[Update on January 25, 2009 by DJB: The Comment Thread for this post is still open. Your thoughts and insights are warmly welcome! You may also email me at rizalist@gmail.com]
From Law Professor Atty. ALAN F. PAGUIA comes a legal opposition to the Reproductive Health Bill (HB 4503) being debated in Congress. Paguia argues from fundamental Constitutional principles.
Five Points on Reproductive Health Bill
by Atty. Alan F. Paguia1. Under the Preamble of the Constitution, the general objective of the Philippine legal system is “to build a just and HUMANE SOCIETY”. Such humaneness includes both the born and the unborn. Therefore, it would not be humane for Congress to promote the use of contraceptives since it is directed against the life of the unborn.
2. The life of the unborn constitutes the process of PROCREATION. It has its alpha and omega.
3. Procreation begins with the SEXUAL ACT. It ends when the unborn is born. Under Article 41 of the Civil Code, the unborn is considered BORN if it is alive at the time it is completely delivered from the mother’s womb. Why is the sexual act the alpha of procreation? Because without it, generally speaking, NO sperm would enter the female body. If no sperm enters the female body, conception becomes a physical impossibility. Therefore, procreation or reproduction begins with the sexual act and ends with the complete separation of the unborn from the mother’s womb. It follows that any discussion on procreation or reproduction – to be complete – must include the sexual act.
4. Under the Constitution, the FAMILY is the foundation of the nation, and MARRIAGE is the foundation of the family. These are the foundations of responsible parenthood. Clearly, marriage LEGITIMIZES the sexual act between the husband and the wife (Art. XV). In other words, under the Constitution, any sexual act outside marriage is ILLEGITIMATE or IMMORAL.
5. May Congress properly pass a law that would make the life of the unborn a physical impossibility? NO. It would be unconstitutional as it would violate the “guidelines for legislation” set out in Article II of the Constitution (Oposa v. Factoran, 224 SCRA 792; Kilosbayan v. Morato, 246 SCRA 540; Tañada v. Angara, 272 SCRA 18).
Thoughts and caveats, anyone?
Popularity: 7% [?]
hasn’t this attorney ever heard about the importance of enabling law?
and did you know that except that it will be a legal technicalities and unwise use of government funds, some Filipinos will put in jail those women who have died because of self-inflicted abortions or abortions from quacks?
On point #1, Paguia incorrectly classifies the male sperm (and female egg) as the ‘unborn’. I think this is a non-standard definition as the unborn is understood to be a fertilized egg [that has implanted itself in the uterus].
On point #3, i think Paguia makes a mistake in logic. While it is true that ‘Procreation begins with the sexual act’ (outside medical procedures such as IVF), it does not necessarily follow that the objective of the sexual act is procreation.
On point #4, Paguia makes the typical and all too familiar mistake of lawyers in equating ‘legal’ with ‘moral’ and ‘illegal’ with ‘immoral’. ‘Legal/illegal’ and ‘moral/immoral’ are two different codes that do not necessarily coincide.
On point #5, Paguia again makes the mistake of defining the male sperm and unfertilized egg as the ‘unborn’.
CVJ,
I don’t get the sense that Prof. Paguia thinks sperm and ova are “unborn life”, otherwise we should have to send out the homicide squad to investigate every nocturnal emission and menstruation in the populace!
In #3, he defines the “process of PROCREATION” as having an “alpha” and an “omega”–a beginning and an end, “Therefore, procreation or reproduction begins with the sexual act and ends with the complete separation of the unborn from the mother’s womb.”
Regarding the “life of the unborn” what I find most curious (and revealing) is Paguia’s Point #2.
Then Atty Paguia’s line of reasoning is invalid. How can he assert that contraceptives are “directed against the life of the unborn” when there is as yet no unborn to speak of?
Thanks for the clarification, i stand corrected. In that case, my response to point #3 should instead be directed at his point #4. It does not follow that the sexual act outside marriage and/or procreation is ‘illegitimate’ for the reason i stated (i.e. sex is not just for procreation).
CVJ,
Paguia says that the “process of procreation” begins with the sexual act (the “alpha”) and ends at birth (the “omega”). This “process of procreation” he defines in Point #2 to be “the life of the unborn”. He then arrives at the conclusion that anything which interferes with this “life of the unborn” or “process of procreation” would be inhumane if not allowed to complete its course.
