You are on page 1of 21

The Concept of Civil Personality


n the realm of the law, the "person" stands both as its fun-
tal subjeot and as its object. In the words of a learned
, the "person is the star actor in the juristic drama, the
of the juristic system, the center of the legal universe,
t whom there would be juridical chaos and oblivion. He
:s into every legal :r:elation from the highest to the lowest,
'mplest to the most complex and is the "sum and substance
legal world." After all, what are constitutional law and
. al law good for, if there were no persons? For was the
ot made for persons rather than persons for the law?
gal relations cannot be created 'and maintained without
'stence of persons, who are susceptible of being its sub-
But when does a human being acquire the personality,
makes him a fit subject of legal relations? When does
uire that juridical capacity or "caput" as the Ancient Ro
call it, which gives him a standing before the law, enacted
ily to guarantee and protect his rights to life, liberty, and
? This is the task which this humble work has assumed
erlake. The discussion will however, be limited only to
I persons and not to artificial beings, as corporate en-
'Whichare also regarded as "persons" under the law.
the treatment of the subject, it is our aim to discuss the
d analyze its precepts in the light of the principles of
medical science. For it cannot be denied that modern
I science plays a very important role in the administra-
our present system of justice in the Philippines.

Art. 29. Legal existence commences at birth but the

nceived child is considered as born for all purposes favor-
Ie to it, provided that it be born with the requisites men-
ned in the following article.
Art. 30. In contemplation of law, the foetus
not be considered as born unless it shall have a hu
form and shall live twenty-four hours after complete
ration from the mothers' womb. (Fisher's Civil Code)

From the provisions of Art. 29, it is clear that froon

moment of conception, the germ of human personality b
to exist; there is a human embryo in the process of its n
ral growth, which the law cannot disregard in any manner,
law safeguards the intrauterine life of man with three pr'
pal objects: First, to insure his existence; second, to pr
and protect his free development; and third, to recognize
him certain civil rights.!

The precedents regarding the legal consideration of bi

are varied both in the Roman Law as well as in the Anci
Spanish law. In the first, the Proculians require as a sign
life the cry of the newborn child and while this fact does
exist, the child is not considered as born. On the other h
the Sabinians (another school of Roman jurisconsults) w
not contended with the real fact of bIrth. Their doctrine
"Si vivus perfecte, natus est," that is, if the child lives perf
it is considered as born. This was the doctrine adopted
In Spain, the Fuero Juzgo (promulgated about the mid
of the seventli century) requires baptism and life for ten da
while the Fueros Municipales makes the condition of birth
pendent upon the duration of life, but a variety of periods
been fixed. The Fuero Real is concerned solely with bap ,
The Partidas require primarily "birth with a human form,"
notwithstanding the fact that it establishes a legal presu
tion from the duration of a woman's pregnancy, fixing the
mum at 6 months and 1 day and the maximum in 10 mon
this refers only to the relative aspects of birth, that is, to
legitimacy of the offspring. The Leyes de Toro require
the child be born wholly alive, lives for 24 hours and recei
the sacrament of baptism.2

1 Manresa, vol. 1., p. 191.

2 Sanchez Roman, Derecho Civil, vol. 1, p. 166.
anresa believes that our present provisions regarding
have been more directly taken from the "Leyes de Toro,"
XIII of which provides:
'We order that a child shall not be considered abortive if it
wholly alive and should have lived after birth at least
natural hours and has been baptized before it dies; or if
within said period or is not baptized, we order that said
be considered abortive and cannot inherit from his father
er nor from ascendants; but if because of the husband's
ce or because of the length of time that has elasped since
"age, it is clearly pro"ved that it was born at a time, in
it could not live naturally we order that although the
should possess the above mentioned characteri~tic that he
not be considered as legitimately born.3

Under our law three elements must concur in order to con-

legal birth, which is productive of civil personality. They
(1) live birth, (2) human form and (3) Independent life
not less than 24 hours. A close critical study of each
"tutive element is necessary.

interesting medico-legal question naturally arises in this

ion namely, what constitutes live birth? Upon the ans-
this querry will often depend the decision in important
for the rights of inheritance and other similar questions. 4

etermination of this question is also of great importance

inal cases involving infanticide.
s to what constitutes a live birth it is well admitted that
DS the accomplishment of the act of bringing into the
the whole body of a foetus coming from the mother's
, having an independent circulation and respiration, even
the umbilical cord has not been seperated.5
o prove that the child was alive is often difficult. Respi-
is a true sign of life, but the reverse is not true, that the
dead because it has not breathed.6 It is admitted that
D may be born alive and live for some time without re-

Legal Medicine, by Dr. Angeles (new book in preparation p. 616.)

