MEL STA.MARIA | Chief Justice Sereno's dissent on RH decision rightly protects women

By: ATTY. MEL STA. MARIA

InterAksyon.com
The online news portal of TV5

After reading the decision of the Supreme Court and the concurring-and-dissenting opinion of Chief Justice Maria Lourdes Sereno (which was written in clear and flawless Filipino) on the issue of theReproductive Health Law, I just have to agree with the Chief Justice.

I will not deal with all the issues here except for one in particular, which I think is worth highlighting as it reflects the fundamental difference between the majority opinion and the dissent of Chief Justice Sereno.

(Click here to view PDF of Chief Justice Sereno's opinion and here to download a copy)

The Reproductive Health Law, among others, provides that it shall be prohibited for “any health care service provider, whether public or private” to “refuse to perform legal and medically-safe reproductive health procedures on any person of legal age on the ground of lack of”…. “spousal consent in case of married persons: Provided, That in case of disagreement, the decision of the one undergoing the procedure shall prevail” ( Section 23 [a[[2] [i ]).

This was struck down as unconstitutional.

Fundamentally, the reason of the majority opinion was that the provision is intrusive on the part of the government into the private lives of married couples to plan for their own a family. It is violative of their right to privacy.

On this point Chief Justice Sereno was very emphatic in her dissent. She said:

Walang anumang nakasulat sa RH Law na nagaalis sa magasawa ng kanilang karapatang bumuo ng pamilya. Sa katunayan, tinitiyak nito na ang mga maralita na nagnanais magkaroon ng anak ay makikinabang sa mga payo,kagamitan at nararapat na procedures para matulungan silang maglihi at maparami ang mga anak. Walang anumang nakasulat sa batas na nagpapahintulot sa pamahalaan na manghimasok sa pagpapasiya "[that] belongs exclusively to, and {is] shared by, both spouses as one cohesive unit as they chart their own destiny.”  Walang anumang nakasulat sa RH Law na humahadlang sa pagsali ng asawa sa pagtimbang ng mga pagpipiliang modern family planning methods, at pagpapasiya kung ano ang pinakamabuti para sa kanyang asawa. Kung may epekto man ang RH Law, ito ay ang pagpapatibay ng makatotohanang sanggunian sa pagitan ng mag-asawang pantay na magpapasiya ukol sa isang bagay ng magtatakda ng kanilang kinabukasan.

Sa pamamagitan ng pagpapahalaga sa pangunahing pasiya ng asawang sasailalim sa reproductive health procedure, pinaiigting lamang ng RH Law ang pangangalaga sa pangunahing karapatan ng bawat tao na magpasiya ukol sa kanyang sariling katawan. Sa pamamagitan din nito, naglalatag ang RH Law ng proteksiyon para sa mga medical professionals laban sa mga asunto at panliligalig bunga ng pagkuwestiyon o paghamon kung bakit nila isinagawa ang reproductive health procedure sa kabila ng kawalan ng pahintulot ng asawa.

What is more significant is that rendering Section 23 [a[[2] [i ] unconstitutional is   gender-bias against women. This is so because of the reality that only the woman bears and carries a child and, in doing so, she is the one at risk in terms of her health and indeed her life, while the man has absolutely no risk. As pointed out by Atty. Ampy Sta. Maria, Director of the Women's Desk of the Ateneo Human Rights Center:

Obviously, this  (the unconstitutionality) will have more negative impact on women than men kasi sa totoong buhay, wala namang masyadong magagawa ang babae kung gustong magpa-vasectomy ng asawa niya. And health providers can lawfully refuse to treat you because your husband refuses to allow you to undergo something which you think is best for you and your body. So hindi lang binale-wala ang desisyon ng babae, mas pinahalagahan pa ang desisyon ng asawa niya because his consent has become a pre-requisite to such procedure. And we are not talking about property jointly administered by the husband and wife!

And so if wife-Inday and husband-Jose have eight children and both are over 30 years old, and wife-Inday told husband-Jose that she wants a ligation because she is afraid that another pregnancy would be dangerous to her health and her life, why should her decision on her own body not prevail over the objection of her husband?

Indeed if, under the Family Code, in case of disagreement between the husband and the wife in connection with their conjugal properties, the husband’s decision will prevail, what is wrong with giving the wife’s determination the preferential treatment in resolving matters of spousal conflict on issues involving the wife’s very own body, health and life.   

Why should the consequence be a negation of the wife’s decision, no matter how deliberate and intelligent it may be, because of the husband’s objection, which, in essence, makes his decision prevail? We should not equate the wife’s body to the husband’s exclusive property or even the spouses’ community property, should we?

While marriage is a permanent union, even our Family Code now recognizes the individual rights of the wife. Thus, technically, the wife can engage in any profession even without the consent of the husband. She can now dispose of her own exclusive properties without any conditions unlike in the old Civil Code in certain cases.

Also, a spouse cannot just get the private letters of his/her spouse and use them as evidence without the consent of the latter. There are still private rights of married people, which must be respected. These are not taken away just because of marriage.

I agree with Chief Justice Maria Lourdes Sereno’s dissent. There is no constitutional infirmity in granting preference to the decision of the spouse whose body is at stake in making decisions in relation thereto especially in matters of reproductive health. As the Chief Justice authoritatively said:

Sa pamamagitan ng pagpapahalaga sa pangunahing pasiya ng asawang sasailalim sa reproductive health procedure, pinaiigting lamang ng RH Law ang pangangalaga sa pangunahing karapatan ng bawat tao na magpasiya ukol sa kanyang sariling katawan.