Elizabeth H AguilingPangalangan Professor College of Law University of the Philippines Professorial Chair Holder Chief Justice Panganiban Professorial Chairs on Liberty and Prosperity Liberty amp Prosperity2019 ID: 775591
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Parents and Children:
When Law and Technology Unbundle Traditional Identities
Elizabeth H. Aguiling-PangalanganProfessor, College of Law, University of the PhilippinesProfessorial Chair Holder, Chief Justice Panganiban Professorial Chairs on Liberty and Prosperity
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Slide2Liberty and Prosperity
“Liberty must include the freedoms that prosperity allows, and in the same manner, prosperity must include liberty, especially the liberty to strive for the ‘good life’ according to a person’s conception.”
Chief Justice Artemio Panganiban LIBERTY AND PROSPERITY 41 (2006)
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Slide3Liberty and Prosperity
“Liberty” embraces civil and political rights.“Prosperity” embodies economic, social, and cultural rights.
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Slide4Classification of rights
Civil and political rights Pertain to the personal autonomy of the individual, protecting him/her from the arbitrary exercise of power by the State, and enabling him/her to participate in shaping its policies. Referred to as the “first generation rights.”State traditionally performs a negative duty to guarantee their protection. ICCPR imposes on States the duty to protect and promote civil and political rights.
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Slide5Civil and Political Rights
2. Right to individual liberties Right of privacy Freedom of thought, conscience, and religionFreedom of opinion and expression Right of marriage Right to a fair trial Right to vote Right of every child to a name and nationality
These are rights to physical integrity and individual liberties:1. Right to physical integrity Include: Right to life Right to be free from inhuman or degrading treatment or punishment Freedom from slavery and servitude Freedom from discrimination
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Slide6Classification of rights
Economic, social and cultural rights Seek to promote a better quality of life and insure the well-being and economic security of the individual. Referred to as the “second generation rights.” ICESCR only provides for the progressive realization by States of economic, social, and cultural rights “to the maximum of its available resources.” Economic and social rights are applied differently in different places.
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Slide7Economic, Social and Cultural rights
Right to work Right to health Right to educationRight to an adequate standard of living Right to food Right to water Right to family life Right of both spouses to enter the marriage with their free consentRight of mothers to special protection; Right of children to be free from exploitationRight to enjoy benefits of scientific progress
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Slide8Human Rights
Basic rights which all humans are presumed to have.Rights that areLegally demandableProtected by lawNOT subject to political majorities
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Slide9Characteristics of Human Rights
Indivisible, interdependent and interrelatedDifferent human rights are intrinsically connected and cannot be viewed in isolation from each other. Improves the enjoyment of one right and facilitates the advancement of other rights.Universal They apply equally to all people everywhere in the world, and with no time limit. Inalienable“A set of human rights that are fundamental, are not awarded by human power, and cannot be surrendered."
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Slide10No distinction
Thus, an analysis of the nature of human rights establishes absence of a principled distinction between CP and SEC rights. UDHR made no distinction between these rights. Both are derived from the same ideal of human dignity. There is no hierarchy of rights. [United Nations Office of the High Commissioner for Human Rights, Key Concepts on ESCRs ]
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Slide11No distinction
Reversion to how the UDHR intended it—indivisible rights which are equally important. Seen from recent human rights treaties such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), Convention on the Rights of the Child(CRC), and the Convention on the Rights of Persons with Disabilities, where the enjoyment of all human rights is interconnected.
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Slide12Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
Entered into force in September 1981.Ratified by 189 states, including the Philippines on August 1981.The principal international legal instrument for the protection and promotion of women’s human rights.Known as:Women’s ConventionInternational Bill of Rights for Women
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Slide13Convention on the Rights of the Child
Entry into force in 1990. Acceded to by every country in the world except for the US and Somalia.Signed by the Philippines on August 21, 1990.
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Slide14Convention on the Rights of the Child
First legally binding international instrument which incorporates the full range of human rights - civil, political, economic, social and cultural rights – of children.“The CRC offers us a measuring rod. It provides a criteria for an audit…It is international law’s response to the paradigm shift in thinking about children as both ‘beings’ and ‘becomings.’” (Freeman, 2011:27)
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Slide15Classification of Child’s Rights
Survival rights- the right to life and have the most basic needs met (e.g. right to a family, to an adequate standard of living, shelter, nutrition, & medical treatment).Development rights- the rights enabling children to reach their fullest potential (e.g. education, play and leisure, cultural activities and freedom of thought, conscience and religion).
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Slide16Classification of Child’s Rights
Participation rights- rights that allow children and adolescents to take an active role in their communities (e.g. freedom to express opinions; and to have a say in matters affecting their own lives).Protection rights- rights essential for safeguarding children and adolescents from all forms of abuse, neglect and exploitation (e.g. protection against child labor & sexual exploitation).
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Slide17Key CRC rights find resonance in other conventions:
Right to lifeArticle 6 of both the CRC and the ICCPR, and Article 2 of the UDHR Right to health and health servicesArticle 24 of the CRC, and Article 12 of the ICESCR.CEDAW Article 12, 14(b)
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Key CRC rights
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Slide18Key CRC principles and rights
Freedom from discriminationArticle 2, of the CRC Article 2 of the UDHR, Article 2(2) of the ICESCR Article 2, (1) of ICCPR and Article 1-5 of the CEDAWRight education Article28 of the CRC Article 26 of UDHR Article 13 of the ICESCR.Articles 5, 10, 11(c), 14(2)(d) of the CEDAW
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Key CRC rights
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Slide19Key CRC Principles& Rights
Right to a familyThe Preamble, Articles 5 and 18 of the CRC: family as the natural environment for the growth and well-being of all its members; recognize that parents have both the right and the responsibility to bring up their children. Article 16 of the UDHR, Article 23 of the ICCPR, Article 10 of the ICESCR that acknowledge the family as the natural and fundamental unit of society entitled to protection and assistance. Articles 13(a), 14(1), 16 of CEDAW.
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Key CRC rights
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Slide20Obligations of States
Respect- requires non-interference with the enjoyment of human rights Protect-requires States to prevent violations of such rights by third parties.Fulfill-taking positive action to facilitate the enjoyment of basic human rights.
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Slide21Obligation of the State
Badillo v. Tayag [ 2003]“ The State has an obligation to recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. According to Isagani Cruz, "[I]t is now obligatory upon the State itself to promote social justice, … and to adopt other measures intended to ensure the dignity, welfare and security of its citizens. x x x. These functions, while traditionally regarded as merely ministrant and optional, have been made compulsory by the Constitution.” CJ Panganiban, ponente
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Slide22State Accountability
State responsibility arises when a state fails to act appropriately under its municipal law to punish and/or provide redress for violations of international human rights law or fails to act to prevent anticipated violation of human rights.“Indeed, a state may be considered to have facilitated an international wrong or to be complicit in its commission when the wrong is of a pervasive or persistent character. “(Rebecca Cook)
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Slide23Serrano v. NLRC: Panganiban, separate opinion
“[T]raditional doctrine holds that constitutional rights may be invoked only against the State. This is because in the past, only the State was in a position to violate these rights, including the due process clause. However, with the advent of liberalization, deregulation and privatization, the State tended to cede some of its powers to the "market forces." Hence, corporate behemoths and even individuals may now be sources of abuses and threats to human rights and liberties.”
