| SUBJECT: The Concept of ‘Abortion’ under the Revised Penal Code |
I. Introduction
This memorandum provides an exhaustive analysis of the concept of abortion as defined and penalized under the Revised Penal Code of the Philippines. The Revised Penal Code, being a statute of Spanish origin, adopts a classical and restrictive view of the crime, focusing on the intentional termination of pregnancy. This analysis will cover the elements of the offense, the specific acts of execution, the participants liable, the stages of execution, aggravating and mitigating circumstances, privileged and special mitigating circumstances, and relevant jurisprudence. A comparative table with other relevant statutes is also included to contextualize the Revised Penal Code provisions within the broader Philippine legal framework.
II. Definition and Elements of the Crime of Abortion
Under Article 256 of the Revised Penal Code, abortion is committed by any person who shall intentionally cause an abortion. The law does not explicitly define abortion, but jurisprudence and legal doctrine consistently define it as the expulsion of the fetus from the maternal womb at any time before the completion of the period of gestation. The essential elements are:
It is critical to note that the crime is consummated by the mere intentional expulsion of the fetus, regardless of its viability or stage of development. The death of the fetus is not a requisite element of the crime under the Revised Penal Code.
III. Acts of Execution and Participants
The Revised Penal Code delineates specific provisions for different participants in the act of abortion.
Article 256 penalizes the woman who voluntarily procures her own abortion or consents to another person causing it. The penalty is prision correccional in its medium and maximum periods.
Article 257 penalizes any person who intentionally causes an abortion with the consent of the woman. The penalty is prision correccional in its medium and maximum periods. If the woman’s consent is absent, the penalty is higher: prision mayor.
Article 258 penalizes any person who intentionally causes an abortion using violence without the woman’s consent, and the violence is inflicted for the purpose of causing an abortion. The penalty is prision mayor in its maximum period to reclusion temporal in its medium period. If the acts of violence are not intended to cause an abortion but nevertheless result in one, the applicable provisions may be those concerning physical injuries or homicide, not abortion.
A key participant is the physician or midwife. Article 259 provides an aggravating circumstance if the offender is a physician or midwife, and they take advantage of their scientific knowledge or skill to cause the abortion. In such a case, the penalty is imposed in its maximum period and, in addition, they shall suffer temporary special disqualification.
IV. Stages of Execution
The crime of abortion follows the general stages of felonies under the Revised Penal Code.
Consummated: The crime is consummated the moment the fetus is intentionally expelled from the womb. Proof of the corpus delicti (the body of the fetus) is ideal but not always indispensable if other conclusive evidence of expulsion exists.
Frustrated: A frustrated abortion occurs when the offender performs all acts of execution which would produce the abortion as a consequence, but the abortion does not occur due to causes independent of the will of the perpetrator (e.g., medical intervention that saves the pregnancy). This stage is contentious in jurisprudence, as some argue the crime is inherently consummated upon expulsion. However, doctrine acknowledges that acts short of expulsion, if clearly directed and sufficient to cause it, could constitute a frustrated stage.
Attempted: An attempted abortion occurs when the offender commences the commission of the crime directly by overt acts but does not perform all acts of execution due to some cause or accident other than their own spontaneous desistance.
V. Aggravating and Mitigating Circumstances
Generic aggravating and mitigating circumstances under Articles 14 and 15 of the Revised Penal Code may apply to the crime of abortion, such as treachery (alevosia), price or reward, or voluntary surrender.
The most relevant specific aggravating circumstance is found in Article 259, pertaining to physicians or midwives who misuse their profession, as previously discussed.
Furthermore, Article 260 provides a specific aggravating circumstance if the abortion is practiced on the woman to conceal her dishonor. In this case, the penalties prescribed in Articles 256, 257, and 258 are increased by one degree. The concept of dishonor refers to the loss of honor due to illicit sexual relations.
VI. Privileged and Special Mitigating Circumstances
The Revised Penal Code provides for privileged and special mitigating circumstances specific to abortion.
