There is continuing debate over House Bill No. 5043, otherwise know as the “Reproductive Health and Population Development Act of 2008″.
Several weeks ago, my parish distributed flyers opposing House Bill No. 5043. Its opposition is based on the following grounds (which are similar to the grounds raised in the online petition against House Bill No. 5043):
1. The bill compels employers “to provide free reproductive health care services, supplies, devices and surgical procedures (including vasectomy and ligation) to its employees” and the bill subjects employees “to both imprisonment and/or fine, for every time that” the employee fails to comply with the requirement;
2. The bill penalizes health care providers with imprisonment and/or fine if they “fail to provide reproductive health care services such as giving information on family planning methods and providing services like litigation and vasectomy, regardless of the patient’s civil status, gender, religion or age”;
3. The bill allows a spouse to undergo vasectomy or litigation without the consent or knowledge of the other spouse;
4. The bill provides that “children from the age 10 to 17 [will] be taught their sexual rights and the means to have a satisfying and safe sex life as part of their school curriculum”; and
5. The bill subjects to imprisonment and/or fine any person who expresses an opinion against any provision of the law, “if such expression of opinion is interpreted as constituting ‘malicious information'”.
Are the grounds for opposition supported by the language of the bill? Here are my findings:
1. The bill requires employers to provide the free delivery of a reasonable quantity of reproductive health care services, supplies and devices to all workers. Employers who breach this obligation may be sentenced to imprisonment ranging from one (1) month to six (6) months or a fine ranging from Ten Thousand Pesos (P10,000.00) to Fifty Thousand Pesos (P50,000.00) or both such fine and imprisonment at the discretion of the court.
2. As a rule, the bill punishes a health care provider who refuse to extend reproductive health care services and information on account of the patient’s civil status, gender or sexual orientation, age, religion, personal circumstances, and nature of work. However, the bill provides that “all conscientious objections of health care service providers based on religious grounds shall be respected.” Objection on religious grounds is available only when the patient is “not in an emergency or serious case”.
3. The bill does not expressly provide that the husband or wife can undergo vasectomy or ligation without the consent or knowledge of the other spouse. This is merely implied from Section 21(a)(2), which penalizes a health care provider who “refuse(s) to perform voluntary ligation and vasectomy and other legal and medically-safe reproductive health care services on any person of legal age on the ground of lack of spousal consent or authorization.”
4. The bill mandates “age appropriate” sex education beginning Grade 5.
5. The bill penalizes any “person who maliciously engage in disinformation about the intent or provisions of this Act.”
The above finding are based on the following:
1. Provision by employers of reproductive health care services.
Section 21 of the bill penalizes, among others:
Any employer who shall fail to comply with his obligation under Section 17 of this Act or an employer who requires a female applicant or employee, as a condition for employment or continued employment, to involuntarily undergo sterilization, tubal ligation or any other form of contraceptive method. . . (underscoring supplied)
On the other hand, Section 17 provides:
Employers shall respect the reproductive health rights of all their workers. Women shall not be discriminated against in the matter of hiring, regularization of employment status or selection for retrenchment.
All Collective Bargaining Agreements (CBAs) shall provide for the free delivery by the employer of reasonable quantity of reproductive health care services, supplies and devices to all workers, more particularly women workers. In establishments or enterprises where there are no CBAs or where the employees are unorganized, the employer shall have the same obligation. (underscoring supplied)
The bill does not expressly say what are included in the term “reproductive health care services, supplies and devices” that employers are supposed to provide to employees. Section 4(g) defines reproductive health care as follows:
Reproductive Health Care – refers to the availability of and access to a full range of methods, techniques, supplies and services that contribute to reproductive and sexual health and well-being by preventing and solving reproductive health-related problems in order to achieve enhancement of life and personal relations.