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Slide24State Accountability
States are liable for the acts of, authorized by, and attributable to different organs of government.For example: States parties agree to take "all appropriate measures" in Article 2(c) of the Women's Convention Refers to the duty of the State to establish the legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination.
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Slide25State Accountability:Focus on the Judiciary
The judiciary has the responsibility to determine the application of principles of international human rights law at the national level. If domestic courts commit errors in that task of treaty interpretation or decline to give effect to the treaty that results in obstruction of enforcement of human rights,The State is in breach of the treaty, National judicial remedies will be deemed exhausted and the claim will assume an international character.
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Slide26State Accountability: Judiciary
Important powers and responsibilities lie in the hands of the judiciary to give effect to human rights.Domestic courts can serve as a “missing link between promulgation and realization of international human rights norms to the benefit of both international and domestic law.”[Anne Bayefski, Law, Policy and International Justice, 108]
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Slide27Why examine human rights within the family?
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Slide28“Where after all, do universal human rights begin? In small places, close to home—so close and so small that they cannot be seen on any map of the world. Yet they are the world of the individual person: the neighborhood he lives in; the school or college he attends; the factory, farms or office where he works. Such are the places where every man, woman or child seeks equal justice, equal opportunity, equal dignity, without discrimination. Unless these rights have meaning there, they have little meaning anywhere.” Eleanor Roosevelt
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Slide29Survival Right: Right to a family
CRC Preamble: “The family, as the fundamental group of society and the natural environment for the growth and well-being of its members should be afforded protection.”Article 5: Respect the responsibilities, rights and duties of parents, or where applicable the rights of the extended family, to provide direction in the exercise by the child of these rights
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Slide30Survival Right: Right to a family
Article 8: Respect the right of the child to preserve his or her identity, including nationality, name and family relations without unlawful interference.Article 9: A child shall not be separated from his/her parents against their will…unless necessary for the best interest of the child.Article 18: Parents have the primary responsibility for the upbringing and development of the child.
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Slide31What is a family?
Constitution Section 1, Art. XV. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total developmentArt. 149, Family Code (FC)The family, being the foundation of the nation, is a basic social institution which public policy cherishes and protects. Consequently, family relations are governed by law and no custom, practice or agreement destructive of the family shall be recognized or given effect.
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Slide32CJ Panganiban on Family
“Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity. This is rooted in the fact that both our Constitution and our laws cherish the validity of marriage and unity of the family. Thus, our Constitution devotes an entire Article on the Family, recognizing it “as the foundation of the nation.” It decrees marriage as legally “inviolable,” thereby protecting it from dissolution at the whim of the parties. Both the family and marriage are to be “protected” by the state. The Family Code echoes this constitutional edict on marriage and the family and emphasizes their permanence, inviolability and solidarity.” [Republic v. Molina, G.R. No. 108763. February 13, 1997]
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Slide33What is a family?
“A natural and social institution founded on conjugal union, binding together the individuals composing it, for the common accomplishment of the individual and spiritual ends of life, under the authority of the original ascendant who heads it.” [Philippine Legal Encyclopedia]A group of persons usually living together and composed of the head and other persons related to the head by blood, marriage or adoption. A single person living alone is considered as a separate family. [National Statistics Office (NSO) http://www.nscb.gov.ph]
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Slide34Traditional concept of a family
One that is of a married heterosexual couplewith offspring who are genetically related to them, and their relatives (grandparents, siblings, aunts and uncles, cousins) connected to them by consanguinity or affinity. Family ties are created by “nature.”
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Slide35Traditional concept of a family
Recognized in both ConventionsA. Convention on the Rights of the ChildArticle 9(1). “States Parties shall ensure that a child shall not be separated from his or her parents against their will…”B. Hague Convention for the Protection of Children and Cooperation in respect of Intercountry Adoption (HICAC) Preamble: “Each State should take, as a matter of priority, appropriate measures to enable the child to remain in the care of his or her family of origin..”
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Slide36Traditional concept of a family
Result:Fixed identitiesPredetermined roles
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Slide37“Times they are a changin”
“The advance in telecommunications, the migration of people, the rapid changes in technology, and the scientific realities of our ever-shrinking world have modified the absoluteness of the territoriality doctrine.” CJ Artemio Panganiban LEVELING THE PLAYING FIELD(2004)
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Slide38Adoption
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Slide39Adoption defined
“A juridical act which creates between the adopter and the person adopted a relationship similar to that which results from legitimate paternity and filiation.” (4 Velarde,474) “A socio-legal process of providing a permanent family to a child whose parents have voluntarily or involuntarily relinquished parental authority over the child.” (Philippine Domestic Adoption Act, 1998)
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Slide40Ancient Origins of Adoption
Several biblical storiesMoses and the Pharaoh’s daughter (Exodus 2:10)Orphan Esther who was adopted and became Queen of Persia (Esther 2:7)Jacobs adoption of Ephraim and Manesseh (Genesis 4:8)Babylonia back in 2286 BC, the Code of Hammurabi had enduring themes such as permanence of the parent-child relationship created in adoption and the indispensability of the biological parents’ consent to the adoption.(Aguiling-Pangalangan, NOT BONE OF MY BONE BUT STILL MY OWN, 2015)
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Slide41Purpose of Adoption
Historically, adopter-centricfor the benefit of the head of a family avoid extinction of the family nameenable a person to fall under the paternal power of the new head of a familyEffect: Made the adoptee the child of the adopter by legal fictionconditioned on the adopter being a full generation older
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Slide42Purpose of Adoption
Adoption must imitate nature. “As if” family.
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Slide43Purpose of Adoption
Modern view HC ICAC Preamble: Done in the “best interests of the child and with respect for his or her fundamental rights.” To ensure that children grow up in the “kind of family love and care that will enable tem to grow up with a decent chance of living a healthy and fulfilling life.” [Elizabeth Bartholet, ICA: Thoughts on Human Rights Issues, 152)
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Slide44Central Principles on Child’s Rights
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Slide45I. Best interests of the Child
Convention on the Rights of the ChildArticle 3. In all actions concerning children the best interests of the child shall be a primary consideration.Article 9(1). States Parties shall ensure that a child shall not be separated from his or her parents against their will, except …separation is necessary for the best interests of the child. Article 21:States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration.
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Slide46Best interests of the Child
B. Hague ICAC Article 1: “The objects of the present Convention are: a) to establish safeguards to ensure that intercountry adoptions take place in the best interests of the child and with respect for his or her fundamental rights as recognised in international law;”Article 4: “An adoption within the scope of the Convention shall take place only if the competent authorities of the State of origin – b) have determined, …that an intercountry adoption is in the child's best interests;”
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Slide47CRC and ICAC
Both CRC and ICAC recognize The existence of the family ties by nature between the birth family, more often than not, the birth mother and the child. But the HC ICAC Has a narrower focus: While drawing on the CRC principles, it provides minimum safeguard to protect the rights of children affected by ICA.Both CRC and ICAC accept Both Conventions accept that under certain circumstances, the family ties by nature or ties with the family of origin are severed and a new set of parents, who are strangers to the child, take over the parental rights and responsibilities.
