QUESTIONABLE RIGHTS RHETORIC in REPRODUCTIVE HEALTH LEGISLATION1

BY ATTY. JO IMBONG 2 In most forums and discussions dissecting the RH bill, audiences delve into the bills programs, services, entitlements, definitions and bureaucratic details. It is true, the bill has its abundant share of shock factor. It has ruffled the sensibilities of wellmeaning pro-life denizens. The prohibited acts, for one, rouse and stir violent sentiments of agitation and protest. Who would not be disturbed by its misplaced and daring assaults against the bonds and values of the culture and its open defiance of fundamental legal principles carved into the Constitution. In the turbulence of the continuing discourse, however, not to mention the passion of exchanges, there is one thing that should not escape notice: the use of rights language. If language indicates legislative intent, even with the so-called amendments that would delete penalties, still, with the presence of the rights approach as explained herein, the bills human rights framework foreshadows an ominous rights landscape for the Philippines. The bill remains malevolent.

Let us define the external agenda and how it is infused into our legal system. I shall refer to provisions of the bill that download the agenda, and the mechanisms to ensure its realization in our time. The Agenda. The whole point behind all RH legislation in the Philippines is a design to apply and extend international human rights law into sexual and reproductive entitlements in this country. The idea is to expand international laws well beyond their current scope and to impose new laws and entitlements (worldwide), even upon individual nations like the Philippines that do not explicitly assent to the changes.3 How would such agenda be installed?
1

Paper presented at the University of Asia and the Pacific Faculty Forum, May 4, 2011, and the Forum for the Clergy of the Archdiocese of Manila, San Carlos Seminary, Makati City, May 10, 2011, Copright 2011, All rights reserved. For private use only. No part of this work may be modified or circulated for public use without the consent of the author. 2 Legal Office, CBCP; Faculty, University of Asia and the Pacific, Ateneo de Manila University.

CENTER FOR FAMILY AND HUMAN RIGHTS INSTITUTE (CFAM) Friday Fax, 5, December, 2003. Vol. 6, No. 50, http://www.consciencelaws.org/archive/documents/200312-crr-secret-memos.html

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I invite you to recall three international conferences: 1. the 1981 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW); 2. the 1994 International Conference on Population and Development (ICPD) ; and 3. the 1995 Fourth World Conference on Women held in Beijing, China.. Except for CEDAW which was ratified by the Philippine Senate the late 1980s the ICPD Programme of Action and the Beijing Declaration are not treaties but mere recommendations whose implementation rely on particular initiatives of state parties like the Philippines. A new comprehensive concept of reproductive health and sexual health finds itself mentioned in the ICPD Programme of Action: (Part. 1.8, ICPD) which now recommends Universal access to reproductive health services.(Part. 1.12, ICPD) It is on ICPD that the RH bill relies for its definition of reproductive health: A state of complete physical , mental and social well-being and not merely the absence of disease or infirmity, in all matters relating to the reproductive system and to its functions and processes. Reproductive health therefore implies that people are able to have a satisfying and safe sex life and that they have the capability to reproduce and the freedom to decide if, when and how often to do so. (Par. 7.2, ICPD) RH includes abortion in the ICPD document.- The ICPD Programme of Action refers to reproductive health care as to include inter alia [among others], include abortion; (Par. 7.6, ICPD). The Programme of Action also states that: in circumstances where abortion is not against the law, such should be safe. (Par. 8.25, ICDP) abortion

It is in light of the recommendations and recommendations contained in ICPD and the Beijing Declarations that U.N. international Treaty Monitoring Committees U.N. agencies like the World Health Organization (WHO) in collaboration with private organizations (foreign and local affiliates) ask legislatures like the Philippine Congress, to install a right to sexual and reproductive health. Installing sexual and reproductive rights. No international instrument acknowledges reproductive and sexual rights. This fact has not deterred the RH lobby and a way was found to slowly weave these so-called rights into a countrys legal system. The main players in this international RH lobby are Treaty Monitoring Bodies (TMBs) whose self-imposed function isto radically expand the interpretations of alreadyaccepted international rights called "hard norms," into vehicles for the advancement of the reproductive rights agenda.4

http://www.c-fam.org/publications/id.1835/pub_detail.asp. Accessed April 25, 2011.

