GELUZ v CA G.R. No. L-16439

NATURAL PERSONS

A.    BIRTH

NCC

Article 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. (29a)

Article 41.

For civil purposes, the fetus is considered born if it is alive at the time it is completely delivered from the mother's womb. However, if the fetus had an intra-uterine life of less than seven months, it is not deemed born if it dies within twenty-four hours after its complete delivery from the maternal womb. (30a)

1987 PC ART 2

Section 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government.

Presidential Decree No. 603

Article 5. Commencement of Civil Personality. - The civil personality of the child shall commence from the time of his conception, for all purposes favorable to him, subject to the requirements of Article 41 of the Civil Code.

2^nd PAR TFC

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. (55a, 258a)

Art. 180. The effects of legitimation shall retroact to the time of the child's birth. (273a)

RPC

Art. 256. Intentional abortion. — Any person who shall intentionally cause an abortion shall suffer:

1. The penalty of reclusion temporal, if he shall use any violence upon the person of the pregnant woman.chanrobles virtual law library

2. The penalty of prision mayor if, without using violence, he shall act without the consent of the woman.chanrobles virtual law library

3. The penalty of prision correccional in its medium and maximum periods, if the woman shall have consented.chanrobles virtual law library

Art. 257. Unintentional abortion. — The penalty of prision correccional in its minimum and medium period shall be imposed upon any person who shall cause an abortion by violence, but unintentionally.

Art. 258. Abortion practiced by the woman herself of by her parents. — The penalty of prision correccional in its medium and maximum periods shall be imposed upon a woman who shall practice abortion upon herself or shall consent that any other person should do so.chanrobles virtual law library

Any woman who shall commit this offense to conceal her dishonor, shall suffer the penalty of prision correccional in its minimum and medium periods.chanrobles virtual law library

If this crime be committed by the parents of the pregnant woman or either of them, and they act with the consent of said woman for the purpose of concealing her dishonor, the offenders shall suffer the penalty of prision correccional in its medium and maximum periods.chanrobles virtual law library

Art. 259. Abortion practiced by a physician or midwife and dispensing of abortives. — The penalties provided in Article 256 shall be imposed in its maximum period, respectively, upon any physician or midwife who, taking advantage of their scientific knowledge or skill, shall cause an abortion or assist in causing the same.chanrobles virtual law library

Any pharmacist who, without the proper prescription from a physician, shall dispense any abortive shall suffer arresto mayor and a fine not exceeding 1,000 pesos.c

GELUZ V. CA

Nita Villanueva came to know the defendant (Antonio Geluz) for the first time in 1948 — through her aunt Paula Yambot. In 1950 she became pregnant by her present husband before they were legally married. Desiring to conceal her pregnancy from her parent, and acting on the advice of her aunt, she had herself aborted by the defendant. After her marriage with the plaintiff, she again became pregnant. As she was then employed in the Commission on Elections and her pregnancy proved to be inconvenient, she had herself aborted again by the defendant in October 1953. Less than two years later, she again became pregnant. On February 21, 1955, accompanied by her sister Purificacion and the latter's daughter Lucida, she again repaired to the defendant's clinic on Carriedo and P. Gomez streets in Manila, where the three met the defendant and his wife. Nita was again aborted, of a two-month old foetus, in consideration of the sum of fifty pesos, Philippine currency. The plaintiff was at this time in the province of Cagayan, campaigning for his election to the provincial board; he did not know of, nor gave his consent, to the abortion.

FACTS:
1. Her present husband impregnated Nita Villanueva before they were legally married.

2. Desiring to conceal her pregnancy from the parent, she had herself aborted by petitioner Antonio Geluz.

3. After her marriage, she again became pregnant. As she was then employed in the COMELEC and her pregnancy proved to be inconvenient, she had herself aborted again by Geluz.

4. Less than 2 years later, Nita incurred a third abortion of a two-month old fetus, in consideration of the sum of P50.00.

5. Her husband did not know of, nor consented to the abortion.

6. Hence Oscar Lazo, private respondent, sued petitioner for damages based on the third and last abortion.

7. The trial court rendered judgment ordering Antonio Geluz to pay P3,000.00 as damages, P700.00 as attorney’s fee and the cost of the suit. Court of Appeals affirmed the decision.

ISSUE:
Is an unborn child covered with personality so that if the unborn child incurs injury, his parents may recover damages from the ones who caused the damage to the unborn child?

RULING:

1. Personality begins at conception. This personality is called presumptive personality. It is, of course, essential that birth should occur later, otherwise the fetus will be considered as never having possessed legal personality.

2. Since an action for pecuniary damages on account of injury or death pertains primarily to the one injured, it is easy to see that if no action for damages could be instituted on behalf of the unborn child on account of injuries it received, no such right of action could derivatively accrue to its parents or heirs.

3. In fact, even if a cause of action did accrue on behalf of the unborn child, the same was extinguished by its pre-natal death, since no transmission to anyone can take place from one that lacked juridical personality.

4. It is no answer to invoke the presumptive personality of a conceived child under Article 40 of the Civil Code because that same article expressly limits such provisional personality by imposing the condition that the child should be subsequently born alive.

5. In the present case, the child was dead when separated from its mother’s womb.
This is not to say that the parents are not entitled to damages. However, such damages must be those inflicted directly upon them, as distinguished from injury or violation of the rights of the deceased child.

It is unquestionable that the appellant's act in provoking the abortion of appellee's wife, without medical necessity to warrant it, was a criminal and morally reprehensible act, that can not be too severely condemned; and the consent of the woman or that of her husband does not excuse it. But the immorality or illegality of the act does not justify an award of damage that, under the circumstances on record, have no factual or legal basis.

The decision appealed from is reversed, and the complaint ordered dismissed. Without costs.