ART (ASSISTED REPRODUCTIVE TECHNOLOGY) AND

ITS LEGAL INNUENDOS:

A Challenge for a Statutorial Renovation
Jesusa R. Lapuz*
OUTLINE
I.

PROEM

II.

ELUCIDATION

III. ART IN FOCUS

In Vitro Fertilization
Artificial Insemination/ Intrauterine Insemination
Surrogacy
Traditional
Gestational
Posthumous Reproduction
IV.

CONCEIVABLE CONTROVERSIES
In Vitro Fertilization
Artificial Insemination/ Intrauterine Insemination
Surrogacy
Traditional
Gestational
Posthumous Reproduction

* 09 Ll.B., candidate, University of Santo Tomas Faculty of Civil Law. Managing Editor, UST
Law Review.

V.

REPRODUCTIVE TECHNOLOGIES AND THE ROMAN

CATHOLIC CHURCH: The Point Of Congruity

VI.

CONCLUSION

For most of human history...

being a father was a matter of conjecture, and
being a mother was a matter of fact.
Now nothing can be known for sure.1
PROEM
In this modern world, copulation is no longer the exclusive method
for humans to reproduce. A new group of medical options, known as
assisted reproductive technologies or ART, are challenging the peoples
understanding of parenthood and biological relationships.2

Those who

choose to use these technologies include those who are infertile for both
medical and social or situational reasons.3 Infertility is defined as a disease or
condition of the reproductive system often diagnosed after a couple had one
year of unprotected, well-timed intercourse, or if the woman has suffered
from multiple miscarriages. Not only age can be a factor in infertility, but
also sexually transmitted infections, several reproductive diseases, exposure
to certain chemical agents, tobacco and alcohol use, and excessive weight
gain or loss.4 The relationship between technology and the law in this context
is symbiotic. If the new technologies are the plants, growing toward the sky
and leading into new medical, scientific, and ethical realms, then the legal
terrain is the soil, dictating which practices can develop and thrive and which
1 J. Arons, Center for American Progress, Future Choices: Assisted Reproductive
Technologies and the Law, December 2007, at 20 citing Mundy, Everything Conceivable (quoting an
adoption lawyer) at 101.
2 Id. at 1.
3 Id. at 2.
4Frequently
Asked Questions About Infertility, http://www.resolve.org/site/Page
Server?pagename=lrn_wii_faq (last accessed 27 May 2008).

must wither away. Every decision to regulate or not creates unique incentives
and disincentives for the fertility industry and those it serves.5

In the United States (U.S.), the widespread use of intrauterine

insemination by unmarried opposite sex couples and same sex couples is
largely unregulated and legally problematical, creating problems for courts
throughout the country which have struggled with issues relating to parental
rights, custody, visitation and child support in the absence of legislative
guidance.6 Also, it has real-life consequences for thousands of people and
ripple effects on other areas of the law, from adoption to abortion, from
health insurance to inheritance.7

Regulation of assisted reproductive technology has evolved in

different ways in different countries. Some countries have passed laws aimed
at "controlling" the technology (e.g., restricting the number of embryos
transferred), whereas others have official regulations set by national scientific
societies. In the late 1980s in the United States, the Society for Assisted
Reproductive Technology (SART), an affiliate of the American Society for
Reproductive Medicine (ASRM), established a voluntary registry through
which all programs that provide assisted reproductive services can share
information and results.8

In Australia, the Donor Conception Support

Group, founded in 1993, is a voluntary organization made up of people who

considers or uses donor sperm, eggs or embryos, those who already have
children conceived on donor programs, adult donor offspring, and donors.
Its website includes an annotated list of books, videotapes, and other
materials; product reviews; information sheets for potential gamete donors;
Supra note 2.
C. Kindregan, Jr., Thinking About the Law of Assisted Reproductive Technology, 27
WISCONSIN JOURNAL OF FAMILY LAW at 123 (2007).
7 Supra note 2.
8 R. Rebar & A. DeCherney, Assisted Reproductive Technology in the United States,
https://content.nejm.org/cgi/content/full/350/16/1603 (last accessed 27 May 2008).
5
6

information for gamete offspring; and updates on legislation in Australia

related to ART.

On the other hand, the United Kingdom has Human

Fertilisation and Embryology Authority, which is an organization acting as an

independent regulator overseeing safe and appropriate practice in fertility
treatment and embryo research. Its website provides online information for
consumers, donors and donor-conceived people and their families, clinic
staff, and the media.9

However, no similar association has been created in the Philippines.

It only has Philippine Council for Health Research and Development
(PCHRD) which is the primary focal point for health research activities in
the Philippines by virtue of Executive Order No. 128.10 It is an agency of the
Department of Science and Technology and is responsible for coordinating
and monitoring research activities in the country.11

Moreover, while

progressive countries like the U.S. are continuing to update their laws in the
area of ART, the Philippines had started and seemed to have stopped with
the provisions regarding artificial insemination.12

The times are rapidly moving, affecting the way the people live, how
they communicate with each other, how they spend their leisure time and
even how they procreate. Accordingly, advanced technologies demand for a
legal amelioration. Even in the Philippines, more and more people, married
or not, are opting to resort to artificial reproductive procedures. A Sperm
Bank/Clinic in Malate was established in 1991 primarily for long-term
storage of sperm. Some of the medical institutions that are performing such
9 Maternal and Child Health Library, Assisted Reproductive Technologies (ART) and
Families: Selected Resources, http://www.mchlibrary.info/guides/ART.html (last accessed 27 May
2008).
10 30 January 1987. Reorganizing the National Science and Technology Authority.
11Harvard
School
of
Public
Health,
Global
Research
Ethics
Map,
https://webapps.sph.harvard.edu/live/gremap/view.cfm?country=Philippines (last accessed 27 May
2008).
12 FAMILY CODE, art. 164, 166.

procedures are Victory, A.R.T. Laboratory Phil., Inc.13 in Makati City and St.
Lukes Medical Center14 in Quezon City. In no time, all of the hospitals will
be offering such highly advanced reproductive services. When that time
arrives, disputes regarding custody, inheritance and filiation will indubitably
arise. The problem will be exacerbated if, at that time, the legislature has not
as yet provided the necessary laws in order to regulate the practice and
govern the issues which will naturally come about. For instance, what is the
status of the children born out of such procedures? The existing Philippine
laws are silent on this point. The parties to the dispute will be put in such a
dreadful situation where the courts will painstakingly apply Article 164 of the
Family Code by analogy as authorized under Article 9 of the New Civil Code,
where Judges, in a little way, are allowed to fill in the gaps in the
incommensurate laws.

Article 164 of the Family Code provides:

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.

