Mitchel Q.

Tuazon
14-195
Ateneo Law School
FCWOMEN

Rights of the Woman and Best Interests of the Child: A Critique of Concepcion v. CA

On August 31, 2005, the Supreme Court promulgated its decision in Concepcion v. CA
where it held that “for reasons of public decency and morality, a married woman cannot say that
she had no intercourse with her husband and that her offspring is illegitimate. The proscription is
in consonance with the presumption in favor of family solidarity. It also promotes the intention
of the law to lean toward the legitimacy of children.”1 This case, although consistent with the
policy stated in Art. 16 of the Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW), appears to have made statements tending to disempower women in
making their choices. This essay seeks to analyze this case by looking at the applicable
provisions of the CEDAW and other relevant international and domestic laws, including the
Family Code of the Philippines, in order to reconcile the principles surrounding the rights of
women in relation to the best interests of the child. This study also provides for a brief
comparative analysis of jurisprudence, to shed light on potential legislation and judicial
pronouncements.

The Case

In the case of Concepcion, the petitioner-putative father filed for an annulment case on the
ground of bigamy against the respondent-mother, upon whom he had a son with, for having a
valid subsisting marriage at the time their “marriage” was contracted. 2 This involved a legal
battle in the determination of visitation rights and the child’s use of the mother’s surname. 3 In
claiming that the son is their illegitimate child, Gerardo (the biological/putative father) relied on
the statement by Ma. Theresa (the mother) that she never lived with Mario (her
husband/presumed father). Based on this, Gerardo claimed that there was never any sexual

1
Concepcion v. Court of Appeals, 468 SCRA 438 (2005).
2
Id.
3
Id.

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relation between Ma. Theresa and Mario, an admission that was binding on her. The Supreme
Court found this argument to be without merit, for four reasons, ultimately ruling in favor of the
child’s legitimacy to protect him from the “odium of illegitimacy:”

1. Ma. Theresa’s statement connotes that Jose Gerardo is not her legitimate son with Mario
but her illegitimate son with Gerardo. This is the very declaration that is proscribed by
Article 167 of the Family Code.
2. Even assuming the truth of her statement, it does not mean that there was never an
instance where Ma. Theresa could have been together with Mario or that there occurred
absolutely no intercourse between them. Also, based on the evidence, the impossibility of
physical access was never established beyond reasonable doubt.
3. To give credence to Ma. Theresa’s statement is to allow her to arrogate unto herself a
right exclusively lodged in the husband (or, in extraordinary circumstances, his heirs). A
mother has no right to disavow a child because maternity is never uncertain.
4. For reasons of public decency and morality, a married woman cannot say that she had no
intercourse with her husband and that her offspring is illegitimate. The proscription is in
consonance with the presumption in favor of family solidarity and the legitimacy of
children.4

CEDAW and Other Laws

Art. 16 of the CEDAW which mandates State parties “to take all appropriate measures to
eliminate discrimination against women in all matters relating to marriage and family relations.” 5
At first glance, Concepcion seems to affirm the policy laid out in the CEDAW in that States shall
guarantee, on a basis of equality of men and women, “[t]he same rights and responsibilities as
parents, irrespective of their marital status, in matters relating to their children; in all cases the
interests of the children shall be paramount.”6 (Emphasis supplied)

4
Id.
5
Convention on the Elimination of All Forms of Discrimination Against Women [CEDAW], art. 16(d) (1979).
6
Id.

2
 This policy to safeguard the interests of the children and promote the welfare of the child
is also reflected in other laws, both international and domestic. Article 3(1) of the United Nations
Convention on the Rights of a Child (UNCRC) of which the Philippines is a signatory is
emphatic in stating that: “In all actions concerning children, whether undertaken by public or
private social welfare institutions, courts of law, administrative authorities or legislative bodies,
the best interests of the child shall be a primary consideration.”7

Our domestic laws also seek to promote the welfare of the child. Article 8 of P.D. 603,
otherwise known as the Child and Youth Welfare Code, is clear and unmistakable: “In all
questions regarding the care, custody, education and property of the child, his welfare shall be
the paramount consideration.”8 Also, as provided for under jurisprudence, it is “[t]he policy of
the Family Code to liberalize the rule on the investigation of the paternity and filiation of
children, especially of illegitimate children x x x. The State as parens patriae affords special
protection to children from abuse, exploitation and other conditions prejudicial to their
development.”9

