Primer on (Book) Legal Issues in Reproductive Rights by Four UP Law Professors

Posted Fri, 12/09/2011

Four professors from the University of the Philippines (UP) College of Law recently released a “Primer on Legal Issues in Reproductive Rights.” The four are Raul C. Pangalangan, Elizabeth Aguiling-Pangalangan, Herminio Harry L. Roque, Jr. and Florin T. Hilbay. The primer tackles some of the most pressing and controversial legal issues in RH in a direct and simple question-and-answer format, conveniently divided into four areas: constitutional law, family law including women’s and children’s rights, international law, and the internationally protected right to health. Follow this link to read or download the primer.

Here are some excerpts to whet your appetite:

DOES THE RH BILL CONFLICT WITH THE STATE POLICY TO “EQUALLY PROTECT THE LIFE OF THE MOTHER AND THE LIFE OF THE UNBORN FROM CONCEPTION”?
Answer: NO. The records of the Constitution Commission that drafted Article II, §12 of the Constitution show that the objective of some of those in favor of that particular provision was to prevent the Supreme Court from deciding in favor of the constitutionality of abortion, as in the case of Roe v. Wade where the U.S. Supreme Court held that a woman has the fundamental right to terminate her pregnancy.
Even assuming the Constitution actually prohibits the passage of an abortion statute, the RH bill would still not pose any constitutional issue. This is because the RH bill does not legalize abortion, as it explicitly states in its consolidated version. The RH bill does not legalize the termination of a pregnancy. What the bill seeks to do is make accessible to poor individuals and couples reproductive health information and contraceptives that are otherwise already available in the private market. The bill is designed to provide a system whereby individuals and couples may, if they choose to, prevent and/or space pregnancies, and does not give them the right to destroy fetuses. If both information and contraceptive devices that are currently available in the market do not violate the Constitution’s so-called anti-abortion policy, the same principle should hold true when the State decides to establish a system in which such information and technology that comes at a cost become free or at least relatively inexpensive.

ARE THERE LIMITATIONS TO THE EXERCISE OF PARENTAL AUTHORITY AND THE NATURAL RIGHT OF PARENTS TO REAR AND EDUCATE THEIR CHILDREN?
Answer: Yes. There are limits on the exercise of parental authority. Parents have the primary right to provide for their children’s upbringing (P.D. 603, Art. 43) but this right is by no way absolute or exclusive given that the State has an interest in the family as a social institution. Section 3, Article XV of the 1987 Constitution recognizes the Filipino family as the “foundation of the nation” and the duty of the State shall “actively promote its total development.”Likewise, Article 149 of the Family Code provides that the family is a “basic social institution which public policy cherishes and protects.” Art. 4(10) of P.D. 603 provides that children have “the right to care, assistance and protection of the State, particularly when his parents or guardian fail or are unable to provide (them) with (their) fundamental needs for growth, development, and improvement.”

IS THE RIGHT TO REPRODUCTIVE HEALTH A CIVIL RIGHT?
Anwer: Yes. Article 23 of the ICCPR provides protection for the right to found a family. Accordingly, this right imposes a two-fold duty on the State: a positive duty to protect the right to cohabit and procreate, and a negative duty to refrain from enacting discriminatory family- planning policies. Additionally, the right to privacy under the same Covenant proscribes arbitrary or unlawful interference with the family. This has been interpreted as protecting family autonomy and the right to decide on the number and spacing of children. Hence, personal autonomy and free access to reproductive information are well-enshrined in international human rights law, making the right to RH a fundamental civil right of a person.

DOES THE CHURCH HAVE A RIGHT TO DICTATE ON WHAT LEGISLATION CONGRESS SHOULD OR SHOULD NOT PASS?
Answer: No. The Universal Declaration of Human Rights, which is a codification of customary law, and various international and regional human rights treaties, obligate the State to respect and to ensure to all persons within its territory and subject to its jurisdiction their rights, regardless of religion. Allowing the predominant Church to dictate legislation which burdens the rights of persons amounts to a breach of this obligation.

DOES THE RIGHT TO HEALTH INCLUDE ACCESS TO REPRODUCTIVE RIGHTS?
Answer: The ICESCR provides that the “full realization of this right” shall include those necessary for the “provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child” (ICESCR art. 12.2.a).
This obligation has been authoritatively interpreted by the United Nations to require “measures to improve child and maternal health, sexual and reproductive health services, including access to family planning, pre- and post-natal care, emergency obstetric services and access to information, as well as to resources necessary to act on that information” (General Comment No. 14, The right to the highest attainable standard of health, E/C.12/2000/4, adopted by the Committee on Economic, Social and Cultural Rights on 11 August 2000, [hereinafter General Comment No. 14], at par. 14).

Moreover, it includes “access to a full range of high quality and affordable health care, including sexual and reproductive services … particularly lowering rates of maternal mortality” (General Comment No. 14 par. 21).

The CEDAW ensures the “right to health … including the safeguarding of the function of reproduction” (CEDAW Art. 11.1.f). More particularly, the Philippines promised to “take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure … access to health care services, including those related to family planning” (CEDAW art. 12.1).

The Philippines also promised to ensure the right of women on equal terms with men “to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights” (CEDAW art. 16.1.e).

Moreover, the Philippines has signed the Convention on the Rights of the Child (CRC, ratified by the Philippines on 21 Aug 1990). The CRC provides that the “right of the child to the enjoyment of the highest attainable standard of health” (CRC art. 24.1) includes the duty of the Philippines—
• “To take appropriate measures [t]o diminish infant and child mortality (CRC art. 24.2.a);
• “To ensure appropriate pre-natal and post-natal health care for mothers (CRC art. 24.2.d); and
• “To develop preventive health care, guidance for parents and family planning education and services.” (CRC art. 24.2.f).

Finally, it has been authoritatively stated that “health … is a state of complete physical, mental and social wellbeing, and not merely the absence of disease or infirmity” (International Conference on Primary Health Care, Alma- Ata Declaration of 1978, art. 1), and “primary health care … includes at least … maternal and child health care, including family planning” (id. art. VII.3).

Source: http://www.likhaan.org/content/primer-legal-issues-reproductive-rights-four-law-professors

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