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For a very long time, there has been an ongoing and tedious debate regarding
the legal rights of the unborn child. Various perspectives have opinions and take
whether an unborn child consummates legal rights. Different countries all over the world
consider various and conflicting laws regarding the acknowledgement of such right.
Thus, the legal rights of the unborn child is an issue that provides uncertainties in law.
Moreover, moral, cultural, and religious belief affects the legal mandates regarding the
unborn child.
But before discussing the laws in the Philippines regarding the rights of the
unborn child including international human rights laws, we must first define the terms for
this study.
An unborn child refers to a child at any stage of existence and development
beginning from the union of the sperm and egg until the birth stage. 1 Thus, any fetus
not yet physically detached from his or her mother is considered an unborn. The cutting
of the umbilical cord is considered as the first legal act constituting the unborn to be
born.
2 Edgardo Paras, Civil Code of the Philippines Annotated: Volume One (Persons and
Family Relations) Sixteenth Edition (Quezon City, Rex Printing Company, Inc., 2008),
36.
In the Philippines, the Civil Code defines the legal rights of the unborn through
Articles 40 and 41. Article 40 states that, 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. 3 Article 40
explains that personality does not commence at birth but rather during conception. This
is what we call presumptive personality. However, such presumptive personality can
only be legally realized after the fetus is physically born. The child must be detached
from the mother through the cutting of the umbilical cord. Without such, the actual legal
personality can never be effectuated.
But even during the presumptive personality, the fetus can already be considered
as born for all the purposes that is beneficial to him or her. The fetus can already inherit
or accept donations even without being physically born. Provided, that the unborn child
satisfies the conditions in Article 41. Without satisfying the conditions provided by Article
41, the fetus presumptive personality cannot be realized as actual personality. As such,
Article 41 confirms the legal personality and capability of the unborn fetus to enjoy
whatever favorable acts given to him or her.
Thus, the inherit right to life does not automatically assures the legal right of any
individual, or for this matter an unborn child. To enjoy legal rights, the fetus must be
legally born based on the condition provided by Article 41. Article 41 states that For civil
purposes, the foetus is considered born if it is alive at the time it is completely delivered
from the mothers 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. 4 Article 41 discusses two kinds of birth. First is the
ordinary birth, wherein the fetus has an intrauterine life of at least seven months. Mere
birth is sufficient to be legally born. While extraordinary birth happens when the
intrauterine life of the fetus is less than 7 months. In this case, the child must be alive for
at least twenty four hours before considered as legally born. If the unborn child was not
able to satisfy the conditions for a legal birth, then the unborn is deemed not legally
born. Thus, it follows that the unborn child cannot be benefited for whatever purposes
bestowed upon him or her without being legally born.
We can therefore conclude that on the basis of the Civil Code, the Philippine law does
not assure legal rights to the unborn. Such legal right is somewhat conditional and not
absolute. Unless the unborn child satisfies the conditions provided by law, all purposes
for his benefit cannot be realized. Of which, I believe is just practical and logical. The
unborn child without being born can never really enjoy whatever benefits. Even if the
child is legally born and then dies afterwards, the favorable purposes will just be given
to the unborn childs parents or heirs. Such legal right can never be satisfied in its whole
sense, if not enjoyed and exercise by the person or entity to which it was given to. In
this particular matter, it should and must be enjoyed by the born child.
3 Ibid., 244.
4 Ibid., 245.
In the case of Antonio Geluz versus Court of Appeals and Oscar Lazo, the
Supreme Court denied moral damages claimed by the father of the unborn child from
the petitioner who allegedly aborted the said child. The Court argued that the right of the
fetus 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).5 The father of the unborn child cannot invoke the presumptive
personality 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 conditions specified in the
following article.6 In the said case, there is no dispute that the child was already dead
when separated from the mothers womb. Thus, the child never assumed legal birth, as
such all favorable purposes cannot be claimed by the parents or heirs of the unborn
child.
Article 256-259 of the Revised Penal Code covers the criminal liability of any individual
or mother that causes or permits the abortion of a fetus. Abortion is defined as the
willful killing of the fetus in the uterus or the violent expulsion of the fetus from the
maternal womb which results to the death of the fetus. 7 The act of abortion carries with
it criminal liability coming from the same presumption in civil law that the unborn child
has the right to life that must be protected from conception.
