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Philippines RH Act: Rx for controversy

The Responsible Parenthood and Reproductive Health Act of 2012

New law threatens some objectors with fines and imprisonment

January, 2013

Sean Murphy*

Commonly known as the Reproductive Health Act (the RH Act or RH Bill), Republic Act No. 10354 was signed into law by President Benigno S. Aquino III on 21 December, 2012.  The new law is the product of over fourteen years of public controversy and political wrangling. 

Earlier proposals, including The Reproductive Health and Population and Development Act of 2010 (HB 0000096) and the Act Providing for a National Policy on Reproductive Health and Population and Development (SB 2378),1 were amalgamated into the The Responsible Parenthood, Reproductive Health and Population and Development Act of 2011.  This developed in two different versions in the House and Senate during 2012. 

The House and Senate passed both versions 18 December, 20122 and then agreed upon the final text signed by the Philippines President.3  The most incendiary provisions (such as the threat of imprisonment for speaking against the law) were deleted during the amendments process.  However, the new law is of concern from the perspective of freedom of conscience because it threatens some conscientious objectors with imprisonment and fines.

Before considering the law in more detail, it is appropriate to consider the circumstances in which it will operate.

Background
Health care delivery

Health care is delivered in the Philippines by both the public and private sector. In 2005, 702 hospitals and health facilities were operated by the government4 and 1130 by the private sector,5 including religious denominations.  Citizens are free to obtain private health insurance, but all must enrol in the National Health Insurance Program (NHIP),6 which is ultimately to become "one universal health insurance program for the entire population."7 

The Program is administered by the Philippine Health Insurance Corporation (PhilHealth), a government owned and controlled corporation.  PhilHealth establishes and monitors standards and, within the terms of the National Health Insurance Act of 1995, determines policies for payment of claims.8  It also accredits health care institutions and practitioners and processes and reimburses claims for health care provided by them.  About 90% of health care providers have been accredited,9 a  fact that incidentally demonstrates the importance and influence of the public health insurance plan despite the numerical predominance of private facilities.

Population policies

. . .government involvement in family planning and population control has become part of the normal social, political and health care landscape in the Philippines.

The ground for the bill has been cleared over a period of forty years by laws and population management policies and programmes aimed at reducing fertility in the Philippines.  While apparently ineffective in reducing population growth, the programmes have resulted in the establishment of a national infrastructure of  ministries, offices and officials responsible for implementing government population and family planning policies.  Foremost among them is the Population Commission (POPCOM) and related agencies, including the Department of Health (DOH).  Thus, government involvement in family planning and population control has become part of the normal social, political and health care landscape in the Philippines. [Appendix "A"]

Religious considerations

. . .the bills in their present forms would likely cause significant problems for Catholic health care facilities and an undetermined number of Catholic health care workers.  Other religious groups would be affected to the extent that they share the outlook of the Catholic Church on the ethics of reproductive health care.

Over 80% of Filipinos identify themselves as Catholic, which probably accounts for the fact that abortion is illegal in the country and the constitution requires that the state protect the lives of both mother and unborn child from the moment of conception.10  However, reported attitudes and practices indicate widespread rejection rather than acceptance of Catholic teaching on contraception and sterilization.[Appendix "A"

Thus, Catholics who adhere to Church teaching on these subjects, while they may have the support of their bishops, are probably minorities within the health care professions and within their faith communities.  On the other hand, the number of hospitals operated by the Catholic and bound by its pastoral directives against contraception and contraceptive sterilization is not insignificant.  [Appendix "A"

It remains to be seen whether or not enforcement will cause significant problems for Catholic health care facilities and an undetermined number of Catholic health care workers.  Other religious believers and facilities would be affected to the extent that they share the outlook of the Catholic Church on the ethics of reproductive health care.

The "RH Act" of 2012: general comments

It appears that the opposing sides of the debate attempted to arrive at a compromise by introducing conflicting political or ideological rhetoric into the text . . .without considering to what extent the conflict can be resolved by interpretation - if it can be resolved at all.

Given that the final form of the law was the product of years of debate and intensive scrutiny by both the House and the Senate, it is surprising to find that the wording of the law leaves much to be desired.

