Ignoring Equal Protection of Women

The State “shall equally protect the life of the mother and the life of the unborn from conception.”

Based on the above Constitutional provision, the unborn cannot be protected separately from its mother, otherwise the word “equally” loses all its sense and purpose, and the phrase becomes fractured and meaningless. Up until the period of fetal viability, the unborn cannot survive without the mother surviving as well. The Constitution and basic biological necessities inextricably links the life of the unborn with the life of its mother. Thus, it is unfortunate that the proposed “Protection of the Unborn Child Act”,^[1] by its short title alone, has chosen to ignore equal protection and the full mandate of the Constitution.

The proposed law will not initiate outlawing abortion, for abortion is already a crime under the Revised Penal Code of 1930. It cannot ban methods of contraception disapproved by the Catholic Church, for medical authorities like the World Health Organization (WHO) have already stated unequivocally that “contraceptives are not abortifacients.”^[2]

However, the proposed law will make pregnancies even more risky for women. It will also remove decision-making during pregnancy complications away from the woman, her loved ones and their health provider who are in the best position to balance the lives at stake and weigh the risks and consequences. It will transfer difficult choices to a distant, cold and inflexible law. In effect, the proposed law will treat women as mere incubating machines to ensure the life of the unborn.

Equal Protection in the Context of Pregnancy Complications

When a life-threatening pregnancy complication occurs and the age of gestation is a long way from fetal viability, timely and aggressive medical intervention to save the mother is warranted. The embryo or fetus may still be growing or have a heartbeat, but attempting to save it at the expense of further risking the mother makes no sense. Both may end up dead. When complications occur near the period of fetal viability, then conservative management may be chosen with the aim of prolonging the pregnancy until the child can survive independent of its mother, thereby saving both lives. The stakes are high, the conditions and risks are complex, and the choices are difficult. The sensible and sensitive policy is to leave these choices to the mother and the people she loves and trusts.

However, the Protection of the Unborn Child Act proposes to classify any “injury, damage … or death of the unborn child” or “interference in the natural development of the fetus” done “intentionally or unintentionally” as elements of criminal abortion. Injury, damage and death are results that can only be known after a medical intervention is done. “Interference in the natural development” is a broad phrase that describes all medicines and medical procedures. The proposed law will result in medical inaction to avoid criminal prosecution. This will kill or maim more mothers. Ironically, medical inaction will probably result in even more perinatal, neonatal and infant deaths and morbidities.

Equal Protection in the Context of Ectopic Pregnancies

A fertilized egg that implants in a woman’s body other than her uterus (womb) will almost certainly not survive to a live birth. If, as often the case, the Fallopian tube becomes the site of implantation, pressure from the growing embryo can rupture the tube and cause severe internal bleeding that leads to maternal death. In these cases, equal protection should mean that women can have ectopic pregnancies removed without any fear of being prosecuted for criminal abortion.

In fact, current medical practice and policies allow the removal of ectopic pregnancies through chemical means (using methotrexate, a core essential drug in the Philippine National Drug Formulary^[3]) and surgical means (using procedures called salpingostomy or salpingectomy, both of which are recognized and reimbursed by PhilHealth^[4]). In some cases, “expectant management” or watchful waiting is done with the hope that the ectopic pregnancy resolves spontaneously without therapy^[5]. Rarely, ectopic pregnancies not in the confined space of the Fallopian tubes survive after intensive medical management and serious risk-taking by the mothers (e.g., pregnancy in the abdominal cavity). In all these cases, the key principle remains that the choice to risk maternal death belongs first and foremost to the mother. If the Protection of the Unborn Child Act is approved, risk-taking by mothers becomes mandatory and expectant management—until danger becomes imminent or the ectopic pregnancy resolves spontaneously—may become the norm preferred by physicians to avoid criminal prosecution.

Equal Protection in the Context of Genetic Defects Incompatible with Human Life

It is estimated that even among couples intent on having a child through daily sex on fertile days, only 25% are successful with each ovulation cycle^[6]. Many fertilized eggs do not implant at all, or are spontaneously aborted in the early weeks of pregnancy. Chromosomal abnormalities are thought to account for a majority of spontaneous abortions that occur before 10 weeks of gestation^[7].

In some instances, the genetically defective entity implants, continues to grow and threatens the life of the mother. For example, a partial mole (kyawa in Filipino) is a product of fertilization^[8] with a genetic make-up distinct from both the mother and the father. Under the Protection of the Unborn Child Act, this growing mass of fetal and placental tissue has fulfilled the definition of a new human life, an unborn child^[9] that must now be protected by the State. It may be alive, but it is definitely not human. Surely, equal protection of the mother and unborn under the Constitution must allow for the removal of molar pregnancies with absolutely no threat of criminal prosecution for abortion.

