Unintentional abortion, Revised Penal Code

1. Concept and legal basis

Article 257. Unintentional abortion. – The penalty of prision correccional in its minimum and medium period shall be imposed upon any person who shall cause an abortion by violence, but unintentionally. (Act 3815, Revised Penal Code)

2. Elements of the offense

Elements of the offense:

1) That there is a pregnant woman;

2) That violence is used upon such pregnant woman without intending an abortion;

3) That the violence is intentionally exerted; and,

4) That as a result of the violence the fetus dies, either in the womb or after having been expelled therefrom. (People v. Paycana, Jr., G.R. No. 179035, 16 April 2008)

3. Contrasted with other offenses

a. Unintentional abortion v. Infanticide

In the crime of infanticide, it is necessary that the child be born alive and be viable, that is, capable of independent existence. However, even if the child who was expelled prematurely and deliberately were alive at birth, the offense is abortion due to the fact that a fetus with an intrauterine life of 6 months is not viable. (People v. Paycana, Jr., supra.)

PEOPLE v. PAYCANA, G.R. No. 179035, 16 April 2008


⦁ [The Accused] sought to exculpate himself from the crime by setting up self-defense, claiming that it was his wife who attacked him first. In view of the nature of self-defense, it necessarily follows that [the Accused] admits having killed his seven (7)-month pregnant wife, and in the process put to death their unborn child.

⦁ The prosecution presented… [Tito], the father of the victim; … [Angelina], [the Accused’s] eldest daughter who personally witnessed the whole gruesome incident; Barangay Tanod [Parañal, Jr].; [Dr. Beltran], who conducted the autopsy; and [Magistrado, Jr.], the embalmer who removed the fetus from the deceased’s body.

⦁ The evidence for the prosecution established that on 26 November 2002, at around 6:30 in the morning, [the Accused], who worked as a butcher, came home from the slaughter house carrying his tools of trade, a knife, a bolo, and a sharpener. His wife was preparing their children for school and was waiting for him to come home from his work. For reasons known to him alone, [the Accused] stabbed his wife 14 times Tito, whose house is at back of [the Accused’s] house, heard his daughter shouting for help. When he arrived, he saw his daughter lying prostrate near the door and her feet were trembling. But seeing [the Accused], who was armed, he stepped back. Angelina told Tito by the window that [the Accused] had held her mother’s neck and stabbed her.

⦁ [The Accused] claimed that he wrested the weapon from Lilybeth after she stabbed him first. According to him, they had an altercation on the evening of 25 November 2002 because he saw a man coming out from the side of their house and when he confronted his wife about the man, she did not answer. On the following morning, he told her that they should live separately. As [the Accused] got his things and was on his way out of the door, Lilybeth stabbed him. But he succeeded in wresting the knife from Lilybeth. And he stabbed her. He added that he was not aware of the number of times he stabbed his wife because he was then dizzy and lots of blood was coming out of his wound.


⦁ [The Accused] failed to discharge the burden to prove self-defense. An accused who interposes self-defense admits the commission of the act complained of. The burden to establish self-defense is on the accused who must show by strong, clear and convincing evidence that the killing is justified and that, therefore, no criminal liability has attached…

⦁ In the present case, the unborn fetus was also killed when the [the Accused] stabbed Lilybeth several times.

⦁ The case before us is governed by the first clause of Article 4828 because by a single act, that of stabbing his wife, [the Accused] committed the grave felony of parricide as well as the less grave felony of unintentional abortion. A complex crime is committed when a single act constitutes two or more grave or less grave felonies.


Title 8 – Crimes Against Persons, Book 2, Revised Penal Code

/Updated: January 18, 2023

Disclaimer: All information is for educational and general information only. These should not be taken as professional legal advice or opinion. Please consult a competent lawyer to address your specific concerns. Any statements or opinions of the author are solely his own and do not reflect that of any organization he may be connected.

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