Reproductive Health Bill

by Alan S. Cajes

(Photo courtesy of searo.who.int)

The Philippine House of Representatives filed a controversial bill - House Bill No. 96 – to be known as the Reproductive Health and Population and Development Act of 2010. This proposed law has caused a religious, political, intellectual, and emotional division among the Filipinos. On one hand, the opponents of the bill, represented by the influential Catholic Bishops Conference of the Philippines, insisted on having a healthy discussion of the proposal and not hastening its enactment into law. On the other hand, the proponents of the bill expressed support to President Noynoy Aquino’s statements, such as respecting the choices of the couples, educating the citizens about their choices, and giving the couples the freedom to decide on how to plan their family. The position of President Aquino is consistent with the survey findings showing that more than a majority of the respondents is in favor for the enactment of the reproductive health bill.

My own reading of the proposed bill led me to consider certain provisions as contentious. The first contentious provision is the requirement that all accredited health facilities shall provide a full range of modern family planning methods. The second provision refers to the mandatory inclusion of hormonal contraceptives, intrauterine devices, injectables, and other “safe and effective” family planning products and supplies as part of the National Drug Formulary. In addition, these family planning products are to be considered as among the essential medicines and supplies of government hospitals and health centers. I consider these provisions as controversial because they are based on at least two unsettled questions: First, when does human life begin? Second, should abortifacients be banned?

The time came when someone asked me about my thoughts on birth control and the reproductive health bill. While having dinner with friends, I was asked about my position on population control given my background as a graduate of catholic universities and as a sustainable development practitioner. The person who asked the question was a classmate in college. He was about to take his vow as a priest.

I told him that the use of contraceptives is against the teachings of the Catholic Church. However, I quipped that something must be done to address the problem of about half a million abortions every year. If all of the religious denominations can stop this problem, then it is a welcome development, I said. If not, I called his attention to the need for the State to take steps to promote maternal and infant health, and prevent the deaths of mothers and children.

My friend, who is normally argumentative, had a moment of silence. After a while, he said that the Church would not compromise her teachings. However, he agreed that the State must do something to address the pressing problem. He said that it came as a surprise to him to learn the serious state of abortion in the country.

When I reached home, I read Gaudium et Spes (Joy and Hope), the Pastoral Constitution on the Church in the Modern World, to refresh my understanding of the teachings of the Church as regards birth control. The document gives parents the mission of transmitting human life as participants in the act and process of creation. It is a moral obligation, therefore, for parents to ensure that pregnancy is neither prevented nor terminated. Gaudium et Spes clearly states that means are not justified by ends, but by unprejudiced values that enhance “true love” and “conjugal chastity”. It forbids the prevention of procreation by employing techniques that the Catholic Church abhors.

In Humanae Vitae (Of Human Life), an encyclical written by Pope Paul VI, the Catholic Church emphasizes the doctrine that direct contraception, direct abortion, direct sterilization, and any action before, during, or after sexual intercourse that are directed at avoiding pregnancy “are to be absolutely excluded as lawful means of regulating the number of children.” The encyclical, therefore, prohibits artificial family planning methods, especially contraceptives. However, it permits the natural techniques of avoiding pregnancy, such as the use of the rhythm method.

The prevention and termination of pregnancy are considered wrong because they violate the natural law, which ordains that the purpose of sex is to procreate. The wrongness of contraception has a scriptural basis. In Genesis 38:8–10, God took the life of Onan for performing coitus interruptus or withdrawal method, a technique to control pregnancy by pulling out the penis from a woman, during an intercourse, and ejaculating the semen away from the vagina.

The natural and the divine laws, as specified above, are the bases for banning the artificial methods of family planning. These bases are sustained by the Apostolic Tradition and the Magisterium of the Church.

Under the Catechism of the Catholic Church, human life begins at the moment of conception. This position is supported by a significant number of scientists. Thus, the artificial process of preventing conception is deemed wrong, in the same manner that the artificial process of terminating pregnancy is wrong.

In another gathering of friends, a freemason argued, rather strongly, that the high incidence of poverty and hunger in the Philippines are happening inspite of the more than 300 years of shepherding of the nation by the Catholic Church. He pointed out that if historical experience is used as a basis, then we could not address the social ills that are associated with poverty and hunger, such as prostitution, teenage pregnancy, unsafe abortions, drug addiction, and related crimes. He also emphasized that there must be something wrong with the “logic of the Church” for prohibiting contraception and abortion.