Article 9 of the New Civil Code provides:

No judge or court shall decline to render judgment by reason of
the silence, obscurity or insufficiency of the laws.

The best remedy, however, is to alert the Congress of the Philippines

to amend Article 164 by expanding its coverage so as to include those
children born out of reproductive technologies.
13

IVF Clinics- Asia, http://www.ivf.net/ivf/asia-b401_0-en.html (last accessed 28 May

2008).
14
St. Lukes Medical Center, http://www.stluke.com.ph/index.php?page=article
&pageID=157&parentID=19 (last accessed 28 May 2008).

This article will serve not only as an eye-opener for the legislators to
arouse them from their slumber so they can start formulating a statutorial
amendment more harmonious with the modern times, but also as a guide
which will show what matters in law need more concentration and how it is
being brought into play in the United States, under whose constitution the
Philippine government had been patterned.

ELUCIDATION
Assisted Reproductive Technology (ART) is a general term
referring to methods used to achieve pregnancy by artificial or partially
artificial means.

It is used in infertility treatment, which is the only

application routinely used today of reproductive technology.15 It includes a

range of techniques for manipulating eggs and sperm in order to overcome
infertility. It encompasses drug treatments to stimulate ovulation; surgical
methods for removing eggs and for reimplanting embryos; in vitro and in vivo
fertilization; ex utero and in utero fetal surgery; as well as laboratory regimes for
freezing and screening sperm and embryos, and micromanipulating and
cloning embryos.16

The fields first major success came in 1978 with the birth of testtube baby Louise Brown, engineered by Steptoe, Edwards, et al., of
England.

At the outset, these methods were mainly used to alleviate

infertility problems among couples. As the technologies spread, however,

they increasingly are being employed for purposes beyond infertility, i.e., to
reduce the risk of, or avoid passing on, hereditary disease and to select for
15Wikipedia,
the
free
encyclopedia,
http://en.wikipedia.org/wiki/Assisted_
reproductive_technology (last accessed 30 May 2008).
16Online
Medical
Dictionary,
http://cancerweb.ncl.ac.uk/cgi-bin/omd?assisted
+reproductive+technology (last accessed 30 May 2008).

the infants gender. Further uses that would aim at improving the quality
of offspring, which have raised profound and ethical questions, have also
been widely considered.17

ART IN FOCUS
There are various types of ART being practiced worldwide, but the
most frequently used and more relevant in the Philippine jurisdiction are the
In Vitro Fertilization, Artificial Insemination, Surrogacy, and Posthumous
Reproduction.
In Vitro Fertilization (IVF)
This literally means fertilization in glass. It is a fertility treatment
in which eggs are removed from the woman's body and fertilized with her
partner's sperm in the laboratory. The resulting embryos are then returned
to her uterus in the hopes of fostering a pregnancy. IVF is also used for
mothers who wish to use donor eggs because of ovarian failure or repeated
pregnancy losses.18

Artificial Insemination (AI)

Artificial insemination is just one of those options that may be
considered prior to attempting more involved treatments, such as IVF.19 It is
the most commonly known method of assisted reproduction which has been
defined as the introduction of semen into the vagina other than by coitus.20

17

Id.

About.com, http://miscarriage.about.com/od/pregnancylossbasics/g/ivf.htm (last

accessed accessed 30 May 2008).
19 Medindia.com,http://www.medindia.net/patients/patientinfo/Artificial Insemination_
about.htm (last accessed 01 June 2008).
20 Renee H. Sekino, Posthumous Conception: The Birth of a New Class, http://www.
bu.edu/law/scitech/volume8/Sekino.pdf (last accessed 02 June 2008).
18

In majority of the cases, the husband's sperm is used.21

The sperm is

artificially placed into a womans cervix (intracervical insemination) or uterus

(intrauterine insemination).

During artificial insemination treatment, the

womans menstrual cycle is closely monitored using ovulation prediction kits

(OPK),22 ultrasounds, and blood tests.

The semen to be implanted is

washed23 in a laboratory, which increases the chances of fertilization while

removing unnecessary, potentially harmful chemicals. The semen is inserted
into the woman, and if the procedure is successful, she conceives.24
Success rates for human artificial insemination vary based on the type
of fertility problem being treated and the age of the patient. Most women
who choose artificial insemination have a 5 to 25 percent chance of
becoming pregnant with each menstrual cycle.25
Classification of Artificial Insemination According to the Source of the Seeds
26

(Sperm):

1. A.I.H. (Artificial Insemination Husband or Homologous

Insemination) the sperm comes from the husband.
2. A.I.D. (Artificial Insemination Donor or Heterologous
Insemination) the sperm comes from a donor.
3. A.I.H.D. (Artificial Insemination Husband Donor or
Confused Artificial Insemination) comes from the
combination of the sperm of the husband and a third party
donor.
Surrogacy

Supra note 19.

These kits detect hormones which are produced in large quantities shortly before
ovulation
and
can
be
found
in
the
urine.
Malpani
Infertility
Clinic,
http://www.ivfindia.com/book/chapter13b.html (last accessed 22 July 2008).
23 Sperm washing is a procedure used to separate a mans sperm cells from his semen,
helping to get rid of dead or slow-moving sperm as well as additional chemicals that may impair
fertilization. Shared Journey, http://www.sharedjourney.com/iui/sperm _washing.html (last accessed
22 July 2008).
24Docshop.com,http://www.docshop.com/education/fertility/treatments/artificialinsemination/ (last accessed 01 June 2008).
25 Id.
26 E. Pineda, Problems in Paternity and Filiation, U.S.T. L. REV. Vol. XLVI, at 30 (1997).
21

22

Surrogacy is a procedure whereby a woman carries a child for

someone else, usually an infertile couple. There are two different types of
surrogacy: traditional surrogacy and gestational surrogacy.27

Traditional
In traditional surrogacy, the surrogate mother is artificially
inseminated with the of the intended father or sperm donor. The surrogate's
own egg will be used, thus she will be the genetic mother of the resulting
child.28

Gestational
In gestational surrogacy, the surrogate mother is not genetically
related to the child. Eggs are extracted from the intended mother or egg
donor and mixed with sperm from the intended father or sperm donor in
vitro. The embryos are then transferred into the surrogate's uterus. Embryos
which are not transferred may be frozen and used for transfer at a later time
if the first transfer does not result in pregnancy.29

Posthumous Reproduction
A posthumous child is an infant who is born subsequent to the death
of the father or, in certain cases, the mother. Sperm and eggs may be
preserved in a frozen state to give way to reproduction past the lives of their
donors.30 In particular, cryopreservation is a particularly popular technique of
posthumous conception, whereby human semen, ova, and embryos may be
frozen and preserved at very low temperatures for extended periods of time
http://www.surromomsonline.com/articles/define.htm (last accessed 01 June 2008).
Id.
29 Id.
30 The Free Dictionary, http://legal-dictionary.thefreedictionary.com/Posthumous +child
(last accessed 01 June 2008).
27

