no precedents in this country. We are primarily concerned with the rights of two new born innocent babies, much more than the rights of the biological parents, surrogate mother, or the donor of the ova. Emotional and legal relationship of the babies with the surrogate mother and the donor of the ova is also of vital importance. Surrogate mother is not the genetic mother or biologically related to the baby, but, is she merely a host of an embryo or a gestational carrier? What is the status of the ova (egg) donor, which in this case an Indian national but anonymous. Is the ova donor is the real mother or the gestational surrogate? Are the babies motherless, can we brand them as legal orphans or Stateless babies? So many ethical and legal questions have come up for consideration in this case for which there are no clear answers, so far, at least, in this country. True, babies conceived through surrogacy, encounter a lot of legal complications on parentage issues, this case reveals. Legitimacy of the babies is therefore a live issue. Can we brand them as illegitimate babies disowned by the world. Further, a host of scientific materials are made available to us to explain what is traditional surrogacy, gestational surrogacy, altruistise surrogacy, commercial surrogacy etc. and also the response of various countries with regard to the surrogacy, especially commercial surrogacy.

10. Commercial surrogacy is never considered to be illegal in India and few of the countries like Ukrain, California in the United States. Law Commission of India in it’s 220th Report on Need for Legislation to regulate Assisted Reproductive Technology Clinics as well as rights and obligations of parents to a surrogacy has opined that surrogacy agreement will continue to be governed by contract among parties, which will contain all terms requiring consent of surrogate mother to bear the child, agreement of a husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying the child to full term, willingness to hand over a child to a commissioning parents etc. Law Commission has also recommended that legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parents without there being any need for adoption or even declaration of guardian. Further it was also suggested that birth certificate of surrogate child should contain names of the commissioning parents only and that the right to privacy of the donor as well as surrogate mother should be protected. Exploitation of women through surrogacy was also a worrying factor, which is to be taken care of through legislation. Law Commission has expressed its desire that Assisted Reproductive Technology Bill with all safeguards would be passed in the near future.

11. Ukraine Surrogacy Laws are very favourable and fully support the individuals reproductive rights. Clause 123 of the Family Code of Ukraine and Order 771 of the Health Ministry of Ukraine regulate surrogacy. Ukraine laws permit commissioned parents to choose the gestational surrogacy, ova, or sperm donation embryo, adoption, programmes for which no permission is required. Legislation also provides for a commercial surrogacy agreement between the parties. Child born legally belongs to the commissioned parents and the surrogate mother cannot keep the child to herself. California is also accepting the surrogacy agreements, which has no statute directly dealing with surrogacy. Courts generally rely on Uniform Parentage Act to deal with various surrogacy agreements. California Supreme Court in Johnson Vs. Calvert (1993) 5 CAL 4th 484 held that gestational surrogate has no parental rights to a child born to her since a gestational surrogacy contract is legal and enforceable and the intended mother is the natural mother under the Californian law. In the above case the intended mother donated the egg and a surrogate mother gave birth, in such a case the Court held that the person who intended to procreate should be considered as the natural mother. In another case decided by the U.S Court in the year 1998 Buzzanca Vs. Buzzanca 1961 CAL. Appl.4th 1410 (1998), the Court considered the issue of traditional surrogacy agreements. That was a case where the surrogate mother has been artificially inseminated i.e. a surrogate mother was impregnated by using her ova and anonymous sperm, meaning thereby the intended parents had a genetic link to the child. Court held that when a married couple uses non-genetically related embryo and sperm implanted into a surrogate intended to procreate a child, they are lawful parents of the child. In another U.S case decided in 1998, In Re Marrijo Moschetta awarded legal parent rights to the intended father and surrogate mother. In another U.S case considered by the New Jersy Supreme Court, In Re Baby 537 A.2d 1227 (NJ.02/03/1988), gave custody to the natural father of the child, but rights of the adopted mother was denied. Surrogate mother who conceived the child via artificial insemination was granted visitation rights.

12. Japan has taken a different legal stand in respect of surrogacy. Supreme Court of Japan, on March 23, 2007, denied parenthood to genetic parents since the twin babies were born to a surrogate mother at United States. Interpreting the Civil Code of Japan, the Supreme Court, held a mother who physically gives birth to a child is the legal mother. There is no provision in the Code to recognize the genetic mother as the legal mother. There exists no specific laws in Japan concerning parent-child relationship for artificial insemination, and the mother and child relationship will be based on the fact of delivery. The issue of Citizenship status of such an infant is also a burning problem in Japan. The Japan Supreme Court rejected the Japanese commissioning parents bid to register their twins born to a U.S surrogate mother in Japan, on the ground that the law presumes the woman, who gives birth to a child as its mother.

