IMSON, KAMILLE V.

1A
LOGIC- FINALS EXAM
ATTY. ARSENIK PAGADUAN
JUNE 1, 2017

MEMORANDUM OF LAW

TO: Ms. Zaila Parcon

FROM: Kamille V. Imson
DATE: June 1, 2017
RE: Support and Criminal Complaint of Mr. Mark Matikas against Mr. Zeno Parcon

I. STATEMENT OF FACTS
Mark Matikas was a popular movie star during the 1980s. He lost his fame and popularity
when he became involved in gambling and gun-running. Sometime in 1992, he received an offer
for him to give some of his sperm for the purpose of fertilizing the egg cells of an undisclosed
female in connection with an In Vitro Fertilization (IVF) procedure. As payment for his sperm
samples, Mark received P500,000. To protect the possible child that may be conceived through
the procedure, Mark signed an Agreement, stating to the effect that he is waving all rights that he
may have over the said child.

Last 2016, he met with Atty. Rafael Yabut. Atty. Yabut is the counsel of the mother of the
child who was conceived through the IVF procedure conducted last 1992. According to Atty.
Yabut, the said child, who is now more than 20 yrs. old, suffered a kidney disease and would be
needing a kidney transplant. He was contacted since they would like to ask if it is possible for him
to give one of his kidneys for the said child. By way of compensation, Mark would be given P1
million. He agreed and was accordingly paid.

The kidney transplant procedure was successful. Through one of his cousins which
happened to be a member of the medical staff of the hospital where the transplant was conducted,
Mark was able to discover the identity of his said biological child and the mother of the latter. The
name of his son is Zeno Parcon and his mother is Zaila Parcon, a billionaire. Zeno is a multi-
millionaire, being the owner of several gas stations and the major stockholder of a top tier French
restaurant.

Last March 2017, Mark suffered a heart attack and because of the same, he spent almost
all his money for his hospitalization and medicines.

To finance his medical needs, Mark decided to ask financial support from Zeno. Zeno
refused to give him anything. Given the same, Mark filed a petition for support against Zeno
before RTC Pasig.

In his petition, he argued that Zeno, being his biological son, is legally obligated to give
support to him as per the Family Code.

In a chance encounter in a mall, Mark and Zeno saw each other. Zeno said that Mark is an
opportunist and a leech. Zeno also said that he does not recognize Mark as his father.

Hurt about the things said to him by Zeno, Mark posted a video in Youtube. In the said
video, Mark recounted the IVF procedure previously undertaken. He also mentioned how Zeno
became the result of the successful IVF procedure and how he saved Zeno by giving him one of
his kidneys. He also mentioned about the mall confrontation between them and how Zeno flatly
refused his request for financial help.

The said video became viral. Since the posting of the said video, the number of customers
of the said French restaurant was drastically reduced.

Angered by the posting of the said video, Zeno went to the house of Mark. Upon seeing
Mark, Zeno forcefully threw three bundles of P1,000 bills to the face of Mark. Due to the attempt
of Mark to avoid the bundles of money thrown to him, he accidentally hit his head hard against a
protruding nail.

Due to severe head injury, Mark almost died. Mark immediately filed a case for frustrated
parricide against Zeno.

II. QUESTIONS PRESENTED

1. Whether Zeno is legally compelled to give support to Mark.
2. Whether the previous Agreement signed by Mark waiving all his rights over the child that
could result from the IVF procedure effectively stripped all of Mark’s rights as against
Zeno?

3. Whether the information gained by Mark through his cousin (i.e. identity of Zeno and his
mother) can be legally used against Mark.
 4. Could Zeno file a case for damages and/or any other case against Mark in connection with
the posting of the video in Youtube.

5. The probability of Zeno’s conviction in connection with the frustrated parricide filed
against Zeno.

6. The possible lines of action that Zeno can use in order to deal with the situation with Mark
and the advantages and disadvantages of the same.
7. Recommended line of action and its justification.

III. BRIEF ANSWERS

1. NO. Zeno cannot be legally compelled to give support to Mark because there exists no
parent-child relationship between the two.

2. YES. The agreement effectively stripped all of Mark’s rights over Zeno because primarily
Mark, being the sperm donor, is not the legal father of Zeno.

3. NO, the information about the identity of Zaila and Zeno which comes into the knowledge
of Mark through his cousin cannot be used against Mark because such information was not
solicited by Mark.

