Title VI: Paternity and Filiation

Chapter 1. Legitimate Children (Arts. 163-171)

Japanese couple who wanted to have a child but surrogacy is not allowed in Japan — went to India

• Before the woman gave birth, the couple’s relationship soured

  • Wife did not want the child as the egg was not her’s

  • Gestational carrier did not want the child as this was just a contractual agreement

  • Husband still wanted the child

• India does not allow for surrogacy either

• CONFLICT OF LAWS PROBLEM

US woman carries child as a surrogate — BBC podcast

• Couple (Finnish/Austrian ???) who contracted the child ghosts the gestational carrier

• Gestational carrier and family decided to keep the child

Akin to organ donation in the PH

• Is it altruistic or commercial?

  • COMMERCIAL IS AGAINST THE LAW

    • Church condemns this

  • If altruistic, that’s allowed

    • Church allows this

• Applying the same argument to surrogacy, when would it be altruistic and when would it be condemned?

When it comes to public policy and we’re talking about laws, what might have been taboo in the 1900s is an acceptable matter in 2024

• Previous concepts of morality may have been tied to the Church

• But now, it’s from a secular POV

  • Changed across the years

• Public policy would be reflected in the laws

  • Our laws are crafted by Representatives elected by the people

How has Congress treated surrogacy?

• Even if there has not been a case that has reached the SC, this matter has been discussed extrajudicially

• 14th Congress (~5 Congress sessions ago): Tenor of the Bills filed were to criminalize surrogacy, prohibit it, and to subject those involved to criminal penalties

  • Bills were not passed as we do not have laws criminalizing this

• This Congress, there are about 3-4 Bills on surrogacy

  • Has shown a shift in the mindset or perception

  • None of these Bills seek to prohibit or criminalize surrogacy outright

    • Primary purpose: Provide a legal framework for surrogacy considering there are none

    • It prohibits commercial surrogacy — not quite as modern as other jurisdictions

  • Allows for altruistic surrogacy, but prohibits commercial surrogacy

Policy of the Family Code

To liberalize the rule on the investigation of the paternity of children, especially illegitimate children, without prejudice to the right of the alleged parent to resist the claimed status with his own defenses, including evidence now obtainable through the facilities of modern medicine and technology

See Mendoza v. Court of Appeals (G.R. No. 86302, Sep. 24, 1991)

Paternity and Filiation

Relationship or tie which exists between parents and their children

There are only 2 classes of children: LEGITIMATE and ILLEGITIMATE, as the New Family Code did away with the distinctions of various types of illegitimate children under the Civil Code [Castro v. Court of Appeals, G.R. Nos. 50974-75; Gapusan-Chua v. Court of Appeals, G.R. No. L-46746]

Legitimate or illegitimate filiation is:

• fixed by law, and

  • Cannot be negotiated!

• cannot be left to the will of the parties or the declaration of any physician or midwife

See Angeles v. Maglaya (G.R. No. 153798, Sep. 2, 2005)

Filiation of children may be:

• by nature, or

  • Legitimate if they are conceived or born during the valid marriage of the parents

  • Angeles v. Maglaya: Presumption of legitimacy of a child can only arise upon

    • convincing proof that the parents of the child were legally married, and

    • the child’s conception or birth occurred during the subsistence of the marriage

      • Assumption that there is sexual union in marriage

• by adoption

Artificial Insemination

One who consents to the production of a child cannot create a temporary relation to be assumed and disclaimed at will, but the arrangement must be of such character as to impose an obligation of supporting those for whose existence he is directly responsible [People v. Sorensen; California Court of Appeals, 1968]

Types

Status of an artificially inseminated child

Legitimate child of H&W provided that:

• both of them authorized or ratified such insemination in a written instrument executed and signed by them before the birth of the child

  • If the written authorization or ratification contained in the public instrument was obtained through mistake, fraud, violence, intimidation, or undue influence, the husband may impugn the legitimacy of the child on these grounds

• instrument is recorded in the civil registry together with the birth certificate of the child

The Court is not concerned with the morality (legality or illegality) of artificial insemination, as the fact that children are born through these means cannot be ignored — law provides the status of the child