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CRC and ICAC
Slide48“A primary consideration”
Distinguished from “the primary consideration.”BIC are a consideration of first importance among other considerations and have absolute priority over those other considerations.Does not give the decision-maker flexibility even in extreme cases.Distinguished from “the paramount consideration”Child’s best interests are determinative; more than the first but comes close to being the only consideration.
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Slide49Best Interests of the Child
Human Rights Council (HRC) recommendation (74):With regard to children, States, international organizations and civil societies should [a]dopt proactive protection measures … on the right of the child to have his or her best interests taken as a primary consideration, including by appointing properly trained and resourced guardians and establishing measures for protection and transition to adulthood;
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Slide50Best Interests of the Child principle:How important?
Child and Youth Welfare Code (PD 603) “In all matters relating to the care, custody, education and property of the child, his welfare shall be the paramount consideration. ”Domestic Adoption Act, (RA 8552) I”n all matters relating to the care, custody ad adoption of a child, his/her interest shall be the paramount consideration in accordance with the tenets of the Convention.”
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Slide51Best Interests of the Child
Briones v. Miguel [2004]Bearing in mind the welfare and the best interest of the minor as the controlling factor, we hold that the CA did not err in awarding care, custody, and control of the child to Respondent Loreta. There is no showing at all that she is unfit to take charge of him. We likewise affirm the visitorial right granted by the CA to illegitimate father over his children in view of the constitutionally protected inherent and natural right of parents over their children. Even when the parents are estranged and their affection for each other is lost, their attachment to and feeling for their offspring remain unchanged. Neither the law nor the courts allow this affinity to suffer, absent any real, grave or imminent threat to the wellbeing of the child. Panganiban, ponente
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Slide52Best Interests of the Child
Gualberto v. Gualberto [2005]“The Convention on the Rights of the Child provides that In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. The principle of best interest of the child pervades Philippine cases involving adoption, guardianship, support, personal status, minors in conflict with the law, and child custody.”
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Slide53Best Interests of the Child
Gualberto v. Gualberto (con’t)The principle of best interest of the child pervades Philippine cases involving adoption, guardianship, support, personal status, minors in conflict with the law, and child custody. In these cases, it has long been recognized that in choosing the parent to whom custody is given, the welfare of the minors should always be the paramount consideration. Courts are mandated to take into account all relevant circumstances that would have a bearing on the children’s well-being and development.” Panganiban, ponente
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Slide54Best Interests: Specific factors considered
Material resourcesPrevious care and devotion shown by each of the parentsReligious backgroundMoral uprightness Home environment Time availabilityChildren’s emotional and educational needsother factors may also be considered to ascertain which one has the capability to attend to the physical, educational, social and moral welfare of the children.Gualberto v Gualberto
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Slide55CRC and ICAC
Both CRC and ICAC concede: Responsibility of national authorities to asses how the alternative childcare solutions including ICA meet the best interests of children without a family.Problem: Best Interest of the Child standard is indeterminate.
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Slide56Best Interests of the Child
Problem of IndeterminacySubject to different interpretations depending on culture, religion and traditions. “An alibi for dominant ideology, an alibi for individual arbitrariness.” [Freeman, A Commentary on the UNCRC, 2]b. Current interest (formulated in relation to experiential considerations) v. future-oriented interests (what is best 10 years from now looking back).
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Slide57Role of the BIC principleUNICEF study
“Therefore, instead of being the sole basis for defining what action to take, best interests now have – or should have – a far more limited role within human rights constraints. This means that determining best interests needs to be a thorough and well-prescribed process directed, in particular, towards identifying which of two or more rights-based solutions is most likely to enable children to realize their rights, bearing in mind that the other people affected by those solutions also have their own human rights.”Nigel Cantwell, The Best Interests of the Child in Intercountry Adoption
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Slide58Role of BIC principle
Philip Alston [The Best Interests of the Child(1996)]In relation to children’s rights, the BIC principle has 3 roles:1) To “support, justify or clarify a particular approach to issues arising under the Convention.” An element which needs to be taken fully into account in implementing other rights2) To be a “mediating principle which can assist in resolving conflicts between different rights where these arise within the overall framework of the Convention.”3) A basis for evaluating the laws and practices of States Parties where the matter is “not governed by positive rights in the Convention.”
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Slide59II. ICA as the Last Resort
Subsidiarity principle “Subsidiarity” means that Contracting States recognize that a child should be raised by his or her birth family or extended family whenever possible. If that is not possible or practicable, other forms of permanent care should be considered”. (HCCH Note)
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Slide60Central Principles II. Subsidiarity Principle: ICA as the Last Resort
Convention on the Rights of the Child Article 20.1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.2. States Parties shall in accordance with their national laws ensure alternative care for such a child.
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Slide61Central PrinciplesII. Subsidiarity Principle: ICA as the Last Resort
Article 21, CRCStates Parties that recognize and/or permit the system of adoption shall …(b) Recognize that inter-country adoption may be considered as an alternative means of child's care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child's country of origin;
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Slide62Central PrinciplesSubsidiarity Principle: ICA as the Last Resort
Hague ICACArticle 4An adoption within the scope of the Convention shall take place only if the competent authorities of the State of origin -b) have determined, after possibilities for placement of the child within the State of origin have been given due consideration, that an intercountry adoption is in the child's best interests;
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Slide63Subsidiarity Principle
What is the difference between the CRC and ICAC?
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Slide64Subsidiarity Principle
What is the difference between the CRC and ICAC?Article 21(b), CRC gives preference to in-country foster care and other suitable institutional care instead of out-of-country adoptions. Article 4, ICAC gives preference to permanent placement through ICA if there is no permanent placement in the State of Origin.
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Slide65Kinds of Adoption
PhilippinesRepublic Act 8552: Domestic Adoption can be resorted to by Filipino citizens and by aliens residing in the Philippines for 3 continuous years.Continuous” allows for temporary absence for professional, business or emergency reasons not more than 60 days in 1 year. May be extended by DSWD for meritorious cases.365 x 3=1095-180=915 days in the Phil for 3 yrs.
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Slide66Kinds of Adoption
PhilippinesRepublic Act 8043: aliens and Filipinos permanently residing may adopt through abroad Intercountry adoption.Section 7. Intercountry Adoption as the Last Resort- The Board shall ensure that all possibilities for adoption of the child under the Family Code have been exhausted and that intercountry adoption is in the best interest of the child.
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Slide67Effects of Adoption
General Rule: Sever legal ties with biological parents. Creates a relationship of legitimate parent and child with the adopters.Rights to custody, exercise of parental authority and the Duty of support are transferred to the adopters.