28

after extraction from the donor source.31 Because of the lengthy period of
time over which these may be preserved, children may be conceived after the
death of a particular donor.32

CONCEIVABLE CONTROVERSIES
In Vitro Fertilization
There is no provision under the Family Code or any other Philippine
law which relates to in vitro fertilization. Under this procedure, when more
embryos are created than needed to successfully impregnate a woman, the
excess embryos are usually frozen and stored in a fertility clinic until they can
be used for future pregnancy attempts, donated to others seeking to have a
child, or for clinical or scientific research, or thawed and discarded.
Sometimes the disposition of such embryos has been arranged by contract.
But regardless of whether a contract exists, disputes can arise over what will
happen to the embryos, how they can be used, and how they are to be
treated.33 Said disputes will be apparent even more in case of a change of
heart in either or both of the spouses, or in case the spouses resolve to part
ways.

Only a fistful of states in the U.S. have enacted statutes that provide
for the disposition of frozen embryos. Florida alone demands the physician
and the couple to enter into a written agreement pertaining to the disposition
of gametes and embryos in the event of a divorce, the death of a spouse, or
any other unforeseen circumstance.34 This statute, however, also provides
that absent a written contract, the couple shall exercise joint authority over
31 Supra note 20, citing Monica Shah, Comment, Modern Reproductive Technologies: Legal
Issues Concerning Cryopreservation and Posthumous Conception, 17 J. Legal Med. 547, 550 (1996).
32 Supra note 20.
33 Supra note 1, at 6.
34 Supra note 1, at 15 citing FLA. STAT. 742.17 (2007).

the embryos, which may not be of much use should the couple encounter a
dispute as regards the control of said embryos. And even if there is a written
agreement pursuant to the statute, it is still possible that a court would reevaluate such agreement if a dispute arises out of the terms of the contract
itself.35

Only New Hampshire and Louisiana made some pronouncements as

to what may or may not be done with the embryos. New Hampshire merely
mandates that an embryo which has not been implanted may not remain
unfrozen for more than fourteen (14) days beyond fertilization. It likewise
places a ban on transferring an embryo to a uterus if the embryo has been
donated for research purposes.36

Louisiana, on the other hand, defines a human embryo as a fertilized

ovum that will develop into an unborn child and classifies it as a juridical
person (one with legal rights to sue and be sued) prior to implantation and at
any other time rights attach to an unborn child. The law allows IVF patients
to express their identity or to forfeit their rights as parents, be treated as
gamete donors, and to make their embryos available for adoptive
implantation.37

Under Louisiana law, a viable embryo may not be

intentionally destroyed and the physicians and medical facilities that perform
IVF are charged with safeguarding the fertilized ova in their care. The
judicial standard to be applied to any disputes that arise is the best interest of
the in vitro fertilized ovum, which is the same standard used when
determining the custody of children. The unmistakable implication of this
law is to treat embryos as if they were born children thereby undermining

Supra note 1, at 15.

Id. citing N.H. REV. STAT. ANN. 168-B:15 (2007).
37 Supra note 35.

35

36

abortion rights protected in said state.38 Beyond abortion law, Louisianas

regulatory framework raises a number of other significant constitutional
issues.

It transforms fertility patients into gamete donors, it potentially

violates their right not to procreate, and it deprives them of their right to
determine the disposition and use of their own genetic material.39

Left without statutory guidance, courts have struggled to determine

whose interest shall prevail when disputes arise between couples as to the
disposition of their unused embryos.40 In Davis v. Davis,41 the Tennessee
Supreme Court decided that it must first categorize the human embryo.
Rejecting suggestions that embryos are either persons or property, the court
found that they inhabit an interim category that entitles them to special
respect because of their potential for human life. The court declared that any
contract regarding the disposition of stored embryos should be presumed
valid, binding, and enforceable.42

However, because there was no such

contract in the Davis case, the court engaged in a balancing test, where it
weighed the interests of the parties against each other.43

The court

determined that the essential question was whether the parties would become
parents, thereby implicating their constitutional right to privacy and the
related right to procreate or to avoid procreation. Despite the increased
stress and discomfort that women undergo in the process of IVF, the court
found that women and men must be seen as entirely equivalent gamete
providers. Moreover, unlike with the question of abortion, the case did not
involve interference with a womans bodily integrity; therefore her interests
would not automatically trump the mans.44 The court also found that the
states interest in the potential life embodied by the embryos was at best
Id.
Supra note 1, at 16.
40 Id.
41 Id. citing Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992).
42 Id. at 597.
43 Supra note 39.
44 Supra note 41, at 601.

38

39

slight and not sufficient to justify any infringement upon individuals to make
their own decisions about whether to allow the IVF procedure to continue.45

In this case, the couple divorced and the husband wanted to prevent
the embryos from being implanted. The wife initially wanted to use the
embryos herself, but by the time the case reached the state Supreme Court,
she wanted to donate the embryos to a childless couple.

The court

determined that unwanted parenthood for the husband was a greater burden
than the wifes knowledge that the IVF process would be rendered futile and
the embryos she helped create would never become children. The court
noted, however, that it would have been a closer case had the wife wanted to
use the embryos herself. In that event, the court said, an additional factor to
take into consideration would be whether she could achieve parenthood by
other reasonable means, like adoption.46

In the case of Kass v. Kass,47 the highest court of New York held that
agreements between couples regarding their unused frozen embryos should
be enforced unless those agreements are contrary to public policy or unless
the couples circumstances have significantly changed. It further said that
advance directives both minimize misunderstandings and maximize
procreative liberty by reserving to the progenitors the authority to make what
is in the first instance a quintessentially personal, private decision.48

The Supreme Courts of New Jersey and Iowa also concurred in

saying that such contracts should be upheld, but subject to a large caveat: the
right of either party to change his or her mind prior to the use or destruction

Id. at 602.
Supra note 39.
47 Supra note 1, at 17 citing Kass v. Kass, 696 N.E.2d 174 (N.Y. 1998).
48 Id. at 180.

