Dear PAO,

I have no husband and without any child. I treated Lando, my nephew, as if he were my own son. Currently, the wife of my nephew is six weeks pregnant. I plan to donate my land in Bicol to the unborn child of Lando and his wife. I just want to know if I can do that even if the child is not yet born?

Edna

Dear Edna,

According to Article 40 of the New Civil Code of the Philippines, a conceived child shall be considered born for all purposes that are favorable to it, to wit:

“ARTICLE 40. Birth determines personality; but the conceived child shall be considered born for all purposes that are favorable to it, provided it be born later with the conditions specified in the following article.”

Further, in the case of Carmen Quimiging v. Felix Icao, GR 26795, July 31, 1970, penned by Associate Justice Jose Benedicto Luis Luna Reyes, the Supreme Court ruled that a conceived child, although as yet unborn, is given by law a provisional personality of its own for all purposes favorable to it. Therefore, an unborn child has a right to support from its progenitors and may receive donations, among others.

Moreover, according to Article 742 of the New Civil Code:

“Article 472. Donations made to conceived and unborn children may be accepted by those persons who would legally represent them if they were already born.”

The law is clear that even if the child is not yet born, he or she may be considered such for all purposes that are favorable to him or her.

However, the law provided a caveat, i.e., that such child shall be born later. The question now is: what are the conditions provided by law to determine whether or not a conceived child will be considered born?

According to Article 41 of the New Civil Code, a fetus will be considered born if it is alive from the time that it was completely delivered from the mother’s womb. However, if the fetus had an intra-uterine life of less than seven months, the child shall not be deemed born if he or she dies within twenty-four hours after its complete delivery from the maternal womb. In other words, if the fetus had an intra-uterine life of less than 7 months, the child must live for at least twenty-four hours.

In your case, you may name the unborn child of your nephew and his wife as donee of your land in Bicol. Such donation may be accepted by the child’s parents and provided that such conceived child be born according to the conditions provided in Article 41 of the New Civil Code.

We hope that we were able to answer your queries. This advice was based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Thank you for your continued trust and support.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for chief Acosta may be sent to [email protected]