FILIATION AND PATERNITY

 Paternity is the civil status of the father with respect to the

child begotten by him.
 Filiation is the civil status of the child in relation to its
mother or father (2 Sanchez Roman 952).
Legal Importance of Determining
Paternity and Filiation:
 For Succession – In legal succession, the right of the legitimate
children is different from that of the illegitimate children. The law gives
more rights in the property of the deceased parents to legitimate
children.

 For Enforcement of the Naturalization and Immigration Laws

– Naturalized citizens give “ipso facto” Philippine citizenship to their
minor children at the time of their naturalization under certain
qualifications. Thus, the minors, in order to avail themselves of the
effects of naturalization, must prove that they are legitimate children of
the naturalized citizen at the time of naturalization. A minor child of the
naturalized or permanent resident alien may be given the right to land
into our shores upon proofs that such minor is a legitimate child of a
naturalized Filipino or that of a permanent resident alien.
KINDS OF CHILDREN
LEGITIMATE CHILDREN
 Legitimate Children – is one who is born in lawful
wedlock, or within a competent time afterwards.
 Legitimate children (proper) – are those who were born
in lawful wedlock or within 300 days after the dissolution of
marriage.
 Presumption of Legitimacy
 Art. 255, Civil Code: Children born after one hundred and
eighty days following the celebration of the marriage, and
before three hundred days following its dissolution or the
separation of the spouses shall be presumed to be legitimate.

 Against this presumption no evidence shall be admitted other

than that of the physical impossibility of the husband’s having
access to his wife within the first one hundred and twenty days
of the three hundred which preceded the birth of the child.
 The physical impossibility may be caused by:
 The impotence of the husband;
 The fact that the husband and wife were living separately in
such a way that access was not possible; and
 By the serious illness of the husband.
 Requisites of the Presumption:
 There is a valid marriage
 The birth of the child took place after 180 days following the
celebration of marriage or within 300 days following its
dissolution or separation of the spouse.
 There is no physical impossibility of the husband having access
to the wife during the first 120 days of the 300 days preceding
the birth of the child.
 The Presumption of Legitimacy under Art. 255, Civil Code is conclusive:

 The presumption of legitimacy above-mentioned (Art. 255, Civil Code) is conclusive

because:

 Sec. 4(a) of the Rule 131 of the Rules of Court is a repetition of Art. 255 of the Civil Code.

 Sec. 4. Rules of Court – Quasi-conclusive presumptions of legitimacy:

 Children born after one hundred eighty days following the celebration of marriage, and before three
hundred days following its dissolution or the separation of the spouses shall be presumed legitimate.

 Against this presumption no evidence shall be admitted other than that of physical impossibility of the
husband’s having access to his wife within the first one hundred and twenty days of the three hundred
which preceded the birth of the child.

 The presumption in Art. 255, Civil Code is not qualified, while the presumptions in Art. 257, 258 and
259 of the same code qualified the presumption to be “prima facie” which infer that the presumption
under Art. 255 is conclusive.
 Children born after 180 days following the celebration of marriage:
 Example: A and B were married in Jan. 1, 1980. A child was born
after 180 days following their marriage. If there is no impossibility of
access between A and B, the child is conclusively presumed to be
legitimate.

 Reason for the presumption:

 The law considers that in order that a child beviable, it must have at
least 180 days of development from fertilization to birth. A child
born before 180 days after the celebration of marriage is not viable, it
must have been brought about by a sexual act which occurred before
the celebration of marriage. A child born before 180 days following
the celebration of marriage is premature and underdeveloped to
withstand external environment.
 Child born within 300 days following its dissolution or separation of spouse:
 Example: A and B are legally married. On Jan. 1, 1980, B, the husband died. 230 days
after A became a widow, a child was born. The child is conclusively presumed to be
legitimate insofar as the deceased husband provided there was no physical impossibility of
access between A and B during the latter’s lifetime.

 Reason for the presumption:

 The law based on medical science considers 300 days as the length of uterine development
of a child. Normally, it is 280 days as the period of utero-gestation. But, it is not
uncommon for pregnancy to be prolonged up to 300 days or even more, although there
may be signs of post-maturity. To include those children who may be born more than the
average duration of utero-gestation, the law extended the limit to 300 days.

 Example: M was married with X on September 28, 1944. The husband, M, died on
October 11, 1944. A child was born on April 24, 1945 or 208 days after the celebration
of marriage and within 300 days following its dissolution. There being no showing that M
is impotent, the court held that the child is born conclusively legitimate. (Menciano v.
Neri San Jose, G.R. No. L-1967, May 1951)
 Only evidence sufficient to rebut the above presumption:

 That there is “physical impossibility of the husband’s having access to his

wife within the first one hundred and twenty days of the three hundred
days which preceded the birth of the child.”

 Examples:
 A and B were married and 7 months after marriage a child was born.
Considering that each month has thirty days, the child is considered
legitimate if, anytime three months before up to one month after the
marriage, there was possibility of access between A and B.
 A and B were legally married. Six months after A became a widow, a child
was born. The child is presumed to be legitimate if B, the husband had
access with his wife during the four months period before his death. If
during the whole period of four months before he died he was living in a far
distant place whereby access was not possible, then the child is not his own.
 Causes of Physical Impossibility:
 By the impotence of the husband
 By the fact that the husband and wife were living separately in
such a way that access was not possible
 By the serious illness of the husband (Art. 255, Civil Code)
 The impossibility of access must not be construed in its literal sense. It
means inability to perform sexual intercourse.

 Impotency of the husband must be present during the first 120 days of
the 300 days preceding the birth of the child. It must be an absolute
impotency and not a relative one. It must be complete not partial.

