7.3 Medicolegal Aspects of Pregnancy, Delivery, Abortion, Infanticide, Paternity & Marriage

Why this area matters

Physicians are asked to say whether a woman is or was pregnant, whether she recently delivered, whether an abortion was induced, whether a dead newborn was born alive, and who the father is. Physicians also testify on medical grounds in marriage cases. These questions fall under "evidence to prove violation" and related medicolegal cases in the TOS.

Pregnancy and delivery

Signs of pregnancy

• Presumptive: amenorrhea, nausea, breast changes, Chadwick sign (bluish vagina and cervix), skin pigmentation (linea nigra, chloasma), quickening.
• Probable: enlarged uterus, Hegar and Goodell signs, ballottement, Braxton Hicks contractions, a positive hCG test.
• Positive: fetal heart activity on ultrasound or Doppler, fetal movements felt by the examiner, and the fetus seen on imaging.

Signs of recent delivery, within days:

• an enlarged, soft uterus;
• lochia;
• a patulous cervix and vaginal or perineal tears;
• colostrum or milk;
• fresh striae.

Signs of remote delivery:

• silvery old striae;
• a transverse slit-like external os;
• a lax abdominal wall;
• healed perineal scars.

These signs matter in concealment-of-birth and infanticide cases, and when pregnancy or childbirth is alleged in rape or fraud.

Abortion under the Revised Penal Code

What this means in practice:

• The 1987 Constitution (Art. II, Sec. 12) protects the life of the unborn from conception.
• RA 10354 (the Responsible Parenthood and Reproductive Health Act) states that abortion remains illegal. It also requires that women with post-abortion complications be treated in a humane, non-judgmental and compassionate manner. Treating a woman with an incomplete abortion is required care, not complicity.
• Medically, induced abortion is suggested by injuries to the cervix or uterus (instrument marks, perforation), foreign bodies, and chemical traces. Complications include hemorrhage, sepsis (often clostridial) and air embolism.

Infanticide and live birth

Infanticide (Art. 255) is the killing of a child less than 3 days of age. It carries the penalties for parricide or murder, with lower penalties when the mother or maternal grandparents kill the child to conceal dishonor.

The examiner must prove three things: that the child was born alive, that it was viable, and that it died from an unnatural cause.

• Hydrostatic (docimasia) test:
  • Lungs that have breathed are expanded and pink, fill the chest and float in water.
  • Unaerated lungs are dark and solid and sink.
  • False positives: putrefaction gas or artificial respiration.
  • False negatives: pneumonia or atelectasis.
• Supportive findings:
  • air in the stomach and intestines (Breslau's second life test);
  • food or milk in the stomach;
  • changes in the umbilical cord stump (drying from day 1, separation at about 5 to 10 days).
• Maceration (aseptic skin slippage) proves death in the uterus before delivery and excludes infanticide.
• Common methods of killing include smothering, strangulation (sometimes with the cord), drowning, head injury and neglect (failure to tie the cord, exposure).

Viability (Civil Code Art. 41). For civil purposes, a fetus is considered born if it is alive when completely delivered. If the fetus had less than 7 months of intrauterine life, it is not deemed born if it dies within 24 hours after complete delivery. This matters for inheritance.

Legitimacy, paternity and filiation (Family Code)

• Art. 164: children conceived or born during the marriage are legitimate. Children conceived by artificial insemination with the husband's or a donor's sperm are legitimate if both spouses authorized or ratified it in writing before the birth.
• Art. 166: legitimacy may be impugned only on three grounds:
  1. It was physically impossible for the husband to have intercourse with his wife during the first 120 days of the 300 days before the birth, because of his physical incapacity, separate living that made intercourse impossible, or serious illness.
  2. Biological or scientific evidence shows the child could not be the husband's.
  3. Consent to artificial insemination was obtained through mistake, fraud, violence, intimidation or undue influence.
• Art. 168: if the mother remarries within 300 days after the first marriage ends:
  • a child born before 180 days of the new marriage, and within 300 days of the end of the first, is presumed conceived in the first marriage;
  • a child born after 180 days of the new marriage is presumed conceived in it.
• Art. 170: the action to impugn must be brought within 1 year if the husband lives in the place of birth, 2 years elsewhere in the Philippines, and 3 years if abroad.

Medical proof uses blood group exclusion, which can exclude but never prove paternity, and DNA testing. Under the Rule on DNA Evidence, a probability of paternity of 99.9% or more creates a disputable presumption.

Medical grounds in marriage cases

• Voidable marriages (Art. 45): annulment may be sought when, at the time of the marriage:
  • either party was of unsound mind;
  • either party was physically incapable of consummating the marriage and the incapacity continues and appears incurable. This is impotence, not sterility; a sterile but potent spouse can consummate;
  • either party had a serious and apparently incurable sexually transmissible disease.
• Fraud (Art. 46) includes concealment by the wife that she was pregnant by another man, concealment of a sexually transmissible disease of any kind, and concealment of drug addiction, habitual alcoholism, homosexuality or lesbianism existing at the time of marriage. No other misrepresentation about health or chastity counts as fraud.
• Psychological incapacity (Art. 36) makes a marriage void. In Tan-Andal v. Andal (2021), the Supreme Court held that it is a legal, not a medical, concept. It need not be a mental disorder or personality disorder diagnosed by an expert, but must be proven by clear and convincing evidence of durable, enduring incapacity that existed at the time of the marriage. Physicians and psychologists may still testify, but their testimony is not mandatory.