This memorandum provides an exhaustive analysis of the distinct crimes of infanticide and abortion under Philippine criminal law. While both acts involve the termination of a life at an early developmental stage, they are fundamentally separated by the stage of gestation at which the act occurs, the requisite mental state, and the specific legal elements that constitute each offense. The central issue is to delineate the precise legal boundaries between these crimes, which are governed by different provisions of the Revised Penal Code (Act No. 3815, as amended). A clear understanding of this distinction is critical for proper legal qualification, prosecution, and defense.

Under Philippine law, abortion or “aborto” is defined as the intentional expulsion of the fetus from the maternal womb at any time before the completion of the period of gestation. The law recognizes two principal forms: intentional abortion and unintentional abortion.

A. Intentional Abortion (Art. 256, Revised Penal Code):
1. That there is a pregnant woman.
2. That violence is exerted upon such pregnant woman.
3. That the violence is intended to cause an abortion.
This article penalizes any person who intentionally causes an abortion, with the consent of the woman, with a higher penalty if the abortion is caused without the woman’s consent.

B. Abortion Practiced by the Woman Herself or by Her Parents (Art. 258, Revised Penal Code):
1. That the woman is pregnant.
2. That she intentionally procures an abortion, or allows one to be procured.
3. That the abortion is caused by any of the means described in the preceding articles.
Special provisions also cover parents who cause an abortion to conceal their daughter’s dishonor.

C. Unintentional Abortion (Art. 257, Revised Penal Code):
This covers acts of violence against a pregnant woman which are not intended to cause an abortion but nevertheless result in one. The key distinction is the absence of the specific intent to cause an abortion.

The gravamen of the crime of abortion is the termination of pregnancy before the fetus has reached the point of viability outside the womb, or at any time prior to birth. The fetus is considered in utero.

Infanticide is defined under Article 255 of the Revised Penal Code as the killing of a child less than three days of age. The provision reads: “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 old.“

The essential elements are:

That the person killed was a child.

That the child was less than three days old.

That the child was killed.

A critical component is that the child must have been born alive. The killing occurs extra-utero, after a live birth has been completed. The law creates a distinct, separate crime from murder or homicide, recognizing the unique circumstances surrounding the immediate post-natal period, which may involve psychological disturbance of the mother.

The paramount legal distinction between abortion and infanticide hinges on the status of the victim: whether it is a fetus (unborn) or a child (born alive).

Abortion concerns the killing of an unborn child (nasciturus). The act must occur while the product of conception is still within the uterus or is being expelled from it, prior to complete delivery and independent existence.

Infanticide concerns the killing of a born alive child. The act occurs after the complete extrusion of the child from the maternal body, evidenced by an independent circulation and respiration. The doctrine of “born alive” is essential. As discussed in People v. Odtuhan (G.R. No. 462, October 23, 1902), for infanticide to exist, the prosecution must prove the child had an independent life from its mother after delivery.

The specification of “less than three days old” in Article 255 is a proximate time provision. It is a legal presumption that recognizes the potential for exceptional psychological or emotional disturbance in the mother (or sometimes the parents) immediately following childbirth, which may diminish her criminal responsibility. This is aligned with the concept of “post-partum depression” or “puerperal disorder,” though not explicitly stated in the code. This rationale is less applicable to third parties, who are still covered by the article but may be prosecuted under murder or homicide if the elements are present.

A. Abortion: The penalties are aggravated by:
– Lack of consent from the woman (Art. 256).
– If the abortion results in the death of the woman (Art. 259).
– If the abortion is performed to conceal the woman’s dishonor by her parents (Art. 258).

B. Infanticide: The crime is qualified by:
– The circumstances of parricide (if the killer is an ascendant, such as the mother or father) under Art. 246.
– The circumstances of murder (if committed with any of the qualifying circumstances under Art. 248, such as treachery or cruelty) when committed by a third party.
The penalty is thus not a single fixed penalty but is taken from the articles on parricide or murder, depending on the perpetrator and the manner of execution.

Prosecuting both crimes presents significant evidentiary hurdles.

For Abortion: The prosecution must prove pregnancy at the time of the act. This can be difficult if the fetus is destroyed or disposed of. Medical testimony is often crucial.

For Infanticide: The prosecution must prove the child was born alive. This requires evidence of independent respiration or circulation, such as a cry, breathing, or heartbeat after complete delivery. The “lung float test” (hydrostatic test) has historically been used as forensic evidence, though its reliability is now contested. Failure to prove live birth may result in a conviction for concealment of birth under Art. 256 or abortion, but not infanticide or murder.

Closely related is the crime of “Concealment or abandonment of a child with intent to cause its death” under Article 256 of the Revised Penal Code. This applies when a child is concealed or abandoned “with intent to cause its death or to conceal its birth.” This is a separate offense from infanticide and may be prosecuted when the fact of killing cannot be proven, but the acts of concealment or abandonment with the requisite intent are established.

The legal landscape is further complicated by the Republic Act No. 10354 (The Responsible Parenthood and Reproductive Health Act of 2012). While this law provides for access to family planning and maternal care, it explicitly states it does not amend the penal laws on abortion. Section 3(a) of the law defines abortion as a crime: “Abortion remains a crime and is punishable under existing penal laws.” The RH Law does not create any exceptions to the criminality of abortion. Therefore, the provisions of the Revised Penal Code on abortion remain in full force, and any medical procedure intended to induce abortion outside of the exceptional, life-saving treatment for an ectopic pregnancy (which is not considered an abortion under medical ethics) remains illegal.

In summation, Philippine criminal law meticulously distinguishes between infanticide and abortion based on a biological and legal line: live birth.

Abortion is a crime against a fetus and is consummated before or during the process of birth, focusing on the intentional or unintentional termination of pregnancy.

Infanticide is a crime against a child and is consummated after a live birth has been fully effected, specifically within the first 72 hours of life, carrying penalties derived from parricide or murder.

The three-day period in infanticide incorporates a concession to human frailty, while abortion statutes reflect an absolute protection of prenatal life from conception. For legal practitioners, the charging instrument must accurately allege and the evidence must conclusively prove the status of the victim (born or unborn) and the corresponding intent to secure a proper conviction for either infanticide or abortion. The enduring principle from People v. Odtuhan stands: “The crime of infanticide is based on the fact of the child having been born alive.” Without this fact, the crime is not infanticide.