L)egal Medicine and Toxicology, by Petterson, Haines, and Webster
p. 958.
I Medicine, by Dr. Angeles, p. 117.
gal Medicine and To}:icology by Emerson, p. 150.
spiring and this want of respiration is no objection to thes
children being considered as in law.7 Reese states tha:
according to the laws of the Umted States and England neithe
breathing nor crying are essential to establish live birth; thr
pulsation of the child's heart or of one of its arteries or th:
slightest voluntary movement is regarded as sufficient for this
purpose.s The opening of the eyes, the twitching of the lids
the flexion of a limb or any muscular movement has been held a~
sufficient evidence that the child was alive.9 In France, the re-
spiration and in Germany and Scotland, the crying attested by
impeachable witnesses is enough for this purpose.
In relation to crying as a test of live birth, Lord Coke re-
marks: 'If it be born alive, it is sufficient, though it be not
heard to cry, for peradventure it may be born dumb.1o Fur-
thermore crying cannot always be regarded as an undisputable
sign of live birth. Let us suppose, that the evidence of a child
having been born alive is stated to be that it was heard to cry;
it may be a question for a medical witness in cross examina-
tion whether this is to be taken as an absolute proof of live
birth. The answer must be in the negative because a child may
cry before its body is entirely born or there may have beeu
what is called as vagitus uterinus, a uterine cry after the rup-
ture of the membranes. It is quite cert~in that a child may
breathe without crying, but it cannot cry without breathing, yet
neither the crying nor the breathing is a necessary proof that
the child was born al~ve. A child may breathe in the womb or
vagina or with its head at the outlet and die before its body
is wholly born, the discovery of its having breathed would not
therefore be proof of its having enjoyed what has been termed
as "extra-uterine life." As in all cases of this description, there
must be eye witnesses either professional or not, the evidence
will not rest solely upon a merely medical possibility of the oc-
currence of such a cry before birth, and proof will then be re-
quired of the crying of the child after it was born.
There is no doubt that the best test to apply in suC
cases for the determination of physiological life is aU
culation. The beating of the heart as determined by the e~r 0
,the stethoscope, applied even for five consecutive minutes IS

7 A Manual of Medical Jurisprudence, p. 614.

Legal Medicine and Toxicology, by Petterson, Haines,
ter, p. 958.
Legal Medicine and Toxicology, by Emerson, p. 150
,. Angeles, Legal Medicine, p. 177.
11 Taylor, Med. Juris., pp. 616-617.
ted sign of life in a physiological sense, whether the child
, cries, or moves. Bouchut noticed on one occassion
ssive life continued in an infant for 23 hours after its
Feeble but distinct pulsations were heard at long in-
but there was no motion of the ribs. Attempts at re-
tion were made, but the motions of the heart become
and more feeble until they entirely ceased. An examina-
owed that the lungs had not received air. As we take the
on of the heart's action to be the only certain evidence
th, so the existence of pulsation in the heart or arteries
Flearly perceived by the ear, stethoscope, or finger is posi-
idence of life in a physiological sense. But is this legal
Would the proof of pulsation without motion, respiration
. g, transfer an estate by inheritanace or survivorship?
t justly observes that apparent death succeeding to birth
aracterized by ,the presence of a beating of the heart and
nce of breathing is only a morbid condition of the nw
fant; and whether it is cured at this or dies, it is living,
h it has not breathed. Those who contend that cry-
breathing alo"lle should be taken as a sign of life after
ould of course pronounce such a child to have been born
ven if at the time they might be listening to the pulsa-
its heart.'2
del' the Philippine law, there is no doubt that if such a
n of apparent lif is maintained for a priod of 24 hours
by law, the child will be considerd as a person within
ning of the law and vested with the juridical personality,
to make him a fit subject of legal relations. At the
we llljayhere point out what is regarded as the undesira-
dition of our law. It simply requires live birth and in-
t life for at least 24 hours. It does not take into ac-
e degree of development or viability of the child. In
s of Mucius Scaevola, a well-known commentator of the
Law: "No basta el hecho del nacimiento como determi-
exclusivo de la creacion de la personalidad; es preciso
ido reuna elementos de viabilidad sufficientes para pro-
existencia durante algun tiempo."'3 This brings us to
question hitherto left untouched by our law-the ques-

YIor, Med. Juris., p. 616.

evola, Codigo Civil, vol. 1, p. 443.
Viability is a term popularly used to denote the ability
manifested by the child to be born alive and to live after i
birth as an independent being apart from its mother. As
what extent may the normal period of gestation be consisten
with viability, it is conceded generally that 180 days or six
lendar months is the minimum intrauterine age necessary fo
the human infant.'4 Marco Tulio in his commentaries on t
Civil Code interprets viability to mean that the child must hay
been born within the period comprising from the seventh man
to the tenth month of gestation, following the doctrine of Hip
Viability is an indispensable legal requirement in the m
modern Codes. The French Civil Code in Art. 725 requir
that the foetus must be born viable, that is, it must not ha
physical or congenital defects, which make it predestined to die
or before the normal period of gestation.~According to t
Civil Code of Louisiana: "Basta que el hijo haya nacido viabl
aunque no haya vivido sino un instante." The fundamen
basis of the French Civil Code is as follows: A child born befa
the 6 month's period of gestation, even if born alive is incapab
to prolong its existence. The sa:me thing may be said with
gard to such children born with an inherent organic defect
apparent and clearly shown that it is predestined to die.
civil personality can ",e attributed to such beings, inasmuch
juridical capacity must depend not only upon live birth but a
on capacity to maintain an independent existence.'6
Viability as a requirement for legal birth has its scient"
foundation in medicine. With the exception of very rare ca
it is known by experience that children born before the peri
of 6 months of gestation, although capable of being born aU
and even if they survive the perils of birth, they are apt to s
cumb to diseases or accidents, that children of ordinary vita
will resist.u Infants born in the fifth month or even as
as the fourth month have survived for a short time, but s
infants can never be conceived as having reached the period
viability. In instances in which infants of suppossedly less
6 months duration have survived, doubt must be entertained