 The serious illness suffered by the husband must occur during the period
of conception of the child. Serious illness means such condition which
will prevent the husband to perform sexual act with his wife. The fact
that the husband is suffering from tuberculosis does not prevent him
from performing the carnal act. The reputation of the tuberculosis
towards eroticism (sexual propensity) is probably more dependent upon
confinement than the consequences of the disease (Andal v. Macaraig,
G.R. No. L-2474).
 Art. 258, Civil Code: A child born within one hundred
eighty days following the celebration of marriage is prima
facie presumed to be legitimate. Such a child is conclusively
presumed to be legitimate in any of these cases:
 If the husband, before the marriage, knew of the pregnancy of
the wife;
 If he consented, being present, to the putting of his surname on
the record of birth of the child; and
 If he expressly or tacitly recognized the child as his own.
 Prima facie means the presumption is true and correct unless it can
be shown by other proofs to the contrary.

 A husband who knew of the existence of pregnancy of his wife

before marriage and still married her, impliedly shows that he is
the author of such pregnancy. If he is not responsible for such
pregnancy, then he waived his right to contest its legitimacy.

 The consent of the husband to place his surname on the record of

the birth of the child is also recognition that the child is his own.
A man with a normal sense will not allow his surname be attached
to one with a blood foreign to his.
 Expressed recognition may be made by the father of the child by
telling other people that the child is his legitimate child. Tacit or
implied recognition may be made inference from the acts of the
husband wherein recognition may be deduced. Allowing the child
to live in the conjugal dwelling, giving the necessary support,
furnishing the child of his daily needs imply that the child is his
own.

 Recognition shall be made in the record of birth, a will, a

statement before a court or record, or in any authentic writing
(Art. 278, Civil Code).
 Art. 268, Civil Code: The child shall be presumed
legitimate, although the mother may have declared against its
legitimacy or may have been sentenced as an adulteress.
 Reason for the provision:
 The status of the child must not be left at the mercy or the
passion of the parents. A wife may while in the fit of her anger
declare that the child is not that of the husband although it is not
true.
 The husband may connive with the wife and let her declare the
child as illegitimate and thus decrease his right over the
properties of the husband.
 Between legitimacy and illegitimacy, the law is in favour of
legitimacy. A child must not be punished by the wrongful acts
of his parents.
 Presumption of illegitimacy based on ethnic reasons:
 Art. 257, Civil Code: Should the wife commit adultery at or
about the time of the conception of the child, but there was no
physical impossibility of access between her and her husband as set
forth in article 255, the child is prima facie presumed to be
illegitimate if it appears highly improbable, for ethnic reasons, that
the child is that of the husband. For the purposes of this article,
the wife’s adultery need not be proved in a criminal case.

 Example: A and B, both white Americans were legally married.

During the period of conception for the child C, the wife had an
illicit relation with X, a negro. The child born has dark skin, wiry
and curly hair and with thick lips. There is no ancestor in A and B
who is negro. The child C is prima facie presumed illegitimate.
 Marriage of women within 300 days following death of husband,
annulment of marriage or other forms of marital dissolution:
 Art. 84, Civil Code: No marriage license shall be issued to a
widow till after three hundred days following the death of
her husband, unless in the meantime she has given birth to a
child.

 The Revised Penal Code penalizes a widow re-marrying

before the expiration of 301 days following her widowed.
 Art. 351, Revised Penal Code – Premature Marriages:

 A widow who shall marry within three hundred and one

days from the date of the death of her husband, or before having
delivered if she shall have been pregnant at the time of his death,
shall be punished by arresto mayor and fine not exceeding 500
pesos.

 The same penalties shall be imposed upon any woman whose

marriage shall have been annulled or dissolved, if she shall marry
before her delivery or before the expiration of the period of three
hundred and one days after the legal separation.
 The purpose of the above provisions of law is to prevent
disputed paternity of the child born after the subsequent
marriage celebrated within the three hundred days following
the dissolution of the first marriage.

 However, where deceased husband was proven to be

impotent or sterile, the widow who contracted a premature
marriage was not held criminally liable (People v. Masinsin,
C.A. G.R. 9157, June 1953).
 Presumption of legitimacy if the widow marries within three hundred
days following the death of the husband:

 Art. 259, Civil Code: If the marriage is dissolved by the

death of the husband, and the mother contracted another
marriage within three hundred days following such death,
these rules shall govern:
 A child born before one hundred eighty days after the
solemnization of the subsequent marriage is disputably presumed
to have been conceived during the former marriage, provided it be
born within three hundred days after the death of the former
husband;

 Example: A widow married 100 days after the death of her first
husband. A child is born 175 days after the celebration of the
second marriage. The child is disputably presumed to be
legitimate insofar as the first husband because the child is born
within 180 days following the celebration of the second marriage
and within 300 days after the death of the first husband.
 A child born after one hundred eighty days following the
celebration of the subsequent marriage is prima facie
presumed to have been conceived during such marriage, even
though it be born within the three hundred days after the
death of the former husband.

 Example: A widow married 80 days after the death of the

first husband. A child is born 200 days after the celebration
of the second marriage. The child born is prima facie
presumed to be legitimate child of the second husband
because the child was born after 180 days following the
celebration of the second marriage.
 Flow of the Presumption:

 A widow married 50 days after the death of the first

husband. A child was born 200 days following the
celebration of the second marriage. Following the provision
of the presumption, the child is legitimate insofar as the
second husband. But the child is born only 250 days after the
death of the first husband. It is possible that the widow was
pregnant for one month at the time of death of the first
husband, yet the presumption made the child prima facie
legitimate as that of the second husband.
 Duty of a woman after annulment of marriage when she becomes a widow and
pregnant:

 Art. 260, Civil Code: If after a judgment annulling a marriage, the

former wife should believe herself to be pregnant by the former
husband, she shall, within thirty days from the time she became aware of
her pregnancy, notify the former husband or his heirs of that fact. He or
his heirs may ask the court to take measures to prevent a simulation of
birth.

