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Protection of Conscience Project

www.consciencelaws.org

Service, not Servitude
Legal Commentary

The "RH Act" (2012)  in brief

The Responsible Parenthood and Reproductive Health Act of 2012

  • This is an outline of The Responsible Parenthood and Reproductive Health Act of 2012.
  • It sets out the sections that are of particular interest to freedom of conscience issues.
    • Text of the law is on the left, Project comment on the right.
    • Researchers should consult the full text of the law.
  • Red Text identifies parts of the Act struck down by the Supreme Court of the Philippines in April, 2014. Mouseover the red text to see annotation in the right column.

SEC. 1. Title
SEC. 2. Declaration of Policy
Text
Project Comment

The State recognizes and guarantees the human rights of all persons, including their right to equality and nondiscrimination of these rights, the right to sustainable human development, the right to health which includes reproductive health, the right to education and information, and the right to choose and make decisions for themselves in accordance with their religious convictions, ethics, cultural beliefs and the demands of responsible parenthood. . .

 

 1.  A universal basic human right must pertain to "all persons."  This includes single people.  It must aslo include everyone without consideration of  preferences in sexual partners.

2.  No one can be said to have a right to health or to reproductive health, since this would mean that someone suffering from influenza or congenital sterility is the victim of a violation of human rights violation.

3.  Presumably, the legislators did not mean to absolutize the notion of a "right to choose and make decsions", since many choices and decisions are legitimately prohibited by law.

4.  The section implies that the legislators recognize freedom of conscience, but this is not evident in the sections that follow.

. . .it is the duty of the State to protect and strengthen the family as a basic autonomous social institution and equally protect the life of the mother and the life of the unborn from conception.  The State shall protect and promote the right to health of women especially mothers in particular and of the people in general and instil health consciousness among them.  The family is the natural and fundamental unit of society.  The State shall likewise protect and advance the right of families in particular and the people in general to a balanced and healthful environment in accord with the rhythm and harmony of nature. 

 

5.  No person and no family is, in fact, autonomous. 

6.  "Family" is undefined.  It is later said that marriage is the foundation of the family.  The context and typical usage elsewhere in the Act suggests that "family" is understood to refer to a husband, wife and children.  However, the Act does not associate reproductive health, sexual health and childbearing with marriage, so the notion of "family" as it relates to these subjects appears to be elastic.  See Comment 13.

The State also recognizes and guarantees the promotion and equal protection of the welfare and rights of children, the youth and the unborn.

   

Moreover, the State recognizes and guarantees the promotion of gender equality, gender equity, women empowerment and dignity as a health and human rights concern and as a social responsibility. The advancement and protection of women's human rights shall be central to the efforts of the State to address reproductive health care.

 

7.  Political/ideological concepts and terminology are transformed into "health concerns." 

8.  Provisions related to "gender" have been revised to preclude the suggestion of additional "genders" invented by activists who identify themselves or others as something thing than male or female.  This has reduced the likelihood of conflicts of conscience arising from contested gender claims.

The State recognizes marriage as an inviolable social institution and the foundation of the family which in turn is the foundation of the nation.  Pursant thereto, the State shall defend:

   

a) The right of spouses to found a family in accordance with their religious convictions and the demands of responsible parenthhhod;

9.  Defend, but not guarantee.

b) The right of children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty, exploitation and other conitions prejudicial to their development;

 

10.  Defend, but not guarantee.

c) The right of the family to a family living wage and income; and

 

11.  Defend, but not guarantee.

d) The right of families or family associations to participate in the planning and implementation of policies and programs that affect them.

 

12.  Defend, but not guarantee.

The State likewise guarantees universal access to medically-safe, non-abortifacient, effective, legal affordable and quality reproductive health care services, methods, devices, supplies which do not prevent the implantation of a fertilized ovum as determined by the Food and Drug Administration (FDA) and relevant information and education thereon according to the priority needs of women, children and other underprivileged sectors, giving preferential access to those idientified through the National Househlold Targeting System for Poverty Reduction (NHTS-PR) and other government measures of identifying marginalization, who shall be volunatry beneficiaries of reproductive health care, services and supplies for free.