" Angeles, Leg. Med., p. 144.

"Marco Tulio, Derecho Civil, p. 38.
,. Estudios sobre el Codigo Civil Chileno, por Luis Borja, vol. 2, p.
17 Angeles, Legal Medicine, p. 144.
accuracy of the calculation. The only reliable evidence in
cases consists in a careful expert investigation of the tissues
l'gans of the child if it subsequently die or if the physical
estation at the time of birth.1s
n this connection, it must be taken into account that the
e degree of maturity of the child, the less its probability to
alive at birth, and the better its physical formation the
r its resistance to perils of accidents and sickness at and
birth. Medical authorities generally admit that the age of
-ty of a child varies in different individuals and it is de-
nt upon the influences of several cicrumstances such as
lities, sickness, and the like. Some children at the
th month are as sufficiently developed as others at the
hence in deciding this question with relative accuracy it is
ial to combine all the facts available in each given case,
than to rely upon the mere calculation of intrauterine age
In fact the figures used as belonging to certain periods
tion are only approximate, and the most accurate and
Ie basis of opinion is the degree of the actual develop-
acquired by the child: that is, if the child is sufficiently
ormed so that its condition is usually described as that
ormal one, it may be admitted that it is capable of inde-
t existence 19 and may thus be regarded as viable.
e discussion of viability is of great importance in re-
to our law, because its absence should be regarded as a
facie incapability of being born alive, a requisite laid
n our law.
e most important point, therefore, not taken up by our
the question of viability. It is still a desideratum in our

e Civil Code also requires that the foetus must have a

form." But what is meant by "human form"? This
n has raised the most intricate problems for both the
and the medical men. The difficulty arises from the
a precise legal definition as to what constitutes "human
, Some Commentators on the Civil Code believe that there
d for this requirement inasmuch as any being proceed-
D1 the sexual union of a man and a woman must have at

Leg_ Me<!.& Tox., by Petterson, Haines & Webster, vol. 1, p. 958.

gEles, Legal Medicine, pp. 129-130.
least the characteristics of the human species.
this opinion. He criticizes the rule laid down in this resp
in the following words: "A mas de esto requiero el C6dig
que el feto tenga 'figura humana', condicion originaria de las
Partidas, copiadas a su vez del Derecho Romano, y en nuestro
sentiI' ociosa, porque todo ser procedente de la union sexual del
holmbre y la mujer tiene siempre los rasgos caracteristicos y
generales de la especie humana, sin ser posible que ruena algun
6 algunos de otra cualquiera." 20
But it is a well known fact that monstrous birth not fre-
quently become the subject of court investigation, particular}
in connection with infanticide and the definition of the ci .
rights of the newborn babies. As to the first point, a large pro.;
portion if born alive is killed on account of the hideous or repug_
nant features, inspite of the legal rule prohibiting the destruc-
tion of monsters. On the second point inquiry may rise as t
whether such a monster as this possesses human shape entilted
civil personality as provided by Article 30 of our Civil Code.* :to
The importance of this determination rests upon the fact, tha
although the newborn infant is medically classified as a monster
yet if it is legally pronounced from the medical evidence
have a human shape and if it is born alive and lives at lea
twenty four hours after its birth, it may inherit or transmi
an estate to its heir at law, as if it were a normally formed child
As no case of this kind has as yet been brought before th
court in the Philippines, attpntion is called to the somewh
conflicting decisions, which having been handed down in oth
countries regarding monstrosities or as to the legal defnitio
as to what is meant by human shape.21
The law of England has given no precise definition
what is intended by a monster. According to Lord Coke,
monster is a being which "hath not the shape of mankind."
If this principle is applied to ordinary practice, it does not co
stitute a monster to have deformity in any part of the body
long as the being has "human shape" and here medical eviden
may be called in to determine whether such a being is a roo
ster or a living human being. The legal question relates to t
external shape and not to the internal arrangements.23 The
fore malpositions, transpositions or defects of the internal 0