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In collaboration with foreign interest groups led mainly by the CENTER FOR REPRODUCTIVE RIGHTS (based in the United States), the process results in the evolution of new customary international laws called "soft norms" that explicitly mention sexual autonomy and sexual entitlements, including access to abortion.. In turn, the Center for Reproductive Rights (CRR) seeks means to impose these soft norms on recalcitrant nations like the Philippines. With this strategy, reproductive rights advocates the CRR and its allied NGOs in the Philippinesclaim to have found, or "grounded," even a right to abortion from the right to life, the right to health, and other fundamental human rights 5, as will be shown herein. A few words about the Center for Reproductive Rights. CRR a powerful American activist organization that, among other campaigns, has been involved in "reproductive rights" advocacy and RH litigation in the Philippines. It has a worldwide network of associate NGOs including Philippine NGOs dedicated to achieving its main objective of enforcing what it calls inalienable sexual rights 6 and speaks of the international community's need to recognize the "inalienable nature" of "sexual rights." In 2008, CRR through its local partner NGOs, Likhaan (Linangan ng Kababaihan) and Reprocen, instigated the filing of a case by 20 women of Manila against then Mayor Jose Lito Atienza, asking that the court nullify a City ordinance that bans the dispensing of artificial contraceptives in the city. Lourdes Osil et al. v. Mayor of Manila 7 The strategy. The Congressional Record of December 8, 2003 of the United States Congress contains documents gathered from CRR showing how the reproductive rights agenda makes its way into a legal system like the Philippines.8 The documents were exposed by the Honorable Christopher H. Smith, Representative to the United States Congress of the State of New Jersey. The Congressional Record state:

5 6

Ibid. http://reproductiverights.org/en/feature/a-right-to-contraception-in-the-philippines Accessed April 25, 2011.

The CRR website banners Right to Contraception in the Philippines. Its claim in Osil vs City of Manila is that, Abortion is illegal in the Philippines, and Manila City sought to make the situation worse when former Mayor Jose Lito Atienza passed a blanket ban on contraception in 2000. This ban effectively prohibits Manila City women especially poor women from accessing all forms of modern contraceptives, condoms, and information necessary to protect their reproductive health. As a result, women are unable to prevent pregnancy, even when it would jeopardize their lives, health, or ability to feed their families. Ibid. CENTER FOR FAMILY AND HUMAN RIGHTS INSTITUTE (CFAM) Friday Fax, 5, December, 2003. Vol. 6, No. 50, http://www.consciencelaws.org/archive/documents/200312-crr-secret-memos.html

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International human rights law is grounded in both hard and soft norms. Legally binding or hard norms are norms codified in binding treaties such as the International Covenant on Civil and Political Rights (ICCPR) or the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Supplementing these binding treaty-based standards and often contributing to the development of future hard norms are a variety of soft norms. These norms result from interpretations of human rights treaty committees, rulings of international tribunals, resolutions of inter-governmental political bodies, agreed conclusions in international conferences and reports of special rapporteurs.9 (Page 2535, Congressional Record, December i8, 2003) From this, [The reproductive rights lobby] have grounded reproductive rights in a number of recognized human rights, x x x Ultimately, the goal x x x is that of ensuring that appropriate legal norms are in place at the national level so as to improve womens health and lives. (Page 2535, Congressional Record, United States Congress, December i8, 2003) The WORLD HEALTH ORGANIZATION works closely with Treaty Monitoring Bodies and reproductive health NGOs worldwide. In the WHO Training Manual entitled, Transforming Health Systems: Gender and Rights in Reproductive Health 10 sexual and reproductive rights is said to flow out of recognized human rights. How the pro-RH lobby distills RH and sexual rights from the recognized human rights. : The Fundamental Right How it is interpreted

Right to bodily integrity and personal security Traditionally understood to relating to custodial rights, it is employed in cases against sexual violence and assault at the hands of a spouse or partner or others or against state policies that prohibit women from receiving family planning services. Right to privacy. Traditionally, the right is understood to refer to privacy in relation to a persons home and correspondence. In this regard, the Human Rights Committee, the treaty body which monitors governmental compliance with the International Covenant on Civil and Political Rights, has stated that"sexuality is covered by the concept of privacy and that "moral issues are not exclusively a matter of national concern in that they are subject to review for consistency with international human rights instruments".
9

