INTERNAL MEMORANDUM

To: Mr. Pimentel

From: Rodelio M. Is-isa, Block-D
Subject: Effects of Adoption and Exempting Circumstances of
the Revised Penal Code
Date: December 9, 2019

Statement of Facts:

Joe and John are both of legal age and American citizens. John
is a former Filipino who acquired his American citizenship in
1990.Joe and John have been together for the past 20 years
but were only married in 2017,after the United State Supreme
Court permitted same-sex marriage in the case of Obergefell
v Hodges. In 1994, Joe, donated his sperm which was
subsequently used to artificially inseminate one of their
female friends. This female friend gave birth to Zuzu, who Joe
and John have raised as their own. When gay marriage
became lawful, they jointly adopted Zuzu.

During one vacation herein the Philippines, Joe caught John

having sex with another man Jake. Fueled by his anger, Joe
grabbed an axe placed by the door and hit John several time.
One blow hit John on the back. Zuzu was the one who rushed
John to the hospital; while Joe was immediately arrested.
John had since the incident been in a coma. His doctors
informed Zuzu that if he wakes up, he would be paralyzed
because his spinal cord was struck.

1
Having heard of his accident, John’s family rushed to his side
in the hospital and started making all the decisions with
respect to his medical care. Zuzu objected, claiming that as
the son of John, the primary decision as to his father’s body
and medical care belonged to him. He further argued that
John’s family disowned his father when they were told of his
father’s sexual preference. He, finally argued, that in several
conversations with his parents, they ordered him, that if they
would be paralyzed, or in a state of comatose, or were no
longer responding to medicines, their doctors should be
advised that they should not be resuscitated. John’s family
argued that same sex marriages are not recognized in the
Philippines. Zuzu, being the biological child of Joe, is a
stranger to John and therefore cannot make decisions.

Statement of Issues:

1. Whether or not Zuzu has a right to make decisions as to

John's medical care while in the Philippines.

2. Whether or not Joe is entitled to the defense under

Article 247 of the Revised Penal Code.

Short Answer:

1. Adopted child shall be deemed to be a legitimate

child of the adopters.

2. Joe was shocked which triggered his anger to hit

John several times with an axe.

Discussion:

One of the effects of adoption is that the adopted is

deemed to be a legitimate child of the adopter for all intents

2
and purposes pursuant to Article 189 of the Family Code and
Section 17 of Article V of RA 8557.
Being a legitimate by virtue of her adoption, it follows that
Stephanie is entitled to all the rights provided by law to a
legitimate child without discrimination of any kind, including
the right to bear the surname of her father and her mother.
This is consistent with the intention of the members of the
Civil Code and Family Law Committees. In fact, it is a Filipino
custom that the initial or surname of the mother should
immediately precede the surname of the father. As ruled in
the case of IN RE: ADOPTION OF STEPHANIE GARCIA, G.R.
No. 148311, March 31, 2005.

Husband and wife shall jointly adopt except in 3 instances

which was not present in the case at bar. In case spouses
jointly adopts, they shall jointly exercise parental authority.
The use of the word “shall” signifies that joint adoption of
husband and wife is mandatory. This is in consonance with the
concept of joint parental authority since the child to be
adopted is elevated to the level of a legitimate child, it is but
natural to require spouses to adopt jointly. The affidavit of
consent given by Olario will not succeed since there are
certain requirements that he must comply as an American
Citizen. He must meet the qualifications set forth in Sec7 of
RA8552. The requirements on residency and certification of
the alien’s qualification to adopt cannot likewise be waived
pursuant to Sec 7. Parental authority is merely just one of the
effects of legal adoption. It includes caring and rearing the
children for civic consciousness and efficiency and
development of their moral mental and physical character and
well-being. As ruled in the case of IN RE: ADOPTION OF
MICHELLE LIM AND MICHAEL JUDE LIM, GR No. 168992-93,
May 21, 2009.

_____________
G.R. No. 148311
G.R. No. 168992-93
2

3
 This policy brief provides the rationale for repealing Article
247 of the Revised Penal Code which exempts a
spouse/parent who inflicts serious harm or death upon the
other spouse/minor daughter caught having sexual
intercourse with another person.

