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378, MARCH 7, 579

2002
Impugning the Legitimacy of a
Child and Doctrines on Filiation
ANNOTATION
IMPUGNING THE LEGITIMACY OF A CHILD AND DOCTRINES ON FILIATION
By
JULIANA C. AZARRAGA *

______________

1. § I.Presumption of legitimacy; Basis, p. 579

2. § II.When legitimacy of a child may be impugned, p. 580

1. A.Physical impossibility of access, p. 580

2. B.Period of impossibility, p. 580
3. C.Biological or scientific reason, p. 581

1. § III.When to impugn a child’s legitimacy, p. 583

2. § IV.Who may impugn a child’s legitimacy, p. 584
3. § V.Heirs of husband impugning a child’s legitimacy, p. 585
4. § VI.Effect of impugning legitimacy, p. 586
5. § VII.Periods of prescription, p. 586
6. § VIII.Filiation, p. 587
7. § IX.Recognition of petitioner’s filiation, p. 592

_______________

§ I. Presumption of legitimacy; Basis

The presumption of legitimacy is based on the assumption that there is sexual union in marriage
particularly during the period of conception (People vs. Giberson, Jr., 111 SCRA 532 [1982]).
Hence, proof of the physical impossibility of such sexual union prevents the application of the
presumption (Tolentino, Civil Code of the Philippines, Commentaries and Jurisprudence, Vol. 1,
1990 Ed., page 525).
______________

 Judge, Regional Trial Court of Roxas City, Br. 15.

*

580
580 SUPREME COURT
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Impugning the Legitimacy of a
Child and Doctrines on Filiation
§ II. When legitimacy of a child may be impugned
Article 166 of the Family Code provides:
“Art. 166. Legitimacy of a child may be impugned only on the following grounds:
(1) That it was physically impossible for the husband to have sexual intercourse with his wife within
the first 120 days of the 300 days which immediately preceded the birth of the child because of:
 1. (a)the physical incapacity of the husband to have sexual intercourse with his wife;
2. (b)the fact that the husband and wife were living separately in such a way that sexual
intercourse was not possible, or
3. (c)serious illness of the husband, which absolutely prevented sexual intercourse;

1. (2)That it is proved that for biological or other scientific reasons, the child could not
have been that of the husband, except in the instance provided in the second paragraph
of of Article 164; or
2. (3)That in the case of children conceived through artificial insemination, that written
authorization or ratification of either parent was obtained through mistake, fraud,
violence, intimidation, or undue influence.”