Some parts of the Act are questionable for a variety of reasons.  For example: political/ideological concepts and terminology (gender equality, gender equity, women empowerment) are transformed into "health concerns." [Comment 7]  The law asserts that there is a "right to health," which clearly cannot be, since a natural disease process would then be a violation of human rights [Comment 2].  It claims that there is a "right to choose and make decisions," without recognizing that many choices and decisions may be legitimately restricted or prohibited by law [Comment 3].  The RH Act states that the family is "an autonomous social institution," but no family and no individual is actually autonomous; interdependence, rather than autonomy, is more characteristic of individuals and families [Comment 5].  Section 3(h) suggests that the State may be obliged by unspecified human rights laws to disregard individual preferences and choice of family planning methods [Comment 18].

Other sections are ambiguous or inconsistent.  On the one hand, the family is said to be  "the natural and fundamental unit of society," founded on marriage, and the language suggests that this refers to the marriage of a man and woman.  On the other, the Act does not associate reproductive health, sexual health and childbearing with marriage or family  [Comment 28].  On the contrary: since the Act states that health, including "reproductive health," is a human right, to which "universal access" is  guaranteed by the State, it follows that the State must guarantee the "right " to have children to single individuals and unmarried couples, including those who identify themselves as homosexual. [Comment 1, Comment 6, Comment 13, Comment 20].  This logically includes a "right" to State-supported artificial reproduction [Comment 23, Comment 24, Comment 25, Comment 26]. 

Discrimination is supposed to be eradicated, but, at one point, the Act appears to authorize discrimination against single people in favour of couples [Comment 29].  In addition, the Act also authorizes another form of discrimination based on marital status.  Those who wish to marry must provide a certificate of compliance to prove that they have been instructed by the State on responsible parenthood, family planning, breastfeeding and infant nutrition, but the law does not affect those who have children out of wedlock, even though 2011 statistics indicate that out-of-wedlock births account for over 37% of the babies born in the Philippines [Comment 38].11

Worse, parts of the law are simply incoherent.  It prohibits abortifacient drugs and devices, including those that cause the death of an embryo before implantation[Comment 17; Section 4(a)], but Section 9 of the Act requires that intrauterine devices and injectable contraceptives be kept in stock, even though they may have an embryocidal mechanism of action that violates Section 4.12 [Comment 36]  "Emergency contraceptive pills" and "postcoital pills" are forbidden for reasons that are unclear, but so are "equivalent" forms of the drugs, which, depending on the product and dosage, can include ordinary birth control pills. [Comment 37]

It appears that the opposing sides of the debate attempted to arrive at a compromise by introducing conflicting political or ideological rhetoric into the text (reproductive rights, women empowerment, choice, vs. family is the fundamental unit, marriage is inviolable, rhythm and harmony of nature) without considering to what extent the conflict can be resolved by interpretation - if it can be resolved at all.  The worst example of this impacts parents, not health care workers, but it is worth citing to illustrate the consequences of this approach to legislation:

Section 2:  The State shall also promote openness to life: Provided, That parents bring forth to the world only those children whom they can raise in a truly humane way.

What constitutes "a truly humane" way to raise children is not defined in the law and is highly subjective term.  Nonetheless, parents who are found to have violated this obligation can be jailed for one to six months, or fined up to 100,000 pesos, or both fined and imprisoned  [Comment 16, Comment 49]. The law does not explain what is to be done with the newborn or other children while the parents are in jail, nor does it explain how fines up to 100,000 pesos will make it easier for the parents to raise their children in "a truly humane way."

The "RH Act" of 2012: specific provisions
Rights claims

If it really were a "human right" to be provided with contraceptives, contraceptive sterilization and artificial reproduction, it would follow that anyone who refused to provide them would be guilty of a human rights violation.  It is contrary to sound public policy to permit violations of authentic human rights based on appeals to religious or conscientious convictions.  We do not, for example, admit a defence of religious freedom in cases of racial discrimination, nor do we accommodate racial prejudices.  Thus, the general claim of rights made in the Act would, if accepted literally, leave no principled basis upon which to exempt any health care institution or health care worker from a requirement to provide morally contested procedures or services like contraception, contraceptive sterilization and artificial reproduction.

Note that one of the requirements for accreditation by the Philippine Health Insurance Corporation is "recognition of the rights of patients."13 Thus, the declaration of rights in the RH Act would enable PhilHealth to deny accreditation to any health care facility that refused to comply with the Act for reasons of conscience.