I think it is fair to say he identifies quite distinctly the beginning and end points of a process or a time in every living person’s life when he or she was but a foetus: from conception during a successful mission sexual act to live birth after about a customary nine months.
If you think about the above, he is really presenting a possibly valid argument against ABORTION of a viable pregnancy. But I think consequently Prof. Paguia fails to prove that prevention of conception and the avoidance of becoming pregnant through artificial birth control methods have the same moral or legal force as that, because such preventative actions occur before there is a viable pregnancy to interfere with.
Some lawyers need to reenrol in undergrad philosophy class on critical thinking. Also these lawyers need to sign up for introductory biology!
How could contraception be against the “unborn” when the unborn isn’t been conceived yet?
This logical fallacy is what my philo prof taught as a red herring!
Follow up to my comment. This lawyer should just follow the Catholic position on the inviobility of natural law!
No wonder there is a separation of Church and the State. If all lawyers thought like Atty. Paguia, we’d be back in the days of the inquisitions!
Not so fast, Blackshama! There are some subtle issues here. I think Paguia is trying to extend an argument he makes against abortion to encompass birth control. Now I know lots of people are FOR pills, condoms, IUD’s etc., but are against abortion of viable pregnancies such is illegal now in the Philippines. So what happens to a thing like “the Morning After Pill”? Is this a contraceptive or an abortifacient? And where does one draw the line?
Jhay, do you support abortion? Because if you don’t then you substantially agree with Alan Paguia, but I doubt you would support Torquemada. haha.
Well it seems to me that this arguments still have the influence of the Catholic Church. I blogged about this before and here is my take in this issue:
The Great Hypocricy About Sex Part 2: It’s Idealistic but not Realistic
I don’t see anything ‘subtle’ about Atty. Paguia’s attempt. That’s the standard Church approach.
CVJ,
Everyone agrees that there is a difference between “contraception” and “abortion”–the distinction having to do with a physical process, conception. The first seeks to prevent that event in one way or another, using “artificial” and “natural” means. The second seeks to prevent the process that Paguia calls procreation from proceeding to a live birth.
People can be for or against one or both contraception and/or abortion.
Where do you fall?
DJB
You brought out the morning after pill! The debate then extends on “ensoulment” in the zygote. Obviously this is beyond what science can tell us. However what science can tell us is that the zygote has ontogentic capacity to become or possibility of becoming a human.
The Catholic Church has oversimplified this a bit by saying zygotes are “babies”. This defies all logic scientific or otherwise. The cold fact of natural selection is that a significant fraction of conceived zygotes are lost. But that is nature for us.
Morality may presuppose that we have to ensure that the ontogenetic capacity for becoming human must be defended. Here there is need for consistency of position. The Catholic Church is rather consistent in this approach, staunchly against abortion, euthanasia and the death penalty. Human life must be given a chance to live itself out. This consistency must extend to the protection of nature itself.
Blackshama,
Remember that abortion IS illegal in the Philippines today. Roe v. Wade does not apply here. Therefore, it is incumbent upon supporters of “reproductive health measures” to clearly distinguish their proposed activities, “liberties”, technologies, etc. from what is considered illegal today.
keep them answers coming. hehe.
the morning after pill is an ECP or an emergency contraceptive pill. it can only be effective at most 72 hours after intercourse. according to the WHO, ECPs are not abortifacient.
fyi. ECPs were deemed legal by BFAD in december 2001. before they were made available to the market or before filipinos even knew they existed, they were taken off legitimate drugs/meds due to pressure from the pro-life lobby.
matagal na ang isyung ito.
in the past 2 decades or so, the church is the only lobby preventing the passage of a comprehensive reproductive health policy.
sparks,
there are at least three possible positions a reasonable person could take:
(1) against contraception, against abortion.
(2) for contraception, against abortion.
(3) for contraception, for abortion
Where are you and why?
I hope the question is not just for sparks.
I will be for contraception,against abortion.
Many doctors say those morning after pills are abortifacient and many says otherwise and according to sparks WHO says they are not.
I don’t consider the pills as abortifacient,but rather to prevent abortion, especially abortion done by quacks.
Also in the past few months we see fetuses in the garbage,in the gutters and falling from building to the windshield of some motorists,only make my stand for contraceptives more strong.
Some questions requiring answers:
(Q1) Who has the right to participate in the “process of procreation”? — which is a process that results in an increase in the number of citizens if mother or father is a citizen at the time of the new child’s birth.
