Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-16439

July 20, 1961

ANTONIO GELUZ, petitioner,

vs.
THE HON. COURT OF APPEALS and OSCAR
LAZO, respondents.
Mariano H. de Joya for petitioner.
A.P. Salvador for respondents.
REYES, J.B.L., J.:
This petition for certiorari brings up for review question
whether the husband of a woman, who voluntarily
procured her abortion, could recover damages from
physician who caused the same.
The litigation was commenced in the Court of First
Instance of Manila by respondent Oscar Lazo, the of
Nita Villanueva, against petitioner Antonio Geluz, a
physician. Convinced of the merits of the complaint
upon the evidence adduced, the trial court rendered
judgment favor of plaintiff Lazo and against defendant
Geluz, ordering the latter to pay P3,000.00 as
damages, P700.00 attorney's fees and the costs of the
suit. On appeal, Court of Appeals, in a special division
of five, sustained the award by a majority vote of three
justices as against two, who rendered a separate
dissenting opinion.
The facts are set forth in the majority opinion as follows:
Nita Villanueva came to know the defendant
(Antonio Geluz) for the first time in 1948
through her aunt Paula Yambot. In 1950 she
became pregnant by her present husband
before they were legally married. Desiring to
conceal her pregnancy from her parent, and
acting on the advice of her aunt, she had
herself aborted by the defendant. After her
marriage with the plaintiff, she again became
pregnant. As she was then employed in the
Commission on Elections and her pregnancy
proved to be inconvenient, she had herself
aborted again by the defendant in October
1953. Less than two years later, she again
became pregnant. On February 21, 1955,
accompanied by her sister Purificacion and the
latter's daughter Lucida, she again repaired to
the defendant's clinic on Carriedo and P.
Gomez streets in Manila, where the three met
the defendant and his wife. Nita was again

aborted, of a two-month old foetus, in

consideration of the sum of fifty pesos,
Philippine currency. The plaintiff 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 plaintiff's
basis in filing this action and award of damages. Upon
application of the defendant Geluz we
granted certiorari.
The Court of Appeals and the trial court predicated the
award of damages in the sum of P3,000.06 upon the
provisions of the initial paragraph of Article 2206 of the
Civil Code of the Philippines. This we believe to be
error, for the said article, in fixing a minimum award of
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 alcanza la categoria de persona
natural y en consscuencia es un ser no nacido a la vida
del Derecho" (Casso-Cervera, "Diccionario de Derecho
Privado", Vol. 1, p. 49), being incapable of having rights
and obligations.
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. 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 on that lacked juridical personality
(or juridical capacity as distinguished from capacity to
act). 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 following article".
In the present case, there is no dispute that the child
was dead when separated from its mother's womb.
The prevailing American jurisprudence is to the same
effect; and it is generally held that 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 the
editorial note, 10 ALR, (2d) 639).
This is not to say that the parents are not entitled to
collect any damages at all. But such damages must be
those inflicted directly upon them, as distinguished from
the 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, they would normally be limited to moral
damages for the illegal arrest of the normal
development of thespes hominis that was the foetus,
i.e., on account of distress and anguish attendant to its
loss, and the disappointment of their parental
expectations (Civ. Code Art. 2217), as well as to
exemplary damages, if the circumstances should
warrant them (Art. 2230). But in the case before us,
both the trial court and the Court of Appeals have not
found any basis for an 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.
TITLE: Geluz vs CA 2 SCRA 801 FACTS:
Nita Villanueva, the wife of Oscar lazo, respondent,
came to know Antonio Geluz, the petitioner and
physician, through her aunt Paula Yambot. Nita
became pregnant some time in 1950 before she and
Oscar were legally married. As advised by her aunt
and to conceal it from her parents, she decided to have
it aborted by Geluz. She had her pregnancy aborted
again on October 1953 since she found it inconvenient
as she was employed at COMELEC. After two years,
on February 21, 1955, she again became pregnant and
was accompanied by her sister Purificacion and the
latters daughter Lucida at Geluz clinic at Carriedo and
P. Gomez Street. Oscar at this time was in the
province of Cagayan campaigning for his election to the
provincial board. He doesnt have any idea nor given
his consent on the abortion.
ISSUE: Whether husband of a woman, who voluntarily
procured her abortion, could recover damages from the
physician who caused the same.
HELD:
The Supreme Court believed that the minimum award
fixed at P3,000 for the death of a person does not
cover cases of an unborn fetus that is not endowed
with personality which trial court and Court of Appeals
predicated.
Both trial court and CA wasnt able to find any basis for
an award of moral damages evidently because Oscars
indifference to the previous abortions of Nita clearly
indicates he was unconcerned with the frustration of his
parental affections. Instead of filing an administrative
or criminal case against Geluz, he turned his wifes
indiscretion to personal profit and filed a civil action for
damages of which not only he but, including his wife
would be the beneficiaries. It shows that hes after
obtaining a large money payment since he sued Geluz
for P50,000 damages and P3,000 attorneys fees that
serves as indemnity claim, which under the
circumstances was clearly exaggerated.