 

13.  The state is to be the guarantor of "universal access" to reproductive health care services, as further defined in Section 4(q).  "Universal access" and subsequent references to individuals, couples and persons indicates that the guarantee extends to single people, unmarried couples and those who identify themselves as homosexual.  See Comment 6.

14.  No similar State guarantee is offered with respect to other forms of health care, such as palliative care, even in the National Health Insurance Act.

The State shall eradicate discriminatory practices, laws and policies that infringe on a person's exercise of reproductive health rights.

 

 15.  "Infringement" need not imply actual violation.  This has implications for the public expression of religious beliefs in words or in actions.  The adverse effect of this section on freedom of conscience and religion may be amplified by Section 27.  See Comment 51.

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.

 

16.  What constitutes "a truly humane" way to raise children is not defined in the law.  Parents who are found to have violated this obligation can be fined or imprisoned.  See Section 24.

SEC. 3. Guiding Principles for Implementation

This Act declares the following as guiding principles:

a) The 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;

   

b) Respect for protection and fulfillment of reproductive health and rights which seek to promote the rights and welfare of every person, particularly  couples, adult individuals, women and adolsecents;

d)  The provision of ethical and medically safe, legal, accessible, affordable, non-abortifacient, effective and quality reproductive health care services and supplies is essential in the promotion of people's right to health, especially those of women, the poor and the marginalized, and shall be incorporated as a component of basic health care;

 

17.  "Non-abortifacient" must be understood to include services, drugs and devices that do not cause abortions, cause the death of an implanted embryo or fetus, and that do not cause the death of an embryo before implantation.  See the definition of "abortifacient" in Section 4(a).

g)  The provision of reproductive health care, information and and supplies.  . must be the primary responsibilty of the national government consistent with its obligation to respect, protect and promote the right to health and the right to life;    
h)  The 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;  

18.  The significance of the qualification is unclear, since it seems to imply that the State may have contrary obligations under unspecified "human rights instruments."

i) Active participation by nongovernment organizations (NGOs) women's and people's organizations, civil society, faith-based organizations, the religious sector and communities is crucial to ensure that reproductive health and population and development policies, plans and programs will address the priority needs of women, the poor and the marginalized;    
k)  Each family shall have the right to determine its idela family size; Provided, however, That the State shall equip each parent with the necessary information on all aspects of family life, including reproductive health and responsible parenthood in order to make that determination;
l)  There shall be no demographic or populaiton targets and the mitigation and/or stabilization of the population growth rate is incidental to the advancement of reproductive health;    
m) Gender equality and women empowerment are central elements of reproductive health and population and developmenet;    
SEC. 4. Definition of Terms

For the purposes of this Act, the following terms shall be defined as follows:

a) Abortifacient refers to any drug or device that induces abortion or the destruction of a fetus inside the mother's womb or the prevention of the fertilized ovum to reach and be implanted in the mother's womb upon determination of the FDA;  

19.  "Abortifacient" is defined to include surgical abortion, abortions induced by drugs or devices, and embryocides (drugs or devices that kill an embryo before implantation).
However, it is up to the Philippines Food and Drug Agency to determine the mechanism of action of a drug or device.  Classifications and descriptions provided by the American Food and Drug Administration have been on ongoing cause of controversy in the United States. 

e) Family planning refers to a program which enables couples and individuals to decide freely and responsibly the number and spacing of their children and to have the information and means to do do so, and to have access to a full range of safe, affordable, effective, non-abortifacient modern natural and artificial methods of planning pregnancy;  

20.  Notwithstanding the emphasis placed on the family and marriage, this implies that individuals and unmarried couples have a "right" to have children, which, under  Section 2, is guaranteed by the State.

g) Gender equality refers to the principle of equality between men and women and equal rights to enjoy conditions in realizing their full human potential. . .