Under the Revised Penal Code, abortion ordinarily means the expulsion of the fetus
before the sixth month or before the term of its viability, that is, capable of sustaining
life. But as long as the fetus dies as a result of the violence used or the drugs
administered, the crime of abortion exists, even if the fetus is full term.
6 Ibid., 2.
7 Reyes, Luis. The Revised Penal Code Book Two Articles 114-367 18 th ed.(Quezon
City, Rex Book Store, 2012), 522.
2) That violence is exerted or drugs or beverage administered, or that the
accused otherwise acts upon such pregnant woman;
3) That as a result of the use of violence or drugs or beverages upon her, or any
other act of the accused, the fetus dies, either in the womb or after having
expelled therefrom;
4) That the abortion is intended.
Article 256, No.3, provides for the least penalty if the woman shall have
consented to the act causing the abortion. Is that provision applicable if the act which
caused the abortion was by using violence and the woman consented to the abortion?
The provision must be construed in relation to that in No. 2 of Article 256 because the
absence of consent of the woman is mentioned in connection with a case where the
offender acted without using violence.
4) That as a result of the violence the fetus dies, either in the womb or after
having been expelled therefrom.
The crime can also be complex crime. As in the case of People V. Genoves when
A, becoming angry with the pregnant woman, struck her with his fist, causing her to fall
to the ground and when she got up, he gave another blow which caused her to fall
again. As a result, she suffered hemorrhage, culminating in the premature delivery of
one of her twin babbies, the other not having been born because the woman died. The
Court held that the case was a complex crime of homicide with unintentional abortion.
However in the case of People versus Salufrania, the mere boxing on the
stomach taken together with immediate strangling of the victim in a fight is not sufficient
proof to show an intent to cause an abortion. In fact, appellant must have merely
intended to kill the victim but not necessarily to cause an abortion. Appellant should be
held guilty of the complex crime of parricide with unintentional abortion.
Article 258 or abortion practiced by a woman herself or her parents have the
following elements:
c. Any of her parent, with her consent, for the purpose of concealing her
dishonor.
Only the woman or any of her parents is liable under Article 258, if the purpose of
the latter is to conceal her dishonor. Article 258 covers the following cases:
1) Abortion committed by the woman upon herself or by any other person with
her consent;
The person liable under paragraph 1 of Article 258 is the woman only. The other
person who caused the abortion on her with her consent is liable under Article 256. If
the purpose of the parents of the woman was not to conceal her dishonor, the case
does not fall under Article 258, but under Article 256.
If the purpose of the woman in abortion is to conceal her dishonor, the penalty is
lower. The reason for the mitigated responsibility is that when a woman becomes
pregnant out of an illicit relationship, excited and obfuscated by the fear of her dishonor
being made public, she either practices abortion upon herself or consents that any other
person does so, to erase the traces of her mistakes. 8
4) That the said physician or midwife takes advantage of his or her scientific
knowledge or skill.
For pharmacists:
8 Reyes, Luis. The Revised Penal Code Book Two Articles 114-367 18 th ed.(Quezon
City, Rex Book Store, 2012), 527-528.
The pharmacist need not to know that the abortive would be used to cause an
abortion. What is punished is the dispensing of abortive without the proper prescription
from a physician. If the pharmacist knew that the abortive shall be used for an abortion,
he shall be considered as an accomplice to the crime of abortion.
In line with such, Republic Act No. 4729 9 was implemented to regulate the sale,
dispensation, and/or distribution of contraceptive drugs and devices.
Section 2:
For the purpose of this Act: a) Contraceptive drug is any medicine, drug,
chemical, or portion which is used exclusively for the purpose of preventing fertilization
of the female ovum; and b) Contraceptive device is any instrument, device, material, or
agent introduced into the female reproductive system for the primary purpose of
preventing conception.
Section 3:
Any person, partnership, or corporation, violating the provisions of this Act shall
be punished with a fine not more than five hundred pesos or an imprisonment of not
less than six months or more than one year or both in the discretion of the Court.
El Salvador has one of the most restrictive law in abortion. It totally bans abortion
in all reasons or causes. Article 1 of their Constitution was amended to recognize the
right to life from the moment of conception, further criminalizing abortion by providing
the legal basis for the state to prosecute abortion related crimes as homicide.
