OPINION | The RH Debate: Back to a Legal Discussion, via the Family Code
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The debate for and against the RH Bill has come to a boiling point. I have refrained from writing about it because I do not want to add more heat to it. But I guess I cannot resist the temptation.
I have read the RH Bill and, from a purely legal standpoint, I do not think it supports abortion. In fact, it expressly acknowledges that abortion is illegal. (Section 3(i) of the Guiding Principles of the RH Bill)
Article 5 of Presidential Decree 603, otherwise known as the "Child and Youth Welfare Code" provides that “the civil personality of the child shall commence from the time of conception for all purposes favorable to him subject to the requirements of Article 41 of the Civil Code.”
Article 41, on the other hand, provides that “the foetus is considered born if it is alive at the time it is completely delivered from the mother’s womb. However, if the foetus had an intra-uterine life of less than seven months, it is not deemed born if it dies within twenty-four hours after its compete delivery from the maternal womb.”
Civil personality is that attribute which confers human and legal rights and, as the law said, it starts from conception. Conception on the other hand is generally accepted as starting from the time the sperm of the man and the egg of the woman meet to create the zygote.
From this scientific vantage point, the significance of these legal provisions becomes clear. It is at this early point when, though not yet born, a child, who is still a zygote, can already be a subject of rights. He or she, through the mother, can be a donee capable of receiving gifts or an heir with the right to inherit from a father who died prior to the child's birth. The same child can demand support, through the mother, from an irresponsible father while in the mother’s womb.
I have not seen anything in the RH Bill amending or repealing these important provisions under the Child and Youth Welfare Code and the Civil Code. It is clear that our laws still maintain the sanctity and importance of life from its very beginning, meaning from the time of conception.
In this regard and again from a strictly legal point of view, it cannot be said that the use of contraceptive pills prior, during or immediately after sexual intercourse or a condom during sexual intercourse diminishes the value of life.
There is still no child at that point. There is yet nothing to abort. No civil personality is or will be extinguished.
Even our Supreme Court has ruled that a father cannot, on behalf of an unborn child, file a case for damages for depriving that child of the opportunity to live and grow as a human being. There was no one to be legally represented by the father as the said child did not acquire civil personality (Geluz vs. Court of Appeals 2 SCRA 801). The father nevertheless can file a case for damages on his own behalf due to his own mental anguish.
To attribute anything related to abortion to the RH Bill’s objective of providing families "access to a full range of safe, legal, affordable, effective and modern methods of limiting and spacing pregnancy" (Section 4 (e) Definition of Terms) is just too much of a stretch. Such attribution is not expressly or impliedly reflected in the proposed law. "Limiting and spacing pregnancy" is not in itself illegal. One can do this by natural methods and by artificial methods. But, whichever method one chooses, it cannot be inferred that the killing of a child during pregnancy is included in the said clause. And if there is apparent ambiguity in the provision, it can immediately be clarified by Section 3 (i) of the RH Bill's guiding principle expressly acknowledging that abortion is illegal. Hence, "limiting and spacing pregnancy" will never involve abortion.
Also, Article 256 of the Revise Penal Code (RPC) provides that intentional abortion is a crime. And under Article 259, the RPC punishes "any physician or midwife who, taking advantage of their scientific knowledge or skill, shall cause an abortion or assist in causing the same." The same article also provides that "any pharmacist who, without the proper prescription from a physician, shall dispense any abortive" will be punished.
I have also not seen anything under the RH Bill amending or repealing the above-mentioned RPC provisions whether expressly or impliedly. Neither could I find in the RH Bill anything that will encourage abortion.
It is true that the RH Bill provides medical assistance to those who illegally may have aborted her child but this should not be construed as a provision supporting abortion. (Section 3 (i) of the Guiding Principles of the RH Bill).
To cause or undergo abortion is one thing, and to help victims of abortion is another thing. All those who need medical help, including abortion victims, must always be given the necessary assistance to survive. Just because a poor woman might have committed abortion, which is illegal, does not justify leaving her out in the cold without any medical assistance at all. That will be inhuman and could never be the purpose of any law. A bad and painful personal judgment must not be met by deprivation of needed medical aid that will further put the woman in a life-or death situation.
Indeed, under Republic Act 8344, it is even a crime for medical practitioners and other responsible hosptial officers “to refuse to administer medical treatment and support as dictated by good practice of medicine to prevent death or permanent disability”.
Now, prescinding from the legalities of the RH Bill, is it nevertheless a bad bill?
I have observed that the debate is not much on the legality of the bill. But rather it focuses on whether the law is moral or immoral and whether or not it is against natural law which is clearly a matter of personal convictions and beliefs.
Clearly Protestant, Catholics, Muslims, other sects and even atheists separately or even within their own institutions, have different positions on this one. I am not an expert in the nuances of what is or what is not moral in this particular case. Nor am I an expert in natural law. The only thing I can contribute on this aspect of the debate are some legislative precedents on similar debates preceding certain provisions of our existing laws. Perhaps we can learn something from these legislative experiences.