45

46

of the embryos.49

This model, known as the mutual consent model,

requires that both parties must contemporaneously agree in order for any
action to be taken.50

According to the New Jersey court, when a couple disagrees as to the

disposition of the embryos, the interests of both parties must be evaluated
(effectively a balancing test).51 In Iowa, on the other hand, when the parties
disagree, the status quo must be maintained until they can reach resolution or
until the fertility clinic is no longer contractually bound to keep the embryos,
with the expenses for maintaining the embryos to be shouldered by the party
opposing their destruction.52

Although the courts have adopted a variety of tests to resolve such

issues, thus far they have consistently ruled in favor of the spouse who
opposes use of the embryos for procreative purposes. Massachusetts, New
Jersey, and Iowa all based their reasoning in part on the fact that advance
agreements to procreate or form other family relationships violate their
states public policy and are unenforceable.53 Tennessee, in contrast, was
reluctant to announce any bright-line rule and strained to point out that its
holding should not be read to provide an automatic veto to a party seeking to
avoid parenthood.54

In Roman v. Roman,55 the Texas Court of Appeals followed a

contractual approach as well.

It observed that there was an emerging

49 Supra note 1, at 17 citing J.B. v. M.B., 783 A.2d 707 (N.J. 2001), In re Witten, 672 N.W.2d
768 (Iowa 2003).
50 Supra note 1, at 17.
51 Id. citing J.B., 783 A.2d at 719.
52 Supra note 1, at 17 citing In re Witten, 672 N.W.2d at 783.
53 Supra note 1, at 17 citing A.Z. v. B.Z., 725 N.E.2d 1051, 1057-58 (Mass. 2000); J.B., 783
A.2d at 717-18; In re Witten, 672 N.W.2d at 781.
54 Supra note 41, at 604.
55 Supra note 1, at 17 citing Roman v. Roman, 193 S.W.3d 40 (Tex. App. 2006).

majority view that written embryo agreements between embryo donors and
fertility clinics to which all parties have consented are valid and enforceable
so long as the parties have the opportunity to withdraw their consent to the
terms of said agreement.56 The court also gleaned from a handful of Texas
statutes that do address assisted reproduction that the public policy of the
state would support this approach.57

What all of these courts have emphasized is that such disputes should
be governed by existing statutes and that each case must be decided
according to its own particular facts.58 On the one hand, it makes sense to
require any person who contributes genetic material to an embryo with the
intent to become a parent to designate, beforehand, what should happen to
that embryo if it is not used for its initial purpose. The process alone should
help couples think through future scenarios and commit themselves to a
particular course that may reduce the likelihood that a dispute will arise. To
that end, further regulation may be helpful.59 On the other hand, it is in the
clinics best interests to have patients fill out consent forms and it is likely
that they now routinely collect information about what is to be done with
unused embryos, obviating the need for legislative mandates.60

As regards child custody disputes, fights over embryos in the U.S. can
be incredibly fact sensitive. Suits of this nature will definitely benefit from
legislative guidance which must reflect progressive values and will not violate
or thwart constitutional protections.61

Id. at 48.
Id. at 53.
58 Supra note 1, at 18.
59 Id.
60 Id.
61 Supra note 1, at 19.

56

57

Artificial Insemination
There is no problem if the spouses have authorized or ratified the
insemination in a written instrument which they signed freely and voluntarily
without deception before the birth of the child. For then, the status of the
child is indubitably legitimate by express provision of law.62 However, what
will happen if the wife was subjected to artificial insemination without her
consent or against her will? Certainly, the child resulting therefrom will be
illegitimate because it is a patent violation of the law63 which requires the
consent of both the husband and the wife to the procedure of artificial
insemination. But what is the remedy of the aggrieved wife? Can she file an
action for any crime? In the case of Oxford v. Oxford,64 the Supreme Court of
Ontario, Canada made the obiter that the process of insemination undergone
by the woman against her will is tantamount to sexual intercourse and this
might constitute rape. In the Philippines, there is still no direct rule and
jurisprudence on the matter. At most, the crime that could be charged is
coercion, but the same is not commensurate to the gravity of the invasion of
the womans reproductive organs. But surely, the woman is entitled to
damages under Articles 20 and 21 of the New Civil Code:65
Article 20. Every person who, contrary to law, willfully or
negligently causes damage to another, shall indemnify the latter for the
same.
Article 21. Any person who willfully causes loss or injury to
another in a manner that is contrary to morals, good customs or public
policy shall compensate the latter for the damage.

62 FAMILY CODE, 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.
63 Id.
64 58 D.L.R. 251.
65 Supra note 26, at 33.

Now, it may happen that it is the husbands consent that is wanting.

If the wife had herself inseminated with the sperm of a donor without the
consent of the husband and a child was born as a result thereof, can she be
held criminally liable?66

On this, one may argue that there is no specific penal or criminal law
punishing the act. Adultery is defined under Philippine criminal law as being
committed by any married woman who shall have sexual intercourse with a
man not her husband and by the man who has carnal knowledge of her,
knowing her to be married, even if the marriage be subsequently declared
void.67 The woman needs to be married who shall have sexual intercourse
with a man not her husband. The essence of adultery is sexual intercourse;
there will be as many counts of adultery as there are sexual acts.68 Therefore,
one may conclude that no crime had been committed by the wife who had
herself inseminated with the sperm of a donor without the consent of her
husband for there had been no sexual contact, and there is no crime where
there is no law punishing it (nullum crimen nulla poena sine lege).69

However, it was the submission of a distinguished authority70 in Civil

Law that the wife may be held guilty of adultery. Allowing the principle of
nullum crimen nulla poena sine lege to apply will encourage married women to
resort to artificial inseminations through donation to the damage and
prejudice of the husband as a foreign blood is introduced into his family.71

Id. at 31.
REV. PEN. CODE, art. 333.
68 L. BOADO, COMPACT REVIEWER IN CRIMINAL LAW 388 (2d ed. 2007).
69 Supra note 66.
70 Former Dean Ernesto L. Pineda, Problems in Paternity and Filiation, U.S.T. L. REV. Vol.
XLVI, at 29 (1997).
71 Supra note 26, at 32.
66

67

The voluntary surrender of the wifes reproductive powers or

faculties to another through artificial insemination is adulterous because of
the possibility of introducing into the family of the husband a child not of his
own blood.72 In U.S. v. Mata,73 the rule is that the controlling factor in
adultery is not the actual contact of the sexual organs but the introduction of
spurious heirs in the family. Likewise, in the aforementioned case of Oxford v.
Oxford, the ponente of the decision said:
In my judgment, the essence of the offense of adultery consists,
not in the moral turpitude of the act of sexual intercourse, but in the
voluntary surrender to another person of the reproductive powers or
faculties of the guilty person, and any submission of those powers to the
service or enjoyment of any person other than the husband comes within
the definition of adultery.
The fact that it has been held that anything short of actual
intercourse, no matter how indecent or improper that act may be, does
not constitute adultery, really tends to strengthen my view that it is not the
moral turpitude that is involved but the invasion of the reproductive
function. So long as nothing takes place which can by any possibility
affect that function, there can be no adultery; so that unless and until
there is actual sexual intercourse, there can be no adultery. But to argue
from that, that adultery necessarily begins and ends there is utterly
fallacious. Sexual intercourse is adulterous because in the case of the
woman, it involves the possibility of introducing into the family of the
husband a false strain of blood. Any act on the part of the wife which
does that would therefore be adulterous. That such a thing could be
accomplished in any way other than the natural manner probably never
entered the heads of who considered the question before. Assuming the
plaintiffs story to be true, what took place here was the introduction into
her body by unusual means of the seed of a man other than her husband.
If it were necessary to do so, I would hold that in itself was sexual
intercourse. It is conceivable that such an act performed upon a woman
against her will might constitute rape. Mr. White (counsel for the wife)
was driven, as a result of his argument to contend that it would not be
adultery for a woman living with her husband to provide by artificial
insemination a child of which some man other than her husband was the
father. A monstrous conclusion surely. If such a thing has never before
been declared to be adultery, then, on the grounds of public policy, the
court should now declare it so.