However, United Nations believe that the said law was detrimental to womens
rights. As they explained:
that the countrys absolute ban on abortion puts women and adolescent girls
at risk, because many of them may resort to illegal and clandestine abortions 10
The Salvadoran states criminalization of abortion places the life and health of all
women at risk, restricting access to essential health services, which in addition to
9 Ibid., 527.
widespread fear of arrest can lead to death. Also, it is based on gender
stereotypes that assign traditional roles to women and violates womens right to
be free from gender bias and discrimination.11
Even in cases of rape, women in El Salvador do not have access to a safe and
legal abortion and will be persecuted if they terminate a pregnancy. This is particularly
devastating given the high rates of sexual violence in the country. As explained in the
paper:
1) Evidence indicates that girls and adolescents are the principal victims of sexual
violence. In 2010, of the 2,079 sex crimes reported nationally, 67% were
committed against girls and adolescents under the age of 17 to 21.
According to Leslie Reagan12 a professor in the University of Illinois, the following are
the effects of criminalizing abortion specifically in South Dakota:
11 Ibid.
The 1987 Constitution also provides protection for the life of the unborn child, as
provided by Article II, Section 12. It shall equally protect the life of the mother and the
life of the unborn child from conception However, such section does not confer any
constitutive right and means to effectuate such section unless Congress adopts a law
concerning such. For example, the Reproductive Health Law adheres that abortion is
illegal however the government shall ensure that all women needing care for post
abortion complications shall be treated counseled in a humane, non-judgmental and
compassionate manner.13 This prompts a lenient and humane legislation regarding
women who choose to abort their child for personal reasons.
Some legal experts contend that a provision in the Constitution equally protect the
life of the mother allows therapeutic abortion or intentionally terminating a pregnancy
for medical reasons, especially when the life or health of the mother is at stake.
In practice, however, many doctors are not willing to risk doing it since there is
nothing definite in the existing law nor is there any policy or regulation that justifies such
an exception. In the article written by Elena Masilungan entitled Abortion in the
Philippines: What the law says14, she discusses about therapeutic abortion.
For countries that allow therapeutic abortion, the following instances justify
terminating a pregnancy:
1) Medical condition or illness of the mother where continuing the pregnancy may
threaten her life or her health, such as hypertension, eclampsia, diabetes, and
various forms of cancer, including those affecting the breast, the ovary and the
cervix;
2) Fetal impairment where the pregnancy is likely to result in the birth of a baby with
significant mental or physical defects, or where the baby will eventually die soon
after birth; and
The ban even on therapeutic abortion in the Philippines is one of the reasons why
women undergo unsafe abortion, according to the World Health Organization, which
said that the legality of abortion is a key determinant of maternal mortality and morbidity.
Hence, there is a call to reform the abortion laws in the country.
13 Edcel Lagman et. al, House Bill No. 4244: The Responsible Parenthood,
Reproductive Health and Population Development Act of 2011, 2011, retrieved on October
27, 2015, www.congress.gov.ph., 4.
14 Elena Masilungan, Abortion in the Philippines: What the law says, 2011.
http://archives.newsbreak-knowledge.ph/
The Real Dilemma
The debate whether or not the unborn child should be afforded with rights still remains.
Some scholars argue that since the fetus cannot yet sustain life independently outside
the mother womb, in its entirety it is not yet a human being afforded with the right to life.
Hence, no civil or even criminal law should be used to protect the fetus. However,
others believe that life begins from conception and as such, from the time that the
sperm and egg meets, life must be protected.
Moreover, the problem of abortion in the Philippines is its being absolute. There
are no exceptions even in rape, fetus impairment, or in endangering a womans life.
3) Abortion helps the parents to have an option whether they want or do not want a
child.
(a)promote the safety, protection, and welfare of the unborn child from the moment of
conception and during all stages of development while inside the mothers womb;
(b) acknowledges the unborn child as a human being with human personality and
extends the mantle of legal protection to the child from the moment of conception;
(c) ensures that the delivery of health services to the mother during pregnancy shall be
done without prejudice to the unborn child;
(d) it promotes and advances the maturity of the unborn child as a welcome addition
and asset of the family; and
(e) it aims to enhance the health of the mother by avoiding means that may adversely
affect the viability of the unborn child in all stages of its maturity. 15
15 Roilo Golez, House Bill No. 13: An Act Providing for the Safety and Protection of the
Unborn Child and for Other Purposes, 2010, retrieved on October 25, 2015,
www.congress.gov.ph., 2.