13. Germany, as law stands today, does not recognize surrogacy agreements. Law also prohibits egg donation and advocates for embryo procreation. Medical practitioners are also prevented from performing artificial insemination or embryo donation, which are all criminal offences. Same seems to be the situation in Sweden, Norway, Italy and so on. But countries like Belgium, Netherlands and Great Britain are little more liberal. Reference may be made to the decisions of the High Court of Justice, Family Division, Rex & Y (Foreign Surrogacy) 2008 EWHC 3030 (Fam) U.K.

14. We have indicated, in India there is no law prohibiting artificial insemination, egg donation, lending a womb or surrogacy agreements. No civil or criminal penalties are also imposed. Public pressure, for a comprehensive legislation defining the rights of a child born out of surrogacy agreement, rights and responsibilities of a surrogate mother, egg donor, commissioning parties, legal validity of the surrogacy agreement, the parent child relationship, responsibilities of Infertility Clinic etc. are gaining momentum. Legislature will have to address a lot of emotional, legal and ethical issues. Question as to whether surrogacy can be seen as a ray of hope to otherwise a childless couple, so as to build up a family of their own, necessary for human happiness and social stability also calls for attention. Few are the case laws and precedents defining the rights of those who have a vital role to play in this reproductive technology. One case law worth mentioning in India is Baby Manje’s case decided by the apex Court of India (2008) 13 SCC 518. Various issues which we have highlighted in this case were not discussed or answered in that case. That was a case where the Japanese Embassy in India refused to grant the child, born to surrogate Indian mother, VISA or Passport on the ground that the Japanese Civil Code recognizes a mother only to be a woman who gives birth to a baby. Attempts made to adopt Manji also did not fructify since Guardian Wards Act, 1890 did not allow single man to adopt those babies. Efforts were made to obtain Indian Passport, which also required a birth certificate. Question arose as to who was the real mother whether it was anonymous egg donor or the surrogate mother. Birth certificate was then issued by the local Municipality, by showing the father’s name. Later the Regional Passport Office, Rajasthan issued a certificate of identity as part of a transit document and not the Passport. Certificate did not contain nationality, mother’s name or religion of the baby.

15. Mother – child relationship is fraught with various problems, emotional, moral, ethical, legal, social etc. Study conducted by some organizations reveal that surrogate mothers have little difficulty in relinquishing their rights over a surrogate child to the intending parents and that the majority of surrogates are satisfied with their surrogacy experience and do not bother upon their bonding with the child they gave birth. Few other studies state that the surrogate mothers at time depict deep emotional attachment to the babies they give birth. Conflicting views have also been highlighted. Further elaboration on these ethical, psychological or moral issues are not necessary for our purpose.

16. We are in this case primarily concerned with the relationship of the child with the gestational surrogate mother, and with the donor of the ova. In the absence of any legislation to the contrary, we are more inclined to recognize the gestational surrogate who has given birth to the child as the natural mother, a view prevailing in Japan. Anonymous Indian woman, the egg donor, in our view, is not the natural mother. She has of course a right to privacy that forms part of right to life and liberty guaranteed under Article 21 of the Constitution of India. Nobody can compel her to disclose her identity. Babies born are not in a position to know who is the egg donor and they only know their surrogate mother who is real. Wife, of the biological father, who has neither donated the ova, nor conceived or delivered the babies cannot in the absence of legislation be treated as a legal mother and she can never be a natural mother. In our view, by providing ova, a woman will not become a natural mother. Life takes place not in her womb, nor she receives the sperm for fertilization. Human fertilization is the union of a human sperm and egg usually occurring in the ampulla of the urine tube. Process involves development of an embryo. Process in this case followed is In Vitro Fertilization, a process by which egg cells were fertilized by sperm outside the womb in vitro. Resultantly, the only conclusion that is possible is that a gestational mother who has blood relations with the child is more deserving to be called as the natural mother. She has carried the embryo for full 10 months in her womb, nurtured the babies through the umbilical cord. Even if we assume that the egg donor is the real natural mother, even then she is an Indian national so revealed before the learned Single Judge, we are told. Both the egg donor as well as the gestational surrogate are Indian nationals, and hence the babies are born to an Indian national.

