In 1961 landmark case Geluz vs Court of Appeals (G.R. No. L-16439, July 20, 1961) the Supreme Court through J. B. L. Reyes declared that an unborn child is not a person endowed with civil personality. Consequently, no claim for damages could be instituted on behalf of the unborn child on account of the injuries it received. Since judicial decisions of the Supreme Court interpreting laws form part of the legal system of the Philippines (Article 12 of the Civil Code), Geluz essentially remains a “good law” that has yet to be overturned. In fact, Geluz is part of the usual syllabus on Torts and Damages in law schools in the Philippines.
In this brief paper, I argue that it is imperative for the Court to review its decision on Geluz and recognize the full civil personality of the unborn child without it being conditioned by the subsequent fact of its birth in light of new developments in the legal system since the case was decided in 1961. These legal developments include the passage of 1) Section 12 of Article II of the 1987 Constitution which protects the right to life of the unborn from conception, 2) the recognition of the unborn’s legal capacity to sue through a representative in order to enforce its right to balance and healthy ecology in Oposa vs Factoran (G.R. No. 101083 July 30, 1993), 3) and the Philippine government’s ratification of the Convention on the Rights of the Child.
In a nutshell, I argue that since the 1987 Constitution, Convention on the Rights of the Child and Oposa vs Factoran recognize several rights of the unborn child (ie. right to life and property), therefore, the unborn child is a legal person subject of rights based on the principle that “to confer legal rights or to impose legal duties, therefore, is to confer legal personality” (Gray, 1921). In other words, if an unborn child has the legal personality or it is a legal person, it should, therefore, also possess the legal capacity to sue for damages against a doctor who violates its right to life through a derivative suit instituted by its parents.
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.
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 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 provides 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 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.
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/viewcontent.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)
Emil Samaniego is the Chief Content Officer of the PolitiXXX Today and is currently a senior law student at San Beda University College of Law in Mendiola.
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