Ethical and Moral Downside of Contraception Law

Ethical and Moral Downside of Contraception Law

Fr. Daniel Icatlo

Diocese of Daet

The Reproductive Health Law or RH Bill, euphemistically known as Responsible Parenthood and Reproductive Health Act of 2012 (Republic Act No. 10354), is a law in the Philippines. It claims to guarantee universal access to methods of contraception, fertility control, sexual education, and maternal care.

While there is general agreement about its provisions on maternal and child health, there is great debate on its mandate that the Philippine government and the private sector will fund and undertake widespread distribution of family planning devices such as condoms, birth control pills, and IUDs, as the government continues to disseminate information on their use through all health care centers.

Passage of the legislation was controversial highly divisive, with experts, academics, religious institutions, and major political figures declaring their support or opposition while it was pending in the legislature. Heated debates and rallies both supporting and opposing the RH Bill took place nationwide. The Supreme Court delayed implementation of the law in March 2013 in response to challenges. A Justice who declined to be named as the case is still pending, said eight Justices voted for an indefinite suspension of the law’s implementation while seven magistrates voted to limit the extension to just 90 days.

Oral arguments before the Supreme Court

Although the high court debates were covered by the media, there were oral arguments according to the Philippine Daily Inquirer that were not reported to the public. It is interesting to look into the oral argument exchange between the Supreme Court Justices and a lawyer petitioner.

One of the Justices said that, “The Constitution states that the state shall equally protect the life of the mother and the unborn from conception (Section 12 Article 2). This right to life belongs to the unborn, not the mother or the father. Did I exist when I was still in the egg as an egg alone?”

The petitioner replied, “Not yet, your honor.” The exchange continued.

“But when the egg, when the ovum, is fertilized, is that the beginning of me?”

“Yes, your honor. That’s the beginning of you. The unique “you” that exists already at that point.”

“In 1987 before this (Reproductive Health Law) somewhat changed the concept of conception, how did those who drafted the Constitution understand the meaning of conception?”

“Life begins at fertilization. It was only recently that that was redefined.”

“So in other words, all of us started as zygotes … and then developed into a human being. Conception means beginning, isn’t it? But it needs to be sustained to life by attaching itself to the uterus. And it’s not the business of my parents… It’s my right. If they violated my right, I would not have been born.(…) If they believe that this law violates the right to life from the time of conception, that’s how we will decide it … on our understanding of when life begins.

The issue is of course crucial, because the hormonal contraceptives to be funded in the billions by the Reproductive Health Law are known abortifacients—they have a secondary action of harming the fertilized ovum when contraception fails. A recognition of the beginning of life at fertilization would render the Reproductive Health Law unconstitutional.

Another Supreme Court Justice interpellant observed, “I concede that upon the meeting of the egg and the sperm there is life already. It should be protected.”

There were in fact more justices who believed there was no mystery as to the beginning of life.

A former senator argued that what was “constitutionally objectionable” was “the fact that the government itself is putting in money in order to allow the prevention of fertilization. (…) “There is a provision saying that there shall be no demographic or population target. (…) But in another provision there is a need to conduct studies to analyze demographic trends, including demographic dividends from sound population policies. It would seem that the law is intimately connected to population control.”

It seems reasonable to consider such a Health Law as an exercise of police power of the State. As the first Justice interpellant affirmed, “We cannot outlaw the storms or the typhoons … but a healthy woman with a healthy ovum and eggs… We poison the egg to disable it from receiving the sperm. That’s unconstitutional, that’s improper use of police power.”

Finally, one Justice observed that the Reproductive Health Law was targeting the poor and the marginalized. “It would seem under this law that the poor should not be allowed to multiply.”

Functionalism: wrong ethical premise

Under the guise of contraceptive means, abortifacients whether they be hormonal or otherwise are legalized under the Reproductive Health Law.

The foregoing oral arguments clearly hinge on the issue of when human personhood begins. If it begins at the moment of conception then it is clearly unethical to take that life away by preventing it from going through the normal process of development.

But the proponents of the c0ntrary opinion deny the personhood to justify the use of abortifacients and, in the last analysis, abortion itself.

Is this issue really controversial and complex? On one hand, there is an agreement that to take away the life of the innocent is wrong. How about the life of the unborn? Is it less of a life because it is still in the fetal stage? Life is life, be it incipient or developed.

A person is a person at the different stages of the human life cycle. To deny this would lead to a very convoluted issue as to when we could consider a being to be human. Who says when a being becomes a person if he or she was not so from the very beginning? What are the criteria of personhood?

The fact that some people controvert a position does not make that position intrinsically controversial. It only appears to be so, observes Prof. Kreeft. He adds that people argued for both sides about slavery, racism and genocide too, but that did not make them complex and difficult issues. “Moral issues are always terribly complex,” said Chesterton, “for someone without principles.”