If the requirements in Art. 164(2), Family Code are not followed and the husband does not impugn the child’s legitimacy on the grounds provided by law within the prescriptive period, the child shall still be considered legitimate, having been born in a valid marriage

No criminal liability for adultery of wife artificially inseminated without husband’s consent

A wife who had herself artificially inseminated - absent her husband’s consent - with another’s semen that led to the siring of a child cannot be held liable for adultery

Pursuant to Art. 333, RPC, adultery is defined as any married woman who shall have sexual intercourse with a man not her husband

• Acknowledgment that the gist of the crime of adultery is the danger of introducing illegitimate heirs into the family

• Artificial insemination, however, does not involve sexual intercourse — an essential element of the crime of adultery

• Rule in statutory construction that criminal statutes are to be strictly construed — no person should be brought within their terms who is not clearly within them nor should any act be pronounced criminal when it is not made so [US v. Abad Santos; People v. Yu Huat]

Necessarily presupposes a valid marriage between the H&W

• Condition sine qua non for application: Only the husband and, in proper cases provided in Art. 171, the heirs can invoke the grounds

• Consequence of the condition: Legitimacy of the child can likewise be questioned on the ground that the marriage between H&W is void except if the ground for nullity is Art. 36 or 53, Family Code

If proven, the child will be neither legitimate nor illegitimate insofar as the husband is concerned

• The husband and child will not be related to each other in any manner as the husband did not participate in the child’s procreation

• As far as the wife is concerned, the child is considered illegitimate

Note that Art. 166 is an EXCLUSIVE list of grounds

Impossible for the wife to file an action to impugn the legitimacy of her child even if she knows the child is by a man other than her husband

• Wife’s declaration of the child’s illegitimacy or sentencing of the wife as an adulteress has no bearing and can never affect the legitimate status of the child born or conceived inside a valid marriage

As far as the law is concerned, on impugning legitimacy, who has standing?

Husband or his heirs in proper standing

Applicability of Arts. 166 and 167

Condition sine qua non: Only necessarily applies where the child has been delivered by the child’s natural mother from her own womb

Declaration of legitimacy

Family Code amended old provisions of the Civil Code by declaring outright that

• children conceived or born during marriage are legitimate

• children conceived and born outside a valid marriage are illegitimate, unless otherwise provided in the Code

Civil Code provided presumptions while the Family Code provided declarations

Ultimately, there is a universal presumption of legitimacy

• Flows out from a declaration contained in the statute

• Based on the broad principles of justice and supposed virtue of the mother

  • Montesquieu: Law gives a confidence in the mother as if she were chastity itself

  • GR of equity and justice: Innocence of a person is assumed until actual guilt is proven

  • Whenever it is not consistent with the facts proved, the presumption is controlling

Rebutting presumption

If H&W are living together in the conjugal relation, legitimacy will be presumed

• even if the wife may be an adulterer

• though the spouses are living apart if there is a fair basis they may have come together

Should there be a question of the infant’s legitimacy, the Court needs clear and convincing proof of illegitimacy

120-300-day period

Ordinarily, a woman carries a child approximately between 270-280 days after conception

• Experience shows that the average longest period of gestation is ~300 days

Law states that when a child is born inside a marriage, sexual intercourse/access is presumed to have occurred between H&W within the first 120 days of the 300 days immediately preceding the birth of the child

• Any day within the 120-day period is deemed as the possible conception date of a child

• Between the 120th day and 300th day = 180 days (6 months)

  • A child may be born without any defect whatsoever even if the gestation period is only 6 months

Physical incapacity

Impotence or sterility must be proven with evidence so strong and convincing as to justify the bastardization of the child

Living separately

H&W must have lived separately in such a way that sexual intercourse is not possible in order to disavow paternity

• Not enough that they were at a distance from each other or not cohabiting with each other, so long as there is a possibility for sexual intercourse or access

• Must be completely impossible

Serious illness

Must be serious enough to absolutely prevent the husband from engaging in sex

Biological and scientific reasons

For biological and scientific reasons, the offspring could not have been that of the husband