In yet another foreign decision, it was held that heterologous

artificial insemination (AID) with or without the consent of the husband is

72
73

Id.
18 Phil. 490 (1911).

contrary to public policy and good morals and constitutes adultery on the
part of the mother. A child so conceived is not a child born in wedlock and
therefore is illegitimate.74

Surrogacy
Perhaps the most famous surrogacy case in the U.S. is that of Baby
M. In 1985, William Stern and Mary Beth Whitehead entered into a contract
in which, for and in consideration of the sum of $10,000, Ms. Whitehead
agreed to be inseminated with Mr. Sterns sperm, become pregnant, carry the
pregnancy to term, deliver the child to Mr. Stern and his wife, and terminate
her maternal rights. The payment was not to be made until the child was
surrendered and Ms. Whiteheads rights were terminated.

Initially, Ms.

Whitehead complied with the contract and turned the child over to the
Sterns. The next day, however, she returned and begged to have the child
for one more week.

The Sterns agreed, but after several unsuccessful

attempts to retrieve the child for four months, they obtained a court order to
get the child back. Instead of returning the child, Ms. Whitehead and her
family fled to Florida. Eventually, the child was found and returned to the
Sterns.75

The aforementioned case garnered considerable media attention and

prompted several states to enact laws governing surrogacy. A review of the
relevant statutes and case law reveals that the reactions to the practice of
surrogacy are, literally and figuratively, all over the continent.76

74 Supra note 26, at 33 citing Dornbus v. Dornbus, No. 51, S. 13 875 (Super Ct., Cook Country,
No. 1954; 12 III. App. 2d. 473, (1956).
75 Supra note 1, at 24.
76 Id.

Arizona and the District of Columbia ban those laws. Washington

bans contracts for compensation beyond certain expenses. Michigan and
New York void surrogacy contracts and impose penalties. States that declare
the contracts void will simply refuse to enforce the agreements. If people
enter into such contracts and disputes arise, they will have to sort out the
disagreements on their own. In contrast, the states that ban surrogacy
contracts do not allow such contracts to be made and sometimes will
penalize anyone involved in making the contract.77

The states that allow surrogacy vary greatly in terms of whether the
surrogate may receive compensation beyond necessary expenses, whether she
has a period of time after the birth to change her mind about surrendering
the child, whether a court must approve the agreement, and the number of
requirements the parties must satisfy ranging from medical and psychological
evaluations to home studies.78

The vast majority of statutes in the United States require the intended
parents to be married, but a few do not. If the surrogate is married, the
statutes invariably require that her husband consent and be a party to the
agreement. The states also vary as to whether at least one of the intended
parents must be genetically related to the child and whether the surrogate
may use her own eggs.79

The majority of the states still lack any statutory guidance on

surrogacy agreements. When asked to resolve surrogacy disputes, the courts
have

looked

to

statutes

Supra note 1, at 25.

Supra note 1, at 26.
79 Id.

77

78

related

to

adoption,

custody,

paternity

determinations, termination of parental rights, and baby selling; the federal

and state constitutions; and public policy considerations.80

In Baby M., the New Jersey Supreme Court ruled that payment of
money to a surrogate mother was illegal, perhaps criminal, and degrading to
women.81 The court also said that paid surrogacy agreements violated the
states statutes prohibiting the use of money in connection with adoptions,
requiring proof of parental unfitness or abandonment before termination of
parental rights, and making surrender of custody and consent to adoption
revocable in private placement adoptions.

Furthermore, the contract

violated the states public policy, namely that a childs custody should be
determined by an analysis of the childs best interests; that natural parents
have equal rights with regard to their child; that consent to adoption be
informed, voluntary, and meaningful; and that the sale of a child pernicious.82

The court clearly acknowledged the respective constitutional rights of

the parties -- for Mr. Stern, the right to procreate, for Ms. Whitehead, the
right to companionship of ones child.

The court, however, made a

determination that neither Mr. Stern nor Ms. Whitehead suffered a

constitutional deprivation. Mr. Stern did exercise his right to procreate and
voiding the surrogacy contract did not in any way interfere with the exercise
of such right. With regard to Ms. Whitehead, the court found that there was
no basis to terminate her parental rights. Ultimately, the court declared that
both were the childs natural parents, but the childs best interests warranted
the grant of custody to the Sterns and visitation rights to Ms. Whitehead.83

Id.
Supra note 1, at 27 citing In the Matter of Baby M., 537 A.2d 1227 (N.J. 1988).
82 Id.
83 Id.

80

81

On the other hand, California has its landmark case of Johnson v.

84

Calvert, wherein its Supreme Court set forth what has come to be called the
intent test when addressing surrogacy issues.

In this case, Anna Johnson agreed to carry and deliver the genetic
child of Mark and Crispina Calvert. However, relations turned sour during
the pregnancy, and by the time the child was born the parties were already in
court asserting their competing rights as parents.

The court said that

although the California Uniform Parentage Act did not specifically address
surrogacy, it applied to any case in which parentage was in dispute. The
court determined that under the Act, both women had established grounds
for maternity, Anna by giving birth, and Crispina by providing genetic
material but California law recognized only one natural mother for every
offspring.85

The Court, using the intent test, concluded that when the roles of
genetic consanguinity and giving birth do not coincide in one and the same
woman, the one who intended from the outset to procreate and raise the
child is the natural mother under California law. This holding effectively
precludes a gestational surrogate from ever changing her mind about a
surrogacy agreement.86

The court likewise found that the surrogacy contract in this case was
not contrary to public policy because gestational surrogacy differed in crucial
respects from adoption and was not subject to the adoption statutes; it did
not constitute involuntary servitude; it did not treat children as commodities;
and it did not exploit or dehumanize women, including those women of
Supra note 1, at 28 citing Johnson v. Calvert, 851 P.2d 776 (Cal. 1993).
Id.
86 Id.

