1

SAN BEDA COLLEGE - MANILA

COLLEGE OF LAW

SAN BEDA LAW - HUMAN RIGHTS ADVOCATES

SBL - HRA DEBATE CUP 2016

MOTION: LET IT BE RESOLVED THAT THE RIGHT TO ACCESS SAFE AND LEGAL ABORTION IS A

HUMAN RIGHT

POSITION PAPER FOR THE NEGATIVE SIDE

GENERAL AND QUARTER FINAL ROUND

1S

2

In developing countries, millions of people are suffering from health problems which are almost

avoidable for the reason of poverty. Some of such dilemma are infectious diseases,

malnutrition, and complications of childbirth where it is a maternal problem specifically arises

in the said countries.1 Despite the decline of maternal mortality between the years 1990 and

2015 by 44%, such problem has still been challenging to the health of the motherly bears. In

2015, 303,000 mothers died from pregnancy-related causes and millions more suffered from

complications related to pregnancy or childbirth, including hemorrhage, infection, hypertensive

disorders and obstructed labor.2

The stance of society towards Legal Abortion remains disarrayed. As people consider life as

“sacred” and therefor condemn the practice of abortion, socioeconomic conditions of people,

especially those living in Third World nations, would suggest otherwise. It is the responsibility of

the State to improve, maintain, and uphold the welfare of the people, and legal abortion may

be considered as a means for them to fulfill such responsibility. The issue now arises here:

Should the access to legal and safe abortion be considered human right?

This side affirms the negative, for the access to safe and legal abortion is not necessary, not

beneficial, nor is it practical for pregnant women, especially those living in the third world

developing countries. To further substantiate this argument, this negative side shall present

1 Population Reference Bureau. (2004.) Improving the health of the world’s poorest country. Retrieved from http://www.prb.org/pdf04/improvingtheHealthbrief_Eng.pdf 2 Maternal and child. (n.d.) Retrieved from http://www.one.org/international/issues/maternal-and-child-health/)

3

how legal abortion as a human right will not be of relevance or importance to pregnant women

in the Philippines with respect to the exercise of their human rights, within the context of the

health sector and the socioeconomic conditions of society.

4

I. NON-NECESSITY

MEDICAL ASPECT

Most cases of abortion are deeply rooted in fetal anomalies. Through a landmark case

(K.L. v Peru) where a 17-year-old Peruvian girl was allowed by the state to undergo abortion

due to prenatal diagnosis of anencephaly3, the option of resorting to abortion in the event

doomed pregnancies has been justified. Moreover, medical findings on the lethal effects of

pregnancy complications brought by fetal anomalies also convinced expecting mothers to

choose abortion over other medical procedures.

Notwithstanding the above-mentioned circumstances, the negative bench still holds

onto the notion that abortion should not be a human right for three reasons: first, fetal

anomalies can be prevented or treated through proper maternal care; second, the sanctity of

the child’s life shall always prevail; third, “safe” abortion still poses a higher risk on the

pregnant woman’s health.

A. Early Prevention and Treatment for Fetal Anomalies

Based on statistics, “the proportion [of] choosing abortion [is] varied by severity of the

fetal anomaly.4” A study then reveals that there is a very high termination rate after prenatal

diagnosis of the following fetal defects: Down syndrome (92%), spina bifida (64%), anencephaly

3 Karen Noelia Llantoy Huamán v. Peru, Communication No. 1153/2003, U.N. Doc. CCPR/C/85/D/1153/2003

(2005). 4 Grimes, D. A. (2016, February 1). United Nations Committee Affirms Abortion as a Human Right. Retrieved March 12, 2016, from Huffington Post - The Blog: http://www.huffingtonpost.com/david-a-grimes/united-nations-committee-affirms-abortion-as-a-human-right_b_9020806.html

5

(84%), Turner syndrome (72%), and Klinefelter syndrome (58%). The findings show how easily a

pregnant woman can decide to undergo abortion without resorting to other medical

procedures.5

In fact, the five conditions mentioned can be treated through proper medication. For

example, surgery within 48 hours of birth can be done to the baby if he suffers from spina

bifida. Future medical care for spina bifida includes physical therapy under an orthopaedic and

regular observation by a urologist. In case of Down syndrome, there has been no treatment yet

as of today. However, a child diagnosed with such illness still has almost the same capacity as

that of a normal child.6

B. State Policy in Protecting the Unborn

Another reason why some pregnant women opt to undergo abortion upon learning the

defect of the child in their womb is that they already assume that the infected child will not

survive before giving birth to it, or if otherwise, the infected child will still suffer from the

complications and will eventually die. This is what we call the “assumption of imminent death.”