In some jurisdiction, there are the so-called laws in defense of

honor. Under such laws, husbands or family members are
exempted from criminal liability for the murders or other
forms of violence they committed against their wives,
daughters or sisters. The rationale behind such laws is that
women’s unacceptable sexual behavior besmirches family
honor.1 Honor-killing is a practice which has been widely, if
not universally condemned as it violates the basic tenets of
human and women’s rights. Yet, a somewhat similar law still
exists in the current Revised Penal Code (RPC):

“Art. 247. Death or physical injuries inflicted under

exceptional circumstances. — Any legally married person
who having surprised his spouse in the act of committing
sexual intercourse with another person, shall kill any of
them or both of them in the act or immediately
thereafter, or shall inflict upon them any serious physical
injury, shall suffer the penalty of destierro.

If he shall inflict upon them physical injuries of any other

kind, he shall be exempt from punishment.

These rules shall be applicable, under the same

circumstances, to parents with respect to their daughters
under eighteen years of age, and their seducer, while the
daughters are living with their parents.

4
 Any person who shall promote or facilitate the
prostitution of his wife or daughter, or shall otherwise
have consented to the infidelity of the other spouse shall
not be entitled to the benefits of this article.

Under the law, a spouse adjudged guilty of killing or inflicting

serious physical injuries on the other spouse caught in the act
of committing sexual intercourse with another person shall
only be penalized with destierro. In contrast to the penalties
for parricide or serious physical injuries, destierro only
prohibits the convicted person from entering
court-designated places or a specified radius of those places.
Destierro is mere banishment and, as held in a case, is
intended more for the protection of the accused from
retaliation of the family members of the deceased than a
punishment. On the other hand, if the physical injuries
inflicted are less than serious, the offender is exempt from
punishment.

The law has been rationalized as follows: “(The) law, when

the circumstances provided by this article are present,
considers the spouse as acting in a justified burst of passion.”
While indeed, passion and obfuscation can legally be
considered as a mitigating circumstance which could lower
the penalty by one degree under other circumstances, Article
247 unreasonably provides a different appreciation of passion
in the context of family honor, such that it is given much
regard even at the expense of human lives. This is evidenced
by the fact that the convicted person is given absolution from
the crime.
__________________________________
3
Policy Brief No. 10
4
Art. 247 of the RPC

5
There can of course be no question that, under the rule
enunciated in the case of Uy Chin Hua vs. Dinglasan et al.,
supra, offenses penalized with destierro fall under the
jurisdiction of the justice of the peace and municipal courts.
(See also De los Angeles vs. People, 103 Phil., 295.) That rule,
however, cannot be made to apply to the present case, for it is
apparent that Article 247 of the Revised Penal Code does not
define a crime distinct and separate from homicide, parricide,
or murder, as the case may be, depending, in so far as those
crimes are concerned, upon the relationship of the victim to
the killer and the manner by which the killing is committed.

Weaknesses:

Technically speaking, the first paragraph of the law applies to

both the husband and the wife as the term used was “any
legally married person”. Note, however, that the said
provision seems to have been originally crafted in
contemplation of a situation where a man catches his wife in
bed with another. This is seen from the consistent use of the
terms “he” or “his” when referring to the offender. At any rate,
said provision must not be countenanced because it is a clear
violation of human rights. A person’s anger or extreme
passion cannot be a license to inflict physical harm or death
upon a spouse, even when caught having sexual intercourse
with another. There is a law which criminalizes the act of
sexual infidelity after all and it is even a ground for legal
separation.
_________________________________________
5
Uy Chin Hua vs. Dinglasan et al., supra
6
De los Angeles vs. People, 103 Phil., 295

6
By maintaining Article 247 in the RPC, we are effectively
giving more importance to a person’s reputation, image and
esteem than to actual lives of people.

Article II Section 11 of the 1987 Philippine Constitution

provides that “the State values the dignity of every human
person and guarantees full respect for human rights.” Further,
Article III, Section I provides that, "No person shall be
deprived of life, liberty, or property without due process of
law."

It is recommended that Article 247 of the RPC be repealed,

consistent with the Constitutional provision that “no person
shall be deprived of life, liberty, or property without due
process of law.” The circumstances referred to in Article 247
may be treated as a possible mitigating circumstance that
would allow imposition of lesser penalty, but definitely not
absolute exemption.

The infliction of physical injuries and/or death upon a person

due to mere passion or emotions should not find any place in
our laws today. This is a clear violation of human rights and
must therefore not be tolerated. Moreover, to essentially
allow parents to commit this crime against their minor
daughter is to discriminate against women who do not
conform to society’s conservative expectations of what her
sexual behavior should be.