Some argue that a fertilized egg has life but then human life is distinct from human being and in turn different from a human person. The zygote may be living but not human nor a person.

Following Prof. Kreeft’s arguments, the root of the difficulty in understanding the personhood of the incipient human being lies in a mistaken premise of functionalism. This position considers the functioning or behaviour of a being defines its personhood. Correct ethics or morality must not run counter to common sense.

Common sense tells us that the manner of acting of any being is determined by its manner of being. “Essence” dictates the behaviour and functioning of a subject.

A rational being acts in a rational manner. An irrational being, on the other hand, acts by instinct. Therefore, “acting” follows “being.” “Being” here is understood as a philosophical term indicating the present progressive fact of “to be.” It is the deepest core of anything that exists.

Now, “being” does not exist in a vacuum. It is received by a subject that makes it “to be this” or “to be that.” More concretely, beings exist with a manner of being, meaning “being human” or “being an animal.” This is the deep and stable substratum of things. Stability implies that when a being begins to be an animal, it will always be an animal. To argue that some animal evolved into humans would require that until now we should see some half-animals and half-humans. But the observable facts negate it altogether. There are no such hybrids existing in real life.

Once we have grasped the existence of a substratum that tells us what a being is, then we can go to the question of how this being acts or behaves. Its behaviour will definitely be determined and dictated by its manner of being. Humans will act in a reasonable way and animals in an instinctive way. Sometimes, the latter may act in an absurd or irrational way. It is not surprising, since its manner of being is to be bereft of rationality.

Thus, while the manner of being is stable and permanent the manner of acting is not. A being may act in one way or another. Nevertheless, no matter how a being acts his functioning can never alter its manner of being. An ape may start writing some scribbles. But it can only imitate some. It will never create its own logical and legible handwritings. Even if one day an ape writes “ape” on the board, it remains a monkey and does not become human simply because of an accidental rational act.

However, human beings may sometimes act in an irrational way. Some may be drawn to alcoholism or fall into drug abuse. Under a state of drunkenness or hallucinations, a human person may act in an irrational and even in an animal like behaviour. In any case, we will never conclude that that human person has become an animal just because it malfunctioned due to some substances he ingested.

Functionalism, thus, falls into a basic pitfall of confusing the sign with the signified. It confuses the smoke for the fire. As a Zen master would say, “The finger is fine for pointing at the moon, but woe to him who mistakes the finger for the moon.”

Taking functionalism as a premise leads to important consequences and further confusions. The ultimate error would be this: a fetus has human life but it is neither a human being, nor a person. Their reasoning is as follows:

First, there is the linguistic fact that we can and often do make a triple distinction among a human life, a human being and a human person. Each cell in our bodies has human life, and a single cell kept alive in a laboratory could be called “a human life” but certainly not “a human being” or “a human person.” “A human being” is a biologically whole individual of the species. Even a human being born with no brain is a human being, not an ape; but it is not a person because it has no brain and cannot do anything distinctively human: think, know, choose, love, feel, desire, commit, relate, aspire, know itself, know God, know its past, know its future, know its environment, or communicate all of which have, in various combinations, been offered as the marks of a person. The pro-life position seems to confuse the sanctity of the person with the sanctity of life, which is two steps removed from it.

Thus pro-life seems to be based on a linguistic confusion. Not all human life is sacred. Not even all human beings, individual members of the human species, are sacred. But all human persons are sacred.

The pro-lifer’s reply would be this. When personhood is denied of a zygote then who will say and when and on what premises will a person be considered as one? Someone having political power will ultimately be the one to say so. Whose criteria will be followed? Perhaps, the criteria of the majority party prevail. Will this not lead to subjectivism using functionalism as a basis for deciding whether something is person or a non-person? Surely, personal interests and conflicts of interest will get in the way.


Second, they claim that pro-lifers seem to commit the intellectual sin of biologism, idolatry of biology, by defining persons in a merely biological, genetic, material way. Membership in a biological species is not morally relevant, not what makes persons sacred and murder wrong. Membership in the human species is no more morally relevant than membership in the subspecies, or race. If racism is wrong, so is speciesism.

However, human being and human life are not mere biological terms. The very question of life points to something that transcends materiality. Life springs from a source that is not material. Thus, it is beyond the realm and sphere of biology. It is not mere biologism to identify human persons since it in fact claims that a human being possesses a biological body and a spiritual soul, which is the very principle of its life. The term for life in Latin is “bio.” Taking their life is wrong precisely because they are persons. The fact that foetuses are not yet “functioning” as human persons does not take away their personhood. There are people who are mentally handicapped either from congenital roots or accidental as when one suffers trauma. These may lose their rational functioning yet they do not cease to be humans.