A. Physical impossibility of access

The modern rule is that, in order to overthrow the presumption of legitimacy, it must be shown
beyond all reasonable doubt that there was no access as could have enabled the husband to be the
father of the child. Sexual intercourse is to be presumed where personal access is not disproved,
unless such presumption is rebutted by evidence to the contrary; and where sexual intercourse is
presumed or proved the husband must be taken to be the father of the child (Macadangdang vs.
Court of Appeals, 100 SCRA 532 [1980]).
B. Period of impossibility
The period of physical impossibility of access must be during the marriage, and not before. Thus,
if a child is born 185 days after the
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celebration of the marriage, the husband need prove physical impossibility of access only during
the first 5 days of the marriage. The conception takes place at any time before the 180 days
preceding the birth of the child (the 120 days of conception make up the fall 300 days period of
gestation). The law cannot presume access prior to marriage; hence, the want of access need be
shown only during the marriage. (4 Borja 12, cited in Tolentino, Civil Code, Vol. 1, 1990 ed.,
page 525-526).
1.  Illness of husband must be serious.—
The illness of the husband must be of such nature as to exclude the possibility of his having
sexual intercourse with his wife; such as, when because of a sacroiliac injury, he was placed in a
plaster cast, and it was inconceivable to have sexual intercourse without the most severe pain
(Commissioner vs. Kotel, 256 App. Div. 352, N.Y. Supply (2d) 1005), or the illness produced
temporary or permanent impotence, making copulation impossible (2 Bonet 352, cited in
Tolentino, Civil Code, 1990 ed., pages 526-527).
C. Biological or scientific reason
The Family Code has taken into account the progress of science in providing this reason as a
circumstance to overthrow the presumption of legitimacy. We had occasion to criticize the Civil
Code, for not taking into account the progress of science in its provision on legitimacy. We said:
“The advance of science, particularly with respect to the determination of sterility, artificial insemination,
and blood tests, has not been taken into account by the present Code. The codifiers have merely
reproduced a 19th century article from atmosphere of scientific progress and knowledge. Many times,
therefore, there will be cases where science can show nonpaternity or illegitimacy, but the present article
of the Code will prevent the introduction of such scientific evidence because it does not constitute
physical impossibility of access. The rules on legitimacy should have been modified, so that the tyranny
of legal presumption may not completely ignore the truth and logic of scientifically established facts.”
(Tolentino, Civil Code, 1985, Vol. 1, p. 547).
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If the spouses are both of Malayan features, but a child is born to the wife with Caucasian
complexion and features, and it is shown that in the lineage of both spouses, there was no
Caucasian, then this biological circumstance may defeat the presumption of legitimacy. We
believe, however, that Courts should take extreme care that a child with different racial features
from the spouses be found beyond doubt fathered by one who is not the husband. It may simply
be the result of the operation of the theory of alternating generations, where the features of an
unknown distant ascendant suddenly appears in the child of parents of entirely different racial
stock.
Circumstances in themselves not permissible to show illegitimacy may be considered as
factors to overthrow the presumption of legitimacy for biological reasons. Even if adultery by the
wife will not by itself defeat legitimacy, it may be a factor to contribute to the defeat of the
presumption of legitimacy if the child has the racial characteristics of the lover. (Tolentino, Civil
Code, Vol. I, 1980 ed. p. 527).
a)  Blood tests.—
Medical science has shown that there are four (4) types of blood in man which can be transmitted
through heredity. Although the presence of the same type of blood in two persons does not
indicate that one was begotten by the other, yet the fact that they are of different types will
indicate the impossibility of one being the child of the other. Thus, when the supposed father and
the alleged child are not in the same blood group, they cannot be father and child by
consanguinity. The Courts of Europe today regard a blood test exclusion as an unanswerable and
indisputable proof of nonpaternity. Our Supreme Court has accepted it (Jao vs. Court of
Appeals, 152 SCRA 359 [1987]).
A blood test could eliminate all possibility that the accused is the father of the child, if none
of the putative father’s phenotype(s) are present in the child’s bloodtype—while the reverse does
not hold true (i.e., that the presence of identical phenotypes in both individuals establishes
paternity), the absence of the former’s phenotype in the child’s would make his paternity
biological untenable (People vs. Cartuano, Jr., 255 SCRA 403 [1996]).
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§ III. When to impugn a child’s legitimacy
Article 170 of the Family Code provides:
“Art. 170. The action to impugn the legitimacy of the child shall be brought within one year from the
knowledge of the birth or its recording in the civil register, if the husband or, in a proper case, any of his
heirs, should reside, in the city or municipality where the birth took place was recorded.
“If the husband or, in his default, all his heirs do not reside at the place of birth as defined in the first
paragraph or where it was recorded, the period shall be two years if they should reside in the Philippines;
and three years if abroad. If the birth of the child has been concealed from or was unknown to the
husband or his heirs, the period shall be counted from the discovery or knowledge of the birth of the child
or of the fact of registration of said birth, whichever is earlier.”
a) Effect of prescription.—
Upon the expiration of the period provided in Article 170 the action to impugn the legitimacy of
a child can no longer be brought. The status conferred by the presumption, therefore, becomes
fixed, and can no longer be questioned. The obvious intention of the law is to prevent the status
of a child born in wedlock from being in a state of uncertainty for a long time. It also aims to
force early action to settle any doubt as to the paternity of such a child, so that the evidence
material to the matter, which must necessarily be facts occurring during the period of conception
of the child, may still be easily available.
Whether the presumption of legitimacy be prima facie or conclusive is immaterial, in so far
as the effect of prescription of the action is concerned. The difference in presumption affects
only the kind of evidence that can be introduced to overthrow it. There is greater latitude as to
the kind of proof that may be presented to impugn legitimacy that is presumed prima facie. But if
the action to impugn such legitimacy is not brought within the proper period fixed in article 170,
the status becomes just as unassailable in any other subsequent proceeding or action as if the
presumption were conclusive. (Tolentino, Civil Code, Vol. I, 1990 ed., pp. 535-536).
584
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Child and Doctrines on Filiation
§ IV. Who may impugn a child’s legitimacy
Article 171 of the Family Code provides:
“Art. 171. The heirs of the husband may impugn the filiation of a child within the period prescribed in the
preceding article only the following cases:

1. (1)If the husband should die before the expiration of the period fixed for bringing his
action;
2. (2)If he should die afier the filing of the complaint without having desisted therefrom;
or
3. (3)If the child was born after the death of the husband.”

a) Legitimacy cannot be collaterally attacked.—

The legitimacy of a child can be impugned only in a direct action brought for the purpose, by the
proper parties, and within the period limited by law. (Tolentino, Civil Code, Vol. I, p. 536).
The legitimacy of the child cannot be contested by way of defense or as a collateral issue in
another action for a different purpose. The necessity of an independent action directly impugning
the legitimacy is more clearly expressed in the Mexican Code (Article 336) which provides:
“The contest of the legitimacy of a child by the husband or his heirs must be made by proper
complaint before the competent court; any contest made in any other way is void.” This principle
applies under our Family Code. Articles 170 and 171 of the code confirms this view, because
they refer to “the action to impugn the legitimacy.” This action can be brought only by the
husband or his heirs and within the periods fixed in the present articles. (supra)
b) Reason why law gives the husband the special privilege of impugning the child’s legitimacy.
—
Only the husband can contest the legitimacy of a child born to his wife. He is the one directly
confronted with the scandal and ridicule which the infidelity of his wife produces; and he should
decide whether to conceal that infidelity or expose it, in view of the moral and economic
interests involved. (Bevilaqua, Familia, p.
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314). It is only in exceptional cases that his heirs are allowed to contest such legitimacy. Outside
of these cases, no one—even his heirs—can impugn legitimacy; that would amount to an insult
to his memory. (Bevilaqua, Familia, p. 316).
§ V. Heirs of husband impugning a child’s legitimacy
Article 171 of the Family Code provides:
“Art. 271. The heirs of the husband may impugn the filiation of the child within the period prescribed in
the preceding article only in the following cases:

1. (1)If the husband should die before the expiration of the period fixed for bringing his
action;
2. (2)If he should die after the filing of the complaint without having desisted therefrom,
or
3. (3)If the child was born afier the death of the husband.”