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Slide68Effects of Adoption
Adoptee has same rights as legitimate biological childrenSurnameSupportSuccession
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Slide69Effects of Adoption: Citizenship
No loss of Filipino citizenship Opinion No 141, Series of 1994, DOJ Filipino children who are adopted by foreigners retain their Philippine citizenship notwithstanding acquisition of the citizenship of adoptive parents since under existing laws. Acquisition by a minor of a the foreign citizenship of his adopted parents is not one of the ways by which Philippine citizenship may be lost and cannot have the effect of naturalization or renunciation of Philippine citizenship.
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Slide70Acquisition of by child of adopters’ citizenship?
Therkelsen v Republic (1964)Turkish subject permanently residing in RP; married to a FilipinaFamily court denied petition for adoption.Ground: Turkish law does not confer citizenship to adoptee. The SC held that there is no requirement that the adopter’s citizenship must automatic confer citizenship to the adoptee. The citizenship of the adopter is a matter political, and not civil, in nature. Justice JBL Reyes, ponente
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Slide71Acquisition of by child of adopters’ citizenship?
USAChild Citizenship Act (2000) gives internationally adopted children automatic citizenship rights immediately upon adoption; proof of citizenship delivered to adopters’ home within 1 month of arrival in the Receiving State. An important move in the direction of reducing disparities in the treatment of adoption as compared to biologically related parenthood.Should Philippine law treat all legitimate children, whether by biology or adoption, the same way?
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Slide72Non-discrimination
CRC, Article 2.1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. 2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members.
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Slide73“Discrimination vs orphans”
Discrimination vs. Orphans, Philippine Daily Inquirer, August 30, 2015.“These children have been discriminated against because they have no known parents. Consequently, they suffer form lack of lineage, parental care, family support, inheritance and succession.Even those who have been legally adopted, cared for and unconditionally love by foster parents- while assured of the civil rights of legitimate children who are many times restricted in terms of their political rights to citizenship and residency which are prerequisites to exercise the right to vote and to be voted to public office.” Focus on Foundlings and Orphans With Due Respect 2, p 98
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Slide74De Santos v. Angeles (1995)
“Indeed, it is hardly fair to stigmatize and create social and successional prejudice against children who had no fault in nor control over the marital impediments which bedeviled their parents. They are the victims, not the perpetrators, of these vagaries of life… And this dissent finds its philosophy in this: that children, unarguably born and reared innocent in this world, should benefit by every intendment of the law, …”Panganiban, Dissenting Opinion
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Slide75Problem Areas in Adoption:
Intercountry adoption2. Sealing of birth records3. Risking abduction, sale & trafficking
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Slide76Problem Area #1
I. Interracial / Intercountry AdoptionA. Proponents for ICA- Race should not be a factor; the only aim is to place the child in a permanent home the soonest; Holding off the adoption for someone of the same race sometimes prevents children from being adopted altogether because of difficulty of placing older children. Same race placements violates the principle of anti-discrimination; it reinforces racialism [Randall Kennedy, Professor, Harvard Law School] Ensure child’s equal protection right to expeditious permanent places is not violated. [Elizabeth Bartholet, Professor, Harvard Law School]
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Slide77Problem Area #1
Interracial/Intercountry Adoption (Con’t)Waiting to place the child with with those of his same race is not be in the child’s best interest. - They end up spending their formative years in child caring agencies or live in the streets, instead of in a home which is the greatest molding force of a person’s mind and character.Race differences is not a barrier to intimate association of family life; racial identity is not a given but is arrived at. [Fogg –Davis]
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Slide78Problem Area #1
I. B. Opponents- 1. Loss of cultural identityChildren are best served by remaining in their community of origin, where they can enjoy their racial, ethnic and national heritage;Children are put at risk where they cay be subject to ethnic and racial discrimination in addition to loss of identity associated with their community of origin; Arguments are grounded in a country’s national claims of ownership rights over its children, or nationalist pride in not appearing unable to care for its children” [EBartholet]
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Slide79Problem Area #1
2. One of the ultimate forms of human exploitation. “The rich, powerful and white taking children from poor, powerless members of racial and other minority groups, thus imposing on those who have little what many of us think of as the ultimate loss.” “Typically adoptive parents are relatively privileged white people from one of the richer countries of the world, and typically they will be adopting a child born to a desperately poor birth mother belonging to one of the less privileged racial and ethnic groups in one of the poorer countries of the world.”[Kundu, Achina and Kundu Aushi, An Overview of ICA with Special Focus on Indiai, Bjarati Law Review. Oct-Dec 2013.]
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Slide82Not placing children from poor nations in families from wealthy nations would violate the child’s rightGan v. Reyes [2002], Bellosillo, J.On child support: “The Supreme Court had recognized the inviolable right of a child to adequate standard of living, holding that the writ of execution pending appeal of the case is proper. Under Article 27 of the Convention of the Rights of the Child, children have the right to an adequate standard of living that is good enough to meet their physical and mental needs…. In all cases involving a child, his interest and welfare are always the paramount concerns.”
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Right of a Child to an Adequate
Standard of Living
Slide83De Leon v. Soriano (1954) Montemayor, J.“The money and property adjudged for support and education should and must be given presently and without delay because if it had to wait the final judgment, the children may in the meantime have suffered because of lack of food or have missed and lost years in school because of lack of funds. One cannot delay the payment of such funds for support and education for the reason that if paid long afterwards, how ever much the accumulated amount, its payment cannot cure the evil and repair the damage caused. The children with such belated payment for support and education cannot act as gluttons and eat voraciously and unwisely, afterwards, to make up for the years of hunger and starvation. Neither may they enroll in several classes and schools and take up numerous subjects all at once to make up for the years they missed in school, due to non-payment of the funds when needed.”
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Right to an Adequate Standard of Living
Slide84Competing Values/ Countervailing Rights
When a permanent home in the child’s country is impossible, which choice will be in the best interests of the child:To have a culture or to have a family? To avoid a foreign culture or a culture of poverty?
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Slide85Competing Values/ Countervailing Rights
Preserving ones racial ethnic community and heritage v. IndividualityRight to an identity (to preserve one’s identity) versusRight to an adequate standard of living,Right to a family, Right to health, Right to education.
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Slide86Problem Area #2
Sealing of birth records and confidentiality of adoption records Proponents for secrecy- Protect the privacy of all parties. Art 16(1), CRC- No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence…”Underlying premise for secrecy: New family ties can be forged only if the birth family is rendered invisible and inaccessible.
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Slide87Problem Area #2
Secret from child and/or birth parents:Identity of the birth parent(s) are kept from the child and information on the child new name and circumstances is kept from the birth parent(s).Threat of reappearance of the birth mother may impinge forging strong bonds with the adoptive family.
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Slide88Problem Area #2
Secret from child and/or birth parents:Desire of the Birth mother (especially one who was unmarried) to avoid stigma and social condemnation. The Constitution cannot control such prejudices.The right to privacy is protected under our Bill of Rights of our Constitution. Article III sec. 1, under the due process protection for liberty, encompasses what we call “decisional privacy”, autonomous decision-making.
