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Geluz v CA following article".

In the present case, there is no dispute that the child was dead
Doctrine: when separated from its mother's womb.

Art. 40. Birth determines personality; but the conceived child shall be considered born for all This is not to say that the parents are not entitled to collect any damages at all. But
purposes that are favorable to it, provided it be born later with the conditions specified in the such damages must be those inflicted directly upon them, as distinguished from the
following article. injury or violation of the rights of the deceased, his right to life and physical integrity.
Because the parents can not expect either help, support or services from an unborn child,
Art. 41. For civil purposes, the fetus is considered born if it is alive at the time it is they would normally be limited to moral damages for the illegal arrest of the normal
completely delivered from the mother's womb. However, if the fetus had an intra-uterine development of the spes hominis that was the foetus, i.e., because distress and anguish
life of less than seven months, it is not deemed born if it dies within twenty-four hours after attendant to its loss, and the disappointment of their parental expectations (Civ. Code Art.
its complete delivery from the maternal womb. 2217), as well as to exemplary damages, if the circumstances should warrant them (Art.
2230). But in this case, both the trial court and the Court of Appeals have not found any
Facts: basis for an award of moral damages, evidently because the appellee's indifference to the
● Nita Villanueva was impregnated by Oscar Lazo before they were legally married. previous abortions of his wife, also caused by the appellant herein, clearly indicates that he
Desiring to conceal her pregnancy from the parent and acting on the advice of her was unconcerned with the frustration of his parental hopes and affections.
aunt, 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 the defendant in October 1953.
● Less than 2 years later, Nita got pregnant again and had the two-month old fetus
aborted by the respondent in consideration of the sum of P50.00.
● Her husband did not know of, nor consented to the abortion as he was
campaigning in Cagayan during the time. Hence, Oscar Lazo, private respondent,
sued petitioner for damages based on the third and last abortion.
● The trial court and CA 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.

Issue: 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

Held/Ratio: No. SC reversed, and the complaint ordered dismissed. The minimum award
for the death of a person under Article 2206 of Civil code does not cover the case of an
unborn foetus that is not endowed with personality and incapable of having rights and
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 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. It is no answer to
invoke the provisional personality of a conceived child (conceptus pro nato habetur)
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 condition specified in the