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.
ELEMENTS
1. That there is a pregnant
woman;
2. That violence is exerted, or
drugs or beverages administered, or that the accused otherwise acts upon
such pregnant woman;
3. That as a result of the use of
violence, drugs or beverages upon her, or any other act of the accused,
the fetus dies, either in the womb or after having been expelled
therefrom;
4. That the abortion is
intended.
ABORTION
Abortion is the willful
killing of the fetus in the uterus or the violent
expulsion of the fetus from the material womb which
results in the death of the fetus.
FETUS MUST DIE IN CONSUMMATED ABORTION
• If the fetus
survives in spite of the attempt to kill it or the use
of violence, abortion is not consummated. If abortion
is intended and the fetus does not
die, it is frustrated intentional abortion when
all acts of execution have been performed by the
offender.
• If abortion is not intended and
the fetus does not die, in spite of the violence
intentionally exerted, the crime may only be physical
injuries. There is NO FRUSTRATED
UNINTENTIONAL ABORTION, in view of lack of intention to cause abortion.
FETUS MAY BE OVER OR LESS THAN SIX MONTHS OLD
• Under the RPC, abortion
ordinarily means the expulsion of the fetus before the sixth month or before
the term of its viability, that is, capable of sustaining life.
• But, as long as the fetus dies
as a result of the violence used or the drugs administered, the crime of
abortion exists, even if the fetus is full term.
WAYS OF COMMITTING INTENTIONAL
ABORTION
1. By using any violence
upon the person of the pregnant woman
2. By acting, but without
using violence, without the consent of the
woman (By administering drugs or beverages upon such pregnant woman
without her consent)
3. By acting (by administering
drugs or beverages) with the consent of the pregnant woman
PENALTY
• The person who intentionally
caused the abortion is liable under Art. 256. The woman is liable under Art.
258, if she consented to the abortion caused on her. If she did not consent,
she is not liable.
• Art. 256, par.3 which provides
for the least penalty, “if the woman shall have consented” to the act causing
the abortion, should be construed in relation to that in par. 2 of Art. 256,
because the absence of consent of the woman is mentioned in connection with a
case where the offender acted “without using violence.”
ABORTION vs. INFANTICIDE
In Abortion
1. The fetus is still drawing life from
its mother;
2. The umbilical chord is not yet cut; or
3. The baby had an intra-uterine life of
less than 7 months and is killed within 24 hours.
In Infanticide
1. The victim is already a person;
2. The umbilical chord is already cut and
the infant is still alive;
3. The baby had an intra-uterine life
of less than 7 months and it is killed after 24 hours.
In both cases, the killing by the woman
to conceal dishonor is an extenuating circumstance. - only available to MOTHER
and MATERNAL GRANDPARENTS
KINDS OF ABORTION
1. Intentional abortion - includes:
- abortion practiced by pregnant woman herself or her parents (Art 258)
- abortion practiced by physician or midwife
2. Unintentional abortion
References:
Leonor D. Boado, Notes and Cases on the Revised Penal Code, 2004 ed.
Luis B. Reyes, The Revised Penal Code, Book II, 2001 ed.
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