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Slide89Problem Area #2
Opponents of sealing recordsChild’s biological connection/ genetic link to his parents is a fact, and part of the child’s identity should not be permanently hidden. To be denied access to knowledge of one’s genetic history may impede the development of a person’s identity and sense of self-worth.In the US, a search movement has argued that being cut off the knowledge of their biological heritage results in “genealogical bewilderment.”
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Slide90“Being Moral in the Brave, New World: Human Cloning, Genetic Engineering, etc. – Ethical Considerations”
Fr. Ranhilio Callangan Aquino: “A child has no rights before it is conceived but once conceived it has a natural right to that intimate relation to its parents which arises from the fact that they are its biological parents by intercourse within marriage, an intercourse that fully expresses their mutual love. The adopted child, although far better off than an orphan, still lacks the complete implementation of this natural right, as is apparent from the many cases of adopted children who, despite the love shown them by their adoptive parents, are extremely anxious to locate their biological parents. x x x Children commonly fear that they are really adopted and thus may be someday rejected by their ‘parents’. ” The Bio-Age Dawns on the Judiciary, 402
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Slide91Philippine Domestic Adoption Act
“Sec 15:All hearings in adoption cases shall be confidential and shall not be open to the public. All records.….shall be kept strictly confidential.If the court finds that the disclosure of the information to a third person is necessary for purposes connected with or arising out of the adoption and will be for the best interest of the adoptee, the court may merit the necessary information to be released, restricting the purposes for which it may be used.”Note: Law does not prohibit disclosure of information to the adult adoptee. No court order is required to unseal adoption records.
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Slide92Philippine Intercountry Adoption Law
Access to information regarding adoptee’s origins: To adoptee- the adoptee who is of legal age and with a written authority from the Board.To adoptive parents- if the adoptee is still a minor and the birth mother left no express instructions against it.Third parties- By order of the court or proper public official when necessary in an administrative, judicial or other official proceeding to determine the identity of the parents or of the circumstances surrounding the birth of the adoptee or the nearest relative in case of the death of the adoptee.
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Slide93Right to Privacy (of the birth and/or adoptive parents)
versusRight to information, Right to identity, which includes access to origins.
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Competing rights
Slide94Problem Area # 3
Abduction, sale, and traffickingCRC, Article 35. States Parties shall take all appropriate …measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form. CRC, Article 21 (d). States Parties …shall: (d) ensure that, in inter-country adoption, the placement does not result in improper financial gain for those involved in it; HC Note: improper financial gain results in illegal or unethical enrichment and often in improper influence on decisions regarding a child’s adoption.
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Slide95Abduction, sale, and trafficking
OP, Article 2 (a). For the purpose of the present Protocol: (a) Sale of children means any act or transaction whereby a child is transferred by any person or group of persons to another for remuneration or any other consideration; b. Improperly inducing consent, as an intermediary, for the adoption of a child in violation of applicable international legal instruments on adoption in the context of sale of children
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Slide96Abduction, sale, and trafficking
HRC Report (December 2016) A/HRC/25/48 Illegal adoption is also an extremely hidden phenomenon. …Existing records suggest that there has been an increase in intercountry adoptions worldwide between 2000 and 2004, followed by a significant decrease. Demand for adoption has continued to increase, while supply decreases, creating the conditions for abuse, corruption, excessive fees amounting to the sale of children, and the illegal adoption of children.
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Slide97Surrogacy
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Slide98Assisted Reproductive Technology (ART)
In the 1950s, British scientist Robert Edwards began experimenting on IVF as a treatment for infertility.In the 1970s, he collaborated with gynecologist Patrick Steptoe.ART is an infertility treatment that includes handling of a woman’s eggs and a man’s sperm. (US National Library of Medicine)The first test-tube baby, Louis Joy Brown, was born in 1978 in the United Kingdom.
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Slide99Not a new concept
Greek Mythology: Semele died when she was pregnant with Dionysus, the god of wine. Zeus took the developing fetus, sewed it into his thigh, and birthed Dionysus. Book of Genesis: Sarah, the wife of Abraham, was unable to conceive a child. Sarah told her husband, “[t]he Lord has kept me from having children. Go, sleep with my slave; perhaps I can build a family through her.”Book of Genesis: Rachel, who is infertile, gives her servant to Jacob as a concubine to serve as a surrogate in order to procreate a child who will be considered the offspring of Rachel and Jacob.
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Origins of Surrogacy
Slide100Surrogacy
: The process of carrying and delivering a child for another person.” (Black’s Law Dictionary 1674 (10th ed. 2014).)[An] arrangement whereby a woman (‘the surrogate mother’) agrees to conceive and bear a child, which she intends to transfer to another or others (the ‘commissioning couple’ or ‘commissioning husband’ and ‘commissioning wife’) upon the child’s birth [Lowe & Barry, Australian Family Law]
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Definition of Terms
Slide101Traditional Surrogacy
: A surrogate mother is naturally or artificially inseminated with the Commissioning father’s sperm via intrauterine insemination (“IUI”), IVF or home insemination. (Pascoe); The traditional surrogacy arrangement the surrogate mother has a genetic link to the child she is carrying. The surrogate is not only the gestational carrier, but also the egg donor. Gestational surrogacy (total surrogacy)Under such agreements, gestational carriers agree to carry the embryo created from the ova and sperm of the intended parents. There is no genetic relation between the surrogate and the child she carries.
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Definition of Terms
Slide102Parties to a Surrogacy Agreement
Intended Parents/Commissioning Couple: Those who request another to carry a child for them, with the intention that they will take custody of the child as their own.”Surrogate Mother: The woman who carries the fertilized ovum to term with the understanding that she must relinquish her parental rights over the child after birth. If the surrogate mother is not related to the child, she may also be called the gestational carrier.
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Slide103How many parents can a child have?
FatherLegal (male intending parent)Biological (sperm donor who is usually the male intending parent)MotherLegal (female intending parent)Genetic (the egg donor )Gestational (carries the baby to term)
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Slide104Scientific progress such as artificial insemination and IVF have made surrogacy possible. Specifically, IVF “has enabled the genetic link between the surrogate mother and the child to be severed, in some cases allowing the creation of a genetic tie between the intending mother and child.” (HCCH Report on Surrogacy)
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Reasons for Evolution of SA
Slide105The Bio-Age Dawns on the Judiciary
“It is obvious that the gigantic strides in life sciences and life technologies will change human behavior and social interaction. That is certain. These resulting alterations will, in turn, require new modes of governance and, for us in the judiciary, new jurisprudential norms without precedence. For this reason, the Supreme Court has been monitoring these epochal transformations wrought by bio-sciences and biotechnologies and the need to keep our judiciary attuned to them…” CJ Artemio Panganiban
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The Bio-Age Dawns on the Judiciary
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Surrogacy agreements contracted in the Philippines
Slide107ART in the Philippines
In 1996, the first IVF center, RM lab, was established .Fee: ranges from PhP 250,000 to 500,000 (for one IVF cycle- extraction, fertilization, implantation)A decade ago there were three hospitals/clinics in the Philippines offer ART.St. Luke’s Medical Center (Center for Advanced Reproductive Medicine and Infertility or CARMI)Center for Reproductive Medicine Inc. (formerly RM lab)Victory ART Laboratory Phils. Inc.