________________________________________________________
7
Article II Section 11 of the 1987 Philippine Constitution
8
Article III Section 1 of the 1987 Philippine Constitution

7
To maintain Article 247 in the RPC is to blatantly disregard the
various other laws and international commitments that we
have which uphold human rights and the rights of women and
children.

It is hoped that our legislators will prioritize and favor the

immediate enactment of a law to repeal the Article 247 of the
RPC, in the interest of fulfilling their mandate under the
Constitution and the Magna Carta of Women, as well as
ensuring the best interest of the child.

Strengths:

As may readily be seen from its provision and its place in

the Code, the above-quoted article, far from defining a felony,
merely, provides or grants a privilege or benefit--amounting
practically to an exemption from an adequate punishment —
to a legally marries person or parent who shall surprise his
spouse or daughter in the act of committing sexual
intercourse with another, and kill any or both of them in the
act or immediately thereafter, or shall inflict upon them any
serious physical injury. Thus, in case of death or serious
physical injuries, considering the enormous provocation and
his righteous indignation, the accused — who would otherwise
be criminally liable for the crime of homicide, parricide,
murder, or serious physical injury, as the case may be — is
punished only with destierro. This penalty is mere
banishment and, as held in a case, is intended more for the
protection of the accused than a punishment.
(People vs. Coricor, 79 Phil., 672.)
_________________________________
9
GR No. L-12629
10
People vs. Coricor, 79 Phil., 672

8
And where physical injuries other than serious are inflicted,
the offender is exempted from punishment circumstances
mentioned therein, amount to an exempting circumstances,
for even where death or serious physical injuries is inflicted,
the penalty is so greatly lowered as to result to no punishment
at all. A different interpretation, i. e., that it defines and
penalizes a distinct crime, would make the exceptional
circumstances which practically exempt the accused from
criminal liability integral elements of the offense, and thereby
compel the prosecuting officer to plead, and, incidentally,
admit them, in the information. Such and interpretation would
be illogical if not absurd, since a mitigating and much less an
exempting circumstance cannot be an integral element of the
crime charged. Only "acts or omissions . . . constituting the
offense" should be pleaded in a complaint or information, and
a circumstance which mitigates criminal liability or exempts
the accused therefrom, not being an essential element of the
offense charged — but a matter of defense that must be
proved to the satisfaction of the court — need not be
pleaded.(Sec. 5, Rule 106, Rules of Court; U.S. vs. Campo,
23 Phil., 368.)

That the article in question defines no crime is made more

manifest when we consider that its counterpart in the old
Penal Code (Article 423) was found under the General
Provision (Chapter VIII) of Title VIII covering crimes against
persons. There can, we think, hardly be any dispute that as
part of the general provisions, it could not have possibly
provided for a distinct and separate crime.
_________________________________________________________________
11
Sec. 5, Rule 106, Rules of Court; U.S. vs. Campo, 23 Phil., 368.
12
Article 423 of the Old Penal Code, Chap. 8 of General Provision

9
 Recommendation:

With all the above stated facts, jurisprudence, and laws,

adoption is exclusive in nature which creates a relationship
from the adopter to the adoptee only. It will not give any
relationship from the parents of the adopter because by
nature and fiction of law, they are not related with each other.

Adoption creates a status that is closely assimilated to

legitimate paternity and filiations with corresponding rights
and duties that necessarily flow from adoption, such as, but
not necessarily confined to, the exercise of parental authority,
use of surname of the adopter by the adopted, as well as
support and successional rights.

The mandatory joint adoption by husband and wife is in

consonance with the concept of joint parental authority over
the child, which is the ideal situation.

As the child to be adopted is elevated to the level of a

legitimate child, it is but natural to require the spouses to
adopt jointly. It ensures harmony between spouses.

Having relied on the phrases "Article 247 of the Revised

Penal Code does not define and provide for a specific crime"
and "punishment is not inflicted", the Supreme Court
apparently have inadvertently made another phrase that
leads to a very stray concept which is "not a punishable act".

The benefit of Article 247 of the Revised Penal Code, as an

absolutory cause, shall apply only to death or injury caused ti
the infidel spouse and paramour. It shall not extend to fourth,
fifth and etc. persons.

10