The new year, a new start, and the beginning of legal personality

By Atty. Eduardo T. Reyes III

As the twelfth month of 2021 is about to close, we welcome the new year- as we always do- like a new dawn, a time to reboot, or turn a new leaf.

Speaking of new beginnings, we also reckon the start of life.

A little less than four (4) decades and seven (7) years ago, the good Lord had blessed this columnist with the gift of life. He is thankful to have been breathed the life of the law by his parents. And since becoming a lawyer, he had vowed to impart his little knowledge of the law by teaching and writing about it.

So relatedly, it is a curious thing to ask: when does legal personality begin? When does a person start to become protected under the law?

In English common law, legal life did not begin until birth.

Interestingly, in the controversial case of Roe v Wade (1973) and its companion case, Doe v. Bolton, Justice Blackmun of the US Supreme Court, held that “The right to privacy is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy”. x x x.  But the right is qualified as follows:

1. During the 1st 3 months, a woman had the absolute right to abortion;
2. While in the 2nd trimester, when risks of abortion procedures to the woman increased and there was a chance that the foetus might be viable, the state could not deny abortion, but could regulate the conditions under which it took place; and
3. Finally, in the last months of pregnancy, the State’s interest in the potential life of the foetus took precedence over the woman’s privacy rights and the state could prohibit abortions completely. ( 903-904, A March of Liberty (A Constitutional History of the United States, by Urofsky, Knopf, New York).

In effect, the doctrinal ruling in the US is that presumptive personality only begins at the second trimester of pregnancy.

But in the period that spanned nearly half a century after Roe v Wade came down, several attempts to overturn it were pitched. The most recent iteration of the legal argument against the right to abortion which has so far divided the US Supreme Court is the case of Dobbs v. Jackson Women’s Health Organization which figures controversially Mississippi’s ban on most abortions after 15 weeks. (This is a clear departure from Roe v Wade which allows abortions up to 6 months or 24 weeks).  As of this December, the US Supreme Court is still hearing oral arguments on the legal viability of the arguments for and against abortion.

By contrast, in Philippine setting, legal personality starts at conception. Thus, abortions are not allowed at all.

No less than Section 12, Article II of the 1987 Philippine Constitution declares as a state policy that “x x x It shall equally protect the life of the mother and the life of the unborn from conception. X x x”.

Meanwhile, the pertinent provisions of the New Civil Code that envisage this protection is as follows:

           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 foetus is considered born if it is alive at the time it is completely delivered from the mother’s womb. However, if the foetus had an intra-uterine life of less than seven months, it is not deemed born if it dies within twenty-four hours after its complete delivery from the maternal womb.

Thus, Articles 40 and 41 articulate the rules that ascertain whether there is compliance with the legal term: PERSON.

For natural persons, birth determines personality. Stated differently, birth catalyzes legal personality. It is by being born that gives life to legal personality.

But there is an exception. The exception is envisaged in the concept known as presumptive personality. A conceived child shall be considered born for all purposes that are favorable to it, provided it be born alive. For civil purposes, the foetus (with an intra-uterine life of at least seven months) is considered born if it is alive at the time of its complete delivery from the mother’s womb.

The clause “complete separation from the mother’s womb” means the cutting of the umbilical cord- not just the taking out of the baby from its mother’s womb. However, if the foetus had an intra-uterine life of less than seven months (or sometimes called “premature”), it is not deemed born if it dies within twenty-four hours after its complete delivery from the maternal womb.

            Applying the principles anecdotally, if a donation is made in favor of a foetus inside the mother’s womb, the donation would be valid pursuant to Article 742 of the New Civil Code which states that: “Donations made to conceived and unborn children may be accepted by those persons who would legally represent them if they were already born”, provided that pursuant to Article 40, the foetus (with an intra-uterine life of at least seven months) is alive at the time of its complete delivery from the mother’s womb.

Inevitably, while legal life begins at birth, it is heralded by conception which is a mystical phenomenon that already falls within the mantle of protection of the Philippine constitution and law. Especially in these times when millions of people have perished because of the pandemic, life becomes even more precious.

In Philippine law, conception is the harbinger of legal personality, too. Indeed, this is the impelling reason why you are reading this article right now.

Happy New Year to all DG readers!

(The author is the senior partner of ET Reyes III & Associates– a law firm based in Iloilo City. He is a litigation attorney, a law professor and a book author. His website is etriiilaw.com).