20 Scaevola, Codigo Civil, vol. 1, p. 443. 8(

21 Angeles, Legal Medicine (new book in preparation), p. 618-61
22 Taylor, Medical Jurisprudence, p. 623.
23 Emerson, Legal Medicine and Toxicology, p. 168.
of the cavities do not form monstrous births within the
ng of the law. It is a well-known fact that many inter-
malformed persons live to a great age and it is not until
death that malpositions and defects of this kind are dis-
d: Likewise, a mere deformity in any part of the body
as supernumerary fingers or toes, twisted or deformed
will not constitute a monster in the law as far as sucession
operty is considered provided, the being still has "human
"24 On the oUler hand, a blighted foetus or a mole is not
.y a child, so far as succession to property is concerned!"
French jurisprudence the case appears to be different; if
lposition or defect was such as to become a cause of death
after birth, the child would be pronounced not "viable" and
ore incapable of acquiring civil rights. The English law
not regard internal monstrousity as forming a bar to civil
and the cases hitherto decided by the -English courts show
y that the simple question in English jurisprudence is not
er a chIld is or is not viable, but 'whether it has mani-
any distinct sign of life after it was entirely born. The
eh law is much more complex and throws a much greater
of respons~ility on French medical jurist.26
Accordingly human form and monstrousity are not entire-
nsistent with each other, the capability to maintain an
ndent life after birth being the essential element for de-
in tfie law.27 Monstrousi,ty is not also entirely inconsist-
h vialibility. The Siamese twins, joined to each other
shoulders is an example to show that a notorious mon-
ty does not necessarily imply lack of viability. Hof-
cites of a case in Vienna in the clinic of Braun, where
e of a hemiceph.alus was maintained for 7 days.28 Fur-
ore, under its strict interpretation, an amancephalus, for
Ie, which may be considered a monster -;'ccording to the
I terminology would be a person in law, as it certainly
e human form. Hence, because of the absence of clear
line drawn, it may be concluded that this question
be aecided by the courts the function of the physician be-
ted to the description .of the object or subject, which
rn and its distinguishing characteristics. 29

: AnTaYlor,Medical Jurisprudence, pp. 623-624.

geles, Legal Medicine, p. 618 (a)
laYlor, Medical Jurisprudence, pp. 628-624.
ngeles, Legal Medicine (new book), p. 618 (b)
aofmann, Medicine Legal, p. 169.
Angeles, Legal Medicine (new book), p. 618 (b)

We now come to the discussion of what is regarded as th

objectionable portion of our law on civil personality. For leg
purposes in the Philippines proof that the child was alive dur-
ing twenty-four hours after birth, completely separated fro
the mothers womb, is the essential requirement. Whether t
child was viable or not, affected or not by disease or conditio
which will make it impossible that 'his life be maintained fo
longer time than twenty-four hours, these do not enter into th
legal difinition.30 The principal object of this requirement
to look for means by which the certainty of birth is guaran
and not to fix the essential conditions for huma existence.31
The question that inevitably arises is: "Why is the peri
fIxed by law limited to twenty-four hours?" Has this requir
ment any scientific foundation in legal medicine?
Mucius Scaevola believes that the requisite of independen
life for twenty-four hours does not conform to the principle
of medical science. Commenting on Article 30 of the Ci .
Code, he says: "N 0 se aviene esta doctrina con el rigorism
cientifico. Un feto puede bien vivir 24 horas y, sin embarg
por su constituci6n especial, por alguna enfermedad congeni
esta condenado a muerte fatal e irremediable, y en cambi
otro que tenga todas las condiciones de viabilidad puede n
vivir el termino que marca la ley, por cualquier causa ind
pendiente y extrafia a esas mis:-nas condiciones. De aqui qu
no debe admitirse teoreticamente la doctrina del articulo d
fijar un espacio de tiempo como signo de viabilidad; de aq
tambien que haya verdadera oposici6n entre la natural y la 1
gal, si bien precisa reconocer que en la practica es necessari
asentar un principio general, como hace el Codigo por los in
convenientes que traeria consigo el dejar que en cada caso con
creto hubiese que determinar si el nacido era 6 no viable.32
Sanchez Roman holds the same view as Scaevola. He a
mits that the sum total of all the requirements enumerated .
the law as a legal critirion, constitute a presumption iuire et
iure, which in most cases produces results contrary to bo
justice and reality. And this will truly 'happen, when n~
withstanding the poor organic consti,tution of the child at 1
birth, which renders impossible the maintenance of his life fo

