Getting the fly out of the bottle
by: Rev. Fr. Ranhilio Aquino
When is a child conceived? That question has figured prominently, of late, in the debate over the Reproductive Health Law, triggered, no doubt, by the questions raised by the members of the Supreme Court at the oral argument on the consolidated petitions against the implementation of the law. Why it is that the debate has once more been drawn to the conundrum of when human life begins, I cannot fully explain. Flashing an “originalist” card — that theory that the Constitution is rightly interpreted by recourse to the “original intent” of its framers — it seems that some petitioners had argued that the Constitution obliged the State to protect life from its conception. They apparently proffered to the High Court the explanation of some members of the ConCom that what was meant was “from the moment of fertilization”. Amazingly, some justices took the bait and attempted a limp parry: The proffered opinion, they said, was not that of the Commission as a whole but of a minority of its members! Of course, that exchange only highlights the problem with an “originalist” approach to constitutional interpretation. When does human life begin? That is a question that has continued to beguile and vex philosophers and jurists — when the latter are thoughtful enough to philosophize. It has gone by many names. At some time in the past, it was dealt with as the problem of hominization: that moment when God infused the rational, immortal soul and transformed the body into a human body. But of course, the problem with such a theory becomes almost immediately apparent: 40 days can so easily be 60 days, and the latter, roll over into the third trimester, and soon it is clear that one is setting an artificial, arbitrary threshold.
by: Rev. Fr. Ranhilio Aquino
When is a child conceived? That question has figured prominently, of late, in the debate over the Reproductive Health Law, triggered, no doubt, by the questions raised by the members of the Supreme Court at the oral argument on the consolidated petitions against the implementation of the law. Why it is that the debate has once more been drawn to the conundrum of when human life begins, I cannot fully explain. Flashing an “originalist” card — that theory that the Constitution is rightly interpreted by recourse to the “original intent” of its framers — it seems that some petitioners had argued that the Constitution obliged the State to protect life from its conception. They apparently proffered to the High Court the explanation of some members of the ConCom that what was meant was “from the moment of fertilization”. Amazingly, some justices took the bait and attempted a limp parry: The proffered opinion, they said, was not that of the Commission as a whole but of a minority of its members! Of course, that exchange only highlights the problem with an “originalist” approach to constitutional interpretation. When does human life begin? That is a question that has continued to beguile and vex philosophers and jurists — when the latter are thoughtful enough to philosophize. It has gone by many names. At some time in the past, it was dealt with as the problem of hominization: that moment when God infused the rational, immortal soul and transformed the body into a human body. But of course, the problem with such a theory becomes almost immediately apparent: 40 days can so easily be 60 days, and the latter, roll over into the third trimester, and soon it is clear that one is setting an artificial, arbitrary threshold.
This is one of those problems to which Wittgenstein would use the metaphor of the fly that gets itself into a bottle and then flies vainly and aimlessly about, seeking a way out of the bottle into which it has foolishly gotten itself. When we are careless with our language, we get ourselves into inextricable problems. When you ask when — whether during or after fertilization — human life begins, you have framed the question so that you look for that magical (mythical?) moment when “hominization” takes place. This is not to deny the soul; it is just to suggest that our use of terms has been misleading and misled!
When one however asks the question: At what stage in the process of human reproduction may the coercive power of the law be invoked for protection? Then one need not divine the “moment” of the soul’s infusion, or the moment that the non-human becomes human. It then becomes a policy decision about when the force that the law harnesses may be properly invoked. When the fly has thus been shown the way out of the bottle, then it becomes clearer that there are reasons to make State’s protection available as soon as fertilization occurs. And the reason is verifiably biological: with fertilization, there arises a completely new genetic code, and whether or not nidation eventually occurs is a contingency that does not alter the fact that something has been set in motion that leads to the birth of a child like nothing before it ever did. In fact attachment to the uterine wall is utterly inconsequential if no fertilization occurs.
But mental energy should rather go into figuring out whether or not the Constitution, read as a document organizing a living society, allows that the State to do what the RH law, directly or indirectly, makes it do in respect to couples, human reproduction and future generations. Perhaps, an issue should also be looked into, if properly raised in any of the petitions: Whether it is constitutionally permissible for the Executive to so act as it did towards the Legislature in virtually purchasing the favorable vote of the members of Congress.
It is thoughtfulness and philosophical reflection that I invited law professors of Regions 1, 2 and CAR to bring to bear on the teaching of law, at a seminar of the Legal Education Board chaired by Justice Hilarion Aquino, assisted by Dr. Carmencita Yadao-Sison and Dean Eulogia Cueva, in partnership with St. Louis University at Baguio City. Prof. Karen Jimeno talked about law and economics, Prof. Ernesto Maceda discoursed on law and governance, Dean Sed Candelaria, on law and social contexts. I spoke on philosophy in the teaching of law. It was a very well-attended, efficiently-organized seminar, and the LEB as well as St. Louis University’s law dean, Prof. Justin Morales and the wonderful members of his faculty as well as the law students who attended to our every need courteously must be commended. I have not given up on the prospect of the teaching of law that is truly heir to the great tradition of the law faculties of Bologna, Padua and Paris in the Middle Ages where law was not principally what judges said it was nor in what Codes and pandects provided, but in what professors — who were thoroughly philosophical in their reflections — made of it in their scholarly treatises and learned lectures to equally perspicacious students. Then, maybe, flies would not get into bottles as easily as they apparently do these days!
When one however asks the question: At what stage in the process of human reproduction may the coercive power of the law be invoked for protection? Then one need not divine the “moment” of the soul’s infusion, or the moment that the non-human becomes human. It then becomes a policy decision about when the force that the law harnesses may be properly invoked. When the fly has thus been shown the way out of the bottle, then it becomes clearer that there are reasons to make State’s protection available as soon as fertilization occurs. And the reason is verifiably biological: with fertilization, there arises a completely new genetic code, and whether or not nidation eventually occurs is a contingency that does not alter the fact that something has been set in motion that leads to the birth of a child like nothing before it ever did. In fact attachment to the uterine wall is utterly inconsequential if no fertilization occurs.
But mental energy should rather go into figuring out whether or not the Constitution, read as a document organizing a living society, allows that the State to do what the RH law, directly or indirectly, makes it do in respect to couples, human reproduction and future generations. Perhaps, an issue should also be looked into, if properly raised in any of the petitions: Whether it is constitutionally permissible for the Executive to so act as it did towards the Legislature in virtually purchasing the favorable vote of the members of Congress.
It is thoughtfulness and philosophical reflection that I invited law professors of Regions 1, 2 and CAR to bring to bear on the teaching of law, at a seminar of the Legal Education Board chaired by Justice Hilarion Aquino, assisted by Dr. Carmencita Yadao-Sison and Dean Eulogia Cueva, in partnership with