Promoting Equal Protection through Maternal and Newborn Care and Family Planning

It is unfortunate that the Protection of the Unborn Child Act chose to frame the interests of the mother and the child she bears as diametrically opposed. This is untrue. Medical authorities like the WHO have pointed out^[10] that neonatal deaths and stillbirths (fetal deaths)

stem from poor maternal health, inadequate care during pregnancy, inappropriate management of complications during pregnancy and delivery, poor hygiene during delivery and the first critical hours after birth, and lack of newborn care. Several factors such as women’s status in society, their nutritional status at the time of conception, early childbearing, too many closely spaced pregnancies and harmful practices, such as inadequate cord care, letting the baby stay wet and cold, discarding colostrum and feeding other food, are deeply rooted in the cultural fabric of societies and interact in ways that are not always clearly understood.

Comprehensive reproductive health care—which among others include prenatal care, safe delivery through skilled birth attendance, emergency obstetric and newborn care, the promotion of breastfeeding, family planning and sexuality education to prevent early pregnancies—is a programme that will protect the interests of both the mother and her child.

Birth spacing enhances the survival of both mother and child. A panel of 37 international experts convened by the WHO reviewed the relevant evidence in 2005 and made the following recommendation (underscoring supplied):^[11]

Individuals and couples should consider health risks and benefits along with other circumstances such as their age, fecundity, fertility aspirations, access to health services, child-rearing support, social and economic circumstances, and personal preferences in making choices for the timing of the next pregnancy. … After a live birth, the recommended interval before attempting the next pregnancy is at least 24 months in order to reduce the risk of adverse maternal, perinatal and infant outcomes.

One of the Millennium Development Goal targets is to lower the Philippines’ infant mortality rate (IMR) to 19 deaths per one thousand live births by 2015. The National Demographic and Health Survey of 2008 showed that those with previous birth intervals of three years have already met this target with a measured IMR of 18, while those with intervals of less than two years have almost twice the death rate at 35. A 2009 study has also estimated that the current levels of family planning use already prevent 0.3 million miscarriages, 0.9 million induced abortions, and 3,500 maternal deaths.^[12] Family planning saves both the mother and her child.

Fertilization, Implantation and Conception

Fertilization occurs outside the womb (in the Fallopian tube, or Petri dish if done through in-vitro fertilization or IVF^[13]) while implantation normally occurs in the womb. Thus, the phrase “conceive in your womb” refers to implantation and the start of an intra-uterine pregnancy. Conceive is an old, non-technical word with roots from the Latin concipere which means to “take in and hold; become pregnant”^[14]. Conception means pregnancy, and can never occur without a woman conceiving. In contrast, fertilization can be done in a Petri dish, and if one asserts that conception has already occurred, then a puzzling question arises: Who is conceiving?

The FIGO (International Federation of Obstetrics and Gynecology) Ethics Guidelines^[15] clarified these issues in 1988 when it defined pregnancy as follows:

Natural human reproduction is a process which involves the production of male and female gametes and their union at fertilisation. Pregnancy is that part of the process that commences with the implantation of the conceptus in a woman, and ends with either the birth of an infant or an abortion.

The importance of uterine implantation is recognized even by the Civil Code of the Philippines when it set the length of “intra-uterine life” (life inside the womb) in Article 41 as a test for recognizing and registering the live birth and civil personality of an infant.

The Constitution’s use of the imprecise word “conception” reflects the intense debates that occurred on this issue. Lawyers who have studied transcripts of the Constitutional Commission point out that the proposed terminology started from “fertilized ovum”, then “moment of conception” and finally just “conception”^[16]. The suggested phrases—all not accepted—evolved as follows:

1. The right to life extends to the fertilized ovum
2. Protection of life should extend to the fertilized ovum
3. The State shall protect human life from the moment of conception
4. The State shall protect the unborn child from conception
5. The State shall protect the unborn from conception

If there was consensus that conception means fertilization, then any one of the first two phrasing should have made it. Both failed. The Protection of the Unborn Child Act is reviving a battle lost 23 years ago.

Conclusion

Treating women as nothing more than incubating machines, and introducing extreme conflicts of interests and inflexible rules in pregnancy fail to serve the Constitutional mandate and the interests of mothers and the unborn. For these reasons, we oppose the passage of the Protection of the Unborn Child Act.

Notes

[1] Golez, R. House of Representatives, 15^th Congress. House Bill No. 13, An Act Providing for the Safety and Protection of the Unborn Child and for Other Purposes. Available at http://www.congress.gov.ph/download/comms_related_15/HB%2013.pdf, accessed 1/17/2011.