17. The Registrar, Birth and Deaths functioning under the Registration of Births and Deaths Act, 1969 has already issued certificate of birth to the children stating that they are born within the local area of Anand Nagar Palika, and showing mother’s name as Marthaben Immanuel Khristi and father’s name as the petitioner. Be that as it may, for the purpose of issuance of the Birth Certificate. Factum of birth of the babies has been established and that too in India to an Indian mother, whether to a gestational surrogate or donor of an ova. In the application for Passport, we have already indicated that petitioner has shown Khristi Marthaben Immanuel as mother gestational surrogate who is admittedly an Indian national. Egg donor is also reported to be an Indian woman, of course her identity is not disclosed. Either way the mother of the babies is an Indian national. Petitioner, it is true, has not married Khristi Marthaben Immanuel, surrogate mother of the children or the egg donor. Children are born not out of a subsisting marriage. Even if the children are described as illegitimate children, even then they are born in this country to an Indian national and hence, they are entitled to get Citizenship by birth as per Section 3(1)(c)(ii) of the Citizenship Act, 1955, since one of their parent is an Indian citizen. Relevant portion of Sec.3 is extracted hereunder for easy reference.

3. Citizenship by birth (1) Except as provided in sub-section (2), every person born in India, –

(a) …….. ……

(b) …….

(c) on or after the commencement of the Citizenship (Amendment) Act, 2003, where –

(i) ……

(ii) one of whose parents is a citizen of India and the other is not an illegal migrant at the time of his birth,shall be a citizen of India by birth.

Section 3 uses the expression every person born and the emphasis is on the expressions ‘person’ and ‘born’. ‘Person’ means a natural person. In Webster V. Reproduction Health Services etc.__ (1989) 492 U.S 490, the Court held the word ‘personal’ within 14th Amendment means a human being after birth and not a foetus. Black’s Legal Dictionary, Sixth Edition defines the word ‘born’ as an act of being delivered or expelled from mother’s body whether or not placenta has been separated or cord cut. Both the babies in this case are persons born in India, indisputedly one of their parents is an Indian citizen, a surrogate mother. The two babies have therefore satisfied the ingredients of Section 3(1)(c)(ii) and hence they are Indian citizens by birth. Passport to travel abroad therefore, cannot be denied to those babies, who are Indian citizens, which would otherwise be violative of Article 21 of the Constitution of India. Section 6 of the Passport Act refers to the grounds for refusal of Passport. Section 6 (2)(a) says that Passport can be denied if the applicant is not a citizen of India. In the instant case, we have already found that two babies born to the surrogate mother are Indian citizens by birth and hence entitled to get Passports.

18. Passport Authorities are willing to issue a certificate of identity under Section 4(2)(b) of the Passports Act, which is issued only for the purpose of establishing the identity of a person. In the instant case, the identity of the two babies has already been established, they are born in this country to a surrogate mother, an Indian national, and hence citizens of India within the meaning of Section 3(1)(c)(ii) of the Citizenship Act.

19. A comprehensive legislation dealing with all these issues is very imminent to meet the present situation created by the reproductive science and technology which have no clear answers in the existing legal system in this country. Views expressed by us, we hope, in the present fact settings, will pave way for a sound and secure legislation to deal with a situation created by the reproductive science and technology. Legislature has to address lot of issues like rights of the children born out of the surrogate mother, legal, moral, ethical. Rights, duties and obligations of the donor, gestational surrogate and host of other issues.

20. Further, under the Indian Evidence Act, no presumption can be drawn that child born out of a surrogate mother, is the legitimate child of the commissioning parents, so as to have a legal right to parental support, inheritance and other privileges of a child born to a couple through their sexual intercourse. The only remedy is a proper Legislation drawing such a presumption including adoption. Further the question as to whether the babies born out of a surrogate mother have any right of residence in or citizenship by birth or mere State orphanage and whether they acquire only the nationality or the biological father has to be addressed by the legislature.

21. Indian Council of Medical Research (ICMR) has issued certain guidelines on surrogacy and Assisted Reproductive Technology (ART) in 2005. The new Bill ART (Regulation) Bill and Rules, 2008 is yet to become law, and there is extreme urgency to push through the legislation answering all these issues.

22. We, in the present legal frame-work, have no other go but to hold that the babies born in India to the gestational surrogate are citizens of this country and therefore, entitled to get the Passports and therefore direct the Passport Authorities to release the Passports withdrawn from them forthwith.

23. Special Civil Application is accordingly allowed. Appeal and the Civil Application stand disposed of accordingly. Interim orders stand vacated.

Maternity

A leading author and professor in Civil Law, Atty. Elmer Rabuya, in his book The Law on Persons and Family Relations noted that the law is concerned with the establishment of paternity only and not maternity. He further wrote that this is because nature always points out the mother by evident signs, and, whether married or not, she is always certain.