 The same obligation shall devolve upon a widow who believes

herself to have been left pregnant by the deceased husband, or upon the
wife who believes herself to be pregnant by her husband from whom she
has been legally separated.
 The Revised Penal Code impose penalty for simulation of birth and usurpation of the civil status:

 Art. 347, Revised Penal Code – Simulation of births, substitution of one child for another and
concealment or abandonment of a legitimate child:

 The simulation of births and the substitution of one child for another shall be
punished by prision mayor and a fine of not exceeding 1,000 pesos.

 The same penalties shall be imposed upon any person who shall conceal or
abandon any legitimate child with intent to cause such child to lose its civil status.

 Any physician or surgeon or public officer who, in violation of the duties of his
profession or office, shall cooperate in the execution of any of the crimes mentioned in
the two next preceding paragraphs, shall suffer the penalties therein prescribed and also
the penalty of temporary special disqualification.
 Usurpation of Civil Status:
 Art. 348, Revised Penal Code: The penalty of prision mayor
shall be imposed upon any person who shall usurp the civil
status of another, should he do so for the purpose of
defrauding the offended party or his heirs; otherwise, the
penalty of prision correccional in its medium and maximum
period shall be imposed.
 Child born after 300 days following dissolution of marriage or
separation of the spouse:
 Art. 261, Civil Code: There is no presumption of legitimacy
or illegitimacy of a child born after three hundred days
following the dissolution of the marriage or the separation of
the spouses. Whoever alleges the legitimacy or the
illegitimacy of such child must prove his allegation.
LEGITIMATED CHILDREN
 Legitimated children – Legitimation is defined as a remedy or
process by which a child born out of lawful wedlock and are
therefore considered illegitimate are by fiction of law considered
legitimate by subsequent valid marriage of the parents.

 Art. 270, Civil Code: Legitimation shall take place by the

subsequent marriage between the parents.

 Art. 272, Civil Code: Children who are legitimated by

subsequent marriage shall enjoy the same rights as legitimate
children.
 Children can be legitimated:
 Natural children (proper) – Natural children are those born outside lawful
wedlock of parents who, at the time of the conception of the former,
were disqualified by any impediment to marry each other (Art. 269,
Civil Code).

 Example: A and B are both single and are of age. There are no other
impediments for them to marry one another. Although unmarried, they
had sexual intercourse and as a result of which a child is born. The child
is considered to be natural.

 If the child is acknowledged by the parents to be their own, then the

child becomes an acknowledged natural child, and if the parents after
acknowledgement subsequently married one another, the child becomes
a legitimated child.
 Requisites for Legitimation of Natural Child (proper):
 The child must be natural
 The child must be acknowledged by both parents before
marriage
 There must be subsequent marriage of the parents
ADOPTED CHILDREN
 Adopted children – Adoption is defined as the act or
proceeding by which relations of paternity and filiation are
recognized as legally existing between persons not so related
by nature. The purpose of adoption is to establish a
relationship of paternity and filiation and to afford persons
who have no child of their own consolation of having one by
legal fiction. The child wherein paternity and filiation is
established is an adopted child and with all the legal rights as
a legitimate child in relation to the adopting parents.
 Persons who may be adopted:
 The natural child, by the natural father or mother;
 Other illegitimate children, by the father or mother;
 A step-child, by the step-father or step-mother (Art. 338, Civil
Code); and
 Any person, even if of age, provided the adopter is sixteen years
older (Art. 337, Civil Code).
 Persons who cannot be adopted:
 A married person, without the written consent of the other
spouse;
 An alien with whose government the Republic of the
Philippines has broken diplomatic relations; and
 A person who has already been adopted (Art. 339, Civil Code).
 Persons who may adopt:
 Every person of age, who is in full possession of his civil rights.
(Art. 334, Civil Code)
 Persons who cannot adopt:
 Those who have legitimate, legitimated, acknowledged natural
children or natural children by legal fiction;
 The guardian, with respect to the ward, before the final
approval of his accounts;
 A married person, without the consent of the other spouse;
 Non-resident aliens,
 Resident aliens with whose government the Republic of the
Philippines has broken diplomatic relations, and
 Any person who has been convicted of a crime involving moral
turpitude, when the penalty imposed was six months
imprisonment or more (Art. 335, Civil Code).
ILLEGITIMATE CHILDREN
 Illegitimate Children – are those who were born out of
lawful wedlock or after a competent time after its
dissolution.
 Natural children:

 Natural Children (proper) – are those born outside wedlock of parents

who, at the time of the conception of the former, were not disqualified
by any impediment to marry each other (Art. 269, Civil Code).

 Natural Children by Legal Fiction – are those children born of void

marriages or those born of voidable marriages after the decree of
annulment.

 Example: A was married with B, his own step-daughter. The marriage

is void. A child was born thereafter. The child is natural by legal fiction.
 Natural Children by Presumption – are those natural children
acknowledged by the father or the mother separately if the
acknowledging parent was legally competent to contract
marriage at the time of conception (Borres and Barza v. Mun.
of Panay, 42 Phil. 643).

 Example: A, a married woman who is living separately from

his husband, had an illicit relation with B. The child born has
been recognized by B to be his own. The child is considered
to be natural by presumption.
 Spurious Children – Illegitimate children who are not natural
are considered spurious.

 Adulterous Children – these are children conceived in an act of

adultery or concubinage.

 Sacrilegious Children – these are children born of parents who

have been ordained in sacris. In civil law, there is no such kind of
illegitimate children because a priest or a nun can marry. There is
no impediment in law for them to marry. It is only the regulation
of the church that prohibits it. In the Philippines, there is
separation between the church and the state.
 Incestuous Children – these are children born by parents
who are legally incapable of contracting valid marriage
because of their blood relationship as marriage between
brothers and sisters, father and daughter, etc.

 Manceres Children – these are children conceived by

prostitutes. It is very difficult to determine the father
because of the nature of the business.
 Civil Liability of Persons Guilty of Crimes Against Chastity:
 Art. 345, Revised Penal Code – Persons guilty of rape,
seduction or abduction shall also be sentenced:
 To indemnify the offended woman.
 To acknowledge the offspring, unless the law should prevent
him from so doing.
 In every case to support the offspring.
 The adulterer and the concubine in the case provided for in articles 333 and 334 may
also be sentenced, in the same proceeding or in a separate civil proceeding, to indemnify
for damages caused to the offended spouse.