4. YES, he can file an action for damages – temperate and moral- for the loss he incurred in
connection with Mark’s posting of video on Youtube.

5. There is no probability of conviction under the crime of frustrated parricide because there
is no direct relationship between Zeno and Mark which is an element of the crime of
parricide. Furthermore, Zeno’s act of throwing the bundles of money is not felonious.

6. The possible lines of action that Zeno can use in order to deal with the situation with Mark
are: (1) file a motion to dismiss the petition for support filed by Mark, (2) file an action for
damages (temperate and moral), (3) file a motion to quash the information for frustrated
parricide, (4) file a case of online libel against Mark, and (5) file a case for violation of
right to privacy.

7. My recommended line of actions which Zeno shall use are: (1) file a motion to dismiss the
petition for support filed by Mark, (2) file an action for damages (temperate and moral),
(3) file a motion to quash the information for frustrated parricide.
IV. DISCUSSION

Issue 1
The first issue is whether or not Zeno is legally compelled to give support to Mark.

Zeno, the conceived child through In Vitro Fertilization (IVF) procedure, has no legal duty
to give support to Mark, which is the sperm donor.

Under the Philippine laws, specifically the Family Code, conception of a child through
Artificial insemination is recognized. There are two circumstances explained and distinguished
under the Philippine law as regards Artificial insemination and these are:

1) Artificial insemination where the sperm is donated by the husband himself (AIH), and
2) Artificial insemination where the sperm is donated by a third-party donor (AID).

The first situation contemplates that the husband is impotent and cannot perform the sexual
act but is not sterile. Here, the sperm is donated by the husband himself. Because of this, the
legitimacy of the conceived child is dependent on the presumption laid down in Article 255 of the
New Civil Code. Thus, AIH constitutes no problem at all. As a matter of fact, with or without the
husband’s consent, the child is still and will always be a legitimate child since impregnation with
the husband’s semen is deemed to be sexual access.

The second situation, on the other hand, contemplates an event where the husband is both
impotent and sterile. Here, the legitimacy of the child depends on whether the mother’s
impregnation constitute adultery. If such impregnation does not constitute adultery, then the child
is a legitimate child of both the husband and wife and the third-party donor has no obligation over
the child. Otherwise, the child is illegitimate and the donor would be legally bound to give support
to such child. Also in this situation, the husband’s consent has no bearing on the legitimacy of the
child conceived through AID.

In this case, Zeno, as a fruit of artificial insemination, is considered a legitimate child only
of Zaila Parcon and not of Mark Matikas. The second situation previously discussed applies in the
case at bar since Mark served as a third-party donor. Mark’s act of donating his sperm to Zaila
does not make him the legal father of Zeno as the child is the legitimate child only of Zaila.

Under Article 195 of the Family Code, parents and children are obliged to give support to
each other. However, since there exists no Parent-child relationship between Mark and Zeno, the
latter cannot be compelled to give support to the former.

To further to support this claim, under the Revised Uniform Parentage Act of 2002, a third-
party donor is not considered the legal father of the conceived child through artificial insemination.
This law applies both to married and unmarried women. Furthermore, the sperm donor can neither
sue to establish parental rights nor be sued and required to support the resulting child.
 Thus, Zeno cannot be legally obliged to give support to Mark Matikas.

Issue 2
The second issue involves the validity of the agreement between Zaila and Mark as regards
the latter’s parental rights over Zeno. In this case, the agreement has effectively stripped all of
Mark’s parental rights over Zeno.

Under that Revised Uniform Parentage Act of 2002, the sperm donor is not the legal parent
of the resulting child. It specifically states that:

On any assisted reproduction for conception that relies on donor sperm, whether the
identity of the donor is known or unknown, and whether the donor was paid or unpaid.
That a sperm donor is not the legal father of any resulting child. The donor can neither sue
to establish parental rights, nor be sued and required to support the resulting child. In sum,
donors are eliminated from the parental equation.

Thus, the agreement entered into by Zaila and Mark has effectively stripped all of Mark’s rights
over Zeno. Included in this right is Mark’s right to be supported by Zeno. Since Mark has neither
obligation nor right over Zeno, so is Zeno as regards Mark.
As ruled in the case of Ferguson v. McKiernan (2007), the sperm donor and the mother
entered into an agreement that the donor would not be obliged to give and support to the
child and would not also have visitation rights. Later on, the mother changed her mind and
sued for support against the donor. The lower court ruled in favor of the mother because it
is for the best interest of the child. However, such ruling was overturned by the Highest
court stating that the agreement between the mother and the donor should prevail.