84

85

lower economic status. However, the court made an opinion that the better
forum for resolving these questions was the legislature, and not the courts.87

Lastly, the court determined that, because Johnson was not the legal,
natural mother, she had no constitutionally protected liberty interest based
on her status as a mere birth mother and therefore no right to the
companionship of the child.

A woman who agrees to be a gestational

surrogate is not exercising her own right to make procreative choices; she is
agreeing to provide a necessary and profoundly important service to a couple
who are exercising their right to procreate a child genetically related to them
by the only available means.88

The California Court of Appeals applied this ruling in In re: Marriage of

Buzzanca,89 where the child was at risk of having too few parents rather than
too many. In this case, a gestational surrogate carried a child created with
gametes from anonymous donors for a married couple who were the
intended parents. When the couple divorced, the husband attempted to
claim no responsibility because he was not biologically related to the child.
Outrightly rejecting that position, the court held that both the husband and
the wife would be deemed the legal parents because they had initiated and
consented to the assisted reproduction that brought about the birth of that
child.90

The California Court of Appeals has determined, though, that the

intent test is only to be used when the birth mother and the genetic mother
are different women. When a surrogate mother uses her own eggs, then she
Id.
Id.
89 Supra note 1, at 28 citing In re Marriage of Buzzanca, 72 Cal. Rptr. 2d 280 (Cal. Ct. App.

87

88

1998).
90

Id.

will be considered the natural and legal mother notwithstanding the intent of
the parties.91 Because genetics and birth coincide in the same woman, there
is no need to use intent to break the tie between two mothers, as there was
in the Johnson case. Without a formal consent to adoption, the intended
mother has no right to the child.92

In contrast, Ohio has rejected forthrightly the Johnson intent test in

favor of a test that relies primarily on genetics. In Belsito v. Clark,93 the court
found that the intent test was unworkable for a number of reasons, including
the difficulty of proving the intent. It found genetics to be a much more
reliable and established method for determining parentage. Therefore, the
presumption in Ohio is that the genetic mother will be the legal mother.94

The court noted, however, that genetics should not be the exclusive
test for determining parentage and that birth can be used as a secondary test.
Under the birth test, the birth mother could still be found to be the legal
parent if the genetic parent consented.95 Of course, if that is the case, it is
unlikely the parties would end up in court unless there is a problem with the
birth certificate.96

Legal scholar Dorothy Roberts of Northwestern University School of

Law in Chicago, Illinois has argued that, even in Johnson, a major factor in
these cases involves establishing the primacy of genetics over gestation, and
she contends that a racial subtext often drives such decisions. To cite an
instance, in Johnson, the surrogate was African-American, the wife was
91

Supra note 1, at 28 citing In re Marriage of Moschetta, 30 Cal. Rptr. 2d 893 (Cal. Ct. App.

1004).
Id. at 29.
Supra note 1, at 29 citing Belsito v. Clark, 644 N.E.2d 760 (Ohio Ct. Comm. Pleas 1994).
94 Id.
95 Id.
96 Supra note 1, at 29.
92

93

Filipina and the husband was white. The press, however, focused much
more attention on the surrogates race than on the wifes and portrayed the
child as white.97

Roberts worries that gestational surrogacy doubly disadvantages

economically challenged women of color who cannot afford a court battle
and who are unlikely to gain custody of a white child.98

One set of academics has noted that surrogacy agencies intentionally

select surrogates who are primarily white, Christian, and married with
children in order to give the impression that the practice does not exploit
low-income women, yet the majority of surrogates fall within the lowermiddle socioeconomic class. Most earn just above the poverty line, and 40
percent are otherwise unemployed, receiving financial assistance, or both.99

Posthumous Reproduction
Until the advent of reproductive technologies, it was possible for a
child to be born after the death of a genetic parent in only one situation -when the father died while the child was still in utero. In a twist that seems
purely science fiction, children can now not just be born but conceived after
the death of one or both of their parents, sometimes years later. Frozen
gametes and embryos are the main vehicle for this trend, but sperm (and one
day eggs) could likewise be collected from a recently deceased body in
extreme circumstances.100

Id.
Id. citing Dorothy Roberts, Race and the New Reproduction, in Killing the Black Body:
Race, Reproduction and the Meaning of Liberty (New York: Pantheon Press, 1997).
99 Supra note 1, at 29 citing Katherine Drabiak, et al., Ethics, Law, and Commercial
Surrogacy: A Call for Uniformity J.L. MED. & ETHICS, 300, 304, 306-308 (Summer 2007).
100 Supra note 1, at 30 citing Arthur Caplan, Should Kids Be Conceived After a Parent
Dies? MSNBC.com, June 27, 2007.
97

98

In addition to whatever emotional fall-out may occur, this new

practice has created ripples in inheritance law and posed new questions for
government programs that manage Social Security and other benefits.101 A
notorious case in the 1980s raised the issue briefly. Elsa and Mario Rios, a
wealthy couple who lived in Los Angeles, had undergone IVF treatment in
Australia and had two frozen embryos stored there when they died in a plane
crash without a will and without any instructions as to their unused
embryos.102

Suddenly people were faced with questions such as who gets to

decide the embryos fate and would they be entitled to inherit the money? It
spurred clinics asking their patients for written indications of their wishes,
but 20 years later most states in the U.S. still have not amended their laws to
address this type of situation.103

The issue will become more and more pressing as families begin to
learn of this reproductive option. Increasingly, soldiers who are already
involved in IVF programs are storing their sperm before heading off to war;
concerned that they may receive wounds in combat that affect their fertility
or worried they may not come home at all.104

Only a handful of states in the U.S. have addressed whether a child

created by assisted reproduction after the death of a genetic parent shall be
entitled to inherit or receive government benefits from that parent.

101
102

Supra note 1, at 30.

Supra note 1, at 31 citing Claudia Wallis, Quickening Debate over Life on Ice, Time,

July 2, 1984.
103
104

Supra note 1, at 31.

Id.

