LEGALLY BORN: AN ASSESSMENT OF LAWS PENALIZING ABORTION
Based on the Revised Penal Code, abortion is a crime. Illegalization of abortion was first introduced as a bill in 1870 during the colonization of the Philippines by Spain. It can be traced that one of the greatest contribution during Spanish colonial period was Roman Catholicism. With this, religion beliefs, teachings and values portray a predominant role on why Abortion was not legalized over the years. [1] The Roman Catholic Church has consistently addressed that life is holy as it comprises the wonderful creation of God and it is only the sole creator who can put it to an end.
Discussing the history on abortion made me realize that it was a long time ago when this bill was implemented. This gave me a responsibility to check if the existing law is still applicable. Some say that the criminal law on abortion is an outdated colonial law that violates the rights to health and life of Filipino women. [2]
[endif]--Society has been changing and the right of women to decide must be uphold but limited. We are facing issues on overpopulation, pregnancy endangers or unwanted pregnancies resulted from rape or at younger age that lead women to undergo abortion.
We should also fully grasp all the possible situations, factors and reasons of abortion on today’s society. The understanding of the abortion in the Philippines will help us determine if the existing provisions should be changed, remained or abolished. My personal opinion and realization will guide individuals especially the woman in a legal aspect view on abortion.
In legal point of view, abortion is the violent expulsion of the fetus from the maternal womb, which results to the death of the fetus.[3] The prohibition are due to the following legal reasons:
a. Article II, Section 12 of 1987 constitution – protection of the life of mother and the life of the unborn from conception 3
b. Child and Youth Welfare Code, Presidential Decree No. 60 – State shall protect a child for all purposes favor to him, which includes at time of conception
There are ways on how abortion is procured. First, this is accomplished by intentional violence as exerting strong physical efforts. Second, this is done by means of local violence which may be applied in any portion of the generative organ. Lastly, the most common method is to resort by the use of drugs.[4]
The reason behind on why some women procure abortion may be due to save the life and health of the pregnant women. This comes into place when the pregnancy is at stake and the development and life of the child is at risk. Moreover, others result to abortion in order to hide dishonor of the woman. This is the common reason of unwanted pregnancy for women teenagers or victims of rape. Next reason might be as well as financial difficulty of the family. Lastly, one of the most heartbreaking and selfish reason is the preservation of body form. [5]
Provision of the Revised Penal Code on Abortion[7] are as follows:
Art. 256. Intentional abortion. — Any person who shall intentionally cause an abortion shall suffer:
1. The penalty of reclusion temporal, if he shall use any violence upon the person of the pregnant woman.
2. The penalty of prision mayor if, without using violence, he shall act without the consent of the woman. The penalty of prision correccional in its medium and maximum periods, if the woman shall have consented.
Art. 257. Unintentional abortion. — The penalty of prision correccional in its minimum and medium period shall be imposed upon any person who shall cause an abortion by violence, but unintentionally.
Art. 258. Abortion practiced by the woman herself of by her parents. — The penalty of prision correccional in its medium and maximum periods shall be imposed upon a woman who shall practice abortion upon herself or shall consent that any other person should do so. Any woman who shall commit this offense to conceal her dishonor, shall suffer the penalty of prision correccional in its minimum and medium periods. If this[endif]-- crime be committed by the parents of the pregnant woman or either of them, and they act with the consent of said woman for the purpose of concealing her dishonor, the offenders shall suffer the penalty of prision correccional in its medium and maximum periods.
Art. 259. Abortion practiced by a physician or midwife and dispensing of abortives. — The penalties provided in Article 256 shall be imposed in its maximum period, respectively, upon any physician or midwife who, taking advantage of their scientific knowledge or skill, shall cause an abortion or assist in causing the same.
The meaning of the penalties discussed [6] in relation to abortion are as follows:
One of the first judicial ruling on abortion was the Supreme Court decision in the 1961 case of Geluz v. CA. Nita Villanueva came to know Antonio Geluz, the physician, to have her pregnancy aborted since she found it inconvenient as she was employed with COMELEC. The issue in this case was that Geluz was sued for damages by Oscar Lazo, husband of Nita. The ruling held that no damages should be claimed since the unborn fetus is not endowed with personality and incapable of having rights.
In the Philippines, there is a recognized abortion called Therapeutic Abortion which allows to save the life of the pregnant woman. This is based on the provisions of the Revised Penal Code in Article 11, section 4, which provides that: “Any person who, in order to avoid an evil or injury, does an act which cause damage to another, do not incur criminal liability, provided that the following requisites are present: First, that the evil sought to be avoided actually exist; Second, That the injury feared be greater than that done to avoid it; Third, That there is no other practical and less harmful mean ofpreventing it. The doctor is performing an act to save the life of the mother which is less harmful way than the uncertainty of the existence of a conceived child. [8]
My Project Implementation
With the help of Dean Charles Baguio, Dr. Benjamin Luague and Ms. Genevieve Lavadia, instructors of College of Arts and Sciences, I conducted an awareness campaign through distribution of pamphlets to USPF college students last October 20, 2018. This will guide the students on how the State contradicts abortion in a legal perspective view.[endif]--
In my opinion, I still affirm that abortion should not be legalized in the Philippines and additional provisions should be added as follows:
1.) Abortion should be expressly defined as itis does not clearly clarify the issue on of conception.
2) Although therapeutic abortion is accepted, it is best if this is a provision is added as to its elements, restrictions and grounds for this justifiable means.
3) Territoriality rule of abortion should be added as no current law restricts abortion committed outside the Philippines.
Let us be always be reminded that abortion is killing of an innocent child. If others will argue that women has the right to decide on their own body, the right to decide does not involve the right to kill. The child has the right to live and State has the duty to protect the child in all means.
Currently, the existing laws are reasonable to the prohibition of this crime.
References
[1] The University of British Columbia. “Abortion in the Philippines.” https://wiki.ubc.ca/Abortion_in_the_Philippines, July 16, 2015, URL. Accessed (July 20, 2018).
[2] Padilla, Clara Rita, A. “The reality of abortion in the Philippines.”, http://www.rappler.com/thought-leaders/203572-time-decreminalize-abortion-philippines, September 13, 2018, URL. Accessed (July 20, 2018).
[3] Olarte, Leo, O. Legal Medicine. Central Book Supply, Inc. 2004.
[4] Sous, Pedro, P. Legal Medicine. R.P. Garcia Publishing Co., 1987
[5] Sous, Pero, P. Legal Medicine. R.P. Garcia Publishing Co., 1987
[6] “Table of Penalties.” https://legalhawk.files.wordpress.com/2007/12/table-of-penalties.pdf,URL
[7] Reyes, Luis, B. The Revised Penal Code: Criminal Law Book Two. Rex Book Store, 2012.
[8] Olarte, Leo, O. Legal Medicine. Central Book Supply, Inc. 2004.
Note: Digital Photos and Illustrations from this blog are culled from internet sources and from government websites. Credits to the owners.
ABOUT THE AUTHOR
Sunshine Marie Pamine is a first year law student of University of Southern Philippine Foundation.
She is a Roman Catholic and prolife advocate.
She is a member of Lasallian community and during her younger years, she was an active member for Youth for Christ and Carangan Religious sector.
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