Laws of nature includes, for example, a white couple cannot produce a black child

• However, it must be proven via evidence that neither of the spouses had a black or mulatto ancestry

Sterility

Relative condition, both as to degree and as to time

Husband must be shown to be completely sterile during the child’s conception

• Normal sperm count = 60 million/cubic centimeter

  • 10 million/cubic centimeter is the minimum to impregnate at a high probability

• Only 1 sperm needed to successfully fertilize

Vasectomy

Mere procedure is not enough proof to rebut the presumption of legitimacy of a child sired

• Involves the removal of about an inch of the tubes or vas deferens (passage way of the sperm from the testicle to the urethra) and tying the remaining ends

• Possible for the sperm to re-channel itself and effect a fertilization

Must be concrete proof the husband was entirely sterile and that re-channelization did not occur

Scientific testing

A number of blood-grouping tests (i.e., A-B-O test) are used to determine paternity, specifically in excluding paternity

• Cannot indicate with precision that particular person is the father of the child whose paternity is in issue

• Can establish that an alleged father could not have been the sire

  • Absence of the alleged father’s phenotype in the child’s would make his paternity biologically untenable [People v. Carutano]

More recent Human Leukocyte Antigen (HLA) Test discussed by Justice JBL Reyes during the Civil Code Revision Committee hearing on Jan. 27, 1988

• Shown to prove identity with a probability exceeding 98% as well as proving exclusion

• Tissue typing test (typically performed on white blood cells) developed to reduce the incidence of rejection of organ transplants

  • Identification and typing of antigen markers found in WBCs and other tissues of the body

  • By identifying the antigen markers of a child and of the mother, the child’s antigen genetic markers which could only be inherited from the father can generally be determined

    • Father is identified to a high degree of certainty

Deoxyribonucleic acid (DNA) Test is dependable in determining filiation [Herrera v. Alba, G.R. No. 148220; Agustin v. Court of Appeals, G.R. No. 162571]

• SC has held that the use of DNA testing is a valid procedure for determining paternity [Agustin v. Court of Appeals, G.R. No. 162571; Estate of Ong v. Diaz, G.R. No. 171713; Tijing v. Court of Appeals, G.R. No. 125901]

  • Courts should apply the results of science when competently obtained in aid of situations presented — to reject said result is to deny progress

• Child’s DNA has 2 copies: one from the mother and the other from the father

• DNA result that excludes the putative father from paternity is conclusive proof of non-paternity [Herrera v. Alba, G.R. No. 148220]

Vitiated consent in artificial insemination

Mistake, fraud, violence, intimidation, or undue influence can be exerted by not only the spouses against each other but also by third persons on both of the spouses or any one of them

BUT, only the husband [Art. 170] or the heirs in special cases [Art. 171] have legal standing to impugn the child’s legitimacy — they may allege that:

• the wife was subjected to these causes

• the husband was himself subjected to the same

• both were subjected

The mother does not have legal standing to do so pursuant to Arts. 167, 170, and 171

Non-observance of procedure relative to artificial insemination

The law does not provide that failure to comply with the procedure laid down in Art. 164(2) is a ground to impugn a child’s legitimacy

• Law intends to bind husband on his consent so that a legitimate status can be given to the child for the latter’s benefit

• Impossibility of impugning legitimacy implements the declaration in Art. 164(1) that children conceived or born during the marriage of the parents are legitimate

Provides for a presumption of conception that can be disproven by DNA testing

Access not presumed after termination of marriage

When the marriage tie is severed or void from the beginning, the essential obligation of cohabitation disappears

• Former spouses not bound to exercise fidelity toward one another

• Not obliged to observe mutual love and render mutual help and support

Presumption is that they abided by the decree of annulment or JDON and have separated from each other — otherwise, they will be living against public decency and in an illicit relationship

Art. 54: If a child is conceived or born before the finality of a decree of annulment [Art. 45] or a decree of nullity [Art. 36], the child shall be considered legitimate

• Unless appealed, a decision or decree of the Court becomes final after the lapse of 15 days from receipt of the decision