Another friend, who is a former Catholic priest, responded with equal enthusiasm and explained the flaw in the phrase “logic of the Church”. He said that the bases of the teachings and doctrines of the Church are the scriptures, magisterium, and tradition. He stressed that faith is to theology, and logic is to philosophy. He added that although the Church uses philosophy as a handmaid of theology, reason ends where faith begins. He said that one cannot say that philosophically the Church is wrong while theologically it is right.

Rather than join the fray, I decided to ease the increasing tension by bringing the discussion to the heart of the issue of the reproductive health bill. First, I said that the position of the Church is simple and clear. Second, I reminded them that the 1987 Philippine Constitution explicitly provides that the State “shall equally protect the life of the mother and the life of the unborn from conception.” Third, I pointed out that those family planning methods that prevent conception are not covered by any legal prohibition by the State. Fourth, I posed this question: as Catholics and citizens of the Philippines, should we allow the killing of fetuses?

There was a remarkable silence after I stated the question. I could not even believe that I uttered those words. It seemed to me that when reality is stripped of underpinnings and prejudices, one immediately pours out his being and converges with the forces at work in the universe. Reality is simple, but has grand complexity in its nakedness. The question is simple, but it has intricate ramifications.

I suspected that my buddies were equally shocked by my question and were simply summoning the brilliant ideas inside their heads to destroy or deconstruct the points I raised. Like a brilliant chess player, I calculated the possible arguments and counter arguments. I ended up ready to move my last piece. There is no way we can intelligently grasp the concepts and implications of the reproductive health bill if we could not wrestle with the simple question staring at our face.

Finally, the freemason admitted that given the case, we could not help but follow the prescriptions of Faith and the State, unless there is a way to change the position of the Church and that of the government. The ex-priest concurred.

On my way home after our discussion, I recalled my earlier encounter with Shawn at a drug store. I could hear her little voice inside my head protesting: but why is it wrong to kill a fetus when it is not yet a human being?

The position of the Catholic Church is clear. One, the artificial methods of family planning prevent procreation. Two, the use of such methods is a sin. Three, the State should prohibit abortifacients or those modern family planning methods that could terminate the life of the unborn.

There are, however, a number of objections to the first reason. One, the purpose of sex is not just to procreate, but also to strengthen the bond and intimacy of the couples. Two, sexual intercourse is a natural want considering the negative health effects associated with not being able to enjoy it. Three, there is no one harmed when sexual intercourse is performed even if the purpose is not procreation. Fourth, the natural planning method is only applicable to women who have regular fertility cycle.

As regards the scriptural basis for banning artificial birth control, the context of Onan is very much different from the present, at least in the present context of the Philippines. God commanded Onan to marry his brother’s widow, as is customary in their time, and make her pregnant. Onan obeyed, but used the withdrawal method to prevent conception. This act displeased the Lord and brought death to Onan.

Onan belonged to a tradition, under the Sinai Covenance, that obliged a man to marry the wife of a dead brother who is childless. The purpose is to ensure that his dead brother will have a child, who will carry on his name. The first son of the widowed wife with her husband’s brother would become the heir of her husband.

One objection to the scriptural basis for banning contraceptives is the manner of interpreting the verses that tell the story of Onan. The question is this: did God punish Onan for practicing birth control?

The interpretation that supports the Church’s position states that Onan committed three sins. One, he failed to fulfill his obligations to his dead brother. Two, he married Tamar to spend his lust. Three, he avoided conception by spilling his semen on the ground.

The counter-interpretation states that God punished Onan for disobedience, not for practicing birth control. Besides, the traditional practice of marrying the wife of a dead brother does not necessarily apply to present day human beings, particularly the Filipinos.

The third reason – banning the use of artificial planning methods that kill an individual human being – appears to be the strongest argument against the promotion of artificial birth control. This argument rests on the idea that the fetus, being an individual human being, has rights, such as the right to life. Although this is by far the strongest of the three reasons for banning the abortifacients, it is also the most hotly debated topic.

