Geluz vs. CA, G.R. No.

L-16439, July 20, 1961

Reyes, J.B.L., J.:

Facts:
Nita Villanueva had her children aborted, 2 of which were given consent by her husband.
On the third abortion of their child, the plaintiff didn’t know nor gave consent to the abortion.
Thus, the filing of the latter for this action and award of damages. Defendant Geluz filed for
certiorari which was then granted. The Court of Appeals and the trial court predicated the award
of damages in the sum of P3,000.06 upon the provisions of the initial paragraph of Article 2206
of the Civil Code of the Philippines.

Issue:
WON the unconsented abortion of the plaintiff constitutes an action for him to claim
damages against the defendant.

Ruling:
No. The unconsented abortion of the plaintiff does not constitute an action for him to
claim damages against the defendant. Under Articles 40 and 41 of the New Civil Code, it stated
that, (Art.40) “Birth determines personality; but the conceived child shall be considered born for
all purposes that are favorable to it, provided it be born later with the conditions specified in the
following article.” (Art.41) “For civil purposes, the foetus is considered born if it is alive at the
time it is completely delivered from the mother’s womb. However, if the foetus had an intra-
uterine life of less than seven months. It is not deemed born if it dies within twenty-four hours
after its complete delivery from the maternal womb.”
According to the Supreme Court, in fixing a minimum award of P3,000.00 for the death
of a person, does not cover the case of an unborn foetus that is not endowed with personality,
thereby, being incapable of having rights and obligations. 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. Hence, the decision appealed from is reversed, and complaint was dismissed
because the unconsented abortion of the plaintiff does not constitute an action for him to claim
damages against the defendant.