Normally, they require the decedent to have demonstrated some intent to be

a parent of a child that may be created after his or her death.105

For instance, in Florida, a child conceived from the gametes of a

person who dies before placement of gametes or embryos in a womans body
is not eligible for a claim against the decedents estate unless the decedent
provided for such a child in his or her will.106

In Virginia, if a genetic parent dies before the implantation of an

embryo, there are two ways he or she will be found to be a legal parent of a
resulting child: if implantation occurred before notice of death could
reasonably be communicated to the physician, or if that person consented in
writing to being a parent prior to implantation.107 It should be noted though
that Virginias statute does not expressly require contemplation of
posthumous implantation; it appears that general consent to assisted
reproduction is sufficient.108

The remaining seven states109 that address the issue follow a

provision that was originally included in the Uniform Status of Children of
Assisted Conception Act and now appears as section 707 of the Uniform
Parentage Act.110

According to that section, the deceased must have

specifically consented in a record to becoming a parent through assisted

Id.
Supra note 1, at 31 citing FLA. STAT. 742.17 (2007).
107 Supra note 1, at 31 citing VA. CODE ANN. 20-158, 64.1-5.1, 64.1-8.1 (2007).
108 Supra note 1, at 31.
109 Supra note 1, at 31 citing COLO. REV. STAT. 19-4-106 (2006); 13 DEL. C. 8-707
(2007); N.D. CENT. CODE 14-20-65 (2007); TEX. FAM. CODE 160.707 (2007); UTAH CODE
ANN. 78-45g-707 (2007); WASH. REV. CODE 26.26.730 (2007); WYO. STAT. ANN. 14-2-907
(2007).
110 Supra note 1, at 31 citing UNIF. PARENTAGE ACT 707, at 67 (amended 2002).
105

106

reproduction that might occur after his or her death in order to be

considered the legal parent of any resulting child.111

In Gillett-Netting v. Barnhart,112 the federal government denied Social

Security benefits to children conceived by IVF after their fathers death
because they were not his dependents at the time of his death. The Ninth
Circuit, however, found that they were considered legitimate children under
Arizona law. Hence, they could be deemed his dependents and did not have
to demonstrate actual dependency.113

Similarly, in Stephen ex rel. Stephen v. Barnhart,114 a child was conceived

after his fathers death and again was denied Social Security benefits because
he was not a dependent child at the time of the parents death. The District
Court applied the Florida law that says a child conceived after a parents
death is not eligible for a claim against the estate unless provided for in the
will. Because the child in this case was not included in his fathers will, he
had no claim to the Social Security benefits. The court distinguished the case
from Gillett-Netting because Florida had a statute that specifically deals with
posthumous fertilization while Arizona did not.

REPRODUCTIVE TECHNOLOGIES AND THE ROMAN

CATHOLIC CHURCH: The Point Of Congruity
The Roman Catholic Church says that research aimed at reducing
human sterility is to be encouraged, on the condition that it is placed at the
service of the human person, of his inalienable rights, and his true and

Supra note 1, at 31.

Supra note 1, at 32 citing Gillett-Netting v. Barnhart, 371 F.3d 593 (9th Cir. 2004).
113 Supra note 1, at 32.
114 Id. citing Stephen ex rel. Stephen v. Barnhart, 386 F. Supp. 2d 1257 (M.D. Fla. 2005).
111
112

integral good according to the design and will of God.115 The gift of life
which God the Creator and Father has entrusted to man calls him to
appreciate the inestimable value of what he has been given and to take
responsibility for it: this fundamental principle must be placed at the center
of one's reflection in order to clarify and solve the moral problems raised by
artificial interventions on life as it originates on the processes of
procreation.116

The Church's Magisterium does not intervene on the basis of a

particular competence in the area of the experimental sciences; but having
taken account of the data of research and technology, it intends to put
forward, by virtue of its evangelical mission and apostolic duty, the moral
teaching corresponding to the dignity of the person and to his or her integral
vocation. It intends to do so by expounding the criteria of moral judgment
as regards the applications of scientific research and technology, especially in
relation to human life and its beginnings. These criteria are the respect,
defense and promotion of man, his primary and fundamental right to life,117
his dignity as a person who is endowed with a spiritual soul and with moral
responsibility118 and who is called to a beatific communion with God.

Most of the citizens of the Philippines are catholicized119 making it

relevant to consider the technologies which are taken by the Catholic Church
as moral and those looked upon as profligate.

115Reproductive
Technologies:
Catholic
Teaching,
http://www.geocities.com/
seapadre_1999/reproductive-technologies.html (last accessed 25 January 2009).
116
Respect for Human Life (Donum Vitae), http://www.cin.org/ vatcong/ donumvit.html
(last accessed 25 January 2009).
117 Id. citing Pope John Paul II, Discourse to those taking part in the 35th General Assembly
of the World Medical Association, October 29, 1983: AAS 76 (1984), 390.
118 Supra note at 116, citing Cf. Declaration Dignitatis Humanae, no. 2.
119Wikipedia,
the
free
encyclopedia,
http://en.wikipedia.org/wiki/Roman_
Catholicsm_in_the_Philippines (last accessed 25 January 2009).

Technologies Compatible with Catholic Teachings: 120

1. Observation of the naturally occurring signs of fertility
(Natural Family Planning). Time intercourse on the days
of presumed (potential) fertility for at least six months
before proceeding to medical interventions.
2. General medical evaluation of both spouses for infertility.
3.

Post-coital tests to assess sperm number and viability in

fertile type mucus. These tests are undertaken after
normal intercourse.

4. Appropriate evaluation and treatment of male factor

deficiency. Seminal fluid samples can be obtained from a
non-lubricated, perforated condom after normal
intercourse.
5. Assessment of uterine and tubal structural competence by
imaging techniques (e.g., ultrasound, etc.).
6. Appropriate medical treatment of ovulatory dysfunction.
7. Appropriate (usually surgical) correction of mechanical
blocks to tubal patency (the state of being open).
Technologies in Conflict with Catholic Teachings:121
1. Obtaining a sample of seminal fluid by masturbation.
2. Artificial insemination by a non-spouse (AID), or even by
the husband (AIH) if the sample is obtained and handled
by non-licit means (masturbated specimen).
3. In vitro fertilization (IVF), zygote intra-fallopian transfer
(ZIFT),122 and intracytoplasmic sperm injection (ICSI),123
ovum donation, surrogate uterus.

120 Pro-Life Activities, Reproductive Technology (Evaluation & Treatment of Infertility)

Guidelines for Catholic Couples, http://www.usccb.org/prolife/ issues/nfp/treatment.htm (last
accessed 27 October 2008).
121 Id.
122 Zygote intra-fallopian transfer is an infertility treatment where a blockage in the fallopian
tubes prevents the normal binding of sperm to the egg. Egg cells are removed from a woman's ovaries,
and in vitro fertilized. The resulting zygote is placed into the fallopian tube by the use of laparoscopy.

Procedures neither approved nor disapproved (still under discussion):124

1. Gamete intra-fallopian transfer (GIFT).125
2. Intrauterine insemination (IUI) of licitly obtained
(normal intercourse) but technologically prepared semen
sample (washed, etc.).
In order to determine whether a reproductive technology is morally
right under the Catholic doctrine: any procedure which assists marital
intercourse in reaching its procreative potential is moral while procedures
which add a third party into the act of conception, or which substitute a
laboratory procedure for intercourse, are not acceptable. In other words, the
Catholic Church does not accept any technology that puts human life, from
conception to natural death, in danger, but only that which protects life and
guards it.126

CONCLUSION
Veritably, ART is permitting filial bonds to be created where no such
have ever existed before. This may appear to be as simple as planting the
seed, growing the plant and harvesting the fruits right after.

