Conceptualizing conception

During last Tuesday’s oral arguments on the constitutionality of the Reproductive Health law, the Supreme Court found itself in the precarious position of being asked to determine issues which touch upon religious, scientific, medical and political grounds. Those against the RH law claim that Article II, Section 12 of our Constitution proscribes abortion by declaring that “[the State] shall equally protect the life of the mother and the life of the unborn from conception.” Yet this declaration engenders further semantic debate since the exact definition of “conception” remains unclear. Is it the meeting of the sperm and the egg? The implantation of the fertilized egg in the uterine wall? Or some milestone farther down the reproductive process? Furthermore, some anti-RH law advocates have argued that contraceptives, such as condoms and IUDs, are abortifacients and, as such, violate the right to life of an unborn child. There are even those who claim the use of contraceptives is a form of genocide.

The Civil Code provides that civil personality attaches upon the birth of an individual. By way of exception, a conceived child will be considered born for all purposes favorable to it provided that it be actually born later. Hence, what are the rights of an unconceived individual if it does not yet possess civil personality? It may be argued that whatever rights it could have would merely be speculative at that point.

An abortifacient is defined by Webster as “an agent that induces abortion.” And abortion is defined as the termination of pregnancy by the “removal or expulsion from the uterus of a fetus or embryo prior to viability.” On the other hand, IUDs and condoms preclude the formation of a fetus or embryo at the outset. But if these devices prevent the sperm and the egg from meeting, there can be no fertilization and, consequently, no conception. Otherwise stated if there is no conception there can be no embryo or fetus. And without the latter, there can be no abortion. So without the possibility of inducing abortion, how can these devices possibly be considered abortifacients?

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The landmark 1973 US case of Roe v. Wade, was a challenge against a Texas statute prohibiting abortion. Texas argued that life began at conception and, thus, the State had a compelling interest to protect that life from the moment of conception onwards. In holding the Texas statute unconstitutional, the US Supreme Court held that the compelling point of the State’s “important and legitimate interest in potential life [begins] at viability.” The State may proscribe abortion after viability but not before since it is only at the point of viability that the fetus is presumed to have the capacity for meaningful life outside the mother’s womb. Hence, the Court ruled in a 7-2 decision that a woman’s decision to have an abortion is protected by the due process clause of the 14th Amendment although this right must be balanced against the State’s legitimate interest in protecting prenatal life and the woman’s health.

Touching directly upon the issue of conception, the Court discussed various early philosophical, theological, civil and canon law concepts of when life begins. The issue was when, exactly, did the embryo or fetus become fully “formed” or human, infused with a “soul” or “animated”? Was it immediately upon conception or at some point thereafter? St. Augustine himself believed that mere conception does not confer unto the embryo a “soul”. Instead, he made a distinction between the embryo inanimatus, which does not yet have a soul, and the embryo animatus, which acquires a soul days after conception. Query as to the relation between the US concept of viability and the Philippine term of conception?

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The Roe reasoning was challenged in the 1992 case of Planned Parenthood v. Casey. This case involved a Pennsylvania law which set certain requirements before a woman can obtain an abortion. The US Court upheld what it called the “central holding” of Roe, stating that “viability marks the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions.” At the same time, it scrapped the rigid trimestral approach enunciated in Roe which had been criticized as a form of judicial legislation.

A concurring opinion of Justice Potter Stewart in Roe cited the earlier decision in Griswold v. Connecticut which invalidated a state law that prohibited the use of contraceptives on the ground that it violated a married individual’s right to privacy. This right was later extended to unmarried couples in the case of Eisenstadt v. Baird. However, what is interesting to note is that these two cases involved regulations in the use of contraceptives within an individual’s home or other zones of privacy. US Courts have viewed privacy as implicit in the concept of “liberty” and is a basic human right that is of fundamental importance in their society. The RH law, however, provides a mechanism for obtaining contraceptives directly from government. Query then as to the applicability of these cases in light of the recent RH law controversies?

It is argued that the drafters of our 1987 Constitution intended to reject the Roe rationale by specifically stating that the State shall protect the life of the unborn from conception. But that is precisely the point of the bill’s authors — the RH law is not an abortion law. It does not provide a mechanism for aborting conceived children and, as earlier mentioned, it would be a stretch to classify contraceptives such as condoms and IUDs as abortifacients. The issue of protecting the life of the unborn should not even come into the picture as these contraceptives work to prevent life from taking hold to begin with. Unless of course the argument is that our Constitution not only protects “life” but “potential life” as well in which case those who waste their sperms and eggs may indeed be guilty of genocide.

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Greetings: Birth anniversary best wishes to an all around good person — Louie Quiogue.

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“To know the value of life, one must live it first.” – Kaoru Shinmon

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