Third, some claim that a very young product of conception, the zygote, has no ability to perform any of the distinctive activities that anyone associates with personhood (reasoning, choosing, loving, communicating, etc.), not even feeling pain, for the zygote has no brain or nervous system. At first it is only a single cell. How could anyone call a single cell a person?

Though the zygote has no brain, it does have what will grow into a brain, just as an infant does not have speech but has what will grow into speech. Within the zygote is an already fully programmed individuality, from sex and aging to eye color and aversion to spinach. The personhood of the person is already there, like the tuliphood of the tulip bulb. One must actually be a human being, after all, to grow a human brain.

Fourth, others think that it seems to be an obvious mistake for the pro-lifer to claim that personhood begins abruptly, at conception, for personhood develops gradually, as a matter of degree. Every one of the characteristics we use to identify personhood arises and grows gradually rather than suddenly. Pro-lifers seem to be victims of simplistic, black-or-white thinking, but reality is full of greys.

But then, the subject “I” who was once a zygote is the same one that went through changes, growth and development. The unfolding of the self does not change the subject. It remains the same person in the various stages of life cycle.

Personhood is not a developing reality. Otherwise, we will consider foetuses as non-persons until they are fully developed. And who will say when they have reached personhood? Personhood is the same for a human being at any stage of life.  Or else, we would have to legislate lower penalties for killing babies and heavier punishments for killing adults!

Fifth, some argue that pro-lifers seem to confuse potential persons with actual persons. The fetus is potentially a person, but it must grow into an actual person.

Consider this. If the fetus is only a potential person, it must be an actual something in order to be a potential person. What is it? An ape?

There are no “potential persons” any more than there are potential apes. All persons are actual, as all apes are actual. Actual apes are potential swimmers, and actual persons are potential philosophers. The being is actual, the functioning is potential. The objection confuses “a potential person” with “a potentially functioning person.” Functionalism once again.

Sixth, other claim that personhood is not a clear concept. There is not universal agreement on it. Different philosophers, scientists, religionists, moralists, mothers, and observers define it differently. It is a matter of opinion where the dividing line between persons and non-persons should be located. But what is a matter of opinion should not be decided or enforced by law. Law should express social consensus, and there is no consensus in our society about personhood’s beginning or, consequently, about abortion. One opinion should not be forced on all. Pro-choice is not pro-abortion but, precisely, pro-choice.

Is personhood really an unclear concept? If it were a matter of degree, determined by degree of functioning, then it would indeed be unclear, and a matter of opinion, who is a person and who is not. Refuting objection four undercuts this objection.

Personhood is indeed unclear for Functionalism. Such questions as the following are not clearly answerable: Which features count as proof of personhood? Why? How do we decide? Who decides? What gives them that right? And how much of each feature is necessary for personhood? And who decides that, and why? Also, all the performance qualifications adduced for personhood are difficult to measure objectively and with certainty. To use the unclear, not universally accepted, hard-to-measure functionalist concept of personhood to decide the sharply controversial issue of who is a person and who may be killed is to try to clarify the obscure by the more obscure, obscuram per obscurius.

Seventh, a fetus cannot be a person because it is part of another person, the mother. Persons are wholes, not parts. Persons are not parts of other persons, but the fetus is part of another person; therefore, the fetus is not a person.

However, if the fetus is only a part of the mother, a hilariously absurd consequence follows. The relation of part to whole is what logicians call a transitive relation: If A is part of B and B is part of C, then A must be part of C. If a wall is part of a room and the room is part of a building, then the wall must be part of that building. If a toe is part of a foot and a foot is part of a body, then the toe is part of the body. Now if the foetus is a part of the mother, then the parts of the foetus must be parts of the mother. But in that case, every pregnant woman has four eyes and four feet, and half of all pregnant women have penises! Clearly, the absurd conclusion came from the false premise that the foetus is only part of the mother (cf. Human Personhood Begins at Conception, Medical Ethics Policy Monograph Stafford, Virginia: Castello Institute).

Going back to the legal battle being waged in the Philippines, the pro-lifers managed to hold the implementation of the approved Reproductive Health Bill but the struggle continues. Transcending ethics and morals, the clearer path is to learn from the real experience of other countries. Every single country that legalized contraception winded up legalizing abortion. This fact should unmask the real evil aftermath enclosed in legalized contraception.

One might wonder what the real the difference is between a legalized and a non legalized contraception. Anybody who wants to avail of contraceptives can go to any pharmacy and buy some.

Why does it have to be legalized then? Legalizing contraceptives compels government agencies and private companies to provide their employees pills, condoms, etc. on demand. There will be an available contraceptive for anyone independently of age, sex and creed. One can imagine how many billions manufacturing companies of contraceptives would earn!

Finally, this will not be a far flung scenario. Some parents will have to confront situations something like a young teen daughter would say, “Mom, Dad, I’m going to an overnight party with my boyfriend. But don’t worry. I have a prophylactic… and pills, just in case.”

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