Sources of soft norms include: the European Court of Human Rights, the CEDAW Committee, provisions from the Platform for Action of the Beijing Fourth World Conference on Women, and reports from the Special Rapporteur on the Right to Health.)
10

Geneva, World Health Organization, 2001, WHO/RHR/01.29, Edited by TK Sundari Ravindran, pp. 145-146, http://www.who.int/reproductivehealth/publications/transforming_healthsystems_gender/index.html

Right to scientific progress. Traditionally understood to relate to technology transfers between countries of the North and the South, today, it is interpreted by Treaty Monitoring Bodies to also include a womans right to control her reproductive processes through access to methods of contraception, and access to safe abortion. The RH bill speaks, of course, of modern methods of family planning. Right to education, Traditionally, we understand it only in relation to literacy. Today, since sexuality is recognized as an element of the human personality, literacy is deemed critical to reproductive health, hence, there is school-based Mandatory Sexuality Education in the RH bill. Right to equality in marriage and divorce. Traditionally understood to refer to the equal freedom of women and men to voluntarily enter into marriage and divorce, the right is applied to women's ability to control and make decisions about their bodies. Right to information Traditionally understood only in relation to the media and a free press, the right to information now also refers to a womans ability to protect herself against sexual exploitation, abuse or infection. The right is also interpreted to entitle a woman to .reproductive decision making, that is, a womans ability to make fully informed choices. The RH bill now enshrines womens choice: Sec. 3. Guiding PrinciplesThis Act declares the following as guiding principles: a) Freedom of choice, which is central to the exercise of right must be fully guaranteed by the State. (HB 4244)

Non-discrimination. Traditionally understood to mean equal treatment, equal opportunity, and equal protection of law, the last 20 years have seen the development of the idea of substantive equality, which notes that some distinctions are necessary to promote rights for people who are differently situated . . . Therefore, different approaches to girls and boys in reproductive and sexual health

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policy and programs must be based on gender related differentials, or what the RH calls sexual orientation. HB 4244 contains an avowal of non-discrimination: Sec. 2 x x x Toward this end, there shall be no discrimination against any person on grounds such as sex, age, religion, sexual orientation, disabilities, political affiliation and ethnicity. (1st paragraph, 2nd sentence, HB 4244) Right to health. Traditionally understood to refer to the right of individuals to the highest attainable standard of physical and mental health, the right brings increased attention to womens reproductive health issues, HB 4244 states: Sec. 2. Declaration of Policy.The State recognizes and guarantees the exercise of the universal basic human right to reproductive health of all persons x x x . (1st paragraph, HB 4244)) Sec. 2. x x x The advancement and protection of womens human rights shall be central to the efforts of the State to address reproductive health care. (2nd Paragraph) Sec. 4 (y) Responsible Parenthood refers to the will, ability and commitment of parents to adequately respond to the needs and aspirations of the family and children y responsibly and freely exercising their reproductive health rights. Authentic HEALTH As the average person knows, health in its commonly held ordinary meaning is the normal functioning of the physical and organic processes according to their purpose as made and ordained by nature for the good of the human person. Any action which upsets or hinders the bodys natural processes violates the basic human right to life and health. Our own Constitution mandates that The State shall protect consumers . . . from . . . hazardous products. (Art. XVI, Sec. 9, Constitution) The State shall protect working women . . . taking into account their maternal functions . . . (Art. XIII, Sec. 14, The State shall protect and promote the right to health of the people and instill health consciousness among them. (Art. II, Sec. 15, Constitution)) How the bill prepares the way to a right to abortion. The right to health is used to evolve and justify the right to abortion as a component of reproductive health. The path of reasoning used to support this evolution

