Surrogacy in the Philippines
G’day. I’m. Stephen Page from Page Provan Family and Fertility Lawyers. I’m a dad through surrogacy. Since 1988, I have advised in over 1750 surrogacy journeys for clients in every part of Australia, and at last count, 32 countries overseas.
I’ve had clients living in the Philippines, and one of the things I want to talk to you about is whether you should consider undertaking surrogacy in the Philippines. The simple answer is don’t do it. Just don’t do it. And the reason is as follows.
Let’s talk about, first, the problems in the Philippines, and second, talk about the problems back here in Australia.
The Philippines is a conservative Catholic country. I had thought that the Philippines was the only country in the world that didn’t recognize divorce, and I was corrected. I was corrected the other day. The Vatican, of course, is the other place that does not recognize divorce in the world. One wouldn’t imagine there’d be much need for divorce in the Vatican.
But nevertheless, those are the only two countries that do not recognize divorce. And that just says the conservative nature of the country is a Catholic country. And when one looks at that, one then makes sense of some of the issues with the law to do with surrogacy. And the first thing to see is that there is, in fact, no law to do with surrogacy in the Philippines. And you might therefore think, okay, righto, we can do surrogacy in the Philippines.
There’s no law where we go, well, problem. The woman who gives birth is the mother. That’s it. You’re not a parent. You will not be a parent of a child born in the Philippines.
So you might be able to find a woman over there who is prepared to be a surrogate. You might be able to pay a fee to her to do that if she’s not a family member. But I just wouldn’t go there because there’s no way that the child can be yours, unless, of course, you’re engaging in a process of adoption. And then that gives us a world of pain, both potentially there and here. You can guarantee that in the Philippines, there are anti-trafficking laws.
It might be seen that you’re trying to traffic a child from that Filipino surrogate. That Filipino woman. I just wouldn’t go there. In most of Australia, it is an offence to engage overseas in adoption, where you pay a woman for a child. In Queensland, of all the sections, it is in the Adoption Act 2009, it’s section 303. It sounds like a rifle, doesn’t it?
If you pay for an adoption overseas, you can commit an offence back here. And that’s pretty common across Australia. But that’s the first issue. You aren’t recognised as a parent, and you have particular peril with payment.
But the second issue is this. Filipino doctors won’t engage in surrogacy. Why? Because the Philippine Medical Association is opposed to it.
Surrogacy in the Philippines is secretive and unexplored. With this video, there’s a link to a paper that talks that was published last year in 2021, that talks about surrogacy in the Philippines. It’s not happy reading, but basically everything is done underground. This is never a good sign of making sure that you have a transparent approach for your child.
The Philippine Association of Fertility Doctors opposes surrogacy. They won’t do it. It’s really as simple as that. So what do we actually see in the news? Philippine women undertaking surrogacy, but not doing it at home.
They’re doing it somewhere else. They might fly off to Europe, for example, to Ukraine to get pregnant. They might fly off to Cambodia to get pregnant. And you immediately think if you’re flying a woman from there to somewhere else, another developing country or a post-Soviet country, what does that say about the ethics of doing this, the legality of doing this? If it sounds dodgy, it sounds too good to be true. Just assume it’s dodgy and it’s too good to be true.
And what have we seen about those who went to Cambodia? Well, the Cambodian government is saying, well, “We are going to have specific laws about surrogacy. We haven’t got there yet. But in the meantime, we’ll use the anti trafficking laws to crack down on surrogacy, including Filipinos going to Cambodia for surrogacy.”
I just wouldn’t touch it with a barge pole. But anyway, that’s the problems over there. What about bringing the baby home? When you’re going to bring the baby home to Australia, you have to establish that your child has Australian citizenship. How do you do that?
You have two things to prove. First, you have to prove that at the time of the child’s birth, there was an Australian citizen parent. Second, you have to prove the child’s identity. So let’s just deal with the first one. If the Filipino woman is shown on the birth certificate as the only parent, you may not be able to prove to the satisfaction of officers of the Department of Home Affairs that you are a parent because who was a parent under the Australian Citizenship Act is someone seen in the wider view of Australian society to be a parent?
It might be a mixture of genetics, cultural issues and legal issues. And here we might say, well, we’ve done a DNA test. We’ve gone off to the DNA lab that the Australian government recommends. We can show that the man, for example, is the genetic father of the child, but it might be that under Philippine law, he’s not a parent. And that might therefore mean that the child is not recognised in Australia as your child and therefore not be able to obtain Australian citizenship.
Disaster. Let’s assume somehow by some miracle, you overcome that hurdle and you get to the next point, which is, well, we can show parentage, the Department of Home Affairs is satisfied that your parents. But how do you prove ID? Well, I’m a parent, I’ve got my DNA test that shows that I’m a parent. Great, but what about the woman who gave birth?
If it’s secretive and unexplored, you have to get her to consent. She has to consent to the child leaving the Philippines. She has to consent to her ID of being shown to Australian authorities. I’ve had clients who came to me after they did surrogacy in China. My clients were shown on the birth certificate as the parents. In China, it’s lawful for intended parents trying to take surrogacy, but it’s an offence for the doctor to engage in it.
So some doctors do it under the table. They say, “Well, we’re not really doing surrogacy, so you don’t really meet the surrogate.” All dodgy stuff. So what happens? The intended parents don’t meet the surrogate or if they do, it’s just over in a blink. They may not know the name of the surrogate.
Then what happens? Well, they apply for Australian citizenship and guess what? They can’t prove the identity of the child. Therefore, officers of the Department of Home Affairs can be satisfied that one of the parents is a parent of their child for the purposes of the Australian Citizenship Act but can’t be satisfied about the identity of the child and therefore reject the citizenship application. The child cannot live in Australia.
The child may be rendered stateless. These are disastrous outcomes for children. I’m not aware of any Australian who has gone to the Philippines to undertake surrogacy there.
Given that I’m not aware of it, It’s unlikely to have happened. Or if it’s happened, It’s happened in a secretive, unexplored manner in which the Australian government has been lied to.
You don’t want to be committing offences in dealing with the Australian government. You don’t want to put your child’s welfare at risk. You don’t want to be unintentionally unexpectedly committing an offence back here. Just don’t do it. And finally, if you were to go to the Philippines and it’s not a family member or friend who’s being a surrogate and you’re paying a surrogate a fee, it’s almost certainly a commercial surrogacy arrangement. And if you come from Queensland, New South Wales, or the ACT, you’re almost certainly committing an offence or offences. And if you’re from South Australia Or Western Australia, you may be too.
Just don’t do it. If you don’t remember anything about this video about whether or not you should go to of the Philippines for surrogacy and you’re an Australian, just don’t go there.