(Q2) If the process has a clear beginning and end (as well as a middle!) who has the right to decide whether and under what conditions such a process may be started, continued or aborted?
The mother, the father, both, the state, all?
(Q3) Is the “life of the unborn” protected by the Constitution in the same way as the life of a natural born citizen of the Republic of the Philippines?
I think figuring out the questions is even more important than figuring out possible answers.
Should be the woman. Anyone who participates without her consent can be charged with rape.
All whom the woman approves to participate in the process can be a party to the decision but it is still the woman who has the final say. Usually it’s just one other male partner but other combination/permutations are possible. As to whether the process has an ‘end’ would depend on the stamina of the male partner.
Article II Section 12 of the Constitution is explicit…
On principle, that means in the event that the life of both the Mother and Unborn child is equally in danger and only one can be saved, the choice must be made via coin toss (or equivalent mechanism).
cvj,
it is true of course that the woman is most physically involved in the process of procreation for nine months. Most biological fathers contribute perhaps nine seconds.
Still, HALF of the genes of the new human being produced come from the father, who may, if they are married, also have complex legal and financial responsibilities before, during and after birth.
I don’t find your arguments very persuasive where they give the woman primacy over the process of procreation, as such.
Especially if the next question is, who has the right to abort the process.
Tigilan na ang sobra at walang mga saysay na debate. Simple lang naman yan, tumingin tayo sa paligid natin at suriin kung nararapat ba o hindi ang “Reproductive Health Bill”.
Napapanahon na para pagtuunan ng pansin ang patuloy na paglobo ng populasyon na nagpapalala sa kahirapan nang nakararaming Pilipino.
Mandaragat,
Kulang yata ang pangangatwiran…
cvj,
the mother has no right under the Law to abort the process of procreation during pregnancy.
DJB, unless men can somehow participate in pregnancy, i think it’s the woman’s call (both rights and responsibilities) for the duration of conception until birth. The man can only assist and advise. That said, as i mentioned above (at 5:22 pm), the Constitution is explicit in its protection of the unborn.
Yes, the 1987 Constitution is explicit in the protection of the unborn. I think the only point of discussion here is how does the 1987 Consti define the ‘unborn’. The CBCP claim that the RH Bill will pave the way for legal abortions in the country is a slippery slope- the 1987 constitution has ensured that abortion will never be legalized in this country. of course, bright lawyers and lawmakers can twist and turn the definitions around to suit political aims- but hey, as long as the definitions are crystal clear, we cant really force the issue, can we?
Also- the Church has been the greatest obstacle to a REAL population program for the country. Couldn’t a really gutsy lawyer- or law student even- file a case against the Church for violating the constitution’s directive for separation of church and state?
with all due respect to my cumpanero, alan paguia, i think his position suffers from a number of flawed premises.
first, his sweeping pronouncement that the preamble of the constitution necessarily operates to protect the unborn by virtue of the phrase “in order to build a just and humane society”, doesn’t make sense to me. society is composed of persons, natural or juridical. the unborn, i think, does not become part of society until it becomes a “person” under Art. 40 of the civil code, i.e., after birth, or before birth if alive after complete separation from the mother’s womb. nonetheless, sec. 12, art. ii of the consitution protects the life of the unborn from CONCEPTION. until there is conception, there is no protection, ergo, condoms and other pre-coital contraceptives, or those that prevent conception, cannot be unconstitutional.
second, atty. paguia’s sweeping assertion that procreation necessarily begins with sexual act fails to consider artificial inseminations, e.g., invitro fertilization, wherein usually the mother and the father never even meet or know each other.
btw, i could agree with atty. paguia that the NATURAL objective of sexual act is procreation, in contrast with the PERSONAL objective of the actors which is primarily sensual gratification, but which could also include a desire for procreation.
Thanks for bringing up Art II Sec 12, Bencard.
Just some clarifactions if you will…
1. The words FAMILY, MOTHER and PARENTS figure prominently in the provision, but not FATHER. What do you think that means?
2. It gives equal protection to the “life of the mother” and the “life of the unborn” from the point of conception. Where there is a competition between these two (as in dangerous pregnancies, or in cases of rape or incest) who has more of a say about the “life of the unborn”: mother or State?
