Dear PAO, Our baby died due to the fault or malpractice of the attending physician. It was pressed upon us by the hospital that our baby, given her tender age, has yet to have a legal personality. As such, we do not have a right to institute any case in behalf of our deceased child. Due to this, we hope to be enlightened/clarified if indeed an infant such as our deceased baby has yet to have a legal personality.

Rose

Dear Rose,

In order to answer your query, allow us to lead your attention to our pertinent laws and jurisprudence. Succinctly, Articles 40 and 41 of Republic Act 386, otherwise known as the “New Civil Code of the Philippines,” provide the legal basis regarding the commencement of a natural person’s civil personality, viz.:

“Article 40. 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.

“Article 41. For civil purposes, the fetus is considered born if it is alive at the time it is completely delivered from the mother’s womb. However, if the fetus had an intra-uterine life of less than seven months, it is not deemed born if it dies within twentyfour hours after its complete delivery from the maternal womb.” (Emphasis and underscoring supplied)

The foregoing dictates that birth determines personality. Stated otherwise, a baby already has a civil personality under either of the following conditions: first, if the baby was alive at the time of complete delivery from the womb, and had an intra-uterine life of equal or more than seven months; or second, if the baby had an intra-uterine life of less than seven months, and survived for at least twenty-four hours after complete delivery from the womb.

Applying the foregoing, if either of the above-mentioned conditions are met in your case, then it would be erroneous for the hospital to press upon you the issue of lack of personality to file a case on behalf of your deceased child since, as we have discussed, she already has a civil personality if either of the two conditions are satisfied.

Be that as it may, assuming that the above-stated conditions are not met, you may still recover damages based upon a different legal ground, and depending upon the pieces of evidence that you may present. Precisely, the Supreme Court in the case of Geluz v. Honorable Court of Appeals (GR L-16439, July 20, 1961) penned by the late Associate Justice J. B. L. Reyes, said:

“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 cannot 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 the spes hominis that was the fetus, 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.” (Emphasis and underscoring supplied).

In sum, damages may be sustained against the hospital if the elements of duty, breach, injury and proximate cause can be attributed to them. The issue of civil personality matters in so far as the nature of damages, and upon whom the same will be predicated, i.e. either as a representative capacity of the deceased child, or directly on account of the parents’ distress and anguish attendant to the loss, and the disappointment of the supposed parental expectations as mentioned in the above-cited jurisprudence.

We hope that we were able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.