 

21.  The terms "gender equality" and "gender equity" are defined in a way that precludes the suggestion of additional "genders" invented by activists who identify themselves or others as something thing than male or female.  This is one of the significant revisions made to earlier drafts of the legislation.

h) Gender equity refers to the policies, instruments, programs and actions that address the disadvantaged position of women in socity by providing preferential treatment . . .

 

i)  Modern methods of family planning refers to safe, effective, non-abortifacient and legal methods, whether natural or artificial, that are registered with the FDA to plan pregnancy.

n) Public health care service provider refers to (1) public health care institution, which is duly licensed and accredited and devoted primarily to the maintenance and operation fo facilities for health promotiion, disease prevention, diagnosis, treatment and care of individuals suffering from illness, disease, injury, disability or deformity, or in need of obstetrical or other medical and nursing care; (2) public health care professional, who is a doctor of medicine, a nurse or a midwife; (3) public health worker engaged in the delivery of healthcare services; or (4) barangay health worker who has undergone training programs under any accredited govenrment and NGO and who voluntarily renders primarily health care services in the  community after haivng been accredited to function as such by the local health board . .

 

22.  Presumably, professionals in private practice or employed by private or denominational institutions would not be considered "public health care service providers."

p)  Reproductive Health (RH) refers to the state of complete physical, mental and social well-being and not merely the absence of disease or infirmity, in all matters relating to the reproductive system and to its functions and processes. . .

q)  Reproductive health care refers to the access to a full range of methods, facilities, services and supplies that contribute to reproductive health and well being by addressing reproductive health related problems.  It also includes sexual health, the purpose of which is the enhancement of life and personal relations.  . . .

 

23.  The definition includes various forms of artificial reproduction, such as in vitro fertilization.

r) Reproductive health care program refers to the systematic and integrated provision of reproductive health care all citizens, prioritizing women, the poor, marginalized and those in vulnerable or crisis situations.

 

24.  A program would presumably include various forms of artificial reproduction, such as in vitro fertilization, as noted above.

s) Reproductive health rights refers to the rights of individuals and couples to decided freely and responsibly whether or not to have children; the number, spacing and timing of their children, to make other decisions concerning reproduction, free of discrimination, coercion and violence; to have the information and means to do so, and to attain the highest standard of sexual health and reproductive health;  Provided, however That reproductive health rights do not include abortion, and access to abortifacients;

 

25.  This implies that individuals and unmarried couples have a "right" to have children, which, under  Section 2, is guaranteed by the State.  It follows from the text of the statute that this "right" includes a right to artificial reproduction as per Section 4(q), also guaranteed by the State.

26.  Moreover, since neither "individuals" nor "couples" is further qualified, the Act implies that homosexual individuals or couples have a right to have children by means of artificial reproduction, and that this right is guaranteed by the State under Section 2.

27.  The right does not inlcude a right to abortion or to what the Philippines Food and Drug Agency declares to be abortifacient or embryocidal drugs and devices. [See Section 4(a)]

w) Sexual health refers to a state of physical, mental and social well being in relation to sexuality.  It requires a positive and respectful approach to sexuality and sexual relationships, as well as the possibility of havng pleasurable and safe sexual experiences, free from coercion, discrimination and violence.

 

28.  No reference here to sexuality within the context of marriage and family life.

SEC. 5. Hiring of Skilled Health Professionals for Maternal Health Care and Skilled Birth Attendance
SEC. 6. Health Care Facilities
SEC. 7. Access to Family Planning

All accredited public health facilities shall provide a full range of modern family planning methods, which shall also include medical consultations, supplies and necessary and reasonable procedures for poor and marginalized couples having infertililty issues who desire to have children:

 

29.  The requirement to provide assistance to "couples . . . who desire to have children" appears to contradict Sections x and y, which guarantee that individuals also have a right to determine the number and spacing of their children.

Provided That family planning services shall likewise be extended by private health facilities to paying patients with the option to grant free health care and services to indigents,

 

30.  Legislators may have intended that private health care facilities be required to offer "a full range of modern family planning services" to paying clients, but that is not what the Act says.  Similarly, legislators may have intended that private facilities could offer free reproductive health care  to "indigents," but, once more, that is not what the Act says.

except in the case of non-maternity speciality hospitals and hospitals owned and operated by a religious group, but they have the option to provide such full range of modern family planning methods.    