To further substantiate this claim, under the Philippine laws, Artificial insemination is
properly recognized. However, the sperm donor is not considered the legal father of the resulting
child. The conceived child through artificial insemination is the legitimate child of the husband
and wife and not of the donor.

In the case at bar, the agreement entered into by Mark and Zaila has effectively stripped
Mark’s rights over Zeno.

Issue 3
The third issue is whether or not the information gained by Mark through his cousin (i.e.
identity of Zeno and his mother) can be legally used against Mark.
The said information cannot be used against Mark because it was not solicited by Mark. It
merely came into his knowledge when his cousin told him about the identity of Zaila and Zeno
 Under Article 3, Section3 of the 1987 Constitution, it states there that:

(1) The privacy of communication and correspondence shall be inviolable except upon
lawful order of the court, or when public safety or order requires otherwise, as prescribed
by law.

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible
for any purpose in any proceeding.
Furthermore, in Ople vs. Torres 293 SCRA 141 (1998), the Supreme Court enunciated that
the reasonableness of a person’s expectation of privacy depends on a two-part test which are:
1. Whether, by his conduct, the individual has exhibited an expectation of privacy; and
2. This expectation is one that society recognizes as reasonable.

In this case, Zeno has an expectation to right of privacy. His act of disclosing such facts to
the hospital affirms this expectation of right to privacy because a patient rightfully assumes that
whatever information he has parted to the hospital will not be disclosed.

In fact, under R.A. NO. 10173 or Data Privacy Act of 2012 protection of patient privacy
and confidentiality is protected under section 13 thereof which states that:

Sensitive Personal Information and Privileged Information. The processing of sensitive

personal information and privileged information shall be prohibited, …except in the
following instances: data subject consent; existing laws and regulations; to protect the life
and health of data subject; lawful and noncommercial objectives of public organizations
and associations; medical treatment; protection of lawful rights and interest of natural or
legal person in court proceedings; or the establishment, exercise, or defense of legal claims;
or, when provided to governments or public authority.

Furthermore, the Philippine Medical Association’s (PMA) Code of Ethics discusses the
duties of the physicians towards their patients. Article 2 of which states that:

Section 6. The physician should hold as sacred and highly confidential whatever may be
discovered or learned pertinent to the patient even after death, except when required in the
promotion of justice, safety and public health.
Lastly, the Magna Carta of Patient’s Bill of Rights and Obligations provides that:

Right to Privacy and Confidentiality–The patient has the right to privacy and protection
from unwarranted publicity. The right to privacy shall include the patient’s right not to be
subjected to exposure, private or public, either by photography, publications, video-taping,
discussion, or by any other means that would otherwise tend to reveal his person and
identity and the circumstances under which he was, he is, or he will be, under medical or
surgical care or treatment. … All identifiable information about a patient’s health status,
 medical condition, diagnosis, prognosis and treatment, and all other information of a
personal kind, must be kept confidential even after death.

Thus, through this law and PMA Code of Ethics, Zeno’s act of disclosing information to
the hospital justifies his expectation of right to privacy.

However, this expectation of right to privacy is applicable only to Mark’s cousin as he is

the staff of the hospital who is duty bound to protect all the information disclosed to them by their
patients. Mark only learned of Zaila and Zeno’s identity through Mark’s cousin who willingly gave
such information to the former.

Thus, such information cannot be legally used against Mark. The information about Zaila
and Zeno’s identity only cam to Mark’s knowledge when his cousin informed him of such. Mark
did not solicit such information. Because of this, such information cannot be legally used against
Mark.

Issue 4
The fourth issue is whether Zeno file a case for damages and/or any other case against
Mark in connection with the posting of the video in Youtube.
Zeno can file an action for damages – moral and temperate- against Mark because the
latter’s act of posting a video on Youtube has caused the decrease of the former’s customers in his
business.
Under Art. 2217 of the New Civil Code:

Moral damages include physical suffering, mental anguish, fright, serious anxiety,
besmirched reputation, wounded feelings, moral shocks, social humiliation, and similar
injury. Though incapable of pecuniary computation, moral damages may be recovered if
they are the proximate result of the defendant's wrongful act or omission.