The concept of “assumption of imminent death” is immoral. It violates the provision of

the 1987 Constitution, particularly Art II, Sec. 12 which provides for an equal protection of the

life of the mother and the life of the unborn from conception. The state, through the

5 Mansfield, C., Hopfer, S., & Marteau, T. (1999). Termination rates after prenatal diagnosis of Down syndrome,

spina bifida, anencephaly, and Turner and Klinefelter syndromes: a systematic literature review. European

Concerted Action: DADA (Decision-making After the Diagnosis of a fetal Abnormality). 808-812. 6 Richard B. Johnston, J. (2005). 9 Birth Defects and Their Symptoms and Treatments. Retrieved March 12, 2016,

from Parents Magazine: http://www.parents.com/baby/health/birth-defects/birth-defects-symptoms-treatments/

6

Constitution, values the sanctity of a child’s life. Therefore, legalizing abortion (regardless if it is

safe or not) is contrary to the law of the land and to the values which the state upholds.

C. Abortion Complications

Lastly, the safety of the mother undergoing “safe” abortion is not guaranteed. Abortion,

although done safely, still produces medical complications. About 30% of abortion cases is

followed by the occurrence Pelvic Inflammatory Disease, a serious infection which may lead to

infertility.7 Procedures in abortion can lead to severe internal bleeding and cervical damage

(dilated cervix and scraped uterus). Abortions can also cause complications in later pregnancies

like miscarriage and ectopic pregnancies due to weakened cervix and uterus.8

LEGAL ASPECT

Every person has an inherent right to life, liberty, and property. The state, through the

constitution, guarantees that those inherent rights are being safeguarded, that “no person shall

be deprived of life, liberty, and property, without due process of law.” With regard to the right

to liberty, the right to privacy can be exercised. It now follows person will the capability to

choose or decide over a matter related to affairs in his private life.

This concept of privacy becomes controversial on the legalization of abortion for rape-

related pregnancies. In Roe v Wade, the Court ruled that the constitutional right to privacy

7 Willke, J. C., Willke, B. H., Davis, J. J., & Reardon, D. C. (2015). Fact #11: Abortion is more dangerous than

childbirth. Retrieved March 12, 2016, from Abortion Facts: http://www.abortionfacts.com/facts/11#9 8 Luke, B. (2002). Every Pregnant Woman's Guide to Preventing Premature Birth. New York: Crown.

7

includes a woman’s decision whether or not to terminate her pregnancy. However such right is

not absolute - it is only during the first trimester of the pregnancy that the woman can claim

her fundamental right to abortion. This ruling failed to dwell on the “right to life” argument;

however, the Court, by regulating abortion, assures that it is still the state’s interest to protect

the “potentiality of human life.”9 This argument on right to privacy was also reiterated in the

case of Doe v Bolton.10

The negative bench observed that the ruling in the two cases favors on the right of the

mother. Legalizing abortion on the basis of a woman’s right to privacy is absurd because it

belittles the right of the unborn to live. The ruling clearly neglects the idea that the sanctity of a

child’s life should always prevail. Even if the child is bore out of rape, it should not carry the

burden of the consequence of the crime.

Furthermore, abortion constitutes an act of violence through the removal of a fetus

before its delivery. Murder, on the other hand, is also an act of violence by killing a person

without justification. More or less, abortion is similar to murder. So, if abortion can be a legal

act, why not legalize murder, too? What makes the act of violence in abortion different from

the act of violence in murder? Is it because it is more immoral for an individual to kill the living

than the unborn? The state has to consider that in protecting life, it must be equally given to

the living and to the unborn.

9 Roe v. Wade, 410 US 113 (1973) 10 Doe v. Bolton, 410 US 179 (1973)

8

II. NON-BENEFICIALITY

Presuming that abortion promotes women’s health care by reducing the risk of

acquiring complications from doomed pregnancies is erroneous. It is already verified from

medical findings that the health of a woman undergoing abortion, even if the purpose is to

remove the infected fetus from the womb, is still at high risk for serious medical problems. The

continuous occurrence of abortion complications only guarantees that abortion cannot be done

in a safe manner, or, to be precise, that risks in abortion cannot be totally diminished but only

partially reduced, with the danger of being exposed to its complications still present.

In the case of rape-related pregnancies, the decision of continuing the pregnancy will be

beneficial not only to the mother for avoiding the additional risk from the procedures of the

abortion, but also to the unborn for giving it a chance to live. The victims of rape who do not

want to take responsibility of the child may transfer its custody to the government through

social work agencies or to an orphanage. The children bore out of rape can be beneficial in the

future for if they reach the age of maturity, they contribute to the work force which is vital for

the growth of economic condition of the country.