Due to the tedious process of legislation, House Bill No. 13 has not yet been
passed into a law until now.
On the other hand, AKBAYAN Representative Kaka Bag-o argues that House Bill No. 13
has nothing new to offer and is alike to the provisions of Reproductive Health Bill.
Though HB 13 ensures the protection of the unborn child against abortive acts, the
same is already provided by the Revised Penal Code. HB 13 offers nothing new to
those acts already penalized under Articles 256-259 of the Revised Penal Code. The
superfluity of the passage of HB 13 is highlighted by the fact that it actually imposes a
lower penalty on abortion as compared to the provisions under the Revised Penal Code,
reducing the duration of imprisonment from six months and one day to six years in the
RPC to one to six months in HB 13. 16 Bag-o believes that the real problem in assessing
the legal rights of the unborn lies in the insufficiency of implementing our existing laws.
Moreover, the lack of government funds makes the particular law passive.
To be able to resolve the high number of women engaging in the practice of abortion,
sometimes even leading to death, the Guttmacher Institute together with University of
the Philippines Population Studies17 made the following suggestions:
Educate the public about modern contraceptives and the risks of unintended
pregnancy and unsafe abortion.
Ensure adequate funding for the full range of contraceptive methods, as well as
counseling, so that women can find and use the methods that are most suitable to their
needs.
Eliminate barriers to contraception among vulnerable populationssuch as poor
women, rural women and adolescentsby making clinics more accessible and youth-
friendly and by providing family planning at low or no cost.
Integrate contraceptive services with other reproductive health services, and provide
contraceptive counseling and services for women in postpartum and post abortion care
settings.
Destigmatize post abortion care among providers, to ensure fair and humane
treatment, and among the population as a whole, to encourage women to seek timely
post abortion care.
16 Kaka Bag-o, HB 13, or the so called Right to Life of the Unborn Child, is not Pro-
Life, 2011, retrieved on October 26, 2015, https://attykaka.wordpress.com.
In the international arena, the Universal Declaration of Human Rights (UDHR) was
adopted by the UN General Assembly in December 1948. There is no explicit provision,
in the said declaration, regarding the right to abortion. Some scholars believe that they
are implied in some provisions of the declaration. Some, such as Articles One [all
humans born free and equal in dignity and rights] or Ten, seem to point in favor of
protecting the unborn child. Still others, such as Articles Two [prohibits discrimination
based on sex] or Twelve [right to privacy], seem to apply directly in favor of the mother.
Others cut both ways, such as Article Twenty-five [special care of motherhood and
childhood].18 The declaration is not a treaty. Thus, it has no legal binding effect to the
members of UN, like the Philippines. But some of its provisions have effect on the basis
of customary international law.
In the article of Tom Venzor, professor in University of Nebraska College of Law, entitled
Protecting the Unborn Child: The Current State of Law Concerning the So-Called Right
to Abortion and Intervention by the Holy See, he discussed the three types of view
regarding abortion in relation to the rights of the unborn child. These are based on
different international system of laws regarding human rights. First, is the complete ban
on abortion in which the Philippines adopts. This view totally negates abortion and
pursues the protection of the unborn from the time of conception. However, such view
receives many criticisms because it violates womens human rights. they violate
18 Tom Venzor, Protecting the Unborn Child: The Current State of Law Concerning the So-
Called Right to Abortion and Intervention by the Holy See, 89 Nebraska Law Review (2010),
http://digitalcommons.unl.edu/nlr/vol89/iss4/11.
womens rights to life and health and force women into unwanted pregnancies, even
when they result from rape or incest.19 The international human rights laws condemn
countries that provide punishment for abortion. The second view is the middle-of-the-
road: maternal interests v. fetal interests. Most United Nations documents either define
or not define the rights of the unborn child. Thus, there are many ambiguities in the
international system of law regarding the rights of the unborn child. For example, in the
preamble of the Convention on the Rights of the Child (CRC), it states that the child, by
reason of his physical and mental immaturity, needs special safeguards and care,
including appropriate legal protection, before as well as after birth. 20 Many scholars
believe that we need to embrace the ambiguities regarding the protection of the unborn
child. As such based on certain circumstances, abortion may be prohibited or allowed. It
means striking a balance between the mothers right to choose and the right to life of
the unborn child. Lastly, the third view is unfettered access to abortion. This view is
based on many provisions of international human rights law giving the mother the right
to opt for abortion on the basis of health interests or any other personal interest.