'Discrimination'

It is likely that activists will apply these sections to suppress religious or moral expressions of belief, policies or practices that are deemed to "infringe" alleged rights to contraception, contraceptive sterilization and artificial reproduction.

Section 2 of the Act requires the State to "eradicate discriminatory practices, laws and policies that infringe on a person's exercise of reproductive health rights." Note that an actual violation of the purported right is not required.  It is sufficient that it be "infringed."

The effect of this provision is amplified by Section 27, which states that the law must "be liberally construed to ensure the provision, delivery and access to reproductive health care services, and to promote, protect and fulfill women's reproductive health and rights." 

It is possible that activists will apply these sections to attempt to suppress religious or moral expressions of belief, policies or practices that are deemed to "infringe" alleged rights to contraception, contraceptive sterilization and artificial reproduction.

Within the context of rights claims and accusations of discrimination, it is important to note that Section 23(3) makes it an offence to "[r]efuse to extend health care services and information on account of the person's marital status, gender, sexual orientation, age, religion, personal circumstances, or nature of work."  Activists have alleged that physicians who, for reasons of conscience, decline to provide contraceptives or restrict them to married persons, or who refuse to provide artificial reproduction for single people and patients identifying themselves as homosexuals, are guilty of professional misconduct and discrimination.14 [Comment 45] It is reasonable to believe that such accusations will be made in similar circumstances against objecting Filipino health care workers.

Providing 'information'

It is not clear why Philippines legislators concluded that they would improve the quality of public discourse and health care by giving "reproductive rights" activists the opportunity to send those who disagree with them to jail.

It is also an offence to withhold or restrict the dissemination of information concerning "reproductive health" and access to reproductive health services, or to deliberately provide "incorrect information" about such services  [Comment 44].  This provision lends itself to partisan misuse.  Reciprocal accusations of spreading "incorrect information" are frequently heard in heated polemics about "reproductive health care,"  and objectors have been accused of withholding information simply because they declined to provide contact information for providers of morally controversial services.

If dissemination of incorrect information or improper withholding of information is a problem in a given case, it would be safer, more productive, and less inflammatory to deal with it through remedial or disciplinary measures after a careful investigation by professional authorities.  It is not clear how giving "reproductive rights" activists the opportunity to send those who disagree with them to jail will improve the quality of public discourse and health care.

Compliance and enforcement

All accredited public and private health facilities will be made to provide contraceptives, contraceptive sterilization and artificial reproduction.  The wording of the Act, which becomes ambiguous at this point,  suggests that private facilities may charge for the services, though they may provide them free of charge to "indigents." Non-maternity specialty hospitals and hospitals operated by religious groups can, but need not provide the services, subject to a requirement to refer (see below). [Comment 30, Comment 31]

The Department of Health, acting with the  Philippine Health Insurance Corporation, is required to increase the power of professional regulators to enforce the Act, which, in practical terms, may mean the power to suppress or restrict freedom of conscience of health care workers and institutions through accreditation rules, codes of conduct, etc. [Comment 42, Comment 43]

The RH Act of 2012: limited or worthless exemptions

As previously noted, the rights claims made in the bill leave no principled basis upon which to exempt any health care institution or health care worker from a requirement to provide contraception, contraceptive sterilization, or artificial reproduction.

. . .  the exercise of freedom of conscience is made impossible or ridiculous, and exposes those who claim the exemption to prosecution for human rights violations. . . it is not clear whether this part of the bill has been deliberately constructed as an obstacle to conscientious objection, or if it is simply the product of appalling legislative draftsmanship.

Section 23(a)3 contains the only provisions for accommodation of freedom of conscience or religion.  Contraception, contraceptive sterilization and artificial reproduction are morally controversial, but this section does not allow religious or ethical objections to any of them.  [Comment 45, Comment 46] Instead, it allows health care workers and institutions to claim an exemption only if they assert that they have refused to provide health care or information because of a patient's marital status, gender, sexual orientation, age, religion, personal circumstances, or nature of work.  In other words, the bill offers accommodation only to those willing to face denunciation for unjust discrimination.

Conscientious objection normally occurs because a health care worker is unwilling to be morally complicit what he believes to be in a wrongful act, not because of a personal characteristic of the patient.  A physician who, for moral reasons, refuses to perform contraceptive sterilization does so because he believes it to be wrong, not because his patient is a man or woman.  Thus, the accommodation permitted by the bill would be worthless in most of the cases in which it would be needed.