III. IMPRACTICABILITY

Need for a Developed Maternal Health Care

Abortion must not be considered as an answer to doomed pregnancies. Through early

diagnosis, in-depth screening options, and prenatal tests, fetal anomalies can be prevented. But

9

if there’s a failure in employing preventive measures, birth defects can still be treated through

surgery and proper medications. Following these steps, the doomed fetus’ chance of living can

still be realized. The better solution for problems in pregnancy must be a developed maternal

health care.

It has to be emphasized that maternal health care is vital to the condition of the child.

The need for more improved medical technologies and medications is very crucial in order to

control the occurrence of fetal anomalies. Unfortunately, the Philippines failed to achieve the

target improvements on maternal health care for 2015. It was entirely caused by the lack of

access to reproductive health service, inadequate prenatal care system, substandard medical

equipments, and lack of advancements in the forms of medication.11

Based on reports, more than half of births in the Philippines happened at home, usually

done in the manner of hilot, a traditional delivery method. Poverty and costly hospital fees set a

struggle for poor women to give a normal birth delivery with an aid of a skilled midwife and

proper medical equipment. 12 With regard to prenatal care system, there exists a disparity in

the quality of prenatal care received by women living in the urban area and by women living in

remote regions. Income distribution also sets an inequality in receiving good quality of prenatal

care.13 Again, because of the geographical setting of the Philippines, there are still provinces

11 Lavado, R. F., Lagrada, L. P., Ulep, V. G., & Tan, L. M. (2010). Who Provides Good Quality Prenatal Care in the

Philippines? PIDS Discussion Paper Series , 1-18. 12 UNDP. (2013). Improve maternal health - Where we are? Retrieved March 12, 2016, from UNDP in the

Philippines: http://www.ph.undp.org/content/philippines/en/home/mdgoverview/overview/mdg5.html 13 Rogan, S. E., & Olvena, M. R. (2004). Factors Affecting Maternal Health Utilization in the Philippines. 1-12.

10

where there are still no facilities for birth delivery. On the other hand, those facilities already

established only have second-hand, and sometimes dilapidated, medical equipments.

In measuring the quality of maternal health care, maternal mortality ratio as well as

child death rate are needed to be observed. Save the Children, an international humanitarian

organization that advocates for children’s rights and provides charity work and sponsorship to

combat child poverty14, released a report showing that there is a significant decrease in the

child death rate from 25 deaths per 1,000 live births in 2012 to 20 deaths in 2015. In contrary,

the number of pregnancy- or childbirth-related deaths continues to increase. In May 2014, the

World Health Organization (WHO) declared that the “maternal mortality [in the Philippines] is

unacceptably high.” Poor pregnant women, who have extremely felt the adverse impact of the

poor health care system, blamed the Philippine Government for the insufficient allocation of

funds for the health sector. Unfortunately, Save the Children also agreed to their sentiment. It

is proven by the inequality of newborn deaths between the poorest and wealthiest households.

15

It cannot be denied that the economic status of a state is a determining indicator in the

quality of its maternal health care. However, it does not follow that not all rich states perform

well on health sector; let Norway and the United States be the example. State of the World’s

Mothers uses the tool called Mothers’ Index that uses data showing the performance of a state

with regard to women’s and children’s health. Based on the 2015 index, Norway is the top-

14 Save the Children. (2015). What We Do - Advocacy. Retrieved March 12, 2016, from Save the Children :

https://www.savethechildren.net/advocacy 15 Santos, M. (2014, August 22). Child death rate now lower, but maternal mortality up. Retrieved March 12, 2016, from Inquirer.net: http://newsinfo.inquirer.net/631866/child-death-rate-now-lower-but-maternal-mortality-up

11

performing state with a very high performance scores on the health category as well as on the

education and economic sector. Norway has a significantly low infant mortality rate, and only 1

in 188 Norwegian women can probably experience miscarriage16. On the other hand, the

United States only ranks 33rd according to the index. With a child death rate of 6.9 per 1,000

live births, and 1 in 1,800 risk of maternal death, the United States is declared as the worst

performing developed country. As observe, urban inequity is a key factor in such a low

performance. Urban child survival gaps between rich and poor families are evident in some U.S.

cities.17

16 Save the Children. (2015). The Urban Disadvantage - State of the World's Mothers 2015. Farfield. CT: Save the Children Federation, Inc. 17 Dockterman, E. (2015, May 5). U.S. Ranks Worst Developed Country for Maternal Health. Retrieved March 12,

2016, from Time: http://time.com/3847755/mothers-children-health-save-the-children-report/