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Slide108Surrogacy in the Philippines
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Slide110Definition of Terms
International Surrogacy Arrangement (ISA)A surrogacy arrangements entered into in the State of the habitual residence of the surrogate mother for the purpose of a surrogate birth in that state by intending parents who have the intention of living in a different State and have an intention of living in that State with the child born as a result of that arrangement.
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Slide111Filipinos as Intending parents in ISA
Perfume tycoon Joel Cruz is the father to two sets of twins, born to Russian surrogates. The children hold both Philippine and Russian passports.
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Slide112Filipinos as intending parents in ISA
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Slide113Rearing Rights and Duties
: Two types of disputes that could arise over rearing rights and duties with egg donation. First, the donor mother might later attempt to assert some rearing rights.Second, the intending parents attempt were made to hold the egg donor liable after birth for child support and other obligations.
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Legal Issues
Slide114William Stern and Mary Beth Whitehead entered into a surrogacy contract, which provided that Stern's wife, Elizabeth, was infertile, that they wanted a child, and that Mrs. Whitehead was willing to provide that child as the mother with Mr. Stern as the father.
For $10,000 the contract provided that through artificial insemination using Mr. Stern's sperm, Mrs. Whitehead would become pregnant, carry the child to term, bear it, deliver it to the Sterns, and thereafter do whatever was necessary to terminate her maternal rights so that Mrs. Stern could thereafter adopt the child. Mrs. Whitehead's husband, Richard, was also a party to the contract; Mrs. Stern was not.
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In Re Baby M
109 N.J. 396, 537 A. 2d 1227 (1988)
Slide115After giving birth and turning-over Baby M to the Sterns, Whitehead regretted her decision. When the Sterns allowed her to take Baby M out on vacation, she fled.
ISSUE: Validity of the surrogacy contract.HELD: We invalidate the surrogacy contract because it conflicts with the law and public policy of this State. While we recognize the depth of the yearning of infertile couples to have their own children, we find the payment of money to a "surrogate" mother illegal, perhaps criminal, and potentially degrading to women.
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In Re Baby M
109 N.J. 396, 537 A. 2d 1227 (1988)
Spouses Mark and
Crispina Calvert desired to have a child. Crispina was forced to undergo a hysterectomy in 1984 but her ovaries remained capable of producing eggs. They eventually considered surrogacy and in 1989 Anna Johnson offered to serve as a surrogate for the Calverts. A contract was executed wherein Anna agreed to relinquish all parental rights to the child in favor of the Calverts and get paid $10,000 in a series of installments, the last to be paid six weeks after the child’s birth.
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Johnson v Calvert
851 P.2d 776 (Cal 1993)
The zygote (
Crispina’s egg fertilized by Mark’s sperm) was implanted and Anna became pregnant.Relations deteriorated between the two sides since Anna did not disclose the fact that she had suffered several stillbirths and miscarriages.Anna demanded the balance of the payments due her, or else, she would refuse to give up the child. The spouses then filed an action seeking that they be declared the legal parents of the unborn child. Anna filed her own action to be declared the mother of the child.
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Johnson v Calvert
851 P.2d 776 (Cal 1993)
Slide118Held:
The Calverts were the child’s genetic, biological and natural parents, that Anna had no parental rights to the child, and that the surrogacy contract was legal and enforceable against Anna’s claims.“Because the two women each have presented acceptable proof of maternity, we do not believe this can can be decided without enquiring into the parties’ intentions as manifested in the surrogacy agreement. …But for their (the Calverts) acted-on intention, the child would not exist. Anna agreed to facilitate the procreation of Mark’s and Crispina’s child into the world, not for Mark and Crispina to donate a zygote to Anna.
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Johnson v Calvert
851 P.2d 776 (Cal 1993)
Slide119Definition of a “mother”Marvin McMurrey III v. Cindy Close (2012)
Facts: Close and Mc Murrey who were in their 40s wanted to become parents. Both were unmarried. They decided to co-parent a baby and used IVF to make Close pregnant using McMurrey’s sperm and an anonymous egg donor’s eggs. After Close gave birth to twins, McMurry sought full custody of the babies, saying that Close was only a surrogate. McMurrey sought a court's ruling declaring him as the father.
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Slide120Definition of a “mother”:Marvin McMurrey III v. Cindy Close (2012)
McMurrey argued that although Close is the "birthing mother" or the gestating mother, she is not a genetic parent because her eggs were not used in the process. Held:Close is the mother of the twins even if she is not genetically-related to them. No surrogacy agreement was shown by McMurrey Therefore: no proof that Close agreed to be a mere surrogate of the babies. Joint custody to Close and McMurrey.
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Slide121No case law yet but there is fertile ground
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Slide122Legal Issues in Surrogacy
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Slide123Extent of Regulation
1) All forms of surrogacy are prohibited. 2) Commercial surrogacy is prohibited but altruistic surrogacy is permitted and regulated. 3) Commercial surrogacy is permitted and regulated.4) Surrogacy is unregulated.
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Slide1241. Prohibit All forms of Surrogacy
A. Ignorance defenseArgument:The woman did not really know what she was getting into.A woman cannot make the decision to relinquish her child before she has given birth to the child.
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Slide125Counter- argumentJohnson v Calvert851 P.2d 776(Cal 1993) The argument that a woman cannot knowingly and intelligently agree to gestate and deliver a baby for intending parents carries overtones of the reasoning that for centuries prevented women from attaining equal economic rights and professional status under the law.
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Prohibit All forms of Surrogacy
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Slide126Prohibit All forms of Surrogacy
B. Argument: Absence of consentNo woman will agree to bear a child and deliver him/her only to relinquish her rights over the child if she had another choice.No real autonomyNo real agencyTherefore, the contract is void for absent of the requisite of consent.
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Slide127Prohibit All forms of Surrogacy
B. Even if the Surrogate knew, there her gave no real consent “If society has created circumstances that coerce poor women to give away or sell their children, a decision to perform as a surrogate cannot be truly voluntary; social and economic conditions are such that surrogacy is the best way for some women to support themselves” (Martha Field, Professor at Harvard Law School) There is no meaningful choice and informed consent on the part of the contracting surrogate mother. “Economic pressure undermines any notion of true consent”(John Pascoe, Chief Justice, Family Court of Australia)
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Slide128Prohibit All forms of Surrogacy
C. Dehumanizing: Fosters the attitude that women’s wombs and children are mere commodities.Reduces inherent personhood of a human to a market commodity;The new technology of reproduction is building on this commodification.“Baby Gammy scandal”-Australian couples commissioned a child in Thailand: twins were born, one with Down syndrome. The couple took only the healthy baby..
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Slide129Prohibit All forms of Surrogacy
D. State duty to protect the family It is in the interest of children and families in general for the state to foster a sense of security about them and to remove temptation by not allowing sales of family members for money. .
