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Borja, Merryl Angelic C.

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MEMORANDUM OF LAW

TO: Ms. Zaila Parcon

FROM: Ms. Merryl Angelic C. Borja, Paralegal

DATE: June 01, 2017

RE: Zeno Parcon


In Vitro Fertilization
Parental Filiation

I. STATEMENT OF FACTS

The pertinent information and documentation on record in the instant case are as
follows:

1. That sometime in 1992, former movie star, Mark Matikas, received an offer for
him to give some of his sperm for the purpose of fertilizing the egg cells of an
undisclosed female in connection with an In Vitro Fertilization (IVF) procedure.
In return for his sperm samples, he received P500,000.00. He then signed an
Agreement, stating that he is waving all rights that he may have over the said
child, for protection of the possible child that may be conceived through the
procedure.

2. That in 2016, he met with Atty. Rafael Yabut, the counsel of the mother of the
child who was conceived through the In Vitro Fertilization procedure conducted
last 1992. According to Atty. Yabut, the said child, who is now more than 20 yrs.
old, suffered a kidney disease and would be needing a kidney transplant. He was
contacted since they would like to ask if it is possible for him to give one of his
kidneys for the said child. In return, Mark will be compensated in exchange of
his kidney for the amount of One Million Pesos (1,000,000.00), to which he
generally agreed upon and was paid accordingly.

3. That the kidney transplant procedure was successful. However, one of the
member of the medical staff of the hospital where the transplant was conducted,
which happened to be one of his cousin, who told Mark the identity of his said
biological child and the mother of the latter.
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4. That, the name of his son is Zeno Parcon, a multi-millionaire, owner of several
gas stations and the major stockholder of a top tier French restaurant and his
mother is Zaila Parcon, a billionaire.

5. That in March 2017, Mark suffered a heart attack and spent almost all his money
for his hospitalization and medicines. Mark then, decided to ask financial support
from Zeno for his medical expenses. However, Zeno refused to give him
anything. Therefore, Mark filed a petition for support against Zeno before RTC
Pasig. He then argued that Zeno, being his biological son, is legally obligated to
give support to him per the Family Code.

6. That, Mark and Zeno had a chance encounter in a mall which turned into a
confrontation. Zeno accused Mark of being an opportunist and a leech. He
further added that he does not recognize Mark as his father. Hurt about the things
said to him by Zeno, Mark posted a video in YouTube.

7. That, in the said video, Mark recounted the IVF procedure previously undertaken.
He also mentioned how Zeno became the result of the successful IVF procedure
and how he saved Zeno by giving him one of his kidneys. He also mentioned
about the mall confrontation between them and how Zeno flatly refused his
request for financial help.

8. That, the said video became viral. Since the posting of the said video, the number
of customers of the said French restaurant was drastically reduced. Angered by
the posting of the said video, Zeno went to the house of Mark. Upon seeing
Mark, Zeno forcefully threw three bundles of P1,000 bills to the face of Mark.

9. That, due to the attempt of Mark to avoid the bundles of money thrown to him, he
accidentally hit his head hard against a protruding nail. Due to severe head injury,
Mark almost died. Mark immediately filed a case for frustrated parricide against
Zeno.

II. QUESTION PRESENTED

1. Whether Zeno is legally compelled to give support to Mark;


2. Whether the previous Agreement signed by Mark waiving all his rights over the
child that could result from the IVF procedure effectively stripped all of Mark’s
rights as against Zeno?
3. Whether the information gained by Mark through his cousin (i.e. identity of Zeno
and his mother) can be legally used against Mark;

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4. Could Zeno file a case for damages and/or any other case against Mark in
connection with the posting of the video in YouTube;
5. The probability of Zeno’s conviction in connection with the frustrated parricide
filed against Zeno;
6. The possible lines of action that Zeno can use in order to deal with the situation
with Mark and the advantages and disadvantages of the same;
7. Your recommended line of action and its justification in relation to No. 6 above.

III. BRIEF ANSWERS

1. Yes. Under the Family Code the child should support the parents as well.

2. No. Generally, Rights may be waived, so long that it is not contrary to law, public
order, public policy, morals or good customs, or prejudicial to a third person with a
right recognized by law.

3. No. Zeno Parcon may only file a complaint against the cousin of Mark Matikas,
who is part of the medical staff of the hospital, for the disclosure of his identity and
her mother and for violation of the rules of Medical Hospital he is working.

4. Yes. Mark Matikas, committed the crime of libel under Article 353 of the Revised
Penal Code

5. The probability of Zeno Parcon’s conviction with the crime of frustrated parricide
would be low since parricide is not the crime committed.