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of an abortion right can be gleaned In a report dated August 8, 2006 sent to the Monitoring Committee for CEDAW, on the Elimination of Discrimination against Women (of CEDAW) by the Philippine chapter Center for Reproductive Rights. 11 The Report states: The Philippine Constitution provides that [the state] shall equally protect the life of the mother and the life of the unborn from conception. The constitutional provision on equal protection of life of the unborn from conception tends to advance the Catholic Churchs view. This provision was not present in the 1935 and 1973 constitutions. While the current constitutional provision does not explicitly prohibit abortion, it has been interpreted to do so by conservative groups. This trend continues despite the provision under Article 41 of the Philippine Civil Code stating that a fetus must be born alive and completely delivered from the mothers womb in order to acquire legal personhood. The constitutional provision equally protecting the unborn from conception, however, does not prohibit abortion. Hungary also has a constitutional provision protecting life from conception but still permits abortion up to 12 weeks of gestation.67 The life of the unborn is not placed exactly on the same level as the life of the woman;68 as shown by laws and jurisprudence of countries worldwide allowing abortion on various grounds. Furthermore, international legal norms established by treaties and interpreted by human rights bodies, including the Human Rights Committee, provide tremendous support for the right to safe and legal abortion. With the play of language by the reproductive rights lobby on the right to nondiscrimination, and the right to health, a constellation of new rights has come full circle: With guaranteed reproductive rights in Section 2 of the RH bill The advancement and protection of womens human rights shall be central to the efforts of the State to address reproductive health care. (Sec. 2, 2nd paragraph) Viewed from the radical CRR perspective of reproductive health and rights, the full range of supplies, facilities and equipment ensured in Section 25 (c) of the bill would very well include devices intended for abortion such as the manual vacuum aspirator (or MVA), a suction syringe used to extract contents of the womb. In the definition of Basic Emergency Obstetric Care, Section 3 (e) of the bill mentions removal [from the womb]. of retained products. Some local government units are already importing (and using?) the MVA (Manual Vacuum Aspirator, a suction device). 12 Refusal to use this extraction device when demanded by a woman, or any hindrance to its acquisition or use could constitute any violation of the Act under Section 29. Implications of the rights language in the RH bill
11

With Philippine NGOs EnGendeRights, Inc., Health and Initiatives Development Institute (Phil.), and Reproductive Rights Resource Group, Phil. 12 Verified sources indicate the Province of Pangasinan.

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The reproductive health bill creates a force of demandability for such rights, . The rights holder becomes a rights claimer. Section 3a guarantees it: Freedom of choice, which is central to the exercise of rightmust be fully guaranteed by the State. (HB 4244) With freedom of choice being national policy in Section 3, there are Reporting Requirements in Section 26 of the bill, on how RH programs are implemented by agencies and the private sector: There is also a Congressional Oversight Committee created in Section 27 to oversee program implementation. Above all, the bill required Congress to remove all legal obstacles to the new rights. The bills Declaration of Policy guarantees it: Sec. 2. Declaration of Policy.x x x The State shall eradicate discriminatory practices, laws and policies that infringe on a persons exercise of reproductive rights. (4th Paragraph) Using the same track, adolescent reproductive and sexual rights are assured. There is a design to install reproductive autonomy" for girls, which CRR describes as young girls access to all reproductive information and services, including abortion, without parental notification or consent. This is a recurring concept in the bill. Section 2. Declaration of Policy. x x x As a distinct but inseparable measure to the guarantee of womens human rights, the State recognizes and guarantees the promotion of the welfare and rights of children. (2nd paragraph, 2nd sentence) Where adolescent sexuality is defined as x x x the reproductive system, gender identity, values and beliefs, emotions, relationships and sexual behavior at adolescence; (Section 4b) Reading Section 4 (b) in conjunction with the rights of children in Section 2, preceeding, the bill surreptitiously vests reproductive rights on children. What do international documents show? In the international forum, no international instrument vests adolescent reproductive rights. The Convention on the Rights of the Child13 speaks only of preventive health care for children and adolescents. 14 There is nothing about adolescent reproductive health or adolescent reproductive rights. Other documents are silent.The International Covenant on Economic, Social, and Cultural Rights (ICESR) when it speaks of medical attention for sickness. 15

13 14 15

United Nations General Assembly Resolution 44/25, November 1989. Paragraph 24 (2d). Par. 12-2d