[2] UNDP/UNFPA/WHO/World Bank Special Programme of Research, Development and Research Training in Human Reproduction (HRP), Department of Reproductive Health and Research, World Health Organization. 7 November 2006. Expert Opinion on House Bill 4643 on Abortive Substances and Devices in the Philippines. Available at http://www.likhaan.org/sites/default/files/pdf/expert_opinion_on_house_bill_4643_on_abortive_substances_and_devices_in_the_philippines_7nov06.pdf, accessed 1/17/2011.

[3] National Formulary Committee, National Drug Policy – Pharmaceutical Management Unit 50, Department of Health. 2008. Philippine National Drug Formulary: Essential Medicines List, p. 58. Volume 1, 7^th Edition. Available at http://www.philhealth.gov.ph/providers/download/PNDFvol1ed7_2008.pdf, accessed 1/17/2011.

[4] Philippine Health Insurance Corp. Circular No. 10 s-2009, p. 16. Revised Value Scale for 2009 with Additional Procedures. Available at http://www.philhealth.gov.ph/circulars/2009/circ10_2009.pdf, accessed 1/17/2011.

[5] Barnhart K. 23 July 2009. Ectopic Pregnancy. New England Journal of Medicine 2009; 361:379-387. Available at http://www.nejm.org/doi/full/10.1056/NEJMcp0810384, accessed 1/17/2011.

[6] Wilcox A, Weinberg C and Baird D. 7 December 1995. Timing of Sexual Intercourse in Relation to Ovulation — Effects on the Probability of Conception, Survival of the Pregnancy, and Sex of the Baby. New England Journal of Medicine; 1995; 333:1517-1521. Available at http://www.nejm.org/doi/full/10.1056/NEJM199512073332301#t=articleResults, accessed  1/17/2011.

[7] Branch D, Gibson M and Silver R. 28 October 2010. Recurrent Miscarriage. New England Journal of Medicine 2010; 363:1740-1747. Available at http://www.nejm.org/doi/full/10.1056/NEJMcp1005330, accessed 1/17/2011.

[8] Berkowitz R. 16 April 2009. Molar Pregnancy. New England Journal of Medicine 2009; 360:1639-1645. Available at http://www.nejm.org/doi/full/10.1056/NEJMcp0900696, accessed 1/17/2011.

[9] The “unborn” is defined in HB 13 as “a child at any stage of existence and development beginning from the union of the sperm and the egg until the birth stage”, and conception/fertilization is said to be “the precise moment that the sperm fertilizes the egg, which is when new life is formed distinct in his/her existence and genetic make-up from both the father and the mother.”

[10] World Health Organization. 2006. Neonatal and perinatal mortality: country, regional and global estimates. Available at http://whqlibdoc.who.int/publications/2006/9241563206_eng.pdf, accessed 1/17/2011.

[11] Department of Making Pregnancy Safer (MPS) and the Department of Reproductive Health and Research (RHR), World Health Organization. 2006. Report of a WHO Technical Consultation on Birth Spacing. Available at http://www.who.int/making_pregnancy_safer/documents/birth_spacing.pdf, accessed 1/17/2011.

[12] Darroch JE et al. 2009. Meeting women’s contraceptive needs in the Philippines, In Brief, New York: Guttmacher Institute, No. 1. Available at http://www.guttmacher.org/pubs/2009/04/15/IB_MWCNP.pdf, accessed 1/17/2011.

[13] Van Voorhis B. 25 January 2007. In Vitro Fertilization. N Engl J Med 2007; 356:379-386. Available at http://www.nejm.org/doi/full/10.1056/NEJMcp065743, accessed 1/17/2011.

[14] Online Etymology Dictionary, available at http://www.etymonline.com/index.php?search=conceive&searchmode=none, accessed 1/17/2011.

[15] FIGO Committee for the Study of Ethical Aspects of Human Reproduction and Women’s Health, FIGO. October 2009. Ethical Issues in Obstetrics and Gynecology. Available at http://www.figo.org/files/figo-corp/Ethical%20Issues%20-%20English.pdf, accessed 1/17/2011.

[16] Ruiz-Austria C, Avellano A, Luczon C and Vargas F., Womenlead Foundation, Inc. Position Paper: Withdrawal of Registration and prohibition of importation and distribution of Postinor through Memorandum Circular No. 18 series of 7 December 2001.

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This is the official position paper of Likhaan Center for Women’s Health submitted to the House of Representatives, which started on 18 January 2011 its public hearings on House Bill No. 13 – “Protection of Unborn Child Act of 2010 by Rep. Roilo Golez”. There are two counterpart bills in the Senate: SB 2497 by Sen. Juan Ponce Enrile and SB 2584 by Sen. Ralph Recto.