Section Two. — Infanticide and abortion.

Art. 255. Infanticide. — The penalty provided for parricide in Article 246 and for murder in Article 248
shall be imposed upon any person who shall kill any child less than three days of age.

If the crime penalized in this article be committed by the mother of the child for the purpose of
concealing her dishonor, she shall suffer the penalty of prision correccional in its medium and
maximum periods, and if said crime be committed for the same purpose by the maternal
grandparents or either of them, the penalty shall be prision mayor.

Art. 256. Intentional abortion. — Any person who shall intentionally cause an abortion shall suffer:

1. The penalty of reclusion temporal, if he shall use any violence upon the person of the pregnant
woman.
2. The penalty of prision mayor if, without using violence, he shall act without the consent of the
woman.

3. The penalty of prision correccional in its medium and maximum periods, if the woman shall have
consented.

Art. 257. Unintentional abortion. — The penalty of prision correccional in its minimum and medium
period shall be imposed upon any person who shall cause an abortion by violence, but
unintentionally.

Art. 258. Abortion practiced by the woman herself of by her parents. — The penalty of prision
correccional in its medium and maximum periods shall be imposed upon a woman who shall practice
abortion upon herself or shall consent that any other person should do so.

Any woman who shall commit this offense to conceal her dishonor, shall suffer the penalty of prision
correccional in its minimum and medium periods.

If this crime be committed by the parents of the pregnant woman or either of them, and they act with
the consent of said woman for the purpose of concealing her dishonor, the offenders shall suffer the
penalty of prision correccional in its medium and maximum periods.

Art. 259. Abortion practiced by a physician or midwife and dispensing of abortives. — The penalties
provided in Article 256 shall be imposed in its maximum period, respectively, upon any physician or
midwife who, taking advantage of their scientific knowledge or skill, shall cause an abortion or assist
in causing the same.

Any pharmacist who, without the proper prescription from a physician, shall dispense any abortive
shall suffer arresto mayor and a fine not exceeding 1,000 pesos.

People v. Paycana GR No. 179035,

April 16, 2008 Jesus was charged with the complex crime of parricide with unintentional abortion for
repeatedly stabbing his wife, Lilybeth, who was 7-month pregnant. In his defense, Jesus averred that
he was acting in self-defense as it was his wife who attacked him first. And that he cannot be liable for
the death of the fetus since it did not acquire a civil personality or was viable. The court imposed the
penalty of reclusion perpetua to death and awarded civil liability and moral damages to the heirs of
Lilybeth.

1. Did the court err in charging Jesus with the crime of unintentional abortion for the loss of life of an
unborn fetus?
2. Differentiate the 7-month rule under the Civil Code from the 6-month rule under the Revised Penal
Code. Suggested answer:
\

ISSUE
Whether or not the accused is guilty of the complex crime of parricide with unintentional abortion.

RULING
YES. The court convicted the accused of complex crime of parricide with unintentional abortion in the
killing of his seven (7)-month pregnant wife.

The crime of parricide is committed when: (1) a person is killed; (2) the deceased is killed by the
accused; and (3) the deceased is the father, mother, or child, whether legitimate or illegitimate, or a
legitimate other ascendant or other descendant, or the legitimate spouse of the accused. The key
element in parricide is the relationship of the offender with the victim. In the case of parricide of a
spouse, the best proof of the relationship between the accused and the deceased would be the
marriage certificate. The testimony of the accused of being married to the victim, in itself, may also be
taken as an admission against penal interest.

As distinguished from infanticide, the elements of unintentional abortion are as follows: (1) that there
is a pregnant woman; (2) that violence is used upon such pregnant woman without intending an
abortion; (3) that the violence is intentionally exerted; and (4) that as a result of the violence the fetus
dies, either in the womb or after having been expelled therefrom. In the crime of infanticide, it is
necessary that the child be born alive and be viable, that is, capable of independent existence.
However, even if the child who was expelled prematurely and deliberately were alive at birth, the
offense is abortion due to the fact that a fetus with an intrauterine life of 6 months is not viable. In
the present case, the unborn fetus was also killed when the appellant stabbed Lilybeth several times.

The case is governed by the first clause of Article 48 because by a single act, that of stabbing his wife,
appellant committed the grave felony of parricide as well as the less grave felony of unintentional
abortion. A complex crime is committed when a single act constitutes two or more grave or less grave
felonies.

1. No. The law provides that if the fetus is killed inside the maternal womb, the crime is abortion
regardless of whether he is viable or not. In this case, the unborn fetus was killed when Jesus stabbed
Lilybeth several times. The Court, hence, did not punish the accused for the loss-of-life of the unborn
foetus for infanticide, but for the unintentional abortion as suffered by the mother.

