6 months rule and 7 months rule

(Campanilla vs. Rebuya)

MARLO CAMPANILLA·TUESDAY, DECEMBER 5, 2017

If the fetus is killed inside the womb of his mother, the crime is abortion
regardless of whether he is viable or not (People vs. Paycana, G.R. No. 179035,
April 16, 2008; People vs. Salufrania, G.R. No. L-50884, March 30, 1988). If the
victim is killed outside the womb of the mother, the crime is either abortion if the
victim is a non-viable fetus (People vs. Detablan, CA, 40 O.G. No. 9, p. 30); or
infanticide, if the victim is a viable infant with a life of less than 3 day olds (U.S. v.
Vedra, G.R. No. L-4779, November 20, 1908; People vs. Paycana, Jr., supra).

A fetus is viable if he can sustain a life independent from the mother. A fetus with
an intrauterine life of 6 months is not viable (People vs. Detablan, CA, 40 O.G. No.
9, p. 30; People vs. Paycana, supra). Thus, if the intrauterine life of the fetus is
more than 6 months, he is considered as viable.

The 7-months rule under the Civil Code should not be confused with the 6-months
rule under the Revised Penal Code.

Under Article 40 of the Civil Code, births determine personality. Under Article 41 of
the Civil Code, if the intrauterine life of the fetus is 7 months or more, it
considered born if it is alive at the time of its complete delivery from the mother’s
womb. On the other hand, if the intrauterine life of the fetus is less than 7
months, it considered born if it is still alive after 24-hours after its complete
delivery from the mother’s womb. According to the Elmer Rebuya, the Civilist, the
cutting of the umbilical cord that connects the child from his/her mother
completes such delivery.

The 7-months rule under the Civil Code determines if the fetus is considred born
for purpose of personality. On the other hand, the 6-months rule in the Detablan
case determines if the fetus is viable for purpose of abortion and infanticide. The
fetus and infant are persons since abortion and infanticide are crimes against
person under the Revised Penal Code.