Scholars in favor of the said view argues that unfettered access to abortion promotes
full range of reproductive health care services, claiming that such access is the
necessary lynchpin for environmental preservation, empowerment of women, access to
health care, elimination of gender base violence, and the promotion of human dignity. 21
Conclusion
From the laid down facts regarding the protection and rights of the unborn child, I
believe that it is the right time for the Philippines to adopt the liberal view regarding
abortion on certain matters. I do agree that the life of the unborn is as much important
as that of the life of the mother. However, certain circumstances like incest or rape must
give freedom to the mother. In circumstances like this, a child born out of rape may not
fully enjoy the love and affection of the mother or the family as a whole. The child can
be stigmatized with the identity of being consummated out of evil or illicit manners.
Moreover, it can also be traumatizing to the mother to see and live with the product of
such vicious act against her. By allowing such option in instances like this, the win-win
situation between the mother and unborn child can be achieved. It may be easy to
vindicate such action, however, if we are in the real situation, we may opt the same. The
same should also apply when a mother is faced with health complexities and that the
unborn must be aborted to protect the mother. I am not inciting an absolute law
regarding such. My concern is giving the mother a choice. At the end of the day, it will
be the mother who will pay for the consequences of her actions.
19 Ibid., 1140-1141.
20 Ibid., 1142.
21 Ibid., 1154.
The non-rigid application of abortion laws if implemented needs safeguards. The
government must ensure that there will be no abuses especially for hospitals and clinic
who would be allowed to conduct such. These hospitals or clinics must assure that the
only reason to conduct abortion is for rape victims or health complexities of the mother.
The Department of Health must provide a protocol or systematic guidelines to the
implementation of less stringent abortion laws. Moreover, there should be monitoring
and seminars for the health workers of abortion clinics or hospitals.
On the issue regarding the right time to instill the legal right of the unborn, I do
agree that such fetus should only be vested with legal rights upon birth. That means
being born alive. It would be impractical to vest legal rights to a fetus whose survival
may be conditional. Yes, the unborn child may be provided with all purpose for his
benefits. But as stated in Article 41 of the Civil Code of the Philippines, such favorable
acts can never be enjoyed either by the child or parents unless the child is born alive.
How can the child even assume and enjoy legal rights if the latter was not legally born in
its sense? Thus, I do not believe that there is an inherent right to life because the law
itself provides conditions to fully exercise such right and all legal mandates attached to
it. Consequently, the same principle shall apply in employing criminal liability to
individuals who commit, assist, or cause abortion.
Bibliography
Bag-o, Kaka. HB 13, or the so called Right to Life of the Unborn Child, is not Pro-
Life, 2011. Retrieved on October 26, 2015. https://attykaka.wordpress.com.
Golez, Roilo. House Bill No. 13: An Act providing for the Safety and Protection of
the Unborn Child and for Other Purposes. 2010. Retrieved on October 25,
2015.www.congress.gov.ph.
Lagman, Edcel et. al. House Bill No. 4244: The Responsible Parenthood,
Reproductive Health and Population Development Act of 2011. 2011. Retrieved on
October 27, 2015. www.congress.gov.ph.
Paras, Edgardo. Civil Code of the Philippines Annotated: Volume One (Persons
and Family Relations) Seventeenth Edition. Quezon City: Rex Printing Company Inc.,
2013.
Reyes, Luis. Revised Penal Code Book 2. Quezon City: Rex Book Store. 2012
Venzor, Tom. Protecting the Unborn Child: The Current State of Law Concerning
the So-Called Right to Abortion and Intervention by the Holy See. 89 Nebraska Law
Review. 2010. http://digitalcommons.unl.edu/nlr/vol89/iss4/11.