 In cases of multiple abused is married, the child born subsequently cannot be recognize
the offspring as it is impossible to determine the paternity of the child (People v. Pedro
de Leon, et. al., G.R. No. L-2094).

 If the woman abused is married, the child born subsequently cannot be recognized by the
offender (People v. Sanico, C.A. 46 O.G. 98) and if the woman who was raped was
married and pregnant, the child born thereafter cannot be recognized and support
cannot be demanded from the offender. The reason behind is that to allow the offender
to give support and recognize the offspring will allow the offender to periodically visit
the home of the offended party in order to comply with his duty and it will enhance
disturbance in the family who are living in peace and tranquillity (U.S. v. Yambao, 4 Phil.
204).
EVIDENCE OF FILIATION AND
PATERNITY
Medical Evidences
 Paterntal Likeness:

 Heredity transmits traits and characteristics from parents to the

offsprings. There must be some gross manifestation of the children
which may be in common with the father.

 The following points may be considered by the examining physician to

determine physically whether paternity and filiation exists between
persons in question:

 General feature e. Gait, speech, and movement

 Manner of geture f. Color and texture of the hair
 Personal peculiarities g. Color of the eyes
 Personal deformities h. General built and size
 Blood Grouping Test

 The fact that the blood type of the child is a possible product
of the parents, does not conclusively show that the child is
born by such parents. But, if the blood type of the child is
not the possible blood type when the bloods of the parents
are cross-matched, it shows definitely that the child is not
that of the husband. A positive result is not conclusive, but a
negative result is conclusive.
 Evidences from the Mother

 Proofs of Previous Delivery – the supposed mother may be subjected to an

examination to determine the presence of signs of previous child birth and which are
compatible with the age of the child.

 Proofs of Physical Potency and Fertility – although it is difficult to determine the

physical potency in women inasmuch as a woman is a passive subject to a sexual act, the
woman may be manifesting some acquired or congenital defect wherein impotency may
be inferred. Atresia of the vaginal canal, imperforate hymen, etc. may be present.
Fertility may be inferred from the presence of other pregnancies and the absence of
organic abnormalities of the generative system.

 Proof of Capacity to have Access with the Husband – a general physical

examination of the woman is necessary to determine whether she is physically capable of
having sexual intercourse with her husband.
 Evidences from the Father

 Proof of Physical Potency and Fertility – medical

examination must be done whether the husband is capable of
erection. A quantitative and qualitative examination of
spermatozoa in the seminal fluid is necessary to determine
fertility. The presence of disease, congenital or acquired
abnormalities, etc. may be factors that may bring about impotency
or sterility.

 Proof of Access – the physician must determine the health and

vigor of the father, the presence of disease, which may bring about
his incapacity to perform sexual intercourse.
Non-Medical Evidences
 Non-Medical Evidences:
 Record of birth in the Civil Registrar, or by an authentic
document or a final judgment (Art. 265, Civil Code).
 Continuous possession of the status of a legitimate child (Art.
266, Civil Code).
 Any other evidences allowed by the Rules of Court and special
laws (Art. 267, Civil Code).
 FILIATION
• Civil status of the child in relation to its
mother or father
• Paternity and Filiation must not be
interchanged, former is from the point of view
of the father/mother, latter is from the point
of view of the child
Article 172 of the Family Code states:

The filiation of legitimate children In the absence of the foregoing

is established by any of the evidence, the legitimate filiation
following: shall be proved by:

1. The record of birth appearing in 1. The open and continuous

the civil register or a final possession of the status of a
judgment; or legitimate child; or

2. An admission of legitimate 2. Any other means allowed by the

filiation in a public document or a Rules of Court and special laws.
private handwritten instrument
and signed by the parent
concerned.
 Non-conventional method of procreation

 A. Artificial insemination:

A medical procedure by which  Art. 164 NFC (New Family Code)-

the semen is introduced into
the vagina by means other than insemination are also
copulation for the purpose of
procreation. Some physicians
consider the term "therapeutic
insemination" as a more
suitable term for the procedure
children conceived of artificial
considered legitimate:
Children conceived as a result
of artificial insemination of
the wife with the sperm of the
husband or that of a 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.
Artificial Insemination Classified According to the Source of Semen:

 A.I.H. (Artificial Insemination Homologous, Artificial Insemination

Husband) — When the sperm comes from the husband.

 A.I.D. (Artificial Insemination Donor, Artificial Insemination Heterologous)

— When the sperm comes from a donor other than the husband.

 A.I.H.D. (Artificial Insemination Husband Donor, Polled Donor Semen) —

When the donor semen comes from the husband and a third-party donor.
Medical Indications for Artificial Insemination:
 For A.I.H.:
 When the deposition of the
husband's semen within the
vagina is by coitus, this is
prevented because of anatomic
or psychologic difficulties on the
part of either husband or wife;
 When the infertility is due to
poor motility, paucity or
otherwise defective sperm cells
or too small a volume of the
ejaculant.
 For A.I.D. or A.I.H.D.:
 Absolute male sterility
(Azoospermia);
 Oligospermia — Less than 10 to
15 million sperm per cc. of semen
with infertility of long duration;
 Hereditary disease in the husband
making propagation inadvisable
for eugenic reason; or
 An Rh blood incompatibility is
expected to cause an abnormal
baby in situations where other
techniques to overcome such
incompatibility are not applicable.
Status of the Child Born by Artificial Insemination:
 For A.I.H.:
The child is a legitimate child of
the husband because the semen
came from him. No foreign
blood is introduced into the
family
 For A.I.D.:
With the consent of the husband,
the child born must also be
considered legitimate although the
fertilization semen is not from the
husband. Even if the child is
considered illegitimate, the child
can be adopted by him making the
child's status legitimate.
Without the consent or if it is
against the will of the husband, the
child must be considered
illegitimate, specifically a child
born because of adultery. This is an
intrusion into the conjugal home of
a foreign element against the will of
the husband.
B. In-vitro fertilization