31.  This passage indicates that the whole of Section 7 is intended to refer to a "full range of modern family planning methods" and "reproductive health care.'  Non-maternity specialty and denominational hospitals may provide such services, but are not required to do so.

  Provided further, That these hospitals shall immediately refer the person seeking such care and services to another health facility which is conveniently accessible: Provided finally, That the person is not in an emergency condition or serious case as defined in Republic Act No. 8344.  

32.  However, a hospital that refuses to provide a "full range" of family planning or reproductive health services must "immediately refer" patients to another facility that will do so.  This suppresses freedom of conscience on the part of those who object to referral because it makes them complicit in the act that follows.In April, 2014, the Philippines Supreme Court ruled that this provision was an unconstitutional violation of freedom of conscience.

33.  Further: that facility must be "conveniently accessible."  The law does not explicitly state what is required if another facility is not conveniently accessible.

No person shall be denied information and access to famly planning services, whether natural or artificial: Provided, That minors will not be allowed access to modern methods of family planning without written consent from their parents or guardians, except when the minor is already a parent or has had a miscarriage.  

34.  However, the statement that "no person shall be denied. . . access to family planning services," read in conjunction with Section 27, invites the conclusion that if another facility is not conveniently accessible, the objecting institution must provide the morally contested service.In April, 2014, the Philippines Supreme Court ruled that this provision was an unconstitutional violation of freedom of conscience.

35.  Refusing to refer a patient leaves the persons responsible and officers of the institution liable to imprisonment for one to six months, a fine of up to 100,000 pesos, or both.In April, 2014, the Philippines Supreme Court ruled that this provision was an unconstitutional violation of freedom of conscience. [Section 24]

SEC. 8. Maternal Death Review and Fetal and Infant Death Review
SEC. 9. The Philippine National Drug Formulary System and Family Planning supplies
The National Drug Formulary shall include hormonal contraceptives, intrauterine devices, injectables and other safe, legal, non-abortifacient and effective family planning products and supplies. . .

 36.  Section 9 of the Act is incoherent.  Intrauterine devices and injectables are known to act by preventing the implantation of an embryo, and are thus forbidden by Section 4(a) of the Act, but this section requires that they be kept in stock.

. . . These products and supplies shall also be included in the regular purchase of essential medicines and supplies of all national hospitals.  Provided further, That the foregoing offices shall not purchase or acquire by any means emergency contraceptive pills, postcoital pills, abortifacients that will be used for such purpose and their other forms or equivalent.  

37.  This is the first and only time that "emergency contraceptive pills" and "postcoital pills" are mentioned in the Act.  This section appears to equate them to abortifacients or embryocides, a classification that is hotly disputed.  This section also appears to preclude their approval by the Philippines FDA under  Section 4(a),  since the products are not described in the Act by mechanism of action.  Finally, "other forms or equivalent" can include regular hormonal contraceptives, since some of these can be prescribed in ways that cause them to act like postcoital interceptives.

SEC. 10. Procurement and Distribution of Family Planning Supplies
SEC. 11. Integration of Responsible Parenthood and Family Planning Component in Anti-Poverty Programs
SEC. 12.  PhilHealth Benefits for Serious and Life-|Threatening Reproductive Health Conditions
SEC. 13. Mobile Health Care Service
SEC. 14. Age and Development Appropriate Reproductive Health and Sexuality Education
SEC. 15.  Certificate of Compliance
No marriage license shall be issued by the Local Civil Registrar unless the applicants present a Certificate of Compliance issued for free by the local Family Planning Office certifying that they had duly received adequate instructions and information on responsible parenthood, family planning, breastfeeding and infant nutrition.  

38.  Only those who plan to marry are required to obtain certificates.  Those who plan to have children out of wedlock or who have extramarital sex are exempt from the requirement to attend State classes on responsible parenthood, family planning, breastfeeding and infant nutrition. 