However,

interference with the creation of human life necessitates serious

Wikipedia, http://en.wikipedia.org/ wiki/Zygote_intrafallopian_transfer (last accessed 27 October

2008).
123 Intracytoplasmic sperm injection is a micromanipulation technique developed to help
achieve fertilization for couples with severe male factor infertility or couples who have had failure to
fertilize in a previous in vitro fertilization attempt. UCSF Center for Reproductive Health,
http://www.ucsfivf.org/ucsf-icsi.htm (last accessed 27 October 2008).
124 Supra note 120.
125 Gamete intra-fallopian transfer is a technique in which the male and female germ cells
required to begin formation of a human embryo are injected into a woman's fallopian tubes of the
female
for
fertilization.
MedicineNet.com,
http://www.medterms.
com/script/main/
art.asp?articlekey=12288 (last accessed 27 October 2008).
126 http://www.catholic-church.org/kuwait/seminar_cairo.htm (last accessed 25 January
2009).

contemplation and intense preparation, and in reality, is far more

complicated than cultivating crops.

The increasing demand for ART in the Philippines calls for the
amendment of some of its existing laws. For one, Article 164 of the Family
Code should be corrected as to include not only artificial insemination, but
also other artificial reproductive methods such as in vitro fertilization.
Otherwise, the status of children born out of ART other than artificial
insemination will be put in serious doubt. It is likewise questionable if
Article 164 can just simply be applied in analogy with respect to ART other
than artificial insemination. First, because the law127 itself expressly states of
children conceived as a result of artificial insemination, and second, each
reproductive technology has its own unique procedures, such that the rule
for one may not be applicable to the other. Under Article 164, it is enough
for the child to be legitimate that the husband and the wife authorized or
ratified the insemination in a written instrument executed and signed by them
before the birth of the child, and that said instrument shall have been
recorded in the civil registry together with the birth certificate of the child.
However, said rule is obviously not applicable to surrogacy where the
consent of a third person the surrogate, is necessary.

On the other hand, Article 40128 of the New Civil Code should be
interpreted as to include both intrauterine (within the womb) and in vitro
(outside the womb or literally means within the glass) conceptions. Such
interpretation will vest personality even on embryos in laboratory dish,
preventing their convenient and reckless disposal, thereby regulating these
reproductive procedures.
Supra note 62.
CIVIL CODE, art. 40. Birth determines personality; but the conceived child shall be
considered born for all purposes that are favorable to it, provided, it be born later with the conditions
specified in the following article.
127
128

Likewise, the employment of these artificial reproductive measures

should be construed as amounting to sexual intercourse.129 Such that if, for
instance, the husband forces the wife to undergo artificial insemination
against her will, the husbands act might constitute rape.130 However, if it is
the wife herself who goes through artificial insemination or in vitro
fertilization using the sperm of a donor without the consent of her husband,
she may be held guilty of adultery.

The essence of adultery is sexual

intercourse.131 Sexual intercourse is adulterous because in the case of the

woman, it involves the possibility of introducing into the family of the
husband a false strain of blood.132 Of course, it must be understood that at
the time of the enactment of the Revised Penal Code or in 1932, the only
way by which said introduction of foreign blood could be accomplished was
through actual sexual contact; the concept of ART was not yet born. At
present, however, sexual intercourse must not be limited to the actual
contact of the sexual organs; it must be interpreted as to likewise include
other means which may possibly result to the introduction of spurious heirs
into the family, although there may not be any actual sexual contact.133 Thus,
any act on the part of the wife which may result to the introduction of
foreign blood into the family must be considered adulterous.134 A different
interpretation would result to absurdity, so that a married woman who had
sexual contact with a man other than her own husband, may be held guilty of
adultery, although no child may have resulted from such act, while a married
woman who underwent artificial insemination using the sperm of a donor
without the consent of her husband may not suffer the same criminal liability
for the simple reason that there was no sexual contact, although a stranger
Supra note 64.
Id.
131 Supra note 68.
132 Id.
133 Supra note 73.
134 Supra note 64.

129
130

had been brought into the family. This clearly puts the second woman in a
better position, to the damage and prejudice of the husband.

The following questions may serve as a leash to the seemingly

limitless power of assisted reproductive technologies:

Who are qualified to avail of ART? May an

unmarried individual legitimately resort to it or is a
valid marriage necessary?

What family structures are most beneficial for

children?135

What are the legitimate limits on the right to be a

parent?136

How far can the State intervene in regulating the

family?137

How can we achieve recognition and proper

protection for new and evolving family structures?138

Of course, the aforementioned queries cannot be answered

instantaneously. Grave cogitation must be effected taking into account the
customs and traditions in the country, the desire to balance apprehension
about exploitation and respect for individual autonomy, the sympathy for
biological and intended parents, and most importantly, the concern for the
well-being of the children produced.139

The Filipino people, at the moment, are less than ready to embrace
some of these reproductive technologies like abortion and surrogacy. A
Supra note 1, at 33.
Id.
137 Id.
138 Id.
139 Supra note 1, at 29.

135
136

remaining few refuses to succumb to contraception. Possibly, this

apprehension may be mainly due to the fact that Filipinos, in general, are
traditional and conservative, and are specifically anxious to accede to ideas
which may run counter against their moral beliefs. Nevertheless, it must be
noted that this paper does not intend to establish the morality or immorality
of these procedures, it merely adjures for a substantial amendment of the
existing laws on paternity and filiation, and for the necessary rules for the
proper regulation of these technologies and their unavoidable consequences.
These amendments and regulations are going to principally provide for the
means to protect children born of such methods, determining their status so
that the same would not be doubtful and uncertain, but may not necessarily
mean an approval of said practices; similarly, the existing Philippine laws
have always determined the status of illegitimate children but that does not
mean that the same approve of children born out of wedlock.140

While the fertility industry affects only a small percentage of people

at present, the demand for ART is constantly growing and its use is
becoming more normalized. Closing our eyes to the conceivable problems is
not an option, neither is simply letting the brave new world arrive, or
trying to staunch scientific and technological progress. Sooner or later, some
amount of regulation and oversight will be necessary, leading to a clear
realization that the current patchwork approach is unsustainable.141

140 A. SEMPIO-DIY, HANDBOOK ON THE FAMILY CODE OF THE PHILIPPINES,

260 (June, 2003).
141 Supra note 1, at 33.