DSWD Position on Protection of Unborn Child Act (HB 13)

HON. AURORA ENERIO-CERILLES
Chairperson
Committee on the Welfare of Children
House of Representatives
Quezon City

Dear Representative Enerio-Cerilles:

The Department of Social Welfare and Development (DSWD) commends the initiative of Representative Roilo S. Golez to propose legal measures to protect the unborn child.

But given the numerous gray areas in the said proposed legislation, the DSWD strongly recommends an exhaustive and comprehensive discussion on the said draft bill. Since there are many conflicting interests involved, an in-depth dialogue and consultation with various stakeholders is absolutely necessary.

In addition, the DSWD hopes that the Committee consider the following points:

1. On the Unborn Child’s Right to Protection vs. Women’s Right to Reproductive Health

No one right can take precedence over another as in the case of women and children, especially when the Philippine Constitution itself mandates that it shall “equally protect the life of the mother and the life of the unborn from conception.” (Article II, Section 12, 1987 Constitution). At least 10 women die everyday due to pregnancy or child birth-related complications. Maternal deaths also account for 14% of deaths among women. There must be a provision for the safety and well-being of the pregnant woman to ensure the normal and healthy development of the unborn child.

The draft bill’s objective in increasing penalties for abortion offenses is quite “punitive”, rather than concrete, positive acts of promoting the rights and welfare of a marginalized sector. While the DSWD accords protection rights to the unborn, it also upholds the right of women to all necessary interventions especially if child-bearing or a similar state which may be construed as such (i.e. having H-mole, bearing a defective embryo, or an ectopic pregnancy) already endangers her life.

Thus, we must strongly consider our obligations under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Convention on the Rights of the Child (CRC), as well as the Magna Carta for Women. The DSWD should be mindful of the welfare-aspect for women and minors, and take into account available protective services since they are also “victims” in “vulnerable” situations.

2. On Human Personality and Legal Rights; Implication on Civil Law

The “Definition of Terms” in the draft bill is quite problematic. While “protection of the unborn” is well-intentioned, it not only re-defines who is the “unborn” and “human personality”, and also automatically vests an unborn with substantive rights contrary to provisions of Philippine Civil Law. It already “equates a fertilized egg to an unborn child” when both Philippine law and jurisprudence provides that it is “actual birth” which vests human personality and entitles a fetus to legal rights. To wit: “Birth determines personality; but the conceived child shall be considered born for all purposes that are favorable to it, provided it be born later with the conditions specified in the following article.” (Article 40, Chapter 2 on Natural Persons, New Civil Code) In the same vein, take note of the context under the succeeding provision, “Article 41: For civil purposes, the fetus is considered born if it is alive at the time it is completely delivered from the mother’s womb. However, if the fetus had an intra-uterine life of less than seven-months, it is not deemed born if it dies within twenty-four after its complete delivery from the maternal womb.” (See also Geluz vs Court of Appeals, 2 SCRA 801)

3. Demarcation as to What is/What is Not an Abortifacient

The “expanded” definition of “abortion” is also critical. Under the bill, even “hysterectomy” can now be considered a form of abortion when it is legitimate medical procedure commonly utilized to address cancer-related women’s health issues.

While it is clear that abortion is an act or practice that endangers the life of the unborn, there is no clear demarcation on what may be considered an abortifacient or not. Moreover, the bill’s coverage of “ANY device” which may cause the expulsion of an unborn child, will result in making pills, injectables, Intra-uterine Devices and some other forms of contraceptives which were not illegal in the first place “criminal”. Pills, injectables, and IUDs are used to prevent pregnancy, not abort it. Hence, other enumerations included therein dangerously lumps together certain prescriptions and medical interventions as “abortive acts”. According to Likhaan Center for Women’s Health, more scientific evidence are needed to prove that the aforementioned actually (i) interfere with the implantation of the fertilized ovum unto the womb, and (ii) interrupts pregnancy after implantation.

4. Protection of Life Preservers/Protectors

In the same manner, considering the many gray areas, medical professionals and health workers are now vulnerable to criminal sanctions even as they seek to fulfill their ethical responsibilities under the Hippocratic Oath and the Department of Health’s policy on emergency measures for ectopic pregnancies, “natural” miscarriages or excessive bleeding in women.

The DSWD recommends that there must be a comprehensive clarification between Sections 9 and 10 of the bill. Section 9 defines the prohibited acts and their corresponding penalties based on those provided by the Revised Penal Code. On the other hand, Section 10 contains penalties to be imposed on offenders and provides for the respective jurisdictions of the city or municipality over violations of the Act.

5. Parental Right vs. Self-Determination

Section 8 of the bill upholds the absolute authority of parents of minors with unborn children over the State. Sadly, no provision ever recognized the potential of the minor to decide for herself in accordance with the principles under the CEDAW and the CRC. The DSWD, on the other hand, puts a premium in the shared helping process wherein the client (minor with unborn child) and her family are presented with all possible options by the social worker before coming up with a decision.

Finally, while we must continue to view abortion as illegal, we have to distinguish this bill’s objectives from that of the earlier RH bills. RH bills seek “abortion-prevention” by expanding family planning options and making proper information, services and facilities available. It may require additional funding for healthcare, but not for jails or prisons or clogging the court dockets. The Protection of the Unborn bill seeks an absolute “abortion deterrence” by making family planning choices even more limited or restricted contrary to the Philippines’ social development goals.

For consideration of the Committee.

Very truly yours,

CORAZON JULIANO-SOLIMAN
Secretary

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