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Slide130Prohibit All forms of SurrogacyCounter-arguments
It will be useless to ban since people can travel.Exacerbate Black market; drive surrogacy arrangements undergroundRaise transaction costs without preventing the practiceThose advocating legislation for women in an ideal world, whereas women in the real world need these opportunities and should be able to take advantage of them.
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Slide131Prohibit All forms of SurrogacyCounter-arguments
Right to enjoy benefits of scientific progress.“Controversies including the biosciences and bio-technologies range from the ability to invent and influence life forms to the molecular level, to the technical deployment of reversible and permanent changes in crops, plants and animal life. And to the structure and function of human biology. To repeat, the consequences and the implications of these decisions transcend territorial jurisdictions.Thus courts have been tasked to decide cases relating to embryo ownership and disposition, including questions of fertility, abortion, reproductive rights, paternity and heirship.” Borderless Justice, LEVELLING THE PLAYING FIELD, 163-164.
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Slide1322. Allow Altruistic but ban Commercial Surrogacy
Altruistic: The intending parent(s) do not pay the surrogate (‘reasonable expenses’ associated with the surrogacy.)Commercial: Financial compensation beyond ‘reasonable expenses’ is paid.
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Slide133Allow Altruistic but ban Commercial Surrogacy
Argument Payment for services of the surrogate isUnethical because it creates coercive inducements to poorer women to serve in this role.
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Slide134Allow Altruistic but ban Commercial Surrogacy
Counter-argumentA ban on commercial surrogacy violates the surrogate’s right to work.Protected under ICESCR Article 6, 7, 8, 10(3) and CEDAW Articles 5(a), 6, 11, 14(1)). The right to work entitles women workers to have the possibility to earn their living through freely chosen work and to working conditions that are safe and healthy and are not demeaning to human dignity. Workers must be guaranteed a fair wage that allows for a decent life for them and their families.
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Slide135Allow Altruistic but ban Commercial Surrogacy
Violating the surrogate’s right to work“It is not only domestic law that requires this but international law as well. In particular, the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) defines "discrimination against women" as any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.” [Saudi Arabia Airlines v. Rebesencio, et al. [2015, Leonen, J.]
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Slide136Right to work
“Taking off from a speech I delivered before the Asean Law Association a few years ago, let me begin with a famous quotation of Dr. Martin Luther King Jr., “If a man does not have a job or an income, he has neither life nor liberty nor the possibility for the pursuit of happiness.”…. Humans need both justice and jobs; freedom and food; ethics and economics; peace and development; liberty and prosperity; these twin beacons must always go together; one is useless without the other.”
Chief Justice Artemio Panganiban https://cjpanganiban.com/2018/10/18/way-to-a-happy-free-and-prosperous-society
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Slide1373. Regulate Commercial SA: Impose high fees
Does it constitute exploitation for childless persons or couples who usually have greater financial means to pay women of less financial means to conceive and bear children for them? Argument Generous payment for a surrogacy arrangement makes it less exploitative. Payment is commensurate to the difficulty of the work and the its concomitant risks.Martha Field, SURROGATE MOTHERHOOD
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Slide1383. Regulate Commercial- Allow but keep fees low
A) If fees are high, surrogacy arrangements are harder to resist for women who have no other means of livelihood. Generous compensation entices women to act against their better judgment Ergo, eliminate the temptation by keeping fees low.
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Slide1393. Regulate Commercial- Allow but keep fees low
Counter-arguments: a) Workers must be guaranteed a fair wage that allows for a decent life for them and their families. b) Low fees paid by wealthy couples will further oppress the less wealthy surrogate. Exploitative twice over.Equivalent to devaluing women's work.
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Slide140Regulate on the following instead
Determine the floor and /or ceiling for the compensation.Require screening of the couple proposing to raise the child; already required for would-be adopters. Require screening of the surrogate mother (now this is done by the intending couple themselves).Establish a minimum age for surrogate motherhood. Impose on a surrogate reasonable duties of prenatal care.Example: no smoking, no drinking, no drugs.
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Slide1414. Do not regulate at all-Patronizing to women
It is patronizing to women and a threat to their rights, for government or society to assume the role of protecting them from doing what they want to do. It is important to recognize that adults have legal capacity to make independent decisions regarding appropriate life choice. this takes into account not just equality but also the normative value of autonomy.” [Freeman, The Human Rights of Children, 29].
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Slide1424. Do not regulate -Patronizing to women
It might be degrading for the surrogate to commodify her gestational services or her baby, but she might find this preferable than other real options she has in life. In the US there is a national association of surrogate mothers called Surrogates by Choice who promote surrogate motherhood and advocate to uphold women's right to play that role.Counter argument: Opens them to greater risk of exploitation.
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Slide143Whose human rights?
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Slide144Women’s human rights
The Women's Convention recognizes the inextricability of subordination and the economic and social structures that generate and perpetuate it. Article 3 mandates an affirmative state obligation to "take all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men."
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Slide145CEDAW
By accepting the Convention, States commit themselves to undertake a series of measures to end discrimination against women in all forms, including:to incorporate the principle of equality of men and women in their legal system, abolish all discriminatory laws and adopt appropriate ones prohibiting discrimination against women;to establish tribunals and other public institutions to ensure the effective protection of women against discrimination; andto ensure elimination of all acts of discrimination against women by persons, organizations or enterprises.
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Slide146Women’s right to Equality and Non-Discrimination
ICESCR, art 2(2), 3; CEDAW art 2, 3, 4, 5States may not discriminate against women, or groups of women, in law or in practice.
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Slide147Masstricht Guidelines on Violations of Economic, Social and Cultural Rights, Maastricht, January 22-26, 1997
12. Discrimination against women in relation to the rights recognized in the Covenant, is understood in light of the standard of equality for women under the Convention on the Elimination of All Forms of Discrimination Against Women. That standard requires the elimination of all forms of discrimination against women including gender discrimination arising out of social, cultural and other structural disadvantages.
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Slide148Right to Equality & Non-discrimination
1. Equal protection argument attacks anti-surrogacy legislation It treats infertile couples differently from one another. Laws provides a solution for a man who is sterile to have a legitimate child through artificial insemination by his wife of sperm from a donor;it is a violation of equal protection, for the state to prohibit an arrangement whereby a couple could not have a similar option when it is the wife who is infertile.
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Slide149Art. 164, Family Code
xxx 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.
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Slide150Family Code
The law does not address the status of children born as a result of in vitro fertilization procedures.Observe further that the law does not cover a situation where the egg of the wife is fertilized by the sperm of the husband but the zygote is is implanted in the uterine cavity of a third party or that the the third party is the one artificially inseminated with the sperm of the husband There is no law that governs a situation in which a third party undergoes artificial insemination. Therefore, Art. 164 does not explicitly apply to cases of traditional or total surrogacy, but can it be applied by analogy?