When the Family Code took effect on August 3, 1988, the said law contained a provision on artificial insemination. It recognizes that children born as a result of artificial insemination can already be considered legitimate provided certain requirements are met (Second paragraph of Article 164 of the Family Code). However, prior to the approval of the law, the inclusion of this artificial insemination provision met very strong opposition from an influential religious group. They asserted that this move will legalize a procedure which is immoral. They, in effect, claimed that it was against natural law and should not be recognized. They warned that recognizing it would mean "approving of children outside of marriage." (Record of the hearing of February 3, 1988 of the Senate Committee on Women and Family Relations).
The Family Code framers however stood steadfast. One of the framers, the late Justice Eduardo Caguioa, sternly explained that morality has nothing to do with their proposal on artificial insemination. He said that the procedure is already being done in the Philippines and it was a fact that children, whether legitimate or illegitimate, were born of such procedure. He stressed that what was important was for the child to be legally protected regardless of the method by which he or she was born. They did not consider morality, status, natural law or religion.
What they asserted as the most important consideration was the paramount interest of the child and nothing else. He must be conferred legal rights. The provision was not deleted and it is now in the Family Code.
Prior to the effectivity of the Family Code, absolute divorce, wherever obtained, was totally not recognized under the Civil Code of the Philippines. When the New Family Code was being deliberated as early as 1985, the framers already intended to change the situation to include absolute divorce in our laws. However, the Catholic hierarchy persistently and strongly lobbied against it. The opposition was so intense that it almost totally succeeded.
I said "almost totally" because, while the framers succumbed to the pressure in so far as obtaining divorce in the Philippines is concerned, they were able to provide a provision recognizing an absolute divorce obtained abroad by a foreigner-spouse married to a Filipino or Filipina. And significantly, this foreigner-spouse may even be a former Filipino/Filipina who went abroad, changed citizenship and obtained the divorce.
It was a small step in the recognition of absolute divorce. Obviously, the Catholic hierarchy was not happy about this but, nevertheless, our framers did not yield on this limited recognition and now it is in our statute. The obvious reason for this recognition is the inequality against the Filipino/Filipina brought about by a non-recognition of absolute divorce if it involves foreigner-spouses.
Then we have the matter of declaration of nullity of marriage and annulment.
Under our Family Code today, if a marriage is solemnized by a priest or any minister of any sect, such a marriage will be recognized by the government and, needless to state, the sect or religion where the married couple belongs.
However, if the marriage is judicially declared null and void or annulled by the government, through the courts, some sect, especially the Protestants, will recognize such marriage-termination and some sect, like the Catholic hierarchy, will not recognize the same. For the Catholic hierarchy, it is the only authority that can terminate a marriage solemnized by a priest and views state-annulment as worthless.
Regardless however of the assertion of the Catholic hierarchy, our framers still maintained the process of recognizing annulments or judicial declarations of nullity of marriage even if the marriage were solemnized by a priest or minister of a sect. In fact, our framers even added new grounds for declaration of nullity and annulment.
Today, many couples have availed themselves of terminating their marriage through the courts despite non-recognition of the Catholic hierarchy. And personally, I have seen remarkable positive changes on an individual who was legally freed from a non-functional or even violent marital life through the courts. It's a way of giving hope to a once miserable and despairing spouse regardless of his or her annulment's non-recognition by the Catholic hierarchy.
I am sure that the debate, whether or not the RH bill becomes law, will go on. But such is the nature of things. Not everyone will be contented. There will be severe criticisms no matter what the outcome will be.
On a personal note:
I have been a Catholic since birth and will definitely die one.
Given the fallibility of all human beings, I am as faltering and as good (to the best of my abilities) a Catholic as anyone else. But deep down in me, I truly believe that Catholicism listens and discerns. People may be right and people may be wrong, but there is always value in respecting each other’s thoughts and views. The truth may be hard to come by. Convictions may be difficult to change.
Persuasions may be adamant. But facing new challenges and new needs compels continuous sincere dialogue to be able to see what truly is the best for the people. And as Fr. J. Severyn Westbrook said: “In an existentialist church, you listen and pay attention to how the spirit is moving among the people, especially in communities of faith. You learn from that. The church has to be a living, breathing, feeling, praying organism. Are we to be an organism or are we to be an organization?”
The Church is truly all of the people, whether anti- or pro-RH bill advocates. We just have to discern more, work for more enlightenment. Nothing is easy.
And on a final note, I just have to say something about my colleagues, the 192 Ateneo professors. It was such a letdown for certain sectors in the Catholic hierarchy and laity to verbally malign the 192 Ateneo professors who expressed support for the RH Bill and even, extremely ask for their explusion from the school.
I could only agree and quote what Fr. Thomas O’Gorman (Gregorian University) said in his comment at Interaksyon.com (the News Portal of TV5): "In my own name I thank the Ateneo administration for not sacking the 192 faculty members who made their own statement (in their own names) and for not implying that they are guilty of heresy. Exaggerated rhetoric can in the end do much damage to the Church and is not helpful for discerning discussion."