Republic of the Philippines Philippine currency.

The plaintiff was at this time in the province of Cagayan,

EN BANC It is the third and last abortion that constitutes plaintiff's basis in filing this action and award
of damages. Upon application of the defendant Geluz we granted certiorari.
G.R. No. L-16439 July 20, 1961
The Court of Appeals and the trial court predicated the award of damages in the sum of
ANTONIO GELUZ, petitioner, P3,000.06 upon the provisions of the initial paragraph of Article 2206 of the Civil Code of
vs. the Philippines. This we believe to be error, for the said article, in fixing a minimum award of
THE HON. COURT OF APPEALS and OSCAR LAZO, respondents. P3,000.00 for the death of a person, does not cover the case of an unborn foetus that is not
endowed with personality. Under the system of our Civil Code, "la criatura abortiva no
Mariano H. de Joya for petitioner. alcanza la categoria de persona natural y en consscuencia es un ser no nacido a la vida del
A.P. Salvador for respondents. Derecho" (Casso-Cervera, "Diccionario de Derecho Privado", Vol. 1, p. 49), being incapable
of having rights and obligations.
REYES, J.B.L., J.:
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
This petition for certiorari brings up for review question whether the husband of a woman,
instituted on behalf of the unborn child on account of the injuries it received, no such right of
who voluntarily procured her abortion, could recover damages from physician who caused
action could derivatively accrue to its parents or heirs. In fact, even if a cause of action did
the same.
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
The litigation was commenced in the Court of First Instance of Manila by respondent Oscar juridical capacity as distinguished from capacity to act). It is no answer to invoke the
Lazo, the of Nita Villanueva, against petitioner Antonio Geluz, a physician. Convinced of the provisional personality of a conceived child (conceptus pro nato habetur) under Article 40 of
merits of the complaint upon the evidence adduced, the trial court rendered judgment favor the Civil Code, because that same article expressly limits such provisional personality by
of plaintiff Lazo and against defendant Geluz, ordering the latter to pay P3,000.00 as imposing the condition that the child should be subsequently born alive: "provided it be born
damages, P700.00 attorney's fees and the costs of the suit. On appeal, Court of Appeals, in later with the condition specified in the following article". In the present case, there is no
a special division of five, sustained the award by a majority vote of three justices as against dispute that the child was dead when separated from its mother's womb.
two, who rendered a separate dissenting opinion.
The prevailing American jurisprudence is to the same effect; and it is generally held that
The facts are set forth in the majority opinion as follows: recovery can not had for the death of an unborn child (Stafford vs. Roadway Transit Co., 70
F. Supp. 555; Dietrich vs. Northampton, 52 Am. Rep. 242; and numerous cases collated in
Nita Villanueva came to know the defendant (Antonio Geluz) for the first time in the editorial note, 10 ALR, (2d) 639).
1948 — through her aunt Paula Yambot. In 1950 she became pregnant by her
present husband before they were legally married. Desiring to conceal her This is not to say that the parents are not entitled to collect any damages at all. But such
pregnancy from her parent, and acting on the advice of her aunt, she had herself damages must be those inflicted directly upon them, as distinguished from the injury or
aborted by the defendant. After her marriage with the plaintiff, she again became violation of the rights of the deceased, his right to life and physical integrity. Because the
pregnant. As she was then employed in the Commission on Elections and her parents can not expect either help, support or services from an unborn child, they would
pregnancy proved to be inconvenient, she had herself aborted again by the normally be limited to moral damages for the illegal arrest of the normal development of
defendant in October 1953. Less than two years later, she again became pregnant. the spes hominis that was the foetus, i.e., on account of distress and anguish attendant to
On February 21, 1955, accompanied by her sister Purificacion and the latter's its loss, and the disappointment of their parental expectations (Civ. Code Art. 2217), as well
daughter Lucida, she again repaired to the defendant's clinic on Carriedo and P. as to exemplary damages, if the circumstances should warrant them (Art. 2230). But in the
Gomez streets in Manila, where the three met the defendant and his wife. Nita was case before us, both the trial court and the Court of Appeals have not found any basis for an
again aborted, of a two-month old foetus, in consideration of the sum of fifty pesos,
award of moral damages, evidently because the appellee's indifference to the previous
abortions of his wife, also caused by the appellant herein, clearly indicates that he was
unconcerned with the frustration of his parental hopes and affections. The lower court
expressly found, and the majority opinion of the Court of Appeals did not contradict it, that
the appellee was aware of the second abortion; and the probabilities are that he was
likewise aware of the first. Yet despite the suspicious repetition of the event, he appeared to
have taken no steps to investigate or pinpoint the causes thereof, and secure the
punishment of the responsible practitioner. Even after learning of the third abortion, the
appellee does not seem to have taken interest in the administrative and criminal cases
against the appellant. His only concern appears to have been directed at obtaining from the
doctor a large money payment, since he sued for P50,000.00 damages and P3,000.00
attorney's fees, an "indemnity" claim that, under the circumstances of record, was clearly
exaggerated.

The dissenting Justices of the Court of Appeals have aptly remarked that:

It seems to us that the normal reaction of a husband who righteously feels outraged
by the abortion which his wife has deliberately sought at the hands of a physician
would be highminded rather than mercenary; and that his primary concern would be
to see to it that the medical profession was purged of an unworthy member rather
than turn his wife's indiscretion to personal profit, and with that idea in mind to press
either the administrative or the criminal cases he had filed, or both, instead of
abandoning them in favor of a civil action for damages of which not only he, but also
his wife, would be the beneficiaries.

It is unquestionable that the appellant's act in provoking the abortion of appellee's wife,
without medical necessity to warrant it, was a criminal and morally reprehensible act, that
can not be too severely condemned; and the consent of the woman or that of her husband
does not excuse it. But the immorality or illegality of the act does not justify an award of
damage that, under the circumstances on record, have no factual or legal basis.

The decision appealed from is reversed, and the complaint ordered dismissed. Without
costs.

Let a copy of this decision be furnished to the Department of Justice and the Board of
Medical Examiners for their information and such investigation and action against the
appellee Antonio Geluz as the facts may warrant.

Bengzon, C.J., Padilla, Labrador, Barrera, Paredes, Dizon and Natividad, JJ., concur.
Concepcion, J., took no part.
De Leon, J., took no part.