A blow against the third argument is the 1973 landmark decision of the Supreme Court of the United States of America in Roe vs. Wade legalizing abortion in the U.S. According to the Court, there is no legal basis to the claim that an unborn fetus has any right to life. In U.S. law, a fetus would only have any right to life if it is defined as a legal person. In addition, the original intent of the U.S. Constitution excluded the protection of the unborn.

Under International Law, the Universal Declaration of Human Rights (1948) and the Universal Declaration on the Human Genome and Human Rights (1997) do not grant rights to a fetus. In June 1999, at the Special Session of the United Nations General Assembly, Governments recognized the right and authority of the individual States to decide on the issue of abortion in their areas of jurisdiction. The only treaty that grants rights to a fetus is the American Convention on Human Rights of 1969. Also known as the Pact of San José, this treaty is signed by 24 Latin American countries. It states that human beings have rights beginning at the moment of conception.

The U.S. is not a signatory to this treaty. However, the U.S. Code penalizes anyone who kills or injures to “a child, who is in utero.”

In the Philippines, Article II, Section 12 of the 1987 Constitution protects the “life of the unborn from conception.” Inspite of this constitutional provision, there is no statutory law that provides protection of the life of the fetus. In the Philippines, abortion is considered as a criminal act under the Revised Penal Code of the Philippines, which was enacted in 1930. Under Philippine Civil law and jurisprudence, an unborn is not vested with substantive rights. What vests human personality and provides legal rights to a fetus is actual birth, which means being alive after delivery.

From a legal standpoint, the Philippine Constitution recognizes the right to life of a fetus, although this legal edict is not supported by international law and by any national enabling law. Now, in the absence of a statutory law that provides an enabling mechanism for the Constitutional guarantee of protection of the fetuses, how will a policy that mandates that full range of modern family planning methods, which the Catholic Church abhors as abortifacients, figure in the country’s legal and moral landscape?

If House Bill No. 96 becomes a law, under the assumptions that it contains the provisions that promote the use of abortifacients, that President Aquino will not veto it, and the Supreme Court will sustain the constitutionality of the law, what will be the philosophical basis of the law? The philosophical basis refers to the ultimate rational foundation of the law. Obviously, such a law can not be founded on the problems that the bill seeks to address. It can not be based also on the religious doctrines of the religions in the country. The philosophical basis of the law will have something to do with the answer to the question: is killing a fetus by means of abortifacients justified?

Peter Singer, a contemporary philosopher and public abortion advocate, accepts the position that an embryo is a human being in the sense that the embyo can be empirically determined whether it is a member of the species Homo sapiens. However, there is the objection stating that the embryo is simply a clump of microscopic cells; hence, if the heart and the brain are not yet functioning, then abortion is justified. In this context, a fetus may be a human person, but not a moral person because a fetus is not a self-conscious subject.

As early as 1971, Judith Thomson, in her famous defense of abortion rights, argued that women have the right to control the use of their own body. The counter-argument to this position, which states that abortion should not be considered as a private choice, is based on the idea that being a human being is the only basis for membership in the human community. Since a fetus is a human person and has the potential to become fully human, then no one has the right to deprive life to a fetus.

On the assumption that individual human beings, both men or women, have the right to make personal choices that should not be constrained by the State, six famous moral philosophers, namely, Ronald Dworkin, Thomas Nagel, Robert Nozick, John Rawls, Thomas Scanlon, and Judith Jarvis Thomson, submitted “The Philosopher’s Brief” to the U.S. Supreme Court in two cases in 1997. The philosophers lost. The U.S. Supreme Court upheld the state laws in New York and Washington that prohibit suicide that is assisted by physicians. The Court argued that states have an interest in protecting life and should not entertain the idea that each citizen has the right to exercise the freedom to determine when and how he would die.

It boils down to this: a fetus has a right to live, says the Church, while the life of a fetus shall be protected, says the Philippine State. However, in the absence of an enabling law, the constitutional policy mandating the protection of the life of the unborn from conception cannot be implemented. Although this is the situation, the lack of an enabling law to protect the unborn should obviously not be used as a justification to enact a law that will allow the killing of fetuses. An amendment of the constitution is required, therefore, for a reproductive health bill that will promote the use of abortifacients to prosper.