Article 261 establishes a privileged mitigating circumstance for abortion honoris causa. If the abortion is committed to save the honor of the woman, her parents, or her daughters or sisters, the penalties are significantly reduced. For the woman or her parents, the penalty is lowered to prision correccional in its minimum and medium periods. For any other person committing the abortion for the honor of these individuals, the penalty is prision correccional in its minimum period. This provision is a notable exception, reflecting the historical weight given to female honor in the penal code.
Article 262 provides a special mitigating circumstance if the crime of abortion is committed without the consent of the woman due to a pardonable loss of self-control. If the abortion is caused by a violent blow inflicted with lawful intention by the woman’s husband upon catching her in the act of adultery, the husband is punishable by destierro. This is a significant reduction from the standard penalties.
VII. Comparative Analysis with Other Relevant Philippine Laws
The Revised Penal Code provisions on abortion exist alongside other statutes that indirectly regulate or relate to the termination of pregnancy. The following table provides a comparative overview.
| Aspect | Revised Penal Code (Articles 256-262) | The 1987 Constitution | Republic Act No. 10354 (The Responsible Parenthood and Reproductive Health Act of 2012) | Republic Act No. 8344 (An Act Penalizing the Refusal of Hospitals and Medical Clinics to Administer Appropriate Initial Medical Treatment in Emergency or Serious Cases) |
|---|---|---|---|---|
| Primary Focus | Criminalizing the intentional termination of pregnancy. | Establishing a state policy to protect the life of the mother and the unborn from conception. | Promoting reproductive health, including maternal care and family planning. | Mandating emergency medical treatment. |
| View on Abortion | A felony punishable by imprisonment. | Implicitly affirms protection of the unborn; abortion is not permitted. | Expressly states it does not amend the penal law on abortion; abortion remains a crime. | Does not address abortion directly. |
| Key Provision/Principle | Defines participants, penalties, and privileged circumstances. | Article II, Section 12: “The State… shall equally protect the life of the mother and the life of the unborn from conception.” | Section 3(j): “The Act does not… legalize abortion.” | Requires hospitals to administer life-saving treatment. |
| Legal Consequence | Imprisonment and disqualification. | Serves as the fundamental legal basis for the prohibition. | Reinforces the prohibition while expanding access to reproductive health services that prevent abortion. | May create a duty to treat a woman suffering complications from an abortion, as it is a “serious case,” without absolving the criminal liability for the act itself. |
| Relation to RPC | The core criminal provision. | Provides the constitutional foundation for the RPC provisions. | Operates within the confines of the RPC prohibition. | Functions as a separate, non-penal mandate that intersects in cases of medical emergencies resulting from abortion. |
VIII. Relevant Jurisprudence
Philippine Supreme Court decisions have consistently upheld the criminal nature of abortion as defined in the Revised Penal Code.
In People v. Genosa (G.R. No. 135981, January 15, 2004), the Court, while convicting the accused for parricide for killing her abusive husband, discussed temporary insanity as a defense. The case is often cited in discussions of women’s circumstances but did not directly challenge abortion laws.
The case of Imbong v. Ochoa (G.R. No. 204819, April 8, 2014), which upheld the constitutionality of the Responsible Parenthood and Reproductive Health Act, explicitly affirmed that the law does not legalize abortion and that the state’s duty to protect the unborn from conception remains intact, thereby reinforcing the Revised Penal Code framework.
The Court has also ruled on procedural and evidentiary aspects. The corpus delicti in abortion cases can be established even without the production of the fetus, provided there is other conclusive evidence, such as the testimony of a physician who examined the woman and found clear signs of recent delivery or abortion (People v. Bantagan, 54 Phil. 834).
IX. Defenses
Potential defenses in a prosecution for abortion include:
X. Conclusion
The concept of abortion under the Revised Penal Code is comprehensively defined as the intentional expulsion of a fetus and is strictly penalized. The law meticulously outlines the liability of the woman herself, third parties, and medical professionals, with penalties adjusted based on consent, violence, and specific aggravating or mitigating circumstances. The notable privileged mitigating circumstances related to honor and a husband’s rage reflect the code’s socio-moral origins. This penal law regime is constitutionally anchored and remains unaltered by subsequent health legislation. Any legal analysis of abortion in the Philippines must begin with these Revised Penal Code provisions, as they establish an absolute prohibition with only very narrow, context-specific mitigations.
