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Kabataan ang pag-asa ng bayan let me take a flight from this

adage where the imminent question how can a state uplift the spirit
of this utterance from our national hero, Dr. Jose Rizal? develops.
An unborn child, by definition from an article that aims to
stimulate the United Nations to elaborate the Convention on the Rights
of the Unborn by Jude Ibegbu, means a child developing in the womb
from conception until birth. The term "unborn child" as used in this
article, therefore includes all the different stages of development of the
fertilized ovum up until birth. These stages comprise the zygote stage,
embryonic stage, and fetal stage. Life with a full genetic endowment
begins from the inception of pregnancy. According to the Alabama
Supreme Court, an unborn is considered as a child complementing
the legal recognition as a member of the human family, the basic unit
of community. The law therefore broadens the States interest in
protecting the life of children from the earliest stages of development.
A harmonizing opinion of the Alabama Chief Justice Roy S. Moore
emphasizes that the absolute right to life as a gift of God that civil
government must secure for all persons born and unborn (Chapman,
2014) for they constitute the future generation of humanity (Ibegbu,
2000).
Debate over where life begins is legally moot, as the
Constitution expressly states that it is from the time of conception.
Section 12, Art 2:
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. The natural and primary right
and duty of parents in the rearing of the youth for civic efficiency

and the development of moral character shall receive the


support of the Government.
This is in connection with the House Bill no. 13 introduced by Hon. Roilo
Golez in 2010 providing for the safety and protection of the unborn
child as the familys most vulnerable member and for other purposes.
This act recognizes the unborn child as part of Filipino family which is
the foundation of a nation where the need to protect the unborn for the
enhancement of right to life and to strengthen the solidarity of every
family arises. It is also for the prevention of the state from espousal to
the doctrine in the U.S. Supreme Court decision of Roe v. Wade, 410
U.S. 113 (1973), which the laws open abortion up to the sixth month
pregnancy provided that it can be done without danger to the mother,
is the paramount purpose in asserting that protection starts from the
time of conception (Bernas, 2006).
Furthermore, the legal personality of an unborn child is
recognized indirectly in the civil code of many states as right to inherit,
to receive donations, to succeed, etc. In addition, the International
Convention on Human Rights stipulates that every human person has a
right to life so the state must ensure to the maximum extent possible
the survival and development of a child. Paragraph 9 of the of the
Convention on the Rights of the Child states that "bearing in mind that,
as indicated in the U.N. Declaration of the Rights of the Child (1959)",
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. Considering further the effects abortion
and biotechnology in the absence of legal protection natural rights of
the unborn child, both in national and international laws, is a constant
violation of the said rights (Ibegbu, 2000). The Revised Penal Code of
the Philippines criminalizes abortion and mandates imprisonment for

women who undergo the procedure (Article 256), as well as those who
assist (Article 258) including parents, physicians, midwives, etc.
Under the Philippine law, the beginning of civil personality
providing for all purposes that are favorable to the conceived fetus
provided it be born later with the conditions specifically enshrined in
Article 40 and 41 of the Civil Code of the Philippines states:
Art. 40. Birth determines personality; but the conceived child
shall be considered born for all purposes that are favorable to it,
provided it be born later with the conditions specified in the
following article.
Art. 41. For civil purposes, the fetus is considered born if it is
alive at the time it is completely delivered from the mothers
womb. However, if the fetus had an intra uterine life of less than
seven months, it is not deemed born if it does within twenty-four
hours after its complete delivery from the maternal womb.
Article 40 and 41 of the Civil Code details that from the moment of
conception, the unborn child possesses presumptive personality or
provisional civil capacity. While the fetus is still in the mothers womb,
may be considered born only for civil purposes. The unborn, through
the mother may be a recipient of a donation and may inherit through
succession. However, since the civil personality is provisional, legal
birth is essential in order for all these rights to be perfected, it is a prerequisite to acquire full legal personality. Also, prior to birth, the right of
the unborn for support is not conditional; it is an actual right in favor of
the unborn.

