The RH Law is not population control

With profound appreciation of the Supreme Court’s unanimous verdict upholding the constitutionality of the Reproductive Health Law on the whole and with due respect to Associate Justice Jose C. Mendoza who penned the ponencia, there is critical need, however, to clarify a number of disturbing statements, observations and obiter expressed in the ponencia.

The repeated reference by Justice Mendoza to the perfunctory statement that the RH Law is basically a population control measure was not determinative of the constitutional issues. Moreover, the recurrent observation has no anchorage in the language and spirit of the RH Law because:

• No less than Sec. 3(l) of the law provides that “[t]here shall be no demographic or population targets and the mitigation, promotion and/or stabilization of the population growth rate is incidental to the advancement of reproductive health.”

• This unequivocal provision negates population control since: (a) no specific rate or range of population growth is prescribed; and (b) the mitigation of the population growth rate is the result of affording women, couples and parents the exercise of their human right to freely and responsibly determine the number and spacing of their children.

Incidentally, surveys show that poor women would like to limit the number of their children but they do not have access to family planning information and supplies. Under the RH Law, the government shall give marginalized voluntary acceptors the requisite information, supplies and services.

• Population control is anathema to the law’s hallmark of freedom of informed choice where both compulsion and reward are proscribed. Section 3(a) mandates that “[t]he right to make free and informed decisions, which is central to the exercise of any right, shall not be subjected to any form of coercion and must be fully guaranteed by the State like the right itself.”

Likewise, Sec. 3(h) provides that “[t]he State shall respect individuals’ preferences and choice of family planning methods that are in accordance with their religious convictions and cultural beliefs, taking into consideration the State’s obligations under various human rights instruments.”

To give full meaning to the freedom of informed choice, the authors  removed voluntarily  the precursor provision of Section 13 of the original House Bill No. 16 on “Ideal Family Size” which reads: “In order to attain the desired population growth rate, the State shall encourage two (2) children as the ideal family size. Children from these families shall have preference in the grant of scholarships at the tertiary level.”

As finally enacted, the RH Law does not contain a provision similar to or identical with this provision on ideal family size. The norm of a two-child policy, which was not even mandatory, was deleted together with the reward of a college scholarship for children who belong to a two-child family. The authors considered the expectance of a reward for one’s children as impairing the freedom of choice. Also scrapped was any reference to a “desired population growth rate.”

• As correctly pointed out by the ponente, “the RH Law does not prescribe the number of children a couple may have and does not impose conditions upon couples who intend to have children” (Decision, page 94). The earmarks of population control are absent.

• Instead of a population control measure, the RH Law is a health measure, particularly for the health of women, adolescents, children and infants. It is a human rights legislation which guarantees the right to reproductive self-determination. It is a poverty alleviation program and a veritable agenda for sustainable human development.

To reiterate, the oft-repeated reference to “population control” was not necessary in adjudicating that the RH Law is constitutional. “Control” denotes coercion or compulsion which goes against the RH Law’s granting premium to the primacy of individual conscience and choice in adopting any family planning option.

On the controversial issue on the beginning of life, the ponente accurately said that the “Majority of the Members of the Court are of the position that the question of when life begins is a scientific and medical issue that should not be decided, at this stage, without proper hearing and evidence” (Decision, page 39). He also correctly added: “During the deliberation, however, it was agreed upon that the individual members of the Court could express their own views on the matter” (Decision, page 39).

Subsequently, the ponente lengthily discussed his personal view that “life begins at fertilization.” We may acquiesce to his “justifications” which straddled a little over 10 percent of the ponencia (Decision, pages 39-48).  We regret, however, that at the end of his disquisition, Justice Mendoza attributed his personal view to the Court’s collective opinion when he stated: “For the above reasons, the Court cannot subscribe to the theory advocated by Hon. Lagman that life begins at implantation” (Decision, page 48).

This remark contradicts the majority’s desistance to resolve the medical and scientific issue of when life begins “without a proper hearing and evidence.” How then can the Court reject the submission that life begins at the implantation of the fertilized ovum in the uterine wall when the Court a priori refused to decide when life begins?

Verily, Justice Mendoza’s view is his own, not the Supreme Court’s.

Edcel C. Lagman authored the reproductive health bill in the 15th Congress as representative of the first district of Albay.