3. Under Article 40 of the Civil Code, births determine personality. Under Article 41 of the Civil Code,
if the intrauterine life of the fetus is 7 months or more, it is considered born if it is alive at the time of
its complete delivery from the mother’s womb. On the other hand, if the intrauterine life of the fetus
is less than 7 months, it is considered born if it is still alive after 24-hours after its complete delivery
from the mother’s womb. The 7-months rule under the Civil Code determines if the fetus is
considered born for the purpose of personality. While, the 6-months rule in the RPC determines if
the fetus is viable for purpose of abortion and infanticide. The embryo, fetus, and infant are
persons since abortion and infanticide are crimes against person under the Revised Penal Code.
REPUBLIC OF THE PHILIPPINES V. JENNIFER B. CAGANDAHAN (CASE DIGEST)

G.R. No. 166676

September 12, 2008

TOPIC: Change of Name, Change of Sex, Changes in Birth Certificate, Intersex

FACTS:

Cagandahan filed a Petition for Correction of Entries in Birth Certificate before the
RTC. She alleged that she was born on January 13, 1981 and was registered as a
female in the Certificate of Live Birth but while growing up, she developed secondary
male characteristics and was diagnosed to have Congenital Adrenal Hyperplasia
(CAH) – a condition where persons afflicted possess both male and female
characteristics. She alleged that for all interests and appearances as well as in mind
and emotion, she has become a male person. Thus, she prayed that her birth
certificate be corrected such that her gender be changed from female to male and
her first name be changed from Jennifer to Jeff.

Respondent testified and presented the testimony of Dr. Michael Sionzon of the
Department of Psychiatry, University of the Philippines-Philippine General Hospital.
Dr. Sionzon issued a medical certificate stating that respondent’s condition is known
as CAH. He testified that this condition is very rare, that respondent’s uterus is not
fully developed because of lack of female hormones, and that she has no monthly
period. He further testified that respondent’s condition is permanent and
recommended the change of gender because respondent has made up her mind,
adjusted to her chosen role as male, and the gender change would be advantageous
to her.

The RTC granted respondent’s petition.

Hence, this petition by the Office of the Solicitor General (OSG) seeking a reversal of
the abovementioned ruling. The OSG contends, among others, that Rule 108 does
not allow change of sex or gender in the birth certificate and respondent’s claimed
medical condition known as CAH does not make her a male.

ISSUE:

Whether or not the RTC erred in granting the petition on the ground of her medical
condition.

RULING:

No.
The determination of a person’s sex appearing in his birth certificate is a legal issue
and the court must look to the statutes. Rule 108 now applies only to substantial
changes and corrections in entries in the civil register.

Under Rep. Act No. 9048, a correction in the civil registry involving the change of sex
is not a mere clerical or typographical error. It is a substantial change for which the
applicable procedure is Rule 108 of the Rules of Court.

The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108
of the Rules of Court are those provided in Articles 407 and 408 of the Civil Code.
The acts, events or factual errors contemplated under Article 407 of the Civil Code
include even those that occur after birth.

Respondent undisputedly has CAH. It is one of the many conditions that involve
intersex anatomy. An organism with intersex may have biological characteristics of
both male and female sexes.

In deciding this case, we consider the compassionate calls for recognition of the
various degrees of intersex as variations, which should not be subject to outright
denial. The current state of Philippine statutes apparently compels that a person be
classified either as a male or as a female, but this Court is not controlled by mere
appearances when nature itself fundamentally negates such rigid classification.

In the instant case, if we determine respondent to be a female, then there is no basis

for a change in the birth certificate entry for gender. But if we determine, based on
medical testimony and scientific development showing the respondent to be other
than female, then a change in the subject’s birth certificate entry is in order.

Ultimately, we are of the view that where the person is biologically or naturally
intersex the determining factor in his gender classification would be what the
individual, like respondent, having reached the age of majority, with good reason
thinks of his/her sex. Respondent here thinks of himself as a male and considering
that his body produces high levels of male hormones (androgen) there is
preponderant biological support for considering him as being male. Sexual
development in cases of intersex persons makes the gender classification at birth
inconclusive. It is at maturity that the gender of such persons, like respondent, is
fixed.

Respondent here has simply let nature take its course and has not taken unnatural
steps to arrest or interfere with what he was born with. And accordingly, he has
already ordered his life to that of a male. Respondent could have undergone
treatment and taken steps, like taking lifelong medication, to force his body into the
categorical mold of a female but he did not. He chose not to do so. Nature has
instead taken its due course in respondent’s development to reveal more fully his
male characteristics.
In the absence of a law on the matter, the Court will not dictate on respondent
concerning a matter so innately private as one’s sexuality and lifestyle preferences,
much less on whether or not to undergo medical treatment to reverse the male
tendency due to CAH. To him belongs the human right to the pursuit of happiness
and of health. Thus, to him should belong the primordial choice of what courses of
action to take along the path of his sexual development and maturation. In the
absence of evidence that respondent is an “incompetent” and in the absence of
evidence to show that classifying respondent as a male will harm other members of
society who are equally entitled to protection under the law, the Court affirms as
valid and justified the respondent’s position and his personal judgment of being a
male.

We respect respondent’s congenital condition and his mature decision to be a male.

As for respondent’s change of name under Rule 103, this Court has held that a
change of name is not a matter of right but of judicial discretion, to be exercised in
the light of the reasons adduced and the consequences that will follow. The trial
court’s grant of respondent’s change of name from Jennifer to Jeff implies a change
of a feminine name to a masculine name. Considering the consequence that
respondent’s change of name merely recognizes his preferred gender, we find merit
in respondent’s change of name. Such a change will conform with the change of the
entry in his birth certificate from female to male.

The Republic’s petition is denied.