Conceived on a Sunday

While enjoying their vacation in the US, the last thing she expected from her 10-year-old son was a question she hoped would never be asked: “‘Nay, is it true what Ate said? That I am not your real son, that I am just ampon?”

Her eyes were suddenly tearful, as she stood frozen by the bathroom door. She was speechless for 15 seconds, which felt like an eternity before she finally uttered: “You are not my son by birth, but you are so much more... you are my son...by choice!”

What I shared is a conversation that has really transpired, and many more poignant and challenging conversations like this will happen at homes. But they will not break the bonds between parent and child. Adoption completes a family, and saves and grants new lives.

The question we pose this Sunday touches on surrogacy. If adoption is an international human norm, should the process of hiring surrogate mothers be looked upon with disdain, even criminalized, as one locally proposed legislation suggests?

Surrogate mothers conceive, and carry babies who they will have to give up at birth in favor of the genetic parents, for a fee. So the stark difference with adoption as we know it is that there is a contract to deliver the child even before the child is born. Stated otherwise, the child would not have been conceived had it not been for the wishes of parents who wanted a child from their genetic line and are not able to have one naturally.

There are countries that recognize surrogacy arrangements as legal. Some don’t. Invariably, the issue that comes to court even on these pre-contracted conceptions is this: Who has greater parental authority between the birth mother and the genetic parent? For instance, in the US, the surrogate mother who developed much attachment to the baby she bore refused to give up the baby and was granted joint custody with the genetic mother. In another case in the UK, the surrogate mother refused to give up the baby upon learning that the genetic parent has violent tendencies. The surrogate mother feared for the safety of her baby and won the court case to retain her daughter.

Surrogacy is largely practiced, and nowadays, there are even websites (legal or not) that advertise surrogate mothers, describe their state of health and hobbies, age and experience with bearing a child. It should be noted that even in some countries where surrogacy is allowed, soliciting or brokering for surrogacy is criminalized. This only shows how this complex phenomenon has turned into an industry.

In the Philippines, the contract of surrogacy is not expressly stated as illegal. Some are of the legal opinion that a female’s reproductive system or parts thereof are beyond the commerce of men. I view surrogacy, however, in the genre of a service contract, the validity of which may lie in whether the service is right or wrong. Although not listed in the law, I would classify surrogacy as an unenforceable contract. This means that if you have paid for it and go to court to enforce it, you will lose because our laws will only consider the birth mother as the parent unless parental rights and authority are transferred by process of adoption. But if no one complains, it is ratified. Still, the right process should be to legally adopt the child you have contracted to be conceived by a surrogate. We are not unaware, however, of the shortcut process that after delivery—the names of the genetic parents are immediately placed on the birth certificate of the child.

It may surprise you that the Philippine law is not completely zero in recognizing reproductive technologies, when used by spouses without involving a surrogate mother. In Article 164 of the Family Code, the child is considered legitimate even if the wife was artificially inseminated with the sperm of a donor. The spouses should simply put this arrangement in writing before the child is born. Article 164 refers to artificial insemination (AI). It was obviously written before in vitro fertilization (IVF) technology. With IVF it is possible for the wife, if needed, to receive sperm as well as egg donations. The egg and sperm of third-party donors are fertilized in a laboratory and the developed embryo is then placed in the womb of the wife. So technically, in an IVF where the wife received egg donation, the child of the legally married couple will be considered illegitimate under Article 164. Our Constitution protects the child from conception, but it is a promise that cannot be fulfilled without fresh legislation.

A surrogate mother can be impregnated through AI or IVF. A recent spat between two international celebrities brought to light just recently the very human issues in surrogacy. The fashion icon who referred to IVF technology as producing “synthetic” babies said certain things should not be changed such as a baby being born out of a husband-and-wife relationship. The pop icon replied that IVF is a miracle that fulfilled dreams of legions to have children of their own. And a reply was made electronically, apparently from the “synthetic children”, in so many words: “Where is our mother?”

This Easter and in this article, I struggle between legal technicalities and my faith that would not look kindly on these new reproductive methods. Although I am unworthy, I cannot help but think that all that has life comes from God; that in the final judgment, our Creator will count less the steps how life was brought about, but will look more on how much that life has been nurtured, respected, and protected by the persons the child call as parents. A very happy and meaningful Easter Sunday to all my readers.