In the case of a surrogate contract, who will be considered as the mother of the child? Is it the surrogate mother or the putative mother? In as much as the child came out of the womb of the surrogate mother, it may be concluded that the surrogate mother will be the mother of the child in the eyes of the law.

Paternity

Paternity is the civil status of a father in relation to his child. In our Civil Code, he will be considered the father of the child if he gives his consent to the artificial insemination in accordance with Art. 164 of the Family Code. Applying by analogy this provision of law to surrogacy, paternity may not be established if the father did not give his consent to the surrogacy contract.

Filiation

Filiation is the civil status of a child in relation to his or her parents. The filiation of children may be by nature or by adoption (Art. 163, FC). Natural filiation, which is established by blood relationship, can either be legitimate or illegitimate (Id). The status of a marriage determines the filiation (De Santos vs. Angeles, 251 SCRA 206). Thus, a child born within a valid marriage is legitimate, as expressly provided by Art. 164 of the Family Code.

In Herrera v. Alba (G.R. No. 148220, June 15, 2005, 460 SCRA 197, 206-208.), the Court summarized the laws, rules, and jurisprudence on establishing filiation, discoursing in relevant part:

Laws, Rules, and Jurisprudence Establishing Filiation

The relevant provisions of the Family Code provide as follows:

ART. 175.       Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children.

x x x x

ART. 172.       The filiation of legitimate children is established by any of the following:

(1)  The record of birth appearing in the civil register or a final judgment; or

(2)  An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned.

In the absence of the foregoing evidence, the legitimate filiation shall be proved by:

(1)  The open and continuous possession of the status of a legitimate child; or

(2)  Any other means allowed by the Rules of Court and special laws.

The Rules on Evidence include provisions on pedigree. The relevant sections of Rule 130 provide:

SEC. 39. Act or declaration about pedigree. — The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. The word “pedigree” includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree.

SEC. 40. Family reputation or tradition regarding pedigree. — The reputation or tradition existing in a family previous to the controversy, in respect to the pedigree of any one of its members, may be received in evidence if the witness testifying thereon be also a member of the family, either by consanguinity or affinity. Entries in family bibles or other family books or charts, engraving on rings, family portraits and the like, may be received as evidence of pedigree. 

This Court’s rulings further specify what incriminating acts are acceptable as evidence to establish filiation. In Pe Lim v. CA, a case petitioner often cites, we stated that the issue of paternity still has to be resolved by such conventional evidence as the relevant incriminating verbal and written acts by the putative father. Under Article 278 of the New Civil Code, voluntary recognition by a parent shall be made in the record of birth, a will, a statement before a court of record, or in any authentic writing. To be effective, the claim of filiation must be made by the putative father himself and the writing must be the writing of the putative father. A notarial agreement to support a child whose filiation is admitted by the putative father was considered acceptable evidence.  Letters to the mother vowing to be a good father to the child and pictures of the putative father cuddling the child on various occasions, together with the certificate of live birth, proved filiation. However, a student permanent record, a written consent to a father’s operation, or a marriage contract where the putative father gave consent, cannot be taken as authentic writing. Standing alone, neither a certificate of baptism nor family pictures are sufficient to establish filiation.

These procedures relate to filiation by nature and not to filiation by surrogacy. It is therefore not settled within our jurisdiction on how filiation by surrogacy may be established.

Surrogacy as a Contract

In a surrogacy, the surrogate mother and the putative parents sign a contract that promises the couple will cover all medical expenses in addition to the woman’s payment, and the surrogate mother will hand over the baby after birth. The essential elements of a valid contract are consent, cause and consideration. A surrogacy contract may be attacked that its object is beyond the commerce of man.

Article 1318 of the Civil Code provides:

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.

Per the Civil Code, the requisites of things as object 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).

By analogy, we can apply the case of Beltran et. al. vs. The Secretary of Health (GR no. 133640), promulgated En Banc by the Supreme Court on November 25, 2005. Petitioners Beltran and others, all operators of privately-owned commercial blood bank companies, questioned the constitutionality of the National Blood Services Act of 1994 (R.A. 7719), which called for the phase-out of all commercial blood bank companies within two years from the effectivity of the Act. Among others, the law sought to encourage voluntary blood donations instead of persons selling their blood to the commercial blood banks. It was learned that most of the persons who sell their blood are poor so they make a livelihood selling their blood. The Supreme Court quoted the petitioners as follows: “xxx under the Civil Code, the human body and its organs like the heart, the kidney and the liver are outside the commerce of man xxx”.

It therefore appears that a human organ is a not a proper object of a valid contract. A female’s vagina, uterus, fallopian tubes, cervix and ovary are part of her internal reproductive organ, Being a human organ, it is beyond the commerce of man.