THE FACTS OF THE CASE

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 went 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.

THE RULING OF THE COURT

The Court ruled that the damages claimed by the husband on behalf of the unborn child based on Article
2206 of the old Civil Code do not cover the case of an unborn fetus that is not endowed with
personality. The Court further held that since an action for pecuniary damages on account of personal
injury or death pertains primarily to the one injured, it is easy to see that if no action for such damages
could be instituted on behalf of the unborn child on account of the injuries it received, no such right of
action could derivatively accrue to its parents or heirs.

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 on that lacked juridical
personality (or juridical capacity as distinguished from capacity to act). It is no answer to invoke the
provisional personality of a conceived child (conceptus pro nato habetur) 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: “provided it be born later with the condition specified
in the following article”. In the present case, there is no dispute that the child was dead when separated
from its mother’s womb.

CRITICAL ANALYSIS OF THE RULING

It is submitted that the Court’s ruling in Geluz should be revisited based on the following grounds:
Unlike the 1935 Constitution, the 1987 Constitution recognizes the right to life of the unborn

Before discussing the right to life of the unborn, it is necessary to first review the concept of person, civil
personality, juridical and capacity to act.

According to Albano, [PxxxT] civil personality is an aptitude of being the subject, active or passive of
rights and obligations. A person is any being, natural or artificial capable of possessing legal rights and
obligations. The two attributes of a person are juridical capacity and capacity to act. A juridical capacity
is a fitness to be the subject of legal relations while capacity to act is a power to do acts with legal
effects.

In the case of Geluz, the Court emphatically declared that an unborn child is not a person. Instead, it
only enjoys a provisional personality provided that it be born later.

It is submitted that the Court’s conclusion in Geluz that an unborn child is not a person based on Article
40 of the New Civil Code is no longer controlling today in view of Article II Section 12 of the 1987
Constitution. When Geluz was decided, the operative constitutional regime was the 1935 Constitution
which lacked a constitutional provision similar to Article II Section 12 of the 1987 Constitution that
confers positive duty to the State to protect the right to life of the unborn from conception. In other
words, the 1987 Constitution categorically recognizes that an unborn child has the right to life from the
moment of conception. Note that this right is not predicated under the condition that the unborn child
is later born alive in contrast to Article 40 of the Civil Code.

Since the Constitution confers or recognizes this right to life of the unborn, the logical conclusion,
therefore, is that it also confers or recognizes the legal personality of the unborn child. To confer legal
rights is to confer legal personalities; a person is a being capable of possessing legal rights and
obligations. And when there is right, there is always a remedy— ubi jus ibi remedium. Thus, when the
right to life of the unborn is violated by an abortionist, a legal remedy should be available to it in the
form of a derivative suit instituted by its parents who are its natural guardians.

The right of the unborn to file a suit through a representative to enforce its right to a healthful and
balanced ecology is recognized in Oposa vs Factora

In addition, the right of the unborn is not only limited to right to life but also right to healthful and
balanced ecology. This is based on the decision penned by Justice Davide in Oposa vs Factoran (G.R. No.
101083 July 30, 1993) wherein the Court allows the petitioners who are minors “to represent their
generation as well as generations yet unborn.” Here, the Court clearly recognizes that an unborn child
has a legal personality and a cause of action against the respondent even if they are later born alive or
not. And this cause of action can be filed by another party on its behalf— in the case of Oposa, the
minor petitioners. This also goes to show that an unborn child has a separate legal personality from its
mother.

The Convention on the Rights of the Child

On July 26, 1990, the Philippines ratified the Convention on the Rights of the Child. It is the first most
widely accepted international legal instrument which embodies the recognition of human rights to
Children (Nehra & Rahjput, 2019:96). Although the Convention was silent on when can the child obtain
legal personality, paragraph 9 of the Preambular of the Convention quotes the 1959 Declaration on the
Rights of the Child which states that the “child needs special safeguards and care, including appropriate
legal protection before as well as after birth.” (Ibid) This suggests that a “child” is considered to be child
before birth and is therefore, entitled to legal protection (ibid).

Although, a Preamble cannot be a source of right, still, under the Vienna Convention on Law of Treaties
of 1969, the Preambular text can serve as a guide in interpreting the provisions of the Convention (ibid).
Therefore, the Convention on the Rights of the Child if read in relation to the 1987 Constitution and our
jurisprudence, suggests that an unborn child has a right to life and survival, to a nationality, an identity,
and to health, amongst others. And most importantly, they can enforce these rights through the
instrumentality of their parents as their natural guardian, the State as parens patriae or to other persons
or entities allowed by law.

CONCLUSION

This brief paper demonstrates that in view of the constitutional, jurisprudential and statutory
recognition of the rights of the unborn child, the latter, therefore, possesses a full civil personality which
is not conditioned by the fact of its eventual live birth. Thus, Article 40 and 41 of the Civil Code in
relation to Article 5 of PD No. 603 (The Child and Youth Welfare Code) which provide that “the civil
personality of a child commence from the time of his conception for all purposes favorable to him,
subject to requirements of Article 41 of the Civil Code” should be struck down as fundamentally
unconstitutional, and inconsistent with the principle of the “best interest of the child.”

Hence, an unborn child who suffers physical defect due to unsuccesful abortion should enjoy the right to
claim damages from the abortionist to be filed by its parents in a representative manner; in the same
way, that the heirs of the unborn child who died due to abortion should have the right to claim damages
from the abortionist on behalf of the unborn child. This has similar logic to the right of the estate of the
deceased to file civil cases against another person for the benefit of the heir of a decedent or the legal
right of parents to file a suit for damages for the murder of their child, amongst others.

In other words, with the recent development in our legal system, it is, thus, imperative for the Court to
revisit its 1961 ruling in Geluz and recognize the full civil personality of the unborn child. Besides, if we
are willing to give legal personality to dolphins, other marine mammals, mountains and other inanimate
objects, then there is all the more reason to recognize the legal personality of an unborn child above
anything else.

Bibliography:

1987 Philippine Constitution

Convention on the Rights of the Child

Geluz vs Court of Appeals (G.R. No. L-16439, July 20, 1961) Smith B., 1928. Legal Personality.
Yale Law Journal. Vol 303 no.3 (Last accessed 04/07/2020
at https://digitalcommons.law.yale.edu/cgi/viewconten

t.cgi?referer=https://www.google.com.ph/&httpsredir=1&article=3259&context=ylj)

Gray, The Nature and Source of the Law (2d ed. 1921)

Oposa vs Factoran (G.R. No. 101083 July 30, 1993)

PD No. 603 (The Child and Youth Welfare Code)

Nehra, S. and Rajput, A., 2019. The Legal Personality of an Unborn Child: A Comparative
Analysis of USA and India. Amity Journal of Juridical Science, vol. 5 (Last accessed 04/07/2020
at https://amity.edu/UserFiles/aibs/a6c02019%20AIJJS_92-105.pdf)

*Photo from Ramon F. Velasquez under the Creative Commons Attribution-Share Alike 3.0
Unported license.

Emil Samaniego is the Chief Content Officer of the PolitiXXX Today. He receives his Juris
Doctor degree from San Beda University College of Law in Mendiola.