 The fertilization of the egg cell by  Basis of Legality of In Vitro

the sperm cell extracted from the Fertilization:
respective donors placed in an  The constitution provides that "No
artificial medium and after person shall be deprived of life,
reaching a certain stage of liberty, or property without due
cellular division and process of law, nor shall any
development: person be denied the equal
1. Implanted into a protection of the laws." (14th
woman's uterus, or amendment of U.S. and Article IV,
2. Gestation (development Sec. 1, Philippines).
of the embryo to a child) in
an artificial womb.
Whenever the embryo is
allowed to develop in an
artificial womb, it is know
as ectogenesis (extra
corporeal gestation).
Other implications of the right of privacy which may be the
basis of legality of in vitro fertilization:
 Right of procreation — A ban  Right to decide whether to bear
on the use of in vitro fertilization or beget — This is the right of a
would prevent an individual from person to determine whether to
using means to fulfill his or her carry or not to carry a product of
procreative mission. conception, to be or not to be a
 Right of marital privacy — mother or to raise or not to raise a
Prohibition of in vitro family.
fertilization as a way to have  Right of self-determination —
children will mean government "Every human being of adult age
intrusion into the marital and of sound mind has the right to
bedroom in search of evidence determine what shall be done on
for violating the law. his own body
Surrogate mother

 Reasons why the services of a  Problems that may arise:

surrogate mother may be
necessary a) If the surrogate mother
decided to abort the child;
 Necessity b) The surrogate mother may
 Convenience
decide to keep the child
after birth;
c) The parents may decide to
abort the child because of
the fear that abnormality
may be present but the
surrogate mother refuses to
do so;
d) If the child was born with
abnormality and the parents
refused to take the child
from the surrogate mother.
Status of the child born by in vitro fertilization
a)
Article 164 refers to artificial
insemination (AI). It was written
before in vitro fertilization (IVF)
technology. Hence, the issue on the
status of the child born by in vitro
fertilization (IVF).
b)
c)
The child is legitimate when the wife
is genetically and gestationally the
mother and the sperm came from
the husband. However, the child
born must be considered illegitimate
when the ovum removed from a
single woman is fertilized by the
sperm taken from a male donor
Although one of the elements (ovum
or sperm) in the fertilization process
did not come from one of the
spouses, the child may still be
legitimate if there is consent of the
other spouse
When the genetic parents are
different from, the gestational
mother. Adoption may be a legal
remedy provide' there is no
impediment to the application of the
procedure.
Other Non-Conventional Methods of Procreation
 Artificial Inovulation — The removal of an unfertilized egg from a woman and
placing it on the reproductive tract of another woman.
 Embryo Transplantation — The removal of a fertilized egg from a woman's
uterus to transfer to that of another woman's uterus.
 Parthenogenesis ("Virgin Birth") — A type of sexual reproduction whereby
the unfertilized egg with 23 chromosome compliment doubled its content to
become a diploid cell that starts dividing as if it is a fertilized egg without the
intervention of a male sperm cell, the resulting offspring is thus a female. It
has been speculated that virgin birth occurs naturally in human being at the
rate of one per three billion pregnancies.
 Cloning — A type of a sexual reproduction whereby the nucleus of a female
egg is removed (enucleation) which contains the genetic material and
replaced with the nucleus of a body (somatic) cell of the same or another
woman (renucleation). The renucleated egg is then placed in a uterus for
gestation and normal development. The resulting offspring is genetically
identical to the parent.
PREGNANCY
 is the state of a woman who has within her body the growing
product of conception or a fecundated germ. It commences
from the time the egg cell is fertilized and terminates at the
time such product of conception is expelled or delivered.
 The average duration of pregnancy is 270 to 280 days from
the first day of the last menstruation.
 There is no perfect way of determining its duration, although
several methods are employed, none of the methods are
perfectly reliable.
Legal Importance of the Study of
Pregnancy:

 1. Pregnancy is a ground for the suspension of the execution of the death sentence in a
woman:
 Art. 83, Revised Penal Code: Suspension of the execution of the death sentence:
 2. A conceived child is capable of receiving donation:
 Art. 742, Civil Code:
 3. A conceived child may exercise civil rights:
 Art. 40 and Art. 41, Civil Code:
 4. Concealment of the woman that she is pregnant at the time of marriage is a ground for
the annulment of marriage:
 Art. 85, Art. 86, Civil Code and Art. 87, Civil Code:
Instances Why Some Women Claim
Pregnancy Even if None Exists:
 1. Pregnancy is a ground for the suspension of the death sentence in
a woman:
 2. A lawful plea in mitigation when charged with theft:
 3. A ground for widow's larger claim:
 4. Claim for the posthumous child:
 5. For black-mailing purpose:
Instances Why Some Women Deny the
Existence of Pregnancy:
 1. When there is no ground for them to become pregnant:
 2. Defense when accused of infanticide or abortion:
 3. Marriage inducement:
MEDICAL EVIDENCES OF PREGNANCY
(presumptive or probable )
 A. Presumptive or Probable Signs and Symptoms:
 1. Cessation of menstruation
 2. Morning Sickness:
 3. Changes in the Breast:
 4. Progressive Enlargement of the Abdomen:
MEDICAL EVIDENCES OF PREGNANCY
(presumptive or probable )
 5. Changes in color of the vagina and softening of the cervix:
 6. Funic Souffle or Umbilical Souffle:
 7. Ballottement:
 8. Braxton-Hick's Sign:
 9. Bladder Irritability :
MEDICAL EVIDENCES OF PREGNANCY
(presumptive or probable )
 10. Capricious Appetite:
 11. Abnormality in Pigmentation:
 12. Easy Fatigability:
MEDICAL EVIDENCES OF PREGNANCY
(positive or certain)
 B. Positive Signs and Symptoms of Pregnancy:
 The finding of any of the following signs or symptoms of
pregnancy will show conclusively its existence:
 1. Hearing of the Fetal Heart Sounds (Mayor's Sign):
 2. Outlining of the Fetal Parts:
 3. Movement of the Fetus (Quickening):
 4. X-ray Examination:
Laboratory Test for Pregnancy
 A.Pregnancy Slide Test - An agglutination-inhibition reaction is used to
demonstrate the hormone human chorionic gonadotropin (HCG) which
is excreted into the urine during pregnancy. HCG which is chemically
bound to latex particles is agglutinated by HCG antibodies in the
presence of free HCG, this reaction is inhibited because the antibodies are
neutralized.
 B. Gravindex HCG Slide Test - The principle involved and procedure is
practically the same as the Pregnancy Slide Test. Gravindex is merely a
trade name.
Signs of Pregnancy in the Dead:

 1. Presence of Ovum or Fetus:

 Examination of the uterine content will reveal the product of
conception together with the placenta, amniotic fluid, and
membrane.
 2. Findings on the Uterus Itself:
 There is thickening, increase in size and capacity of the uterus. The
mark of placental attachment may be seen.
 3. Corpus Luteum:
 Corpus luteum may be well-developed and attains a certain size,
however, it may gradually retrogress, but it is usually
welldeveloped at the time of delivery. The changes in the corpus
luteum may also be found in fibroid tumor or other pathological
condition and even in cases of congestion.
Duration of Pregnancy:

 The average duration of pregnancy is 270 to 280 days from

the onset of the last menstruation. There is no means of
determining it with certainty. The evidence derived from
pregnancy following a single coitus is trustworthy, but
inasmuch as some authorities consider more than two weeks
as the life span of the spermatozoa in the vaginal canal, it is
hard to ascertain the exact date of fertilization.
 There is no synchrony between coitus and fertilization.
Abnormally Prolonged Gestation:
 Cases in which pregnancy extends to 300 days can now be
regarded as well established. Many examples of longer
duration have been recorded, but most of them are doubtful.
Eden quotes sex cases which have been accepted as authentic
in which the calculated period of gestation lay between 311
and 336 days, the weights of the infant ranging from 12-3/4
to 13-1/4 pounds. In all cases where the gestation much over
300 days is alleged, confirmatory evidence should be
expected in the exceptional weight and size of the child (A
Handbook of Medical Jurisprudence and Toxicology byW. Brend, 8th
Rev. ed., p. 113).
Minimum Period of Gestation
Compatible with Viability of the Child:
 Most authors hold that a child born at one hundred and
eighty days of gestation may live. A child may be born alive
before this period, but it is not viable or capable of living. A
fetus of three or four months development may exhibit signs
of life, movements of the limbs, etc., but cannot continue to
live, owing to the want of development of the breathing
muscles and breathing center. Most 6 months old infants die
immediately or within a few days of birth; occasionally one
has been reared (Cox's Medico-Legal Court Companion by
Bhattacharyya, 4th Revised ed., p. 248).
Proofs of Previous Pregnancy:

 1. Laxity of the abdominal wall.

 2. Presence of striae of pregnancy on the abdominal wall.
 3. Perineum is lax with a scar if there was previous
laceration. Fourchette
 is markedly retracted.
 4. Vestige only of the hymen is present (caruncula
myrtiformis).
 5. Breast is lax with enlarged nipples.
 6. Vaginal examination shows previous laceration of the
cervix.
 Super fecundation: This is the fertilization made by separate intercourses of two ova which have escaped at the same act of
ovulation.
 Superfoetation: This is the fertilization of two ova which have escaped at different acts of ovulation. This is possible before the time
the decidua vera has united with the decidua reflexa; that is, before the end of the third month of pregnancy.
 Pseudocyesis or Spurious Pregnancy: It is an imaginary pregnancy usually observed among women nearing menopause or in
younger women who are very desirous of having children. The patient will present all the subjective symptoms of pregnancy,
associated with an increase in the size of the abdomen due frequently to abnormal and rapid deposition of fat or to tympanism.
Diagnosis of Fetal Death:

 The fetus inside the uterus must be presumed to be

alive unless there are evidences to the contrary. The
following are proofs that the fetus is dead:
 1. Repeated examinations of the uterus show that the size
remains stationary even after a lapse of a number of weeks
and months.
 2. Endocrine test for pregnancy is negative on more than one
occasion. Moreover, death of the fetus may not mean death of
the placental tissue which manufacture gonadotrophin. As
long as the placental tissue continues to manufacture the
trophic hormone, it will be positive in the urine.
During the later months of
pregnancy, the following are the
additional proofs of death of the
fetus:
 3. Cessation of the fetal movement after they have been felt.
 4. Absence of fetal heart sounds after a repeated and
prolonged examination.
 5. Positive signs of fetal death as shown by the palpation of
softened macerated fetal head, with bones freely movable on
each other and the scalp hanging over a loose sac.
 6. The breasts cease to enlarge and become soft and flabby.
May a Woman Who Is Pregnant Be
Unconscious of Her Condition?
 It is hardly credible but may happen in rare instances. A
woman after being married for several years and has
dismissed in her mind the possibility of being pregnant may
grow stouter or may entertain the possibility that the
enlargement of the abdomen is due to some internal
pathology or disease.
Is It Possible for a Child to be Born
Without Human Form?
 Following the principles of heredity, no child can be born
without human form. Hereditary qualities are transmitted
from parents to offsprings. Monstrosities and other forms of
abnormalities of a child does not divorce from the child the
human form. Close inspections of the monsters and
congenitally deformed children will show human form. Our
present civil code eliminated "human form" as a requisite for
the personality of a new-born child.
Can Impregnation Occur When the
Woman Is Unconscious?
 This has been proven in many cases. A woman may be under
the influence of narcotics, anesthesia, alcohol or other knock-
out drugs during the sexual intercourse which resulted in her
pregnancy.
When Does Menstruation Commence?