6. Zeno Parcon’s possible lines of action are to file a complaint against the cousin of
Mark and to make an amicable settlement with Mark Matikas.

7. I hereby recommend making an amicable settlement with Mr. Mark Matikas.

IV. DISCUSSIONS

Issue 1

Before we go to support let us first established the relationship of Mark Matikas to Zeno
Parcon. Article 164 of the Family Code of the Philippines, provides:

Article. 164. X X X Children conceived as a result of artificial


insemination of the wife with the sperm of the husband or that of a

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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. X X X

Let us note that, the child conceived as a result of artificial insemination is considered a
legitimate child of both the husband and the wife, even if the husband is not related by blood to
the child (if the donor of the sperm used in the insemination is not the husband). So long as the
requirements of article 164 are met, the law deems the child to be filiated, by nature, to both the
husband and the wife, and not to the biological father.

However, in the case at bar, it is not stated whether Zaila Parcon, the biological mother of
Zeno, has a husband, who may claim for the legitimate paternal of Zeno. If so, then the law
recognizes the donor’s paternal filiation, of which is, Mark Matikas.

In addition, even if the donor, Mark Matikas, is not singled out regarding parental
filiation, it is a rule in statutory construction to “If the law does not distinguish, neither should
we”.

Accordingly, the Child should support the parents as well. As defined in Article 194 of
the Family Code of the Philippines, to wit:

X x x Support comprises everything indispensable for sustenance,


dwelling, clothing, medical attendance, education, and transportation,
in keeping with the financial capacity of the family. x x X

In corollary to this, Article 195 of the FC expressed that:

XXX
Article 195. Subject to the provision of the succeeding articles, the
following are obliged to support each other to the whole extent
set forth in the preceding article: (emphasis supplied)

1. The spouses;
2. Legitimate ascendants and descendants;
3. Parents and their legitimate children and the legitimate
and illegitimate children of the latter;
4. Parents and their illegitimate children and the legitimate
and illegitimate children of the latter; and

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5. Legitimate brothers and sisters, whether of full or half-


blood.

XXX

Hence, Zeno Parcon is legally compelled to support his father, Mark Matikas under the
Article 195 of the Family Code.

Issue 2

The second issue is whether or not the previous Agreement signed by Mark Matikas
waiving all his rights over the child that could result from the IVF procedure effectively stripped
all of Mark Matikas’ rights as against Zeno Parcon.

The General rule is rights may be waived. As Article 6 of the New Civil Code, expressed:

Article 6. Rights may be waived, unless the waiver is contrary


to law, public order, public policy, morals, or good customs, or
prejudicial to a third person with a right recognized by law.

Thus, Article 6 deals with the waiver of rights, not the waiver of obligations or duties.
Waiver of obligations or duties would be possible only if the person being possessed by certain
rights and resultant obligations, or duties waives the said rights; or if the law itself authorizes
such waiver.

Also, a waiver is defined as the intentional or voluntary relinquishment of a known right,


or such conduct as warrants as inference of the relinquishment of such right. However, for a
waiver to be valid, the waiver should not be contrary to law, public order, public policy, morals,
or good customs, or prejudicial to a third person with a right recognized by law.

In support, the agreement signed by Mark Matikas waiving all his rights over the child is
not binding per se. It is void ab initio. It is expressed in the Article 1318 of the Civil Code, for a
contract to be valid:

Article 1318. There is no contract unless the following


requisites concur:
1. Consent of the contracting parties;
2. Object certain which is the subject matter of the
contract;

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3. Cause of the obligation which is established;

XxxX

The agreement signed by Mark Matikas lacks the second requisite. For a prestation to be
valid, which include a prestation to give, to do, or not to do, it must be determinate, useful,
lawful, assessable, and possible.

In connection, Article 1347 of the Civil Code requires that the subject of a contract
should be lawful. A child being an object of a contract is not lawful in the very beginning.
Furthermore, Article 1352 of the Civil Code of the Philippines provides that:

Article 1352. Contracts without cause or with an unlawful cause


produce no effect whatever. The cause is unlawful if it is contrary
to law, morals, good customs, public order or public policy.

Therefore, it can be concluded that a child or a human being cannot be a lawful object of
a contract, on the ground of unlawful cause as it is contrary to law, against public policy and
good customs.

In addition, Article 210 of the Family Code provides that:

Article 210. Parental authority and responsibility may not be


renounced or transferred except in the cases authorized by law.

The law is clear. Parental authority and responsibility cannot be waived, even by a
manifest of definite renunciation because parental authority and renunciation is an inalienable
and personal right of a person.

Issue 3

The third issue is whether or not the information gained by Mark Matikas through his
cousin, the medical staff of the hospital, (the identity of Zeno Parcon and his mother) can be
legally used against Mark.