a) Action by heirs; when to bring action.—

It must appear that the heirs are acting merely in substitution of the husband in contesting the
legitimacy. The heirs cannot bring the action if it clearly appears that the husband did not make
use of this right, or has desisted in his intention to contest legitimacy of the child. This is to
prevent the heirs from rectifying the sentiments of the husband and subordinating them to their
own patrimonial interest (5 Sanchez Roman 980). They are thus limited to the cases provided in
Article 171.
Article 171 of the Family Code presupposes that the child is the undisputed offspring of the
mother (Babiera vs. Catotal, 333 SCRA 487 [2000]) Articles 170 and 171 of the Family Code
govern a situation where a husband (or his heirs) denies as his own a child of his wife. Thus,
under Article 166, it is the husband who can impugn the legitimacy of said child by proving: (1)
it was physically impossible for him to have sexual intercourse with his wife within the first 120
days of the 300 hundred days which immediately preceded the birth of the child; (2) that for
biological or other scientific reasons, the child could not have been his child; (3) that in case of
children conceived through artificial insemination, the writ-
586
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 Impugning the Legitimacy of a
Child and Doctrines on Filiation
ten authorization or ratification by either parent was obtained through mistake, fraud, violence,
intimidation or undue influence. Articles 170 and 171 reinforce this reading as they speak of the
prescriptive period within which the husband or any of his heirs should file the action impugning
the legitimacy of the child. Doubtless then, the appellate court did not err when it refused to
apply these articles to the case at bench. For the case at bench is not one where the heirs of the
late Vicente are contending that petitioner is not his child by Isabel. Rather, their clear
submission is that petitioner was not born to Vicente and Isabel. Our ruling in Cabatbat-Lim vs.
Intermediate Appellate Court, 166 SCRA 451, 457 (1988) cited in the impugned decision is
apropos, viz:
“Petitioners’ recourse to Article 263 of the New Civil Code (now Art. 170 of the Family Code) is not
well-taken. This legal provision refers to an action to impugn legitimacy. It is inapplicable to this case
because this is not an action to impugn the legitimacy of a child, but an action of the private respondents
to claim their inheritance as legal heirs of their childless deceased aunt. They do not claim that petitioner
Violeta Cabatbat-Lim is an illegitimate child of the deceased, but that she is not the decedent’s child at
all. Being neither (a) legally adopted child, nor an acknowledged natural child, not a child of legal fiction
of Esperanza Cabat-bat, Violeta is not a legal heir of the deceased.”
§ VI. Effect of impugning legitimacy
When legitimacy is successfully impugned, the paternity of the husband is rejected, and the child
is considered adulterous; it is not necessary that the identity of the real father be established. But
if the child was born within 180 days following the celebration of the marriage, it would be
considered an illegitimate child of the mother, because it would have been conceived out of
wedlock while the latter was still unmarried. (Tolentino, Civil Code, 1990 ed., pp. 537-538).
§ VII. Periods of prescription
The prescriptive period as laid down in Article 170 begins to run either from the knowledge of
plaintiffs of the birth of the child, or from the date of the registration of such birth, whichever is
earlier.
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The period of prescription is one year if the husband or anyone of the heirs resides in the city or
municipality where the birth took place or was recorded (Italics supplied).
The period is two years if the husband or all the heirs do not reside in the city or municipality
of birth or registration but somewhere else in the Philippines; and three years if they reside
abroad.
a) To whom the periods apply.—
These periods apply whether the plaintiff is the husband or any of the heirs. If they acquire
knowledge of the birth at different dates before it is recorded, the period of prescription shall be
counted from the date on which the plaintiff has knowledge of such birth.
If the husband should die before the expiration of the period within which he could bring the
action, without having filed the same, an heir could bring the action. Within what time? We
believe the period applicable to him personally would apply, not the period applicable to the
husband. The plaintiff, heir would not be merely representing the predeceased husband, but
would be acting in his own right.
If the husband dies after filing the action and it is pending, the action being personal, the case
may be dismissed. The heirs can file another action in their own right, subject to the prescriptive
periods applicable to them (Tolentino, Civil Code, Vol. I, p. 538).
§ VIII. Filiation
a) When proof of filiation necessary.—
The law itself establishes the legitimacy of children conceived or born during marriage. It is the
husband or his heirs impugning the legitimacy who must, present proof of the facts to constitute
grounds to overcome the presumption of legitimacy.
Paternity and filiation or the lack of the same is a relationship that must be judicially
established and it is for the court to declare
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Impugning the Legitimacy of a
Child and Doctrines on Filiation
its existence or absence—it cannot be left to the will or agreement of the parties (De Asis vs.
CA, 303 SCRA 176 [1999]).
Article 172 of the family Code provides:
“Art. 172. The filiation of legitimate children is established by any of the following:

1. (1)The record of birth appearing in the civil register or a final judgment; or

2. (2)An admission of legitimate filiation in a public document or a private handwritten
instrument and signed by the parent concerned.