3. What happens to “contraceptives” which can also act, at least technically, as “abortifacients”–like the Morning After Pill, described here recently as “an emergency contraceptive”.
4. You seem to allow any interference upon the “process of procreation” which Paguia defines as the period between conception and live birth delivery (partum), as long as it occurs before the process starts. Paguia sez this process starts with the sexual act; many others say it starts if sperm meets egg and makes embryo. But WHO is to decide this in the first 24 – 48 hours after a sexual union?
5. What of Roe v. Wade and the arguments therein? Why don’t they apply to us?
6. Does the Constitution deem every woman who conceives to have become a “mother” at the point of conception?
Lester,
There is a common misconception that Separation of Church and State prohibits the Church from participating in politics. Quite the contrary since the Bill of Rights declares,
In fact, it makes every church the equivalent of an NGO, with all the rights, duties and privileges of any peaceful assembly of citizens, and against whom “nor religious test shall be required for the exercise of civil and political rights.”
What it really prohibits is “an establishment of Religion” which another long hu ha is needed to explain. But the long and short of it is that Separation of Church and State is a prohibition on what government can and cannot do in respect to Religion. There are guarantees contained in it on churches, even to lobby Congress against the RH bill!
Morality? Backward?
No -brainer?
Hello?
Ducky Paredes weighs in on this issue.
Cvj’s dissection of Paguia’s piece is spot on.
Agree with Blackshama there “How could contraception be against the “unborn” when the unborn isn’t been conceived yet?”
I’ve been a fan of Paguia but his interpretation of what’s wrong and what’s right (based on what he’s written) strikes me as a bit off.
I don’t get this ‘abortion of viable pregnancy’
Whut???????????????
and “marriage LEGITIMIZES the sexual act”??????
Did Atty Paguia overdose on Chinese milk fortified with melamine?
when it comes to question about morality, whose standards are we talking about anyway?
thenashman,
The sexual act can result in conception. Once that happens, the Philippine Constitution acts to equally protect the life of the mother and the life of the unborn. Abortion of viable pregnancy is presently illegal and unconstitutional in the Philippines. (“balut”). Abortion of unviable pregnancy is not illegal (“penoy”). But this is not controversial. We are discussing whether or not contraception is likewise unconstitutional.
Thus far, the best argument we have seems to run along the lines of the question Blackshama and others have asked:
“How could contraception be against the “unborn” when the unborn hasn’t been conceived yet?”
I find this both a strong and a weak argument. While it is true that BEFORE conception there is no unborn life to protect against abortion, the argument ultimately rests of an assertion that contraception is NOT abortion, so how can it be unconstitutional?
Well, I agree that contraception is not abortion, but then there is nothing left in the argument to establish, positively, the constitutionality of contraception. To say that it is not abortion does not mean it does not violate some other constitutional principle.
This brings up one possibility. Is there some hitherto unmentioned RIGHT that women have over their bodies that gives them the right to prevent a pregnancy? Or even to abort it?
Is anyone “(3) for contraception, for abortion rights”?
all i can say is if we practice contraception, there will be no abortion.
and i do not like the idea that the state needs to `’legitimise`’ the sex i get. i
You mentioned above that not even Atty. Paguia is making such an assertion…
Are you aware of anyone who asserts that contraception is abortion, and on what grounds do they say this?
but then again I’m happy to accept Paguia’s opinion that sex outside marriage is ‘illegitimate’ or ‘immoral’ as long as he does not push for it to be illegal.
i’m happy to enjoy my illegitimate and immoral rights.
cheers
What’s the purpose of the sexual organs?
Pleasure?
If you answered yes, then your ideals stand on a Hedonistic Society.
http://kaiserfernandez.wordpress.com/2008/09/21/reproductive-health-bill/
cvj, I’ve heard RCC’s representatives say that contraception is tantamount to abortion, preferring to call them “abortifacients”.
But Paguia’s argument is different. He divides up the process of procreation into two parts: before and after the moment of conception. Before conception we basically have the sex act. After that, if there is a new life conceived and a viable pregnancy begins, “the life of the unborn” extends from conception to the time of birth.
For those in the position “for contraception, against abortion” there are many subtle questions to settle in order to have a consistent and rationally defensible position.
One complication arises from the fact that it is not readily apparent if conception has taken place after sex or not. If one adopts the position that sexual partners (potential fathers and mothers) may interfere with the “process of procreation” through contraception to prevent conception, but not any time after conception, this indeterminacy can cause problems.