The Family Code

Going back to the case at hand, it is important to discuss the relevant provisions of the
Family Code in order to resolve the matter. Art. 167 of the Family Code states that “[t]he child
shall be considered legitimate although the mother may have declared against its legitimacy or
may have been sentenced as an adultress.”10 This provision must be read together with Art. 166
of the same law, which provides for the grounds for impugning the legitimacy of the child.11

In essence, it is only the husband (and in some cases his heirs) who has the capacity to
impugn the legitimacy or illegitimacy of a child.12 The rationale for this rule is that in the event a
child’s legitimacy is impugned, the husband, having no participation in the sexual act resulting to

7
United Nations Convention on the Rights of a Child [UNCRC], art. 3(1) (1989).
8
The Child and Youth Welfare Code, Presidential Decree No. 603, art. 8 (1974).
9
Dela Cruz v. Gracia, 612 Phil. 167, 179-180 (2009).
10
The Family Code of the Philippines [FAMILY CODE], Executive Order No. 209, art. 167 (1987).
11
Id. art. 166.
12
Id. art. 170.

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the child, has the right to not have any relation to the latter. 13 Reading this together with Art. 167,
the rule is strict as to the wife, who must also be the mother since it is impossible for her, under
said provision, to impugn the child’s illegitimacy; in other words, so long as the child is borne by
the wife, her declaration that the child is illegitimate or her sentencing as an adultress is
ineffectual as to the legitimate status of child born inside a valid marriage.14

Of course, when the contrary situation arises, i.e. when the mother does not deliver or is
not the biological mother of the child, Arts. 166 and 167 no longer apply; as one of the leading
commentators on Family Law put it—such is a condition sine qua non.15 Philippine
jurisprudence is consistent with this rule; in fact, even before the Family Code, the same has
been adopted by the Supreme Court in its decisions.

In Chua Keng Giap v. IAC, it was held that if a person claims to be the son of the
decedent whose properties are being liquidated and the latter’s wife (the alleged mother), but
said person was not actually delivered from the womb of the alleged mother, the mother can
validly declare that the said person is not her child because she never gave birth to him. 16 Arts.
166 and 167 are not applicable.

Similarly, in Benitez-Badua v. CA, the Supreme Court did not apply the rules on
impugning the child’s legitimacy where the oppositors presented evidence to show that the
alleged “daughter” could not have been that of the deceased, as they were both unable to
physically procreate.17

In the pre-Family Code case of Cabatbat-Lim v. IAC, the Supreme Court held that:

Petitioners’ recourse to Article 263 of the New Civil Code (now Art. 170 of the
Family Code) is not well-taken. The legal provisions refer to an action to impugn
legitimacy. It is inapplicable to this case because this is not an action to impugn the
legitimacy of a child but an action of private respondents to claim their inheritance
as legal heirs of their childless aunt. They do not claim that petitioner Violeta
13
MELENCIO S. STA. MARIA, PERSONS AND FAMILY RELATIONS LAW 609 (5th ed. 2010).
14
FAMILY CODE, art. 167.
15
STA. MARIA, supra note 13
16
Chua Keng Giap v. IAC, 158 SCRA 18 (1988).
17
Benitez-Badua v. Court of Appeals, 47 SCAD 416 (1994).

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 Cabatbat-Lim is an illegitimate child of the deceased, but that she is not the
decedent’s child at all. Being neither legally adopted child nor an acknowledged
natural child, nor a child by legal fiction of Esperanza Cabatbat, Violeta is not a
legal heir of the deceased.18

A similar pronouncement, in that reliance on the abovementioned provision is misplaced

considering that the child was born of different parents, was made in the cases of Sayson v. CA19
and Labagala v. Santiago.20

Rights of Women

While there are several provisions in the Family Code which protect the rights of women,
or at least are considerably an improvement of their counterpart Civil Code provisions, there is
still a number of concerns with how the current law is crafted. Some have sought for the
amendment of certain provisions in the said law, particularly Articles 14, 96, 124, 211 and 225,
to further ensure the equality of men and women in family relations. 21 Also, while the rules on
impugning the legitimacy of the child are at face value protective of the child’s interests, the
same cannot be said for the rights of women.