In the absence of the foregoing evidence, the legitimate filiation shall be proved by:

1. (1)The open and continuous possession of the status of a legitimate child; or

2. (2)Any other means allowed by the Rules of Court and special laws.”

Where the child is born after 300 days following the termination of the marriage, proof of
filiation will be needed, because such child has no status, under Article 169, and whoever alleges
legitimacy must prove it (Tolentino, Civil Code of the Philippines, Vol. I, 1990 ed., p. 540).
a) Kind of proof required.—
For the success of an action to establish illegitimate filiation under the second paragraph of
Article 172 of the Family Code, a “high standard of proof is required, specifically, to prove the
open and continuous possession of an illegitimate child, there must be evidence of the
manifestation of the permanent intention of the supposed father to consider the child as his, by
continuous and clear manifestations of parental affection and care, which cannot be attributed to
pure charity (Jison vs. Court of Appeals, 286 SCRA 495 [1998]). The standard of proof required
to establish one’s filiation is bounded on the principle that an order for recognition and support
may create an unwholesome atmosphere or may be an irritant in the family or lives of the parties,
so that it must be issued only if paternity or filiation is established by clear convincing evidence
(supra).
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b) Certificate of Live Birth as evidence.—
A certificate of live birth purportedly identifying the putative father is not competent evidence as
to to the issue of paternity, when there is no showing that the putative father had a hand in the
preparation of said certificates, and the Local Civil Registrar is devoid of authority to record the
paternity of an illegitimate child upon the information of a third person. Lack of participation by
the putative father in the preparation of the baptismal certificates and school records renders such
documents incompetent to prove paternity, the former being competent merely to prove the
administration of the sacrament of baptism on the date so specified (Jison vs. Court of
Appeals, supra).
c) Other means by which filiation may be proved.—
In the absence of titles indicated in Article 265 of the Civil Code (Art. 172 Family Code),
filiation of children may be proven by continuous possession of the status of a legitimate child
and by any other means allowed by the Rules of Court or Special Laws (Balogbog vs. Court of
Appeals, 269 SCRA 259 [1997]).
Deorxyribonucleic acid (DNA), being a relatively new science, has not yet been accorded
official recognition by the courts; paternity will still have to be resolved by conventional
evidence (Lim vs. Court of Appeals, 270 SCRA 1 [1997]).
Illegitimate filiation may be established in the same way and on the evidence as legitimate
children (Lim vs. Court of Appeals, supra).
Article 172 provides for two (2) classes of proof: (1) the primary evidence consisting of the
record of birth or an authentic admission in writing, and (2) only in the absence of primary
evidence, the secondary evidence consisting of proof of continuous open possession of the status
of a legitimate child, or any other evidence admissible if the primary evidence exists.
(Tolentino, Civil Code of the Philippines, Vol. I, 1990 ed., page 540).
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d) Record of Birth.—
Civil Registrars in the Philippines keep a birth and death Register. The declaration of the
physician or the midwife in attendance at the birth or, in default thereof, the declaration of either
parent of the newborn child, shall be sufficient for the registration of a birth in the civil register
(Sec. 5, Art. 3735). The books making up the civil register and all documents relating thereto
shall be considered public document and shall be prima facie evidence of the truth of the facts
therein contained. (Sec. 13, Id.).
1)  Effect if the alleged father did not intervene in the making of the birth certificate.—
In Berciles vs. GSIS, 128 SCRA 53 (1984); Reyes vs. Court of Appeals, 135 SCRA 439 [1985]),
it was held that if the alleged father did not intervene in the mafcing of the birth certificate, the
putting of his name by the mother or doctor or registrar is void; the signature of the alleged father
is necessary.
e) Admission in document.—
A parent may admit legitimate filiation in a document duly acknowledged before a notary public
or similar functionary, with the proper formalities, so as to become public and be admissible in
