G.R. No.

L-16439, July 20, 1961

ANTONIO GELUZ, petitioner vs. THE COURT OF APPEALS and OSCAR LAZO,
respondents

Facts of the Case:

Nita Villanueva, the wife of respondent Oscar Lazo, came to know petitioner Antonio
Geluz, a physician, for the first time in 1948. She became pregnant by her present husband, in
1950, before they were legally married. Wanting to conceal her pregnancy from her parents as
well as following the advice of her aunt, she had herself aborted by petitioner Geluz. Following
her marriage with the Lazo, she again became pregnant.

With her pregnancy being an inconvenience to her work in the Commission on Elections,
she had herself aborted by petitioner in October 1953. She became pregnant once again less than
two years later. Then in February 21, 1955, Nita, along with her sister Purification and the
latter’s daughter Lucida, went to Geluz’s clinic on Carriedo and P. Gomez streets in Manila,
where they met the petitioner and his wife. Moreover, it was during this time when Nita have had
an abortion of a two-month old foetus with the payment of P50.00 for the operation. Lazo, was at
this time in the province of Cagayan, campaigning for his election to the provincial board, he did
not know of, nor gave his consent, to the abortion.

It is the third and last abortion that constitutes the respondent’s basis in filing an action of
recovering damages from petitioner who executed the said abortion. Litigation was commenced
in the Court of First Instance of Manila by respondent Lazo against petitioner Geluz. Convinced
of the merits of the complaint upon the evidence adduced, the trial court rendered judgment in
favor of respondent and against petitioner, ordering the latter to pay P 3,000.00 as damages, P
700.00 attorney’s fees and the costs of the suit.

Issue:

The issue whether or not respondent Lazo could recover damages from petitioner Geluz
who executed the abortion of respondent’s wife.

Held:

The Court of Appeals and the trial court predicated the award of damages in the sum of P
3,000.00 upon the provisions of the initial paragraph of Article 2206 of the Civil Code of the
Philippines. However, this was deemed to be an error since the said article does not cover the
case of an unborn foetus that is not endowed with personality. 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 such action 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.

In addition to this, to invoke the provisional personality of a conceived child under

Article 40 of the Civil Code is unacceptable since the former expressly limits such provisional
personality by imposing the condition that the child should be born alive: “provided it be born
later with the condition specified in the following article”. In the present case, there is no dispute
that the child was dead when separated from its mother’s womb.

Finally, also in the aforesaid case, both the trial court and the Court of Appeals have concluded
that there was no basis for an award of moral damages, evidently because the petitioner’s
ignorance of the previous abortions of his wife which was caused by respondent clearly shows
that he was unconcerned with his parental hopes and affections. Furthermore, it would appear
that his only concern was to obtain from respondent a large sum of money, an “indemnity” claim
which was clearly exaggerated.

Noted Articles:

Article 2206 of NCC – The amount of damages for death caused by a crime or quasi-delicit shall
be at least three thousand pesos, even though there may be mitigating circumstances.

Section 3 of Art 2206: The spouse, legitimate and illegitimate descendants and
ascendants of the deceased may demand moral damages for mental anguish by reason of
the death of the deceased.

Article 40 of NCC – 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