In this case, Mark’s act of posting such video on Youtube caused besmirched reputation
and social humiliation against Zeno. The latter is known for his French restaurant and he is also
known to be a billionaire. The video that went viral tainted Zeno’s standing. Thus, he can file for
an action for moral damages.
Now under Article 2224 of the New Civil Code:

Temperate or moderate damages, which are more than nominal but less than compensatory
damages, may be recovered when the court finds that some pecuniary loss has been
suffered but its amount cannot, from the nature of the case, be provided with certainty.
 In the case at bar, Zeno can also file an action for Temperate damages. This is because the
video that went viral caused the decrease of the customers in Zeno’s French restaurant. As a result,
he suffered some pecuniary loss but such loss cannot be properly determined as to its amount.
Thus, Zeno can file and action for moral and temperate damages.

In sum, Zeno can claim both Moral and Temperate damages from Mark as his reputation
was besmirched and he suffered pecuniary loss as well.

Issue 5
The fifth issue is whether or not there is probability for Zeno’s conviction in connection
with the frustrated parricide filed against him.
Under Article 246 of the Revised Penal Code:

Parricide. — Any person who shall kill his father, mother, or child, whether legitimate or
illegitimate, or any of his ascendants, or descendants, or his spouse, shall be guilty of
parricide and shall be punished by the penalty of reclusion perpetua to death.
The crime of Parricide has the following elements:
1. That a person is killed.
2. That the deceased is killed by the accused.

3. That the deceased is the father, mother, or child, whether legitimate or illegitimate, or a
legitimate other ascendant, or legitimate other descendant, or legitimate spouse of the
accused.

It is clear that for the crime of frustrated parricide to prosper, the element of direct
relationship between the offender and the offended party must be present. However, in this case,
Mark and Zeno has no parent-child relationship. It has been held in Philippine jurisdiction and
under the Revised Uniform Parentage Act of 2002 that the sperm donor, Mark, is not the legal
parent of the resulting child, Zeno. Furthermore, Zeno’s act of throwing the bundles of bills to
Mark does not constitute a felony. Hence, the case for frustrated parricide will definitely not
prosper.

Issue 6
The possible lines of action that Zeno can use in order to deal with the situation with Mark
are: (1) file a motion to dismiss the petition for support filed by Mark, (2) file an action for damages
(temperate and moral), (3) file a motion to quash the information for frustrated parricide, (4) file a
case of online libel against Mark, and (5) file a case for violation of right to privacy.
 For the first line of action, since it was established that there was no parent-child
relationship between Mark and Zeno, it is proper to file a motion to dismiss the petition for support
filed by Mark. Under the Revised Uniform Parentage Act of 2002, it was proven that the sperm
donor is not the legal father of the resulting child. The same fact was also held in our jurisdiction.
Thus, it is appropriate to file a motion to dismiss the petition for support filed by Mark.

On to the next possible line of action, Zeno can file an action for moral and temperate
damages. Mark’s act of posting such video in Youtube caused the reduction of Zeno’s customers
in his business. Furthermore, such video besmirched Zeno’s reputation. Thus, it is appropriate for
Zeno to file this action for damages so as to compensate for the loss he incurred.
The third line of action is to file a motion to quash the information for frustrated parricide.
Since there is no parent-child relationship between Mark and Zeno, which is an essential element
in the crime of parricide, the information for frustrated parricide should be quashed. This is
necessary so as to clear Zeno’s name of any criminal charge.

The next possible line of action is to file a case of online libel against Mark for his act of
posting a video on Youtube. Under Article 353 of the Revised Penal Code, the crime of libel has
the following elements:
1. There must be an imputation, or allegation of a crime, or a vice of defect, real or
imaginary, or any act or omission, condition, status or circumstance which tend to dishonor
or discredit a natural or juridical person.
2. That there must be a publication of these imputation.
3. The identity of the person defamed must be established or identified.
4. The existence of malice.

In this case, it is possible for Zeno to file a case of online libel for the said posting of video
on Youtube. It is first necessary to establish all the elements of the crime. Filing a case of online
libel against Mark would be advantageous for Zeno as the awards which he may get if ever he
wins such case will compensate all the loss he incurred because of such posting of video on
Youtube. However, the disadvantage of filing this case is that the burden of proving each and every
element of the crime would be on Zeno. More so, filing of a case as well as all the trials it will go
through is time consuming and would require vast efforts on the part of Zeno.