No, he cannot used it against Mark Matikas since his knowledge of the identity of Zeno
and his mother is purely incidental. The best remedy here is to file a complaint against the cousin
of mark who is part of the medical staff of the hospital for the disclosure of his identity, for

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which, violates the secrecy and confidentiality of the patients in the hospital and also for
violation of his right to privacy under Article 3, Section 3, of the Bill of Rights.

Thus, the Magna Carta of Patient’s Bill of Rights and Obligations state that:

Right to Privacy and Confidentiality. –The patient has the right


to privacy and protection from unwarranted publicity. The right to
privacy shall include the patient’s right not to be subjected to
exposure, private or public, either by photography, publications,
video-taping, discussion, or by any other means that would
otherwise tend to reveal his person and identity and the
circumstances under which he was, he is, or he will be, under
medical or surgical care or treatment. X x X

X x X …All identifiable information about a patient’s health


status, medical condition, diagnosis, prognosis and treatment, and
all other information of a personal kind, must be kept confidential
even after death. Provided, that descendants may have a right of
access to information that will inform them of their health risks.
All identifiable Patient data must also be protected. The protection
of the data must be appropriate as to the manner of its storage.
Human substance from which identifiable data can be derived must
be likewise protected. X x X

Confidential information can be disclosed in the following cases:


1. When the patient’s medical or physical condition is in
controversy in a court litigation and the court, in its
discretion, orders the patient to submit to physical or
mental examination of a physician;
2. When public health or safety so demands;
3. When the Patient, or in his incapacity, his/her legal
representative, expressly gives the consent;
4. When the patient’s medical or surgical condition is
discussed in a medical or scientific forum for expert
discussion for his/her benefit or for the advancement of
science and medicine, provided however, that the identity
of the Patient should not be revealed; and
5. When it is otherwise required by law.

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In addition, a right to privacy is a constitutional right. The Supreme Court answered this
in the affirmative in the case of Ople v. Torres (GR No. 127685, July 23, 1998. 293 SCRA 141
[Puno]). After all, the essence of privacy is the right to be let alone. It is also expressly
provided in Section 3 (The Right to Privacy of communication and Correspondence) of the Bill
of Rights. Other facets of privacy right are found in other sections of the Bill of Rights, i.e.,
Section 1 (The Right to Due Process of Law and the Right to the Equal Protection of the Law), 2
(The Right against Unreasonable Searches and Seizures), 6 (The Right to Liberty of Abide,
Liberty of Changing the Same Abode, and the Right to Travel), 8 (Freedom of Association,
which includes Freedom Not to Associate) and 17 (The Right against Self-incrimination).

By inference, the revelation of the medical staff was unwarranted because it does not fall
to any of the exceptions given. Thus, he violated the patient’s privacy; therefore, the cousin of
mark, the medical staff of the hospital, may be liable for his action and negligence. However,
since Mark Matikas is not a medical staff of the hospital, he is not liable for any administrative
proceedings.

Issue 4

The fourth issue was whether Zeno Parcon could file a case for damages and/or any other
case against Mark Matikas in connection with the posting of the video in Youtube. That, the said
video became viral. Thus, the number of customers of his French restaurant was drastically
reduced.

Yes. Mark Matikas committed the crime of libel under Articles 353, 354, and 355 of Title
Thirteen, Chapter One of Book two of the Revised Penal Code, states that:

Article 353. Definition of libel. — A libel is a public and


malicious imputation of a crime, or of a vice or defect, real or
imaginary, or any act, omission, condition, status or circumstance
tending to cause the dishonor, discredit, or contempt of a natural
or juridical person, or to blacken the memory of one who is dead.

Article 354. Requirement for publicity. — Every defamatory


imputation is presumed to be malicious, even if it be true, if no
good intention and justifiable motive for making it is shown,
except in the following cases:
1. A private communication made by any person to another in
the performance of any legal, moral, or social duty; and

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2. A fair and true report, made in good faith, without any


comments or remarks, of any judicial, legislative, or other official
proceedings which are not of confidential nature, or of any
statement, report, or speech delivered in said proceedings, or of
any other act performed by public officers in the exercise of their
functions.

Article 355. Libel by means of writings or similar means. — A


libel committed by means of writing, printing, lithography,
engraving, radio, phonograph, painting, theatrical exhibition,
cinematographic exhibition, or any similar means, shall be
punished by prisión correccional in its minimum and medium
periods or a fine ranging from 200 to 6,000 pesos, or both, in
addition to the civil action which may be brought by the offended
party.

Mark Matikas would be liable of libel specifically by means of cinematographic


exhibition because he met the criteria or elements that are needed for the crime of libel.