Art. 14 of the Family Code deals with the parental consent needed for parties, who are
above 18 years of age but below 21, intending to marry each other. 22 The provision states that the
parties “shall…exhibit to the local civil registrar, the consent to their marriage of their father,
mother, surviving parent or guardian, or persons having legal charge of them, in the order
mentioned.”23 (Emphasis supplied) This provision gives the father the primary right to give
consent, in that even if the mother consents to the marriage, such would be invalid in the event
the father disagrees. Arts. 96 and 124 deal with the joint administration and enjoyment of
community property or conjugal partnership, which, in case of disagreement, the husband’s

18
Cabtbat-Lim v. IAC, 166 SCRA 451 (1988).
19
Sayson v. CA, 205 SCRA 321 (1992).
20
Labagala v. Santiago, 422 Phil. 699 (2001).
21
Philippine Commission on Women, Ensuring Women’s Equal Rights in Marriage and Family Relations:
Amending Articles 14, 96, 124, 211 and 225 of the Family Code of the Philippines, available at
https://www.pcw.gov.ph/wpla/ensuring-women’s-equal-rights-marriage-and-family-relations-amending-articles-14-
19-124-211-and-225-family-code-philippines (last accessed 15 December 2018).
22
FAMILY CODE, art. 14.
23
Id.

5
decision will prevail.24 Similarly, on the exercise of parental authority and legal guardianship of
common children, pertinent portions of Articles 211 and 225 state that in case of disagreement,
the father’s decision shall prevail.25 These provisions reflect the specter of patriarchy in the
Philippines, in that the husband/father is automatically given the authority to decide on the
assumption that he knows best, while the wife/mother is left to seek for judicial intervention on
the premise that she is helpless and unable to decide on her own.

In relation to Arts. 166 and 167, which at face value protect the best interests of the child,
the same have some limits as to safeguarding the rights of women, other than the fact that the
wife cannot file an action in court to impugn the legitimacy of the child. The wife has no say in a
situation where there is no intention on her part to get pregnant. For instance, if the wife did not
actually want to get impregnated, but was drugged and her husband conspired to impregnate her
with the another man, the wife cannot do anything about it; she cannot impugn the child. As a
basic rule in statutory construction, when the law is clear and unambiguous, there is only room
for application.26 This is why one can argue that the Supreme Court was handcuffed in its ruling
in Concepcion, where it in fact stated that the “language of the law is unmistakable.”27

Best Interests of the Child

The rule on impugning the legitimacy of the child seeks to protect the child’s best
interests, a policy that, as discussed earlier, is reflected in the CEDAW and other laws. In fact,
Concepcion itself declares:

The child, by reason of his mental and physical immaturity, needs special safeguard
and care, including appropriate legal protection before as well as after birth. In case
of assault on his rights by those who take advantage of his innocence and
vulnerability, the law will rise in his defense with the single-minded purpose of
upholding only his best interests.28

24
Id. arts. 96 and 124.
25
Id. arts. 211 and 225.
26
Cebu Portland Cement Co. v. Municipality of Naga, 133 Phil. 695, 699 (1968).
27
Concepcion, 468 SCRA 438.
28
Id.

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 Again, the rule is based on the policy of protecting the best interests of the child.
However, scrutinizing the law further, one can observe its limitations even in upholding the
policy it aims to protect. For example, a situation can arise where the presumed father dies
without heirs, leaving the mother to raise the child alone, giving her no opportunity to seek child
support from the biological/putative father, as both are not allowed under the law to impugn the
child’s legitimacy. Worse, in the event the presumed father is incapable of properly rearing for
the child and/or maltreats the child upon knowing that the latter is not his biological offspring,
one cannot expect that the former would go through the trouble of filing an action in court,
especially if he is already barred by prescription, leaving the family, including the putative
father, in an uneasy environment to say the least.29

In the case of Concepcion, the presumed father could not have spent time with the son,
given the fact that he no longer lived with the respondent-mother at the time she gave birth.
While the law favors the status of legitimacy to protect the child, it is insufficient to resolve such
situations where there is in reality no healthy relationship between the child and the presumed
father, who is obliged provide for care and support to the child.