The last possible line of action is to file a case for violation of right to privacy. In this case,
Mark’s act of narrating all the information he knew against Zeno and Zaila as well as his act of
recounting the mall confrontation can be considered as an intrusion to Zeno’s right of privacy.
There are four types of intrusion to privacy and these are:
1. Intrusion of Solitude
 2. Appropriation of Name or Likeness
3. Public Disclosure of Private Facts
4. False Light

What is present in this case is the third type which is the public disclosure of private facts. A
revelation of private facts is the unlawful revelation of embarrassing personal facts about an
individual. For it to be considered “tortious,” the fact must “offensive to a reasonable person” and
unrelated to “a matter of legitimate public interest.”

In this case, the information disclosed by Mark in his video is definitely a private fact as it
is not a matter of public interest. Clearly, it is offensive to Zeno as he incurred loss because of such
video. Thus, if Zeno will file a case for violation of his right to privacy, again, he will be able to
get damages if he wins the case which will compensate the loss he incurred.

Issue 7
As for my recommended line of action, given the statement of facts, I suggest that Zeno
shall file three actions: (1) file a motion to dismiss the petition for support filed by Mark, (2) file
an action for damages (temperate and moral), (3) file a motion to quash the information for
frustrated parricide.

For the first recommended line of action, Zeno should file a motion to dismiss the petition
for support filed by Mark. Under the Revised Uniform Parentage Act of 2002, the sperm donor is
not the legal father of the resulting child. This fact is well-accepted in our jurisdiction. Thus, Mark,
as the sperm donor, is not the legal father of Zeno, which is the resulting child of the IVF. Because
of this, Zeno cannot be compelled to give and provide support to Mark under the Family Code.
This warrants the proper dismissal of the petition for support filed by Mark.
The next line of action is to file an action for moral and temperate damages for Mark’s act
of posting video on Youtube which caused the decrease of the former’s customers in his restaurant.

Under Article 2217 of the New Civil Code, one of the grounds to claim moral damages is
besmirched reputation. In this case, Zeno’s reputation was clearly besmirched. The latter is known
for his French restaurant and he is also known to be a billionaire. The video that went viral tainted
Zeno’s standing. Thus, he can claim moral damages from Mark.

Under Article 2224 of the New Civil Code, on the other hand, Temperate or moderate
damages may be recovered when the court finds that some pecuniary loss has been suffered but its
amount cannot be provided with certainty. In this case, the video that went viral caused the
decrease of the customers in Zeno’s French restaurant. As a result, he suffered some pecuniary
loss but such loss cannot be properly determined as to its amount. In sum, Zeno is entitled to claim
both temperate and moral damages.
 As for the last line of action, Zeno should file a motion to quash the information for
frustrated parricide. Under Article 246 of the Revised Penal Code, for the crime of parricide to lie,
the element of direct relationship is essential. And this essential element is lacking in this case.
Mark, as a sperm donor, is not the legal father of Zeno, who is the resulting child of the IVF. As a
result, there exists no direct relationship between the two. Thus, the Zeno shall file a motion to
quash the said information for frustrated parricide.

V. CONCLUSION
In this case, it was proven under the Revised Uniform Parentage Act of 2002 that the sperm
donor is not the legal father of the resulting child of the IVF process. Furthermore, this claim is a
well-accepted fact in the Philippine Jurisdiction. In the case at hand, therefore, Mark, the sperm
donor, is not the legal father of Zeno, which is the resulting child of the IVF process.

As a rule, under Article 195 of the Family Code, parents and children are obliged to give
support to each other. However, since Mark is not the legal father, he has no obligation to give
support to Zeno. Reciprocally, on the other hand, Zeno is also not duty bound to give support to
Mark.

Moreover, Zeno is entitled to claim for both moral and temperate damages against Mark
because of the video posted by the latter which have gone viral. Such video besmirched the good
reputation of Zeno as he is a well-known major stock holder of a sophisticated restaurant and a
reputable owner of several gas stations. On the other hand, Zeno is entitled as well to temperate
damages as he suffered pecuniary loss because of the said video which mainly caused the reduction
of Zeno’s customers in his restaurant.

Lastly, Zeno cannot be held liable for frustrated parricide because for such crime to be
punishable, Article 246 of the Revised Penal Code requires direct relationship. In this case, such
element of direct relationship is lacking because there exists no parent-child relationship between
Zeno and Mark. Thus, the charge for frustrated parricide should be dismissed.