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The Child and Youth Welfare Code 16 mentions the right of children and youth to a healthy and vigorous life.17 There is nothing about adolescent reproductive health or adolescent reproductive rights. How childrens reproductive rights are assured In the RH bill, childrens rights to reproductive and sexual health is reinforced through Mandatory Sexuality Education (Section 16 of the bill), where, the curriculum is such that reproductive health and sexuality is integrated in all relevant subjects in a grade level. That means that sexuality will be included in Mathematics, English, Science, Araling Panlipunan, Edukasyong Pantahanan at Pangkabuhayan (Family and Life Education), Values Education, Technology and Livelihood, and even in Filipino.18 It shall also include the legal aspects (read: the rights approach) of reproductive health. You may check out Section 16 of the bill. Touted as life skills education, Section 4(w) says that mandatory reproductive health and sexuality education will be a lifelong learning process. There is nothing new in these provisions. The Department of Education (DEPED) has already been infusing its curricula with adolescent reproductive rights. Check out DepEd Memorandum #261 (S. 2005). But the Constitution guarantees that the natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government. (Constitution, Art. II, Sec. 12, final sentence.) This constitutional provision acknowledges a natural right of parents, that is superior to the State.19 This is a universal principle recognized and enshrined in a plethora of international documents: The Universal Declaration of Human Rights, where, Parents have a prior right to choose the kind of education that shall be given to their children. (, Art. 26 [3]) So do other international instruments. And underlying all these is the principle thatthe child is not a mere creature of the State.(Art. 1, 2nd paragraph, Child and Youth Welfare Code; Pierce v. Society of Sisters, 268, U.S. 510, 535.)
16 17

Pres. Decree No. 603 (1974). Article 3 (4), P.D. 603. 18 As the Teaching Guides attest in the Life Skills Education Program of DEPED. See DepEd Memorandum No. 261, S. 2005. 19 Bernas, Joaquin, S.J., The 1987 Constitution of the Republic of the Philippines, Manila, 1996 Edition, p. 78, 79.

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Why we should fear the bills rights language Once a right is installed and buttressed with punitive sanctions, any person who defies the claimer of rights can be hailed to court, or even as far as before International Human Rights bodies (as CRR would have it, and it is in fact doing). A right constitutes an entitlement that is demandable against the whole world. Government has then to guarantee the right and create mechanisms with which to enforce the right. It is no consolation that the bill defines only five (5) crimes/prohibited acts in Section 28. Nor does is the bills malevolence mitigated by the suggested removal of some of its penal provisions. Section 29 would still consider any other violation of any right installed in any other part of the bill as a punishable offense. This can refer to any act for example of a parent objecting to school-based sex educationk, or any member of the Catholic faithful who speaks against any provision of the bill . . . and so on, and so forth. Section 29 sees to that. Sec. 29. Penalties. - Any violation of this Act or commission of the foregoing prohibited acts shall be penalized by imprisonment ranging from one (1) month to six (6) months or a fine of Ten Thousand (P 10,000.00) to Fifty Thousand Pesos (P 50,000.00) or both such fine and imprisonment at the discretion of the competent court; Provided That, if the offender is a public official or employee, he or she shall suffer the accessory penalty of dismissal from the government service and forfeiture of retirement benefits. If the offender is a juridical person, the penalty shall be imposed upon the president or any responsible officer. An offender who is an alien shall, after service of sentence, be deported immediately without further proceedings by the Bureau of Immigration. No international treaty binds the Philippines to install reproductive rights. Section 2 of HB4244 speaks of a universal basic human right to reproductive health and reproductive health care. While the Programme of Action of the International Conference on Population and Development of CAIRO 20 mentions reproductive health, the term is mentioned not as a right. Moreover, the CAIRO Programme of Action is not a treaty. Its pronouncements are merely recommendations that will depend on the willingness of Governments, local communities, the nongovernmental sector, the international community and all other concerned organizations and individuals to turn the recommendations of the Conference into action. (Chapter XVI, Par. 16.1, Programme of Action, ICPD) If there are other international instruments to which the Philippines is a party, still, as sovereign state . . . the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to selfdetermination. (Article II, Section 7, Constitution) Conclusion

20

Cairo, Egypt, September 1994.

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The path of irresponsible and unreasonable legislation is a dreadful path: If an act is made legal, it will be perceived as moral. If an act is perceived as moral, it will become a norm. If it is observed by all as a norm, then it is too late. By then, you will have ruined the nations soul. That is not mere recklessness. That is a breach of public trust.