In the case of Quimiguing vs. Icao, wherein the appellant, Caren


Quimiguing claimed support, damages and attorneys fees against the
defendant, Felix Icao, who although married, succeeded in having
carnal intercourse with plaintiff several times by force and intimidation,
and without her consent that as result impregnated her. The Supreme
Court reversed the decision of the lower court and favored the claim of
the appellant in pursuance to Article 40 of the Civil Code of the
Philippines. The unborn child, therefore, has a right to support from its
progenitors, particularly of the defendant (whose paternity is deemed
admitted for the purpose of the motion to dismiss), even if the child is
only en ventre de sa mere; just as a conceived child, even if as yet
unborn, may receive donations as prescribed by Article 742 of the
same Code.
In a presumptive personality possessed by an unborn, legal birth
must follow to acquire juridical personality. However, while the Civil
Code expressly provides that civil personality may be extinguished by
death, it does not explicitly state that only those who have acquired
juridical personality may die. Death is defined as cessation of life and
certainly, a child in the womb has life. Article 40 provides that a
conceived child acquires personality only when it is born, Article 41
defines when a child is considered born, and Article 42 plainly states
that civil personality is extinguished by death. In the case of
Continental Steel vs. Montano, Hortillano, an employee of petitioner
Continental Steel, filed a claim for Paternity leave, Bereavement leave
and Death and Accident Insurance for dependent, pursuant to the CBA,
for his unborn child who died during labor because of miscarriage. The
question of whether the unborn acquired juridical personality is
immaterial in this issue. The Supreme Court held that children
conceived or born during the marriage of the parents are legitimate
dependent the moment it was conceived. The fetus had a life inside

the womb as evidenced by the fact that it clung to life for 38 weeks
before the unfortunate miscarriage. Therefore, death occurred on a
dependent, hence Hortillano as an employee is entitled to death
benefit claims as provided for in their CBA.
Contrary to the decision in the case above, the ruling of the
Supreme Court in the case of Geluz v. CA is reversed, and the
complaint of Oscar Lazo of recovery for damages against the physician
Antonio Geluz who performed the abortion is dismissed. Since 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. Fixing a minimum award of
P3,000 for the death of a person, does not cover the case of an unborn
fetus that is not endowed with personality. It seemed that Lazos only
concern appears to have been directed at obtaining from the doctor a
large amount of money payment because Oscars indifference to the
previous abortions of Nita obviously indicates he was unconcerned with
the frustrations of his parental affections. In addition, in the case of
Teamblay vs. Daigle presented before the Canadian Court on an
injunction to stop the abortion of fetus, ruled that the term human
being which provides that every human being possesses juridical
personality, cannot be construed as including fetuses. The recognition
of its presumptive personality is for the protection of the future
interests of the fetus after it is born. Thus it is an undisputed condition
that it must be born alive and viable.
In summary, the unborn child may possess fundamental rights
such as right to life and right to legal protection as inherent and
inalienable but this is not an assertion that the unborn id a legal person
(Sec 12, Art 2 of the Constitution). However, speaking of legal rights,
even though the unborn child has a presumptive personality because it

is a subject of some rights, which the law recognizes, the fact remains
that it is only from birth that the unborn child acquires legal
personality. The law says the fetus is considered born only for civil
purposes (Art. 41), which are beneficial (Art. 40). A conceived child
may be a recipient of a donation, may inherit through succession and
is entitled to support. These civil purposes are subject to the event of
birth of the fetus and should be alive at the time it is completely
separated from the mothers womb, to be perfected. Otherwise the
fetus will be considered as never having possessed legal personality as
theres no foundation yet for the legal rights to be fully established
since it is made conditional to birth.
BIBLIOGRAPHY:
"Ala.SupremeCourt:'UnbornChildHasInalienableRighttoLifeFromItsEarliestStages'"CNSNews.
April23,2014.AccessedOctober21,2015.
"Canada,Tremblayv.Daigle."Canada,Tremblayv.Daigle.AccessedOctober21,2015.
Estrada,Abelardo.CriminalLawBook2ofTheRevisedPenalCode.2008ed.Manila:REXBookStore,
2008.
Golez,Hon.Roilo."HouseBillNo.13."2010.AccessedOctober21,2015.
Ibegbu,Jude."DeclarationonTheRightsofTheUnbornChild:AProposal."UntitledDocument.Accessed
October21,2015.http://groups.csail.mit.edu/mac/users/rauch/nvp/misc/ibegbu.html.
"InternationalHumanRightsLawandtheUnbornChild."NationalReviewOnline.AccessedOctober21,
2015.
Paras,EdgardoLardiza."Chapter2,NaturalPersons,Articles40,41,42."InCivilCodeofthePhilippines
Annotated,.15thed.Manila:RexBookStore,2002.
Suarez,RolandoA."Section12,Article2."InConstitutionalLawReviewer:CoveringtheSubjectsof
ConstitutionalLawI,ConstitutionalLawII:WhichIncludesthe1987ConstitutionoftheRepublicofthe
Philippines,fromthePreambletoArticleXVIII.Manila,Philippines:RexBookStore,2008.
"TheWoman,theLawandtheUnbornChild."TheProPinoyProject.AccessedOctober21,2015.
http://propinoy.net/2010/08/05/thewomanthelawandtheunbornbabytheabortionbaninthe
philippines/.

Quimiguingvs.Icao,G.R.No.26795,31July1970
Geluzvs.CA,G.R.No.L16439,20July1961
ContinentalSteelvs.Montao,G.R.No.182836,13October2009

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