Thus, it appears that employers are required to provide services, supplies and devices that contribute to “reproductive health”. Section 4(c) of the bill defines reproductive health as:
. . . the state of 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. This implies that people are able to have a satisfying and safe sex life, that they have the capability to reproduce and the freedom to decide if, when and how often to do so, provided that these are not against the law. . . (underscoring supplied)
Reading Sections 4(c), 4(g) and 17 together, it is clear that the bill requires employers to provide, among others, contraceptive devices and services (such as vasectomy and ligation) to employees. Failure to do so is punishable under Section 22, which provides:
SEC. 22. Penalties. – The proper city or municipal court shall exercise jurisdiction over violations of this Act and the accused who is found guilty shall be sentenced to an imprisonment ranging from one (1) month to six (6) months or a fine ranging from Ten Thousand Pesos (P10,000.00) to Fifty Thousand Pesos (P50,000.00) or both such fine and imprisonment at the discretion of the court. If the offender is a juridical person, the penalty shall be imposed upon the president, treasurer, secretary 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. An offender who is a public officer or employee shall suffer the accessory penalty of dismissal from the government service.
Violators of this Act shall be civilly liable to the offended party in such amount at the discretion of the proper court.
It should be noted that the Labor Code already mandates certain establishments to provide family planning services. The Labor Code provides:
ART. 134. Family planning services; incentives for family planning. – (a) Establishments which are required by law to maintain a clinic or infirmary shall provide free family planning services to their employees which shall include, but not be limited to, the application or use of contraceptive pills and intrauterine devices.
(b) In coordination with other agencies of the government engaged in the promotion of family planning, the Department of Labor and Employment shall develop and prescribe incentive bonus schemes to encourage family planning among female workers in any establishment or enterprise.
ART. 137. Prohibited acts. – (a) It shall be unlawful for any employer:
(1) To deny any woman employee the benefits provided for in this Chapter or to discharge any woman employed by him for the purpose of preventing her from enjoying any of the benefits provided under this Code. . .
Section 157 of the Labor Code requires an employer to maintain an emergency clinic if the number of employees exceeds 200. The employer must also maintain an infirmary with one bed capacity for every one hundred employees when the number of employees exceed 300. The rules and regulations implementing the Labor Code mandates that employers who habitually employ more than 200 workers in any locality must provide family planning services:
Family planning services. — Employers who habitually employ more than two hundred (200) workers in any locality shall provide free family-planning services to their employees and their spouses which shall include but not limited to, the application or use of contraceptives. (Underscoring supplied)
While the Labor Code provisions cover employees with more than 200 employees, House Bill 5043 proposes to cover all employers (regardless of number of employees).
2. Provision by health care providers of information and services
Sections 21(a) and 22 punish:
Any health care service provider, whether public or private, who shall:
1. Knowingly withhold information or impede the dissemination thereof, and/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 and effective family planning methods;
2. Refuse to perform voluntary ligation and vasectomy and other legal and medically-safe reproductive health care services on any person of legal age on the ground of lack of spousal consent or authorization.
3. Refuse to provide reproductive health care services to an abused minor, whose abused condition is certified by the proper official or personnel of the Department of Social Welfare and Development (DSWD) or to duly DSWD-certified abused pregnant minor on whose case no parental consent is necessary.
4. Fail to provide, either deliberately or through gross or inexcusable negligence, reproductive health care services as mandated under this Act, the Local Government Code of 1991, the Labor Code, and Presidential Decree 79, as amended; and
5. Refuse to extend reproductive health care services and information on account of the patient’s civil status, gender or sexual orientation, age, religion, personal circumstances, and nature of work; Provided, That all conscientious objections of health care service providers based on religious grounds shall be respected:Provided, further, That the conscientious objector shall immediately refer the person seeking such care and services to another health care service provider within the same facility or one which is conveniently accessible: Provided, finally, That the patient is not in an emergency or serious case as defined in RA 8344 penalizing the refusal of hospitals and medical clinics to administer appropriate initial medical treatment and support in emergency and serious cases.
Under paragraph 1, a health care provider is required to provide information regarding programs and services on reproductive health.
Under paragraph 2, a health care provider cannot refuse to perform voluntary ligation and vasectomy on the ground of lack of spouses consent or authorization. The way it is worded, however, it does not expressly penalize refusal to perform voluntary ligation and vasectomy on grounds OTHER than lack of spousal consent or authorization (but see paragraph 4).
Under paragraph 3, a health care provider must provide reproductive health care services to an abused minor.
Under paragraph 4, a health care provider must provide reproductive health care services as mandated by the bill and other applicable laws.