30 Id., p. 118.
31 Manresa, Codigo Civil, vol. 1, p. 198.
32 Scaevola, Codigo Civil, vol. 1, p. 449.
of twenty-four hours, the resources of medical science
to preserve artificially its life until after the expiration
hours; thereby giving rise to important changes and
ions in the order of succession to an inheritance. On
er hand, it 'may happen that a child is born completely
or after having attained such a degree of physical de-
ent, absolutely compatible with life for even a longer
than twenty-four hours. But due to some external
or some accident or criminal act, he dies before the lapse
hours after birth. He will not be considered as a person
ed with civil personality, because the condition of the
strict in requiring an independent extra-uterine life for
rs.83 Such rulings are greatly open to serious objections
bring up problems of difficult solution, if not inconsist-
th actual scientific notions and possibilities, and even with
reasons. The question of a liv-e birth and capability to
ring twenty-four hours after birth is not merely incon-
with justice and reason, but also of difficult, nay impos-
ppreciation by scientific procedures, in the sense that
requirement does not take into account neither the lower
of viability or development of the child nor the possibil-
accidental death shortly after birth of a full-developed
child. Such an inconsistency of the Philippine law is
demonstrated by the well-known fact that the test of
stence in almost all civilized communities is siill\Ply the
h, regardless of the number of hours that the child has
alive after birth.34
e basic defect of our law, therefore, as has been already
out, is its failure to take into account the condition of
of the child or its capacity to live. The perod of twen-
hours has been fixed in an arbitrary manner because it
based upon any principle of legal medicine. Leading
tators on the Spanish Civil Law have, however, given
stification to the legal requirement. Sanchez Roonan
itting the defective condition of the law from a
e view point, gives his justification to it in the following
"En cambio de los inconvenientes que alguna vez pue-
r este criterio del Codigo, de regIa fija y tasada, si se
aceptado el de atender a la prueba de la viabilidad fisica
caso, se hubiera entregado punto tan fundamental a los

chez Roman, Derecho Civil, vol. 1, pp. 174-175.

les, Legal Medicine, p. 177.
peligros de error, de malicia, y de falta de suguridad,
genero de pruebas penciales y testificales traen consigo.
Manresa holds the same opinion. He maintains
bility as required by the French Civil Code is justly cri
by jurists. He contends that there is no fixed criterion by
viability can be determined by judges and that it is ev
ficult for medical science itself to fix the precise conditi
which the capacity of the child to live may be determin
cording to him the legislators that framed the Spanish
Code has not failed to take into account the defective
of investigation afforded to the machinery of human .
and the possibility of fraud, which will occassion seriou
sequences to such a matter of transcendental impo
family life. The Code having this facts in view has fix;
minimum period of life for the new-born child and if i
not live during that period, it is not considered to hav
personali ty. 36
But a doubt arises as to wnether such reasons as ad
by these illustrious jurists still holds true at the present
Medical science has progressed with such rapid strides an
endowed the machinery of human justice with adequa
satisfactory methods of investigation and no longer is the
city of the child for an independent life calculated or de
by chance or hazard. It is now acerlained by definite
fic tests 37, which has been proved by medical experien
1. The Meaning of Independent Life
The meaning of "independent life" is not clear to
lawyers. Its determination is by no means free from
ficulty. Can the child have an independent life while i
culation is still dependent upon its mother? Is the life
the child lives between the time of its birth and the es
ment of respiration and independent circulation an inde
There are two senses in which the word "in depend
may be used. There is actual independence and there .
tential independence. A child is actuaIly indepenent
father when it is earning its own living. It is potentiaIly
pendent when it is capable of earning its own living. In

"Sanchez Roman, Derecho Civil, v. pp. 174-175.

36 Manresa, Codigo Civil, vol. 1, pp. 197-198.
37 These tests are discussed in Angeles, Legal Medicine, pp.
is the word independence used in this connection? Is
ae~ual or potential independence? 38
While the blood of the child circulates through the placen-
it is renovated through the lungs of the mother. In such
it breathes through the lungs of the mother. It has no
se: n during that period to breathe through its own lungs.
s:hen the resource of its mothers lungs is denied it, th8n
. es the exigency of establishing an independent circulation
d respiration. Children it seems, oftentimes, do not breathe
ediately upon being born, but if the umbelical cord is
ered, they must then breathe or die. Cases are recorded it
true, where a child has been wholly severed from the mother
d respiration has not apparently been established until after
lapse of several minutes of time. During that time it must
ve had circulation and circulation was independent. Wheth-
it had appreciable respiration or was in the condition of a
rson holding his breath, it is a question not necessary to be
sidered. It is sufficient to say that while the circulation of
e child is still dependent its connection with the mother may
suddenly severed by artificial means, and the child not ne-
arily die. This is proven by what is called Caesarean ope-
tion. A live child is cut out of a dead mother and survives.
ch a child has a potential independence antecedent to its ac-
al independence. What the law requires is actual independ-
ceo And the reason is obvious, because there is no way of
ving the possibility of independent life, if actual independ-
ce was never established39

2. The Legal Meaning of "Complete Birth"

The other question which arises in this connection is the
al meaning of complete birth. Our law requires a complete
paration from the mother's womb. It seem to be well spe-
tied that the term complete birth, imply a complete extrusion
the child from its mother's body; hence even if a child has
n lying for some time in bed, if one of its feet happens to
Ve remained in the vagina at the moment of his death, there
~~ld.not .be a. live birth in the eyes of the law.'o But still the
OWIngInqUIries arise. Does the law consider a child fully
~Udedfrom the mJaternal passages but having the umbilical
r still attached to the womb of the mother as born alive and

: ~tate v. Winthrop, 22 American Reports 257.