However, a mitigating circumstance will be appreciated. Chapter 3, Article 13 of Book 1


of the Revised Penal Code provides that:

Article 3. Mitigating circumstances. — The following are


mitigating circumstances:
1. Those mentioned in the preceding chapter, when all the
requisites necessary to justify or to exempt from criminal liability
in the respective cases are not attendant.
2. That the offender is under eighteen year of age or over seventy
years. In the case of the minor, he shall be proceeded against in
accordance with the provisions of Art. 80.
3. That the offender had no intention to commit so grave a wrong
as that committed.
4. That sufficient provocation or threat on the part of the offended
party immediately preceded the act.
5. That the act was committed in the immediate vindication of
a grave offense to the one committing the felony (delito), his
spouse, ascendants, or relatives by affinity within the same
degrees.
6. That of having acted upon an impulse so powerful as naturally
to have produced passion or obfuscation.

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7. That the offender had voluntarily surrendered himself to a


person in authority or his agents, or that he had voluntarily
confessed his guilt before the court prior to the presentation of the
evidence for the prosecution;
8. That the offender is deaf and dumb, blind or otherwise suffering
some physical defect which thus restricts his means of action,
defense, or communications with his fellow beings.
9. Such illness of the offender as would diminish the exercise of
the will-power of the offender without however depriving him of
the consciousness of his acts.
10. And, finally, any other circumstances of a similar nature and
analogous to those above mentioned; (emphasis supplied)

Article 13, paragraph 5 would be appreciated because Zeno Parcon caused emotional
damage and humiliation to Mark Matikas which prompted the latter to post the said video on
youtube. Therefore, Mark Matikas is liable for the crime of libel under Article 353, 354, and 355
or the Revised Penal Code and Zeno may file a claim for damages to Mark, for the damages he
caused.

Issue 5

The fifth issue was the probability of Zeno’s conviction in connection with the crime of
frustrated parricide.

I believe, the probability of Zeno’s conviction in the crime of frustrated parricide is low.
Article 246 of the Revised Penal Code states that:

Article 246. Parricide. — Any person who shall kill his father,
mother, or child, whether legitimate or illegitimate, or any of his
ascendants, or descendants, or his spouse, shall be guilty of
parricide and shall be punished by the penalty of reclusion
perpetua to death.

It is not a crime of parricide. The main elements of parricide are that a person is killed,
that the deceased is killed by the accused, and that the deceased is the father, mother, or child,
whether legitimate or illegitimate, or a legitimate other ascendant or other descendant, or the
legitimate spouse, of the accused. Also, the essential element of parricide, is the relationship of
the offender with the victim.

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It is established that Zeno is the son of Mark, however, the act of Zeno of forcefully
threw three bundles of P1,000 bills to the face of Mark does not constitute a clear criminal intent
to kill his father.

For a crime to be attempted or frustrated, the offender must have the intent to kill the
victim. If there is no intent to kill on the part of the offender, he is liable for other crimes like
physical injuries under Article 263 to 266 of the Revised Penal Code.

Issue 6

The sixth issue was whether what Zeno can do in order to deal with the situation with
Mark and the advantages and disadvantages of the same.

The possible actions of Zeno Parcon would be:

1. To file a complaint against the cousin of Mark who is a


medical staff of the hospital of which he was operated;
2. To make an amicable settlement with Mr. Mark
Matikas.

The only advantage of Zeno is that he can claim for damages against the cousin of Mark
who disclose his identity and also to claim for damages against the hospital. On the other hand,
Mark Matikas is entitled to sue Zeno for the crime of physical injuries because of his act of
forcefully throwing three bundles of P1000 in the face of his father.

Given that circumstances, it is best and advantageous for Zeno to make an amicable
settlement with Mr. Mark Matikas, because after all it is his father.

Issue 7

In lieu of the given circumstances and facts of the case, I hereby recommend that Zeno
should go the line of action for which is to amicably settle or to enter into a compromise
agreement with his father, Mr. Mark Matikas. This is the best solution to settle the controversy
between them. Also, this will save Zeno Parcon from additional expenses and also help prevent
the clogging of docket in the Court.

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V. CONCLUSION

By inference, Zeno should go the line of settling the matters to Mr. Mark Matikas, his
father. It is already a win-win situation to enter into a compromise agreement so that both of
them, Mark and Zeno can express what they really wanted and can claim what they really want.
This solution will save more time, effort, money that can dragged them down and most of all
both of them can help to prevent the clogging of dockets in Court.

I hope that I was able to answer your queries. Please be reminded that this advice is based
solely on the facts you have narrated and my appreciation of the same. My opinion may vary
when other facts are changed or elaborated.

Truly yours,

Merryl Angelic C. Borja


Paralegal

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