Under paragraph 5, a health care provider cannot refuse to extend reproductive health care services and information on account of the patient’s civil status, gender or sexual orientation, age, religion, personal circumstances and nature of work.
Now paragraph 5 deserves greater scrutiny. From the way paragraph 5 is worded, it appears that the refusal to extend reproductive health care and services on other grounds (i.e., not relating to the patient’s civil status, etc.), is not a punishable offense under paragraph 5 (but the question remains whether the offense is nevertheless punishable under paragraph 4).
It is interesting that the first sentence of paragraph 5 is qualified by the phrase “all conscientious objections of health care providers based on religious grounds shall be respected.” In other words, it appears that if the health care provider:
(a) refuses to extend health care services and information ON ACCOUNT of the patient’s civil status, gender or sexual orientation, age, religion, personal circumstances and nature of work; AND
(b) objects on religious ground, then the health care provider may generally refuse to extend reproductive health care services and information.
The law does not expressly address situations where:
(a) the refusal of the health care provider to provide reproductive health care and services on grounds other than the patient’s civil status, gender or sexual orientation, religion, personal circumstances or nature of work; and
(b) the objection is not based on religious grounds.
It must be noted that the health care provider cannot always object on religious grounds. Under the last sentence of paragraph 5, a health care provider cannot refuse to extend health care services is in an “emergency or serious case” as defined in Republic Act No. 3844.
3. Sterilization or vasectomy without the consent of the other spouse.
The bill does not expressly provide that the husband or wife can undergo vasectomy or ligation without the consent or knowledge of the other spouse. This is merely implied from Section 21(a)(2), which penalizes a health care provider who “refuse(s) to perform voluntary ligation and vasectomy and other legal and medically-safe reproductive health care services on any person of legal age on the ground of lack of spousal consent or authorization.”
4. Sex education for children from age 10 to 17.
Section 12 of the bill provides:
SEC. 12. Mandatory Age-Appropriate Reproductive Health Education. – Recognizing the importance of reproductive health rights in empowering the youth and developing them into responsible adults, Reproductive Health Education in an age-appropriate manner shall be taught by adequately trained teachers starting from Grade 5 up to Fourth Year High School. In order to assure the prior training of teachers on reproductive health, the implementation of Reproductive Health Education shall commence at the start of the school year one year following the effectivity of this Act. The POPCOM, in coordination with the Department of Education, shall formulate the Reproductive Health Education curriculum, which shall be common to both public and private schools and shall include related population and development concepts in addition to the following subjects and standards:
a. Reproductive health and sexual rights;
b. Reproductive health care and services;
c. Attitudes, beliefs and values on sexual development, sexual behavior and sexual health;
d. Proscription and hazards of abortion and management of post-abortion complications;
e. Responsible parenthood.
f. Use and application of natural and modern family planning methods to promote reproductive health, achieve desired family size and prevent unwanted, unplanned and mistimed pregnancies;
g. Abstinence before marriage;
h. Prevention and treatment of HIV/AIDS and other, STIs/STDs, prostate cancer, breast cancer, cervical cancer and other gynecological disorders;
i. Responsible sexuality; and
j. Maternal, peri-natal and post-natal education, care and services.
In support of the natural, and primary right of parents in the rearing of the youth, the POPCOM shall provide concerned parents with adequate and relevant scientific materials on the age-appropriate topics and manner of teaching reproductive health education to their children.
In the elementary level, reproductive health education shall focus, among others, on values formation.
Non-formal education programs shall likewise include the abovementioned reproductive Health Education.
Section 4(h) of the bill defines “Reproductive Health Education” as:
Reproductive Health Education – refers to the process of acquiring complete, accurate and relevant information on all matters relating to the reproductive system, its functions and processes and human sexuality; and forming attitudes and beliefs about sex, sexual identity, interpersonal relationships, affection, intimacy and gender roles. It also includes developing the necessary skills do be able to distinguish between facts and myths on sex and sexuality; and critically evaluate. and discuss the moral, religious, social and cultural dimensions of related sensitive issues such as contraception and abortion.
Based on the foregoing, the bill mandates “age appropriate” sex education beginning Grade 5.
5. Expression of opinion against the law.
Section 21(e) penalizes any “person who maliciously engage in disinformation about the intent or provisions of this Act.”