to tate v. Winthrop, 22 Am. Rep. 257.
Angeles, Legal Medicine, p. 188.
having independent existence? On the other hand, d
law regard the non-essential connections between the
and the child as immaterial to qualify that a child was
alive and enjoying an independent existence, even though
of its parts are in or connected with the maternal p
provided that an independent circulation and respiration
established. In other words, is the mere possession
power of living free from essential connection with its
sufficient for a child to be regarded by law as a live be'
The law, however, is strict in requiring complete extrusi
hence the mere power of living is not sufficient.
Considering this question from its purely scientific
it appears that it would be out of reason to require a
and complete extrusion of the child from the mother's b
essential requisite for a live birth. Aside from the f
the life may exist independently whenever there is indep
circulation and respiration, it is well-known that the q
of a total extrusion from the maternal passages depend
so many insignificant circumstances which do not aff
power and efficiency of living of the new born child!2
Again, if the date of live birth chould be fixed at
ment of complete delivery, it would always be hard for
ical witness to swear positively as to the exact moment a
birth, and even the approxima,te time, taking into accou
the living condition is not incompatible with partial bi
ing certain length of time. Tidy reported a case wb
head was born one minute before midnight on Decern;be
1799, but the body was not completely born till one minu
midnight, so the child's birthday was January 1st, 1800.
Civil rights of the child and its heirs will therefore depen
the careful observation made by the medical practitioner
circumstances attending delivery. He should note th
when the child is completed by the body of the child
entirely out of the body of the mother.44 In cases wb
birth is accomplished, care should be taken that the
date and hour are accurately registered as a variation
hours may make a great difference in the civil rights
child or his heirs.45

" Ibid, p. 128.

42 Angeles, Legal Medicince, p. 129.
43 Ibid, p. 118.

H Taylor, Medical Jurisprudence, p. 616.

" Emerso'n, Legal Medicine and Toxicology, p. 167.
The study of the legal rights of unborn children is of great
rtance and interest to us in view of the provisions of our
to the effect that the conceived child shall 1'e considered
\'Vbornfor all purposes favorable to it, provided that it be born
"th all the requisites prescribed by law. The importance of
is question is well demonstrated by the fact that it has be-
e the object of many legal controversies in foreign jurisdic-
Has the unborn child in the mother's womb such a legal
istence as that with another living co-heir, that it gave a
urt jurisdiction to order a sale for the division of inheritance
tween the two? This was the question before the Supreme
ourt of Alabama in the case of Gillespie v Nabors (31 Am.
p. 20-23). In this case a petition was filed by the admin-
rator of the estate of Jon . S. Gillespie deceased praying
at an order of sale be issued by the court with respect to the
roperty left by the deceased on the ground that said lands are
f unequal value and are so situated and are of such dimensions
at they cannot be equitably divided among the heirs. The
tition sets forth only one heir John Jr. and the belief that
ere will be another, then in ventre sa mere. This oelief is
sed upon the pregnancy of the widow of the deceased. The
urt in deciding the case held: "That the existence of the in-
ant as a real person before birth is a fiction of law, for the
urpose of providing for and protecting the child, in the hope
d expectation that it will be born alive and be capable of
joying those rights which are thus preserved for it in antici-
~ion. Although by the civil law of succession a posthumous
Ild was entitled to the same rights as those born in the life-
e of the decedent, it was only on the condition that they were
rn alive and under such circumstances that the law presumes
ey. would survive. * * * Children in the mother's womb are
sldered in whatever relates to themselves as if already born'
t h'ld '
~ ~ ~en born dead, or in such an early stage of pregnancy
th e, lDcapab~e of living, although they be not actually dead
e tIme of bIrth, are considered as if they had never been
rn or conceived. Infants unborn are not "seized" hence
~s cannot sell their interests because such interest do not
rth:~d the c?u,r~s c~n o~ly sell interests th~t are existing.
nts' mor~, dI.vIslOn ImplIes two or more claImants or red-
, and Its aIm and object are that the property, when divid-
ed shall pass into separate enjoyment. Hence, a petition
sale of lands that shows on its face that there is but one
or devisee is a nullity.
It is now settled tnat from the time of conception the
fant is in esse, for the purpose of taking any estate, Which
for his benefit whether by descent, device, or under the sta
of distribution provided, however, that .the infant be born
and after such a period of foetal existence that its continua
in life might be reasonably expected. Thus the fiction of
law regards an unborn child as born for the purposes conn
with the acquisition and preservation of real and personal pr
But what are the rights of the unborn child connec
with his person. After birth, can he maintain an action
damlages for injuries suffered by him while in his mothe
womb? Cases on this point are unanimous in holding
such an action will not lie.
In the case of Walker vs. Great Northern R. Co. I
(Ir.L.R.A. 28 C.L. 69) cited iI).Gorman vs. Budlong, 55 L.R
118, the plaintiff an infant of a few months of age brought
tion for injuries sustained by her while en ventre sa m
hereby she was permanently crippled and deforlned. The chi!
mother was a passenger in the defendant's railroad and
fered injuries during her pregnancy, and brought action
recovered damages for her own injury. The infant
brought the present suit. The case was learnedly argued
considered and the judges were unanimous in holding that
action will not lie. The court held that "as a matter of f
when the negligence occurred the plaintiff was not in esse---'
not a person or a passenger or a human being. Her age
her existence are reckoned from her birth and no preced
has been found for this action. * * * It is not contended
the action arose out of contract. But the contract, if th
was any was between the defendant's and Mrs. Walker (
mother) and so far as contract is concerned, it was to
Walker that the defendants were liable for .the breach of
If it did not spring out of contract, it must have arisen f
the relative situation and circumstances of the defendants
plaintiff at the time of the occurrence of the act of neglig
But at that time the plaintiff had no actual existence was
a human being and was not a passenger, * * * and there i
principle or authority to show that a legal duty has ever
held to arise towards that which is not in esse in fact and
fictitious existence in law as to render a negligent act
breach of that du y. .
In Allaire v. St. Lukes HospItal (48 L. R. A. 225; 56 N. E.
) the facts are similar to the case previously cited. The
. tiff an infant of tender age brought suit by his next friend
~~st the defendant for injuries sustained while in the womb
his mother, alleged to have been caused by the negligence
the defendant in an elevator accident. The plaintiff was
'ppled and deformed as a result of the accident. The court
missed the action and held that the doctrine of the civil
w that the unborn child shall be regarded in esse for some
urposes when for its benefit is a mere legal fiction and cannot
interpreted to the extent of allowing an action by an infant
r injuries occasioned by the negligence of another while the
ild is still in his mother's womb. The same ruling was laid
own in the case of Gorman v. Budlong (55 L. R. A. 18) by
e Rhode Island Supreme Court in dismissing an action insti-
ted by Ithe plaintiff in behalf of his child for the recovery
damages sustained by the latter while on ventre sa mere.
this case, the plaintiff was renting a tenement of the defend-
. The latter failed to make repairs on the defective ceiling
the tenement, notwithstanding the repeated demands of the
intiff. As a result of the defective condtion of the ceiling,
fell on the wife of the plaintiff, severely bruising and in-
ring her and causing her to give birlth prematurely to a
ild. The child became ill and weak as a result of the pre-
ature birth and the plaintiff incurred considerable expenses
r medical treatment. The court held thaJt the action will not