     
SEC. 16. Capability Building of Barangay Health Workers
SEC. 17. Pro Bono Services for Indigent WomenIn April, 2014, the Philippines Supreme Court ruled that "conscientious objectors are exempt from this provision as long as their religious beliefs and convictions do not allow them to render reproductive health service, pro bona or otherwise."
SEC. 18. Sexual And Reproductive Health Programs For Persons With Disabilities (PWDs)
SEC. 19. Duties and Responsibilities
a)  Pursuant to the herein declared policy, the DOH shall serve as the lead agency for the implementation of this Act and shall integrate in their regular operations the following funcitons.    

1)  Fully and efficiently implement the reproductive health care program;

   

2)  Ensure people's access to medically safe, non-abortifacient, legal, quality and affordable reproductive health goods and services; and

 

39.  The requirement to "ensure people's access" may be used as an excuse to suppress freedom of conscience among those who object aspects of the programme.

40.  This is the first reference to "reproductive health goods and services," a term that is presumably related to but broader than the defined terms "reproductive health" and "reproductive health care."

3)  Perform such other functions necessary to attain the purposes of this Act.

 

41.  A blanket warrant to act.

b) The DOH, in coordination with the PHIC, as may be applicable, shall:

 

42.  DOH: Department of Health
PHIC: Philippines Health Insurance Corporation

1) Strengthen the capacities of health regulatory agencies to ensure safe, high quality, accessible and affordable reproductive health services and commodities with the concurrent strengthening and enforcement of regulatory mandates and mechanisms;

 

43.  This section appears to require professional regulators to develop policies, regulations and codes of ethics that can be used to force objecting health care workers and institutions to comply with the Act.

     
SEC. 20. Public Awareness
SEC. 21. Reporting Requirement
SEC. 22.  Congressional Oversight Committee on Reproductive Health Act
SEC. 23. Prohibited Acts

The following acts are prohibited:

(a) Any healthcare service provider, whether public or private, who shall:In April, 2014, the Philippines Supreme Court ruled that this provision was an unconstitutional violation of freedom of conscience "insofar as [it] punish[es] any healthcare service provider who fails and or refuses to disseminate information regarding programs and services on reproductive health regardless of his or her religious beliefs."

   

(1) Knowingly withhold information or restrict the dissemination thereof, or intentionally provide incorrect information regarding programs and services on reproductive health, including the right to informed choice and access to a full range of legal, medically-safe non-abortificent and effective family planning methods;

 

44.  Objectors who have drawn attention to potentially abortifacient or embryocidal effects of drugs and devices have sometimes been accused of providing "misinformation."  Those who have refused to facilitate procedures to which they object by offering contact information for a service provider have been accused of withholding information. 

(2) Refuse to perform legal and medically-safe reproductive health procedures on any person of legal age on the ground of lack of consent or authorization of the following persons in the following instances:

(i) Spousal consent in case of married persons: Provided, That in case of disagreement, the decision of the one undergoing the procedure shall prevail; and

(ii) Parental consent or that of the person exercising parental authority in the case of abused minors, where the parent or the person exercising parental authority is the respondent, accused or convicted perpetrator as certified by the proper prosecutorial office of the court. In the case of minors, the written consent of parents or legal guardian or, in their absence, persons exercising parental authority or next-of-kin shall be required only in elective surgical procedures and in no case shall consent be required in emergency or serious cases as defined in Republic Act No. 8344; and

   

(3) Refuse to extend health care services and information on account of the person's marital status, gender, sexual orientation, age, religious convictions, personal circumstances, or nature of work; Provided, That, the conscientious objection of a healthcare service provider based on his/her ethical or religious beliefs shall be respected; however, the conscientious objector shall immediately refer the person seeking such care and services to another healthcare service provider within the same facility or one which is conveniently accessible who is willing to provide the requisite information and services; Provided, further, That the person is not in an emergency condition or serious case as defined in Republic Act 8344 which penalizes the refusal of hospitals and medical clinics to administer appropriate initial medical treatment and support in emergency and serious cases.In April, 2014, the Philippines Supreme Court ruled that this provision was an unconstitutional violation of freedom of conscience "insofar as [it] punish[es] any healthcare service provider who fails and/or refuses to refer a patient not in an emergency or life-threatening case, as defined under Republic Act No. 8344, to another health care service provider within the same facility or one which is conveniently accessible regardless of his or her religious beliefs."

