ANTONIO GELUZ vs. COURT OF APPEALS
G.R. No. L-16439, July 20, 1961
2 SCRA 801
Her present husband impregnated Nita Villanueva before they were legally married. Desiring to conceal her pregnancy from the parent, she had herself aborted by petitioner Antonio Geluz. After her marriage, she again became pregnant. As she was then employed in the COMELEC and her pregnancy proved to be inconvenient, she had herself aborted again by Geluz. Less than 2 years later, Nita incurred a third abortion of a two-month old fetus, in consideration of the sum of P50.00. Her husband did not know of, nor consented to the abortion. Hence Oscar Lazo, private respondent, sued petitioner for damages based on the third and last abortion.
The trial court rendered judgment ordering Antonio Geluz to pay P3,000.00 as damages, P700.00 as attorney’s fee and the cost of the suit. Court of Appeals affirmed the decision.
Is an unborn child covered with personality so that if the unborn child incurs injury, his parents may recover damages from the ones who caused the damage to the unborn child?
Personality begins at conception. This personality is called presumptive personality. It is, of course, essential that birth should occur later, otherwise the fetus will be considered as never having possessed legal personality.
Since an action for pecuniary damages on account of injury or death pertains primarily to the one injured, it is easy to see that if no action for damages could be instituted on behalf of the unborn child on account of 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 one that lacked juridical personality.
It is no answer to invoke the presumptive personality of a conceived child 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. In the present case, the child was dead when separated from its mother’s womb.
This is not to say that the parents are not entitled to damages. However, such damages must be those inflicted directly upon them, as distinguished from injury or violation of the rights of the deceased child.