The rule laid down in the foregoing cases, was further ra-
ied in the case of Dietrich v. Northampton (52 Am. Rep. 242)
~re the mother of the deceased child slipped upon a defect in
hIghway of the defendant town. She was at the time between
a~d 5 months advanced in pregnancy. The fall brought on
lrliscarriage and the child was too little advanced in foetal life
urvive its premature birth. An action was brought on be-
ld of the deceased child. The court in dismissing the action
that the child was a part of its mother at the time of the in-
a.ndthat it could not be said to have become a person recog-
In law as capable of having a locus standi in court or being
resented there by an administrator.

The problem to be solved may be concretely presen

follows: "Suppose that a live born child has been killed
the expiration of 24 hours after birth and as yet having
acquired the status of a civil person in law, is such a ki
classifiable as murder or homcide, whenever the ground
infanticide do not exis,ts?"
Infanticide is the killing of a new born child not
than 3 days old caused by the mother of the infant or his
ternal grandparents for the purpose of concealing the dish
of the mother. The crime of infanticide is therefore Ii
to the mother or maternal grandparents of the infant and
essential 'element is that it must have been committed
the purpose of concealing the mother's dishonor. The e
must have been committed "within three days after the bi
the child." Interpreting the law in its reasonable sense,
but logical to infer that the crime of infanticide may be
mitted upon a live born child, if he is killed befvre the expira
of 24 hours after birth, because the act clearly falls within
three-days period prescribed by law. Thus, the crime of i
ticide exists even when the child or the victim has not liv
24 hours necessary to crea~e civil personality.
With regard to the crimes of murder and parricide,
Penal Code is silent as to the period during which a
should have lived if it happens to be the victim of the a
killing and the elements of infanticide do not exist. Art.
of the Penal Code provides: "Any person who shall kill
father, mother, or children, whether legitimate or illegiti
or any other ascendant or descendant, or his spouse, sh
guilty of Parricide and shall suffer the penalty of cadena
petua to death." Art. 403 provides that "the crime of
der is committed by any person who, not falling within the
of the next article, shall kill another under any of the fall.
circumstances: 1. With alevosia. 2. For a price or proID
r,eward. 3. By means of inundation, fire, or poison. 4.
evident premeditation. 5. With cruelty, by deliberately
humanly increasing the sufferings of the offended
(Guevara's Penal Code)
Doubt arises as to whether the killing of a child before the
iration of twent-four hours after birth can constitute .as
P der or parricide, in view of the fact that such a chlld
JIlurnot as yet acquired the status of a person in law and has
has efore no civil personality, necessary to make him a fit sub-
o of juridical relations.
But should the crime go unpunish-
Should the offender be free just because a technical re-
uirement of the law, the victim happens not to be a "person."
q Under the Common Law, the act clearly constitutes murder if
eommitted by a stranger. According to Blackstone, life begins
in complation of criminal law as soon as the infant is able to
or in the mother's womb.46 Murder has been defined or de-
ibed by Lord Coke in the following words: "When a person
sound memory and discretion unlawfully kiIleth any rea-
onable creature in being and under the king's peace with IDa-
ce aforethought, express or implied." This definition was
opted by Blackstone and upon commenting upon the phrase
reasonable creature in being," said: to "To kill a child in the
other's womb is now no murder, but a great misprision; but if
e child be born alive, and dieth by reason of the potion or
rnises it received in the womb, it seems, by the better opinion
to be murder in such as adminstered or gave them. This in-
retation is based upon the settled principle of the common
w, that where death ensues from an act done without lawful
urpose, dangerous to life; malice the essential element of mur-
er is implied.47 If the acts violence, even if committed before
h is considered as murder the more reason, should it be
nsidered as murder if they were inflicted on the child after
irth. It is therefore clear that under the common law, the
DIy requirement is live birth and once the child is born alive,
crime of murder is committed if he is killed.
Viada is of the opinion that" a stranger who kills a newly
rn child is also liable for the crime of infanticide but he must
fer the penalty prescribed for murder and not for homicide
r the reason that the lawmaker believes perhaps that in
ch an iniquitous death, the killer always acts with evident
Chery.48 It is evident fram the phrase newly born child
t Viada refers to a child that has not lived for a very long
e af~er extrusion from the mother's womb. It clearly applies
a chIld who has been killed before the expiration of 24 hours