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Slide151Right to Liberty
2. Exercise of right to liberty (personal autonomy)The gestational mother’s obligation to relinquish the child she bore for the commissioning party is an expression of her freedom to undertake whatever work she chooses. “The refusal to acknowledge the legal validity of surrogacy agreements implies that women are not competent, by virtue of their biological sex, to act as rational, moral agents regarding their reproductive activity.”Shanley, M. (1993). "Surrogate Mothering" and Women's Freedom: A Critique of Contracts for Human Reproduction. Signs,18(3), 618-639
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Slide152Right to Liberty
If what we want to ascertain is that the agreement was entered into voluntarily then attention should focus on the parties’ negotiations before conception. If there was no coercion or pressure on the surrogate mother then she is an autonomous agent. The State should recognize the surrogacy agreement as the consequence of her autonomous reproductive decision.
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Slide153Right to Liberty
Furthermore, there should be no binding consent until after childbirth The surrogate mother may change her mind even after having given consent in the Surrogacy Agreement to relinquish her child. The state should not uphold freedom to contract and stability of commercial transactions over the right of women to remain with their children.
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Slide154Child’s Rights
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Slide155Right to Equality and Non-discrimination
CRC, Article 2: States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members.
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Slide156Right to Equality and non-discrimination
All human beings regardless of their status are entitled to a set of rights.Implicate the fundamental rights and interests of children, including the right not to suffer adverse discrimination on the basis of birth or parental status, the right of the child to have his or her best interests regarded as a primary consideration in all actions concerning him or her, as well as the child’s right to acquire a nationality and to preserve his or her identity.
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Slide1572. Protection Rights: Policy on protection of child, not banning SAs
If we do NOT debate whether to prevent the child's birth but instead how to promote her "best interests" after birth, no particular rule emerges. Whether it would be better for the child to remain with the surrogate mother or to live with the couple who contracted for her will vary with the facts and circumstances of the case. What is certain is that it is not in the child's best interests for parents to litigate.
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Slide158HRC Report (7):The Special Rapporteur considers that trafficking in persons, especially women and children, is primarily a human rights violation, People do not necessarily enter mixed migration movements as trafficked persons, but might become trafficked during their journey or when they reach a transit or destination country.
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Protection from
Abduction, sale, and trafficking
Slide159Protection from Abduction, sale, trafficking and sexual exploitation
OP, Article 2 (a). (a) Sale of children means any act or transaction whereby a child is transferred by any person or group of persons to another for remuneration or any other consideration.OP, Article 2 (b) Child Prostitution- use of a child in sexual activities for remuneration.OP Article 2(c) Child pornography- any representation of a child engaged in real or simulated explicit sexual activities. CRC, Article 33. States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse.
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Slide160Measures for protection
CRC, Article 4. States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention...where needed, within the framework of international cooperation. CRC, Article 35. States Parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form. Solution- Hague Convention
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Slide161Private International Law Issues
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Slide162On-going endeavors
Hague Conference on Private International Law (HCCH)Project on Parentage including surrogacyExperts’ Group -Factors in best interests of the child standardInternational Social Services (Geneva)Principles for better protection of children’s rights in Surrogacy
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Slide163Private International Law Issues
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Slide164Limping Parentage
Children may be left with “limping” legal parentage, with the consequent child protection concerns that this involves. If the country of birth allows the names of the intending parents to be in the birth certificate, parental rights are immediately given. But if the country of the intending parents does not allow surrogacy-Violates the child’s right to be with his familyViolates the child’s right to a name and identityCould result in Statelessness.
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Slide165Yamada v. Union of India (Writ Petition (C) No.369 of 2008)
India-Embryo Carrying Agreement Act allows domestic SA; No law prohibiting ISATraditional surrogacy arrangement: surrogate mother is Indian Child born in India India law prohibited single-parent adoptionJapan- bans surrogacy, children born to surrogates are not children of the Japanese nationalsJapanese couple, Yuki and Ifukumi Yamada, commissioned a commercial surrogacy with an Indian woman. However, the Yamada couple divorced prior to the birth of the child.
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Slide166Yamada v. Union of India(Case of Baby Manji)
Ifukumi did not want the child, baby Manji, who had no connection to her.The surrogate did not claim the child as hers since it was a clear contractual arrangement for her.Indian law considered the Japanese male the father but Japan did not.Yuki wanted to adopt Manji in India to bring him to Japan; but India prohibited single-parent adoptions. Yuki’s visa expired so he had to return to Japan leaving Manji in India. Indian courts dismissed the case upon assurance by the Indian government that it will issue Manji an Indian passport. Japan granted Manji a visa to enter Japan.
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Slide167What will our Courts do?
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Slide168Rendering judgments in the absence of laws
“There are many baffling areas where we may not have firm answers as yet. But we must still grapple with the realities of the new bio-sciences and learn to cope with the long-term and far-reaching effects they will have on our legal system and dispensation of justice. After all, under our Civil Code, the silence, the obscurity or the insufficiency of our laws in not an excuse to avoid rendering judgments in appropriate cases.” CJ Artemio Panganiban The Bio-Age Dawns on the Judiciary
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Slide169If a similar case is filed in RP, some possible solutions are:
Void the Surrogacy contract. The subject matter of the contract is not within the commerce of man and/or there was no consent. Thus, the surrogate and the commissioning father are the parents of the child. Since they are not married, the child is an illegitimate child under the parental authority of the mother, with visitorial rights exercised by the father.2. Uphold the contract. Courts have an interest in sustaining the stability of commercial transactions. Therefore, in the absence of a law prohibiting SA and there being no coercion to enter into the contract, SAs are valid. The surrogate is not the mother of the child. The commissioning couple is the parents of the child.
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Slide170If a similar case is filed in RP, some possible solutions are:
3. Characterize case as a Family Law issue. Philippine laws have no provisions on maternity and presumes that the mother is the woman who gives birth to the child. Thus, the woman who is both the genetic and gestational surrogate is the mother of the child. If the woman is the gestational surrogate but the egg of the female commissioning/intending parent was fertilized by her husband’s sperm (as proven by DNA testing), then she and her husband are the legal parents of the child.
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Slide171Conclusion
“The challenge in this era of globalization— for countries and individuals— is to find a heathy balance between preserving a sense of identity, home and community, and doing what it takes to survive within the globalization system. Otherwise stated, the need of the hour is to balance national interest with international survival.” Chief Justice Artemio Panganiban “Judicial Globalization,” The Bio-Age Dawns on the Judiciary, 31.
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Slide172Conclusion
Legislation must catch up with these challenges brought about by advancement in science. I hope my lecture helps theaudience understand the legal issues and ramifications of adoption and surrogacy;legislators see the importance of passing laws that address these issues; andjudges who have to face the dilemmas on their own are able to render a sound judgment.All guided by the standards:1) BEST INTERESTS OF THE CHILD– for Child’s rights; and2) EQUALITY AND NON-DISCRIMINATION –for Women’s rights.
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Slide173Thank youChief Justice Art Panganiban,Foundation for Liberty and Prosperity UP College of Law, Atty. Mike T., Chrisette, Anton, Roy, Annie & Joq of the Institute of Human RightsUP Law Center
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