Presumption of filiation in case of two marriages

If there is CONVINCING PROOF OF FILIATION that the father of the child is the previous husband or subsequent husband, the rules in Art. 168 will not apply

• Rules do not give any presumption as to legitimacy or illegitimacy but merely state when the child is considered to have been conceived

  • Status of the child dependent upon the status of the marriage in which he/she is considered to have been conceived

• Applies only in the absence of proof to the contrary

  • Shortest gestation period = 180-day period

  • Longest gestation period = 300-day period

Proof to the contrary

Once filiation is proved, the presumption of legitimacy attaches

However, the alleged father can still impugn such legitimacy on the basis of the grounds laid down in Art. 166 and within the prescriptive periods in Art. 170

No presumption for a child born after 300 days after termination of the marriage

In the absence of any subsequent marriage after the termination of the first marriage, the father of a child born after 300 days from such termination can be anybody

• Includes the previous husband as it is not improbable that the gestation period may even extend extraordinarily beyond 300 days

  • Where the gestation period is over 300 days, other convincing proofs of filiation must be shown

• Previously married couple may have had sexual intercourse after the finality of their decrees of annulment or nullity

Impugning the legitimacy of the child is strictly a personal right and cannot be set up by of a defense or as a collateral issue [SSS v. Aguas, G.R. No. 165546; Rosales v. Castillo Rosales]

• Can only be impugned in a direct suit precisely files for the purpose of assailing the legitimacy of the child

  • Cannot be collaterally attacked or impugned [Angeles v. Maglaya]

• Principally, only the husband and his heirs in special cases can file a direct action even if the child was conceived through heterologous insemination (AID)

  • Law exclusively granted to be the sole judge of determining whether or not to:

    • file a proceeding

    • continue such proceeding already filed

    • dispute the legitimacy of a child born of the husband’s wife

  • Husband is the only person who can know he is not the father of the child

Prescriptive period is within 1 year from the knowledge of recording at the local civil registrar or from the knowledge of the birth of the child

Counted from the day of discovery — no need for due diligence on the part of the husband

Parties and action

Parties need to have legal personality to impugn the legitimacy (as either the husband or his heirs, in specific instances) in a petition that directly - not collaterally - attacks the legitimacy of the child

Heirs are mere substitutes of the husband and, therefore, cannot file any action to impugn the legitimacy of the child if the husband failed to file such action:

• despite knowledge of the illegitimacy within the prescribed period provided by law

• when the husband renounces his right to impugn the child’s legitimacy

• if it is shown that he has desisted from pursuing a suit already filed

However, the heirs can still file such a suit after the death of the husband but also within their prescriptive period set in Art. 170

• All kinds of heirs, whether testamentary or legal, compulsory or voluntary, are contemplated by law

Chapter 2. Proof of Filiation (Arts. 172-174)

How does one establish legitimate filiation?

• Record of birth appearing in the civil register or a final judgment

• Admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned

Can legitimate filiation be proved in other ways?

• Open and continuous possession of the status of a legitimate child

• Any other means allowed by the Rules of Court and special laws

What would be the period to claim legitimacy?

Transmission to the heir presupposes that the so-called child died during minority or in a state of insanity

Rights of a legitimate child

Chapter 3. Illegitimate Children (Arts. 175-176)

Before the FC, illegitimate children were classed into different sub-categories

Now, there are only legitimate and illegitimate children — BUT both are still treated differently

In Arts. 195 and 196, the difference in treatment is evident

• Unlimited generations for legitimate ascendants and descendants

• When illegitimate, there is a 2-generation cap

Do nonmarital children have the same rights as legitimate children? NO.

Grande v. Antonio: Art. 176 as amended makes use of the word MAY

Chapter 4. Legitimated Children (Arts. 177-182)

Who are legitimated children?

Impression there is a change in status — those who were illegitimate have been legitimated

NOTE: AT THE TIME OF THE CONCEPTION

Hypothetical: HS sweethearts bore a child at 16 — Romeo & Juliet — one of the parents goes off to the US. They marry and divorce other people, but they remarry when they meet at their 50th HS reunion. The child at 50, can still be legitimated.

Legitimated children are, for all intents and purposes, are considered as legitimate children