Gigolo entered into an agreement with Majorette for her to carry in her womb his baby via in vitro fertilization. Gigolo undertook to underwrite Majorette’s pre-natal expenses as well as those attendant to her delivery. Gigolo would thereafter pay Majorette P2 million and, in return, she would give custody of the baby to him.
After Majorette gives birth and delivers the baby to Gigolo following her receipt of P2 million, she engages your services as her lawyer to regain custody of the baby.
What legal action can you file on behalf of Majorette? Explain. (2.5%)
Can Gigolo demand from Majorette the return of the P2 million if he returns the baby? Explain. (2.5%)
Who of the two can exercise parental authority over the child? Explain. (2.5%)
Is the child entitled to support and inheritance from Gigolo? Explain. (2.5%)
Suggested answer only. Not an official answer and not legal advice.
(a) Majorette can file habeas corpus. (b) No, Gigolo cannot demand P2 million back. (c) Majorette has sole parental authority. (d) Yes, the recognized child gets support and inheritance. Under Article 176 of the Family Code, the
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Quick check
Under Article 176 of the Family Code, who exercises sole parental authority and custody over an illegitimate child born out of a surrogacy arrangement?
Article 176 explicitly grants sole parental authority and custody of an illegitimate child to the mother.
What is the proper legal remedy for a mother seeking to recover physical custody of her illegitimate child unlawfully withheld by another?
Habeas corpus is the proper remedy to regain custody of a child unlawfully detained or withheld.
Under Article 1412 of the Civil Code, why is a father barred from demanding the return of money paid under a void surrogacy contract?
The in pari delicto doctrine prevents recovery of money paid under a void contract that violates morals and public policy.
Under Article 176 of the Family Code, can a father exercise substitute parental authority over his illegitimate child without a court order?
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What is required under the Family Code for an illegitimate child to claim support and successional rights from the biological father?
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Learn more about these topics
1. Illegitimate Child Custody
Under Article 176 of the Family Code, an illegitimate child shall be under the sole parental authority and custody of the mother. Any contract or agreement, such as a surrogacy contract, that surrenders or transfers custody of an illegitimate child to the father or a third party in exchange for money is void ab initio for being contrary to law and public policy. Consequently, the mother may institute a petition for habeas corpus to regain custody from anyone unlawfully withholding the child.
2. In Pari Delicto
Under Article 1412 of the Civil Code, when the fault is on the part of both contracting parties and the act does not constitute a criminal offense, neither party may recover what he has given or demand performance of the other's undertaking. Because a contract for surrogacy in exchange for money is void for being contrary to public policy and morals, both parties act in pari delicto. Thus, the father cannot demand the return of the money paid to the mother.
3. Illegitimate Child Rights
Under Articles 172 and 175 in relation to Article 195 of the Family Code, as well as the rules on succession under the Civil Code, an illegitimate child whose filiation is duly established or recognized by the father is entitled to support and successional rights. Once recognition or acknowledgement is proven through authentic writing or admission of paternity, the illegitimate child acquires the right to receive compulsory support and inherit as a compulsory heir from the father's estate.