Even if a personal characteristic is related to an objection (as in the case of refusing contraceptives to an unmarried patient), the objection is not to the patient.  Instead, the objector seeks to avoid vicarious moral responsibility for something done by the patient (extra-marital sex).  An objector willing to risk public obloquy and prosecution might claim an exemption  in such a case, but would then be required to refer the patient to a willing colleague.  However, referral and other forms of facilitation also raise the problem of complicity, and objectors may find the requirement unacceptable.

Thus, the exercise of freedom of conscience is made impossible or ridiculous, and exposes those who claim the exemption to prosecution for human rights violations.  Given the problems with the wording of other sections of the bill, it is not clear whether this part of the bill has been deliberately constructed as an obstacle to conscientious objection, or if it is simply the product of appalling legislative draftsmanship.

In either case, health care workers who, for reasons of conscience,  refuse to refer a patient for contraception, contraceptive sterilization and artificial reproduction face  imprisonment for one to six months, a fine of up to 100,000 pesos, or both.  In the case of institutions, the punishment may be inflicted on the legal officers of the entity.  Depending upon the legal relationship of an objecting denominational institution to its religious leaders, this could expose clergy to fines and imprisonment.

Given the significant controversy attending the new law, it is most unfortunate that the text of the RH Act is likely to make it more difficult to resolve conflicts that may arise in its implementation. 


Notes

1.  Congressman Edcel Lagman introduced the Responsible Parenthood and Population Management Act of 2005 (House Bill 3773) in the 13th Congress.39  During the 14th Congress, Lagman introduced The Reproductive Health and Population and Development Act of 2008 (HB 5043) to the House of Representatives.  It was largely reproduced in a similar and concurrent bill in the Senate (Senate Bill No. 3122), but neither bill passed.

2.  Diokno, Benjamin, OP-ED: "RH bill over the hump." Business World (Philippines) 19 December, 2012 Accessed 2012-12-19

3.  "RH bicam: Satisfying, pleasurable.Inquirer, 20 December, 2012 Accessed 2012-12-21

4.  Philippines Department of Health, Bureau of Health Facilities and Service, Distribution of Licensed Government Hospitals and Other Health Facilities by Service Capability/Authorized Beds, by Center for Health Development, by Province/City (2005) (Accessed 2010-09-30)

5.  Philippines Department of Health, Bureau of Health Facilities and Service, Distribution of Licensed Private Hospitals and Other Health Facilities by Service Capability/Authorized Beds, by Center for Health Development, by Province/City (2005) (Accessed 2010-09-30)

6.  Republic Act 7875- National Health Insurance Act of 1995, Section 1 (l), Section 6 (Accessed 2010-09-17)

 7.  Republic Act 7875- National Health Insurance Act of 1995, Section 5 (Accessed 2010-09-17)

8.  Philippine Health Insurance Corporation, Promoting Quality Health Care in the Philippines.  (Accessed 2010-09-18).  Section 10 of the Act lists services deemed "medically necessary or appropriate" and Section 11 lists those that are excluded from coverage, subject to actuarial investigations by the Corporation.

9.  Philippine Health Insurance Corporation, Promoting Quality Health Care in the Philippines.  (Accessed 2010-09-18). 

10. The 1987 Constitution of the Republic of the Philippines,, Article II, Section 12  (Accessed 2010-09-29)

11.  De Guzman, Cornelio, "Out of wedlock births hit record high."  Remate, 21 July, 2011 (http://www.remate.ph/2011/07/out-of-wedlock-births-hit-record-high/)  Accessed 2013-01-09)

12.  See U.S. Food and Drug Administration:  Approved Methods of Birth Control.

13.  Republic Act 7875  National Health Insurance Act of 1995, Section 33(e): Minimum requirements for accreditation. (Accessed 2010-09-18)

14.  Canning, Cheryl, "Doctor's faith under scrutiny: Barrie physician won't offer the pill, could lose his licence." The Barrie Examiner, 21 February, 2002; Gold, Polo Black, "California Court comes out: the bioethics of Benitez."  The Hastings Centre, Bioethics Forum, 22 August, 2008 (Accessed 2010-09-30)