 In the Philippines, menstruation used to commence at the

age of twelve to fourteen. In colder countries, it may be
established at the age of fourteen to sixteen.

When Does Menstruation Cease?

 The average age when menstruation ceases is forty-five.

However, there are records in literature wherein women
menstruate at the age of seventy-three. The cessation of
menstruation is also called climacterium or menopause.

What Is The Earliest Age When
Pregnancy Is Possible?
 As long as the woman is menstruating, she has also the
potential capability of being pregnant. Some women have
preconscious sexual development. Anna Mumenthaler
menstruated regularly at the age of two, and gave birth to a
full term child at the age of nine.
DELIVERY
 Delivery is the process by which a woman gives birth to her
offspring.
 Puerperhun is the interval between the termination of
labor (delivery) to the complete return of the reproductive
organ to its normal nonpregnant state. Puerperium usually
lasts from 6 to 8 weeks.
Why Important?
 The study of delivery is important because proof of delivery
is necessary in judicial action on the following:
 1. Legitimacy
 2. Abortion
 3. Infanticide
 4. Concealment of birth
 5. In slander or libel
Methods of Delivery:

 1. Natural Route: Expulsion of the products of conception

through the normal passage; that is, through the vaginal canal.
 a. Spontaneous:
 When the products of conception passed out of the vagina without
the aid of physician, midwife, instrumentation or surgical
intervention.
 b. Surgical Intervention:
 When delivery is effected with the aid of surgery, e.g.,
Symphysiotomy.
 c. Instrumentation:
 The second stage of labor is modified by the use of instruments.
Example: Forceps application.

 2. Surgical Route: The expulsion of the products of conception is
not through normal openings of the female generative tract but
through some artificial openings brought about by surgery.
 a. Abdominal Caesarian Section:
 The child is delivered by opening the abdominal wall and the
anterior wall of the uterus.
 b. Vaginal Caesarian Section:
 The child is delivered thru the surgical opening made through the
vagina.
 c. Post-mortem Caesarian Section:
 When the pregnant woman meet sudden death either naturally or
through violence and there is no chance of life, any person may
open the abdomen to get the viable fetus en utero.
A. SIGNS OF RECENT DELIVERY:

 1. Languid look, with pulse and temperature slightly increased:

 2. Peculiar odor:
 3. Changes in the breast:
 4. Flaccidity of the abdominal wall:
 5. Linea Albicantes present in the abdominal wall:
 6. Presence of Linea Nigra:
 7. Uterus is enlarged and palpable:
A. SIGNS OF RECENT DELIVERY:

 8. Laxity of the perineum with possible tear:

 9. Vaginal canal is lax and with possible lacerations:
 10. Cervix of the uterus is flabby, patulous and may be torn:
 11. Presence of lochial discharge:
 12. Evidence of placenta, umbilical cord and new-born child.
 13. Positive Pregnancy Slide Test
B. SIGNS OF REMOTE DELIVERY IN THE
LIVING:
 1. Changes in the breast:
 2. Vulva and perineum:
 3. Hymen:
 4. Signs of previous laceration of the cervix:
 5. Presence of striae of pregnancy or linea atrophica on the
abdominal wall.
POST-MORTEM FINDINGS IN A WOMAN
WHO DIED RECENTLY AFTER DELIVERY:

 1. Findings in the uterus:

 a. Laceration or contusion of the cervix.
 b. Uterus is enlarged and flabby.
 c. The inner surface of the uterus is bloody and rugged-looking.
 d. Dark color sloughy and gangrenous sinuses are evident at the
endometrial lining at the site of the former placenta.
 e. There is relative hypertrophy and increase in thickness of the
uterine wall.
 2. Findings in the ovary:
 There is presence of corpus luteum.
POST-MORTEM FINDINGS IN A WOMAN
WHO DIED RECENTLY AFTER DELIVERY:
 3. Findings in the other organs:
 a. Hydremia of the blood.
 b. Slight anemia. depending upon the amount of hemorrhage in
the delivery and immediately thereafter.
 c. Congestion and hypertrophy of the milk glands of the breast.
 4. Pathology accountable for the cause of death:
 a. Signs of eclampsia.
 b. Findings of endometritis, peritonitis, toxemia, etc.
 c. Signs of cardiac, renal or pulmonary affection.
 d. Findings of rupture of the uterus.
 e. Signs of severe loss of blood during delivery.
Medico-legal aspects
of Abortion

By John Manolong
Section 12, Article 2, 1987 Philippine Constitution

 The State recognizes the sanctity of family life and shall protect and
strengthen the family as a basic autonomous social institution.
 It shall equally protect the life of the mother and the life of the unborn
from conception.
Abortion is penalized by the Philippine Criminal Law.
 No law in the Philippines that expressly authorizes abortions.
 General provisions which do penalize abortion make no qualifications if
the woman's life is endangered.
Therapeutic Abortion

There are two main medico-legal problems which may confront a

medical practitioner.
1. The first concerns his ethical behavior towards so-called
therapeutic abortion, and
2. The second, his professional and civil behavior once an abortion
or attempted abortion has taken place.
United Kingdom, R. v. Bourne