45.  The Act asserts that unmarried persons, and those identifying themselves as homosexual have a right to artificial reproduction as well as various forms of birth control.  However, some health care workers decline, for reasons of conscience, to provide such services.  They are motivated by a wish to avoid complicity in perceived wrongdoing, not by personal characteristics of the patient.  This section does not protect them, because it erroneously presumes that conscientious objection is motivated only by discriminatory attitudes.

46.  The exemption is limited to a refusal for reasons set out in Section 23(3).  No exemption is permitted for moral objections to contentious procedures or services. Further: some health care workers consider referral to be unacceptable because it makes them morally complicit in an act they believe to be wrong.

47.  Refusing to refer a patient leaves the persons responsible and officers of the institution liable to imprisonment for one to six months, a fine of up to 100,000 pesos, or both. [Section 24]

(b)  Any public officer, elected or appointed, specifically charged with the duty to implement the provisions hereof, who, personally or through a subordinate, prohibits or restricts the delivery of legal and medically-safe reproductive health care services, including family planning; In April, 2014, the Philippines Supreme Court ruled that this provision was an unconstitutional violation of freedom of conscience "insofar as [it] punish[es] any public officer who refuses to support reproductive health programs or shall do any act that hinders the full implementation of a reproductive health program, regardless of his or her religious beliefs." or forces, coerces or induces any person to use such services; or refuses to allocate, approve or release any budget for reproductive health care services, or to support reproductive health programs; or shall do any act that hinders the full implementation of a reproductive health program as mandated by this Act;In April, 2014, the Philippines Supreme Court ruled that this provision was an unconstitutional violation of freedom of conscience "insofar as [it] punish[es] any public officer who refuses to support reproductive health programs or shall do any act that hinders the full implementation of a reproductive health program, regardless of his or her religious beliefs."

SEC. 24. Penalties

Any violation of this Act or commission of the foregoing prohibited acts shall be penalized by imprisonment ranging from one (1) month to six (6) months or a fine of Ten thousand pesos(P 10,000.00) to One hundred thousand pesos (P 100,000.00) or both such fine and imprisonment at the discretion of the competent court; Provided That, if the offender is a public official or employee, he /she shall suffer the accessory penalty of suspension not exceeding one (1)year or removal and forfeiture of retirement benefits depending upon the gravity of the offense after due notice and hearing by the appropriate body or agency.

 

48.  Health care providers who refuse to provide or refer for a full range of reproductive health services, including artificial reproduction and contraceptives, are liable to one six months imprisonment, or a fine of up to 100,000 pesos, or both.In April, 2014, the Philippines Supreme Court ruled that this provision was an unconstitutional violation of freedom of conscience.

49.  The same penalties are applicable to parents who give birth to children despite being unable to raise them in a "truly humane" way.

If the offender is a juridical person, the penalty shall be imposed upon the president or any responsible officer. An offender who is an alien shall, after service of sentence, be deported immediately without further proceedings by the Bureau of Immigration.  If the offender is a pharmaceutical company, its agent and/or distributor, their license or permit to operate or conduct business in the Philippines shall be perpetually revoked, and a fine triple the amount involved in the violation shall be imposed.

 

50.  In the case of objecting denominational institutions, it appears that religious leaders could be imprisoned and/or fined, depending upon their relationship to the institution.

SEC. 25. Appropriations
SEC. 26. Implementing Rules and Regulations
SEC. 27.  Interpretation Clause

This Act shall 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.

 

51.  This section is likely to be used to justify suppression of freedom of conscience among health care workers.  See Comment 15.

SEC. 28. Separability Clause
SEC. 29. Repealing Clause
SEC. 30. Effectivity

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