: ~uling Case Law, vol. 14, p. 217.

3 la~k v. Stage, 23 Southern Reporter, 671.
Vlada 59: Albert's Law on Crimes, pp. 374-375.
after its birth. But what the writer cannot comprehend
the act should be classified as infanticide if the penalty to
posed is that the prescribed for murder. The essenti
ments of infanticide are lacking. Morever, the penalty
that of murder, there is no legal reason why the crime
not be considered as murder. Furthermore, if the crime
fanticide can be committed upon a child, who has not liv:
24 hours after its birth, there is no reason why the same
cannot be considered as the subject of murder or parriei
the offender is related to the victim) if he is killed and th
ments of infanticide do not exist.
The law pays such a high regard for human life, tha:
interpretation of the law that would endanger human exi
will be out of place. The principal object of the law is to
guard and insure the existence of the newly born child.
object can only be attained, if the penal law should be ap
to the culprit, who kills a newly born child with the same se
as it is applied to one who kills a full-grown person.
conclusion is irresistible that the rule of civil personality f
in the Civil Code, applies only to civil rights. It is not
cable in criminal cases. The best solution therefore, of the
lem under discussion is to consider the crime either as m
or parricide according as to whether the elements of eith
these two offenses are present, and the grounds of infan
do not exist. The principles of public policy, the exigenei
public safety, the security of society, and the preservation
fant life requires such a solution in order that so horri
crime should not go unpunished.

After a critical study of the subject, the writer has

to the following conclusions:
1. Our law does not take into consideration, the con
of viability of the child. For legal purposes, proof tha:
child was born alive, has a human form and lives independ
of the mother for 24 hours is the essential requirement.
these requisites prescribed by law are proved to exist, the
becomes a person under our law, regardless as to whe
is viable or not.
2. The requirement of twenty four hours of life is cons
not only with justice and reason but also with the princiP
medical science. In view of the foregoing, and due conside
th practical defects surrounding the exact determination of
2~ hours age of a new born child, proof as to the length of
after birth should be considered by the courts of justice not
conclusion, but merely as a prima facie evidence which may
aebutted by other evidences. These are mainly those related
:he degree of development, the healthy condition and the ab-
ce of any signs indicating shorter life. Accordingly, the
tus shall not be regarded as born for legal purposes unless
hould have been born alive and of a sufficient degree of devel-
ent indicating beyond reasonable doubt its potentiality and
pacity to maintain an independent existence after com,plete
paration from the mother. Such a condition shall be legally
sumed, unless there be conclusive evidence to the contrary.49
3. The existence of a child as a person before birth is a
e fiction of the civil law and the child shall be entitled to
rights only when he is born with all requisites prescribed
the law.
4. The killing of a live born child before the expiration
24 hours after its birth may be classified either as murder or
'cide, if the elements of infanticide are absent.


It is suggested that our law on civil personality be modi-

in such a manner as to provide that when a child is born
Ie and such viability is proved by competent medical evi-
ce, the child should be considered as a person, regardless
the number of hours that it lives after birth. J.t is further-
re recommended that the terms "complete separation from
e mother's womb" should not be strictly construed as to re-
're complete extrusion. Once an independent circulation and
piration is established, the child should be considered as born
ve according to the law, and the non-essential connections
th the motner should be disregarded .

Angeles, Legal Medicine (

new book in preparation), p. 620.