It was the surgeon's duty to perform the operation of abortion if, on

reasonable grounds and with adequate knowledge, he was of the opinion
that the probable consequence of the continuation of pregnancy would
be to make the patient a physical and mental wreck.
Pregnant women with conditions
such as:
1. Advanced heart disease
2. Chronic nephritis Pregnant women who:
3. Dwarfism 1. Are less than 18 or greater than 35
4. Hypertensive disorders years of age
5. Tuberculosis 2. Have a fourth or more children
6. Diabetes 3. Are battered by their husbands or
7. Bronchial asthma partners
8. Goiter 4. And have spinal metal plates
9. HIV
10. Malaria
11. Severe anemia
12. Malnutrition
In August 2016, a 21-year old rape victim who
became pregnant as a result of the rape died a day
after giving birth due to complications from her risky
childbirth resulting from her dwarfism condition.
A woman may also have suffered a previous post-partum
hemorrhage (PPH) in the past and may want to induce
abortion to avoid risk to her health and life due to PPH.
If a woman has rubella during the first three months of her
pregnancy there is a serious chance –perhaps 25%, perhaps
over 80%– of her baby having one or more abnormalities,
but these will not necessarily themselves be serious.
 There are women who become suicidal because of their
pregnancy.
 About one in every nine Filipino women who induce
abortion are rape victim-survivors.
Criminal Abortion

 The State shall equally protect the life of the mother and the life
of the unborn from conception (Section 12, Article 2, 1987
Philippine Constitution).
 Pursuant to the said constitutional provision, abortion remains
illegal in the Philippines under all circumstances and is highly
stigmatized.
The Revised Penal Code considers abortion to be a criminal
offense punishable by up to six years in prison for doctors and
midwives who perform abortions and by 2‒6 years in prison for
women who undergo the procedure, regardless of the reason.
Article 256 | Intentional Abortion

Any person who shall intentionally cause an abortion shall suffer:

1. The penalty of reclusion temporal, if he shall use any violence upon
the person of the pregnant woman.
2. The penalty of prision mayor if, without using violence, he shall act
without the consent of the woman.
3. The penalty of prision correccional in its medium and maximum
periods, if the woman shall have consented.
Article 257 | Unintentional Abortion

The penalty of prision correccional in its minimum and medium period

shall be imposed upon any person who shall cause an abortion by
violence, but unintentionally.
Article 258 | Abortion practiced by the woman herself of by her parents

 The penalty of prision correccional in its medium and maximum

periods shall be imposed upon a woman who shall practice abortion
upon herself or shall consent that any other person should do so.
 Any woman who shall commit this offense to conceal her dishonor,
shall suffer the penalty of prision correccional in its minimum and
medium periods.
 If this crime be committed by the parents of the pregnant woman or
either of them, and they act with the consent of said woman for the
purpose of concealing her dishonor, the offenders shall suffer the
penalty of prision correccional in its medium and maximum periods.
Article 259 | Abortion practiced by a physician or midwife and
dispensing of abortives

 The penalties provided in Article 256 shall be imposed in its maximum

period, respectively, upon any physician or midwife who, taking
advantage of their scientific knowledge or skill, shall cause an
abortion or assist in causing the same.
 Any pharmacist who, without the proper prescription from a
physician, shall dispense any abortive shall suffer arresto mayor and a
fine not exceeding 1,000 pesos.
Article 259 | Abortion practiced by a physician or midwife and
dispensing of abortives

 The penalties provided in Article 256 shall be imposed in its maximum

period, respectively, upon any physician or midwife who, taking
advantage of their scientific knowledge or skill, shall cause an
abortion or assist in causing the same.
 Any pharmacist who, without the proper prescription from a
physician, shall dispense any abortive shall suffer arresto mayor and a
fine not exceeding 1,000 pesos.
A separate set of laws under the Midwifery Act, Medical Act and
Pharmaceutical Act permit the revocation or suspension of the licenses
of any practitioner who performs abortions or provides abortifacients.
Much commoner than the problem of therapeutic abortion, however,
are the cases in which the medical practitioner is consulted after the
attempted abortion has been made.
In law, a medical practitioner who has such reason to believe that an
abortion has been criminally procured, whether by the patient herself or
by another person, as to amount to knowledge of the fact, can be
charged with misprision of felony if he does not report the matter.
Common Hazards

Probably more than half the abortions are natural events; it must also be
admitted that of the remainder a large proportion are intentionally self-
induced, while a small number (2% to 3%) are accidentally self-induced
as the result of hygienic syringing.
Air embolism, shock due to vagal inhibition, sepsis particularly anaerobic
infection-and lower nephron nephrosis are the commonest causes of
death following abortion.
 Circumstantial evidence in other cases supports the view that only
the simplest voluntary movements are possible after the introduction
of large quantities of air into the pregnant uterus.

 This restriction on activity before death makes the recognition of air

embolism of great importance, since it implies that the attempted
abortion was carried out in the immediate proximity of where the
woman died.

 The observation of vaginal inhibition is similarly of great forensic

importance, but, being based on virtually negative findings, it is more
difficult to recognize.
 Sepsis, while not categorically implying instrumental interference, is
strongly suggestive, particularly when the organism is an anaerobe.

 A full bacteriological examination of an infected abortion may help

not only in the treatment and prognosis of the case but also in the
identification of the cause.
Lower nephron nephrosis is much too large a subject to be dealt with
here, but, briefly, it may be said to occur far from infrequently in cases
of infected abortion, generally manifesting its presence by oliguria
about eight to ten days after the onset of symptoms and often at a
time when the patient seems to be out of the wood.
Methods of Effecting Abortion

Of the instruments in common use, undoubtedly the ordinary enema

syringe is the most popular, and generally the syringe is new and
apparently freshly purchased for the specific purpose.
 A pregnant woman aged 20, who was engaged to be married,
visited an abortionist in North London, who inserted a piece of
slippery elm into the cervix at 6 o'clock one evening.
 The girl was desperately ill by noon the following day and died that
evening.
 Her fiance reported the matter to the police. The most significant
features at necropsy were a bronzed cyanosis, presumably due to
haemolysis, and extraordinary oedema of all the pelvic tissues
including the uterus.
 Bacteriological examination gave a pure growth of Clostridium
oedematiens, and a sample of slippery elm retrieved from the
abortionist's house was subsequently examined and showed the
same organism.
As might be expected, the most severe local damage is caused by
sharp instruments such as knitting-needles, umbrella ribs, and the like.
fin.