The question continues to linger: Should the law still be strictly applied even if it no
longer serves its purpose of protecting the interests of the child and worse, disempowers women
in making their decisions?

Conclusion

As it now stands, the Supreme Court must perforce apply the law giving the husband the
sole right to impugn the child’s legitimacy. However, the Court appreciates each case differently
as far as its pronouncements with regard to the rationale behind the law is concerned. While
some cases, like Concepcion, tend to disempower women, other cases simply state the applicable
provision of law without making any disparaging remarks of women.

29
Abigail Nerizza D. Co, Whose Hand Should Rock the Cradle? Recognizing the Right of the Mother and the
Biological Father to Impugn the Legitimacy of the Child, 44 ATENEO L.J. 17 (1999).

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 Cases like Carlos v. Sandoval simply apply the law as it is, where the Supreme Court
held that the declaration of the respondent-wife as to the child’s illegitimate filiation is the very
act proscribed by Art. 167 of the Family Code.30 The ruling in this case, unlike in Concepcion,
straightforwardly declares, without further explaining the rationale for the rule, that the
“assertion by the mother against the legitimacy of her child cannot affect the legitimacy of a
child born or conceived within a valid marriage.”31

However, cases like Geronimo v. Santos, similar to Concepcion, engage in a seemingly

long tirade explaining the reason for the rule, which not only aims to protect the status of the
child but to protect the husband/presumed father, who is “directly confronted with the scandal
and ridicule which the infidelity of his wife produces; and he should decide whether to conceal
that infidelity or expose it, in view of the moral and economic interest involved.” 32 Again, the
Supreme Court, in making such statements relegate the woman as inferior to man in a
generalized manner without giving consideration to the fact that the reason behind the law is not
always applicable or wide enough to cover certain aforementioned situations which are not
beneficial to the rights and interests of the parties involved.

Given the unsound foundation behind the rules on impugning the legitimacy of the child,
the Courts must exercise caution in making pronouncements such as the one made in
Concepcion v. CA and other similar cases. For while it is true that in some instances, the
wife/mother’s declaration should not be given credence in order to serve the child’s best
interests, there are certain scenarios beyond the ambit of the law which not only denigrate the
virtue and decision-making of women, but are also harmful to the child’s well-being.

Word Count: 2,590

BIBLIOGRAPHY

30
Carlos v. Sandoval, 471 SCRA 266 (2008).
31
Id.
32
Geronimo v. Santos, G.R. 197099 (2015).

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Primary Sources

Philippine Sources

Statutes
The Child and Youth Welfare Code, Presidential Decree No. 603, (1974).
The Family Code of the Philippines [FAMILY CODE], Executive Order No. 209, (1987).

Jurisprudence
Benitez-Badua v. Court of Appeals, 1994.
Cabtbat-Lim v. IAC, 1988.
Carlos v. Sandoval, 2008.
Cebu Portland Cement Co. v. Municipality of Naga, 1968.
Chua Keng Giap v. IAC, 1988.
Concepcion v. CA, 2005.
Dela Cruz v. Gracia, 2009.
Geronimo v. Santos, 2015.
Labagala v. Santiago, 2001.
Sayson v. CA, 1992.

Foreign Sources

Convention on the Elimination of All Forms of Discrimination Against Women [CEDAW],

(1979).
United Nations Convention on the Rights of a Child [UNCRC], (1989).

Secondary Sources

9
Books
MELENCIO S. STA. MARIA, PERSONS AND FAMILY RELATIONS LAW (5th ed. 2010).

Thesis
Abigail Nerizza D. Co, Whose Hand Should Rock the Cradle? Recognizing the Right of the
Mother and the Biological Father to Impugn the Legitimacy of the Child, 44 ATENEO L.J. 17
(1999).

Online Sources
Philippine Commission on Women, Ensuring Women’s Equal Rights in Marriage and Family
Relations: Amending Articles 14, 96, 124, 211 and 225 of the Family Code of the Philippines,
available at https://www.pcw.gov.ph/wpla/ensuring-women’s-equal-rights-marriage-and-family-
relations-amending-articles-14-19-124-211-and-225-family-code-philippines (last accessed 15
December 2018).

10