Suppose for example we allow spermicides, which also act on embryos. A couple makes love and unknown to them conceive a child. Next day, they do it again, using spermicidal artificial birth control. Could the couple be committing unwitting murder or abortion if the spermicide harms the one day old embryo?
DJB wrote
“Suppose for example we allow spermicides, which also act on embryos. A couple makes love and unknown to them conceive a child. Next day, they do it again, using spermicidal artificial birth control. Could the couple be committing unwitting murder or abortion if the spermicide harms the one day old embryo?”
I throw you a scenario that may be observed in nature.
Supposing a male and a female copulate at another time, but unbeknownst to them the female has conceived as a result of a previous copulation. If the female suffers a miscarraige as a result of the subsequent act of copulation, is the couple committing abortion?
Evolution in other animal species has proceeded so that this is unlikely to happen. A sperm plug prevents this from happening.
Now our species has gone in a weird direction in evolution. Humans do not produce sperm plugs!
BTW the purpose of sex organs is simple. They allow the delivery and reception of gametes to allow for a chance of conception.
This is where the Catholic Church is out of step with evolutionary biology. Not every sex act can result in conception.
In the evolution of sex, females do terminate a pregnancy!
Also in the same Darwinian paradigm, females do in nature practice contraception.
Kaiser,
PLEASURE may not be the PURPOSE of the sex organs, but it sure is their PRE-OCCUPATION.
djb, for couples who don’t intend to procreate, the most prudent action is to employ contraceptive BEFORE every sexual intercourse. i think that will solve the problem you posed. otherwise, see below.
blackshama, re your scenario, there is such a crime as unintentional abortion punishable under the rpc, to which your hypothetical couple may be held liable.
@kaiser
sex is pleasurable.
get over your hang ups.
why are people afraid of the RH bill? and why is it being muddled as an abortion bill?
it’s not as if people will be forced to use contraception if they don’t want to. that decision is ultimately a personal one.
the church is worried because as it turns out, not everyone is that devout and that is more a failing of the church. you see, if you really believe that contraception is wrong, free condoms and information will not compel you to use them.
the more I look at the Constitution, the more I realize that the controversy really revolves on the question of who really has the right to decide about a pregnancy.
We all know that women surely have the right NOT to get pregnant if they don’t want to. Unfortunately the constitution also says that ONCE they get pregnant, both the mother’s life and the “life of the unborn” are “equally protected” by the Law. (“no abortion of viable pregnancy”).
But that I think implies that the Law does not believe in the primacy of maternal rights for women “from the moment of conception”. The State immediately “steps in” with “protections” if you conceive.
Perhaps the fight will have to go the route of Roe v. Wade!
okay, DJB, my turn:
i’m 1) for contraception, 2) for abortion.
to be specific, i will not oppose contraception as an option for folks out there, and i support a woman’s right to choose whether or not she wants to terminate a pregnancy.
unfortunately, the constitution and the family code allow very little wiggle room for 2). it would seem that the charter does not allow a woman the choice.
i’m for amendment of the constitution on this part.
jester,
here’s the provision in 1987 Art II Sec 12:
Proviso [b] speaks of equal protection for “the life of the mother” and “the life of the unborn” during a pregnancy. Yet it is sandwiched between [a], which upholds the sanctity of the family as an autonomous social unit, and [b], which speaks of parents having certain natural and primary rights and duties.
Depending on how one reads it, you could say this provision actually upholds choice in this sense. I think the State must grant a kind of “presumption of regularity” in the decision making of women with regards to their bodies and not interfere unless there is a social reasons to do so.
Many would interpret this provision as explicitly anti-abortion. But I am not so sure that is true.
For if the State has the power to interfere in some way in the “life of the unborn”, for example “to protect it” that gives the State powers over women that would seem to be highly intrusive.
All the more reason why the Law ought to interpret the Constitution “liberally” so as to afford women every opportunity to avoid a state of pregnancy in which they would suddenly fall under some kind of “equal protection” from the State, with a piece of themselves!
did the ‘protection of the sanctity’ of life end with childbirth? what about DURING the LIFETIME of the human?
how is the state ensuring that everyone has access to jobs, food, shelter, housing…etc to keep this ‘sanctity’ of life eklat?
it now appears to me that this bit in the constitution was copy pasted from the gibberish of Humanae Vitae..