suits (Manresa 538; 5 Sanchez Roman 982; Vakverde 413). Also in a private handwritten
document signed by the parent concerned (Tolentino, Civil Code, Vol. I, 1990 ed., page 540).
The intent to recognize the child must be sufficiently apparent. (Banas vs. Banas, 134 SCRA
260 [1985]).
The baptismal certificate is not proof of filiation (Berciles vs. GSIS, supra). It proves only the
fact that originated its execution, namely, the administration of the act of baptism on the day
specified (Macarandang vs. Court of Appeals, 135 SCRA 439 [1985]). But it is not proof of the
veracity of the statements made therein regarding the relatives or parents of the person baptized.
It does not constitute the document specified in this article. Before the establishment of a civil
registry, however, baptismal certificates were held as analogous to the record of birth mentioned
in Article
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172. As such, however, it is presumptive evidence only, and may be overcome by contrary
evidence (Tolentino, Civil Code, Vol. I, 1990 ed., page 541).
f) Possession of Status.—
This is the concurrence of facts which indicate the relation of filiation between an individual and
the family to which he claims to belong. Of these facts, the most important are: that the
individual has always borne the surname of the supposed father; that the father has treated him as
his child, and in such capacity has attended to his education, maintenance, and future; that the
individual has been constantly recognized as such child in society and by the family. The basis of
this kind of proof of legitimacy is, therefore, the admission of the parents, themselves, and
concurrence therein of the family and the society (1 Colin & Capitant 534-535, cited in
Tolentino, Civil Code, Vol. I, 1990 ed., page 541).
Continuous possession of the status of a legitimate child involves the idea of possessory
status of some duration, which must be somewhat long, as may be implied from the word
continuous. The ordinary and public concept of such legitimate child should not be interrupted or
contradicted during the whole time the possession of such status is alleged to have existed. (5
Sanchez Roman). The child must continue to enjoy the consideration, on the part of the public,
of a legitimate child of the spouses, by the use of the father’s surname and by the treatment
which, as a legitimate child, he receives from the father and mother and from their family, and
also by the parents having constantly attended to his support and education (Adriano vs. De
Jesus, 23 Phil. 350).
g) Other proof.—
The generality of the phrase “by any other means” embraces judicial and extrajudicial
confessions and the testimony of witnesses admissible as competent evidence.
Family pictures, affidavits of relatives (Bersiles vs. GSIS, supra), biodata made by claimant,
marriage contracts not signed by the alleged father of the bride, and school records and other
writings not signed by the alleged father do not constitute evidence of filia-
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tion (Reyes vs. Court of Appeals, 135 SCRA 439 [1985]; Diaz vs. Court of Appeals, 129 SCRA
621 [1984]).
§ IX. Recognition of petitioner’s filiation
a) Recognition of a child’s filiation may be compulsory or voluntary. Compulsory recognition to
be filed during the lifetime of the parent; Reasons behind.
The requirement that an action for compulsory recognition be filed during the parent’s lifetime is
to prevent illegitimate persons, on account of strong temptations to large estates left by the dead
persons, to claim part of this estate without giving the alleged parent personal opportunity to be
heard (Cenido vs. Apacionado, 318 SCRA 688 [1999]).
b) Exceptions:

1. 1.When the supposed parent died during the minority of the child;
2. 2.When, after the death of the parent, a document should be discovered in which
the parent recognized the child as his.

The action must be brought within four years from the attainment of majority in the first case,
and from the discovery of the document in the second case.
a) Voluntary recognition made by the supposed parent relative, nature thereof.
The voluntary recognition of petitioner’s filiation by Bonifacio’s brother before the MTC does
not qualify as “statement in a court of record.” Under the law, this statement must be made
personally by the parent himself or herself, not by any brother, sister or relative; after the parent,
or if the parent refuses, by judicial authority, to establish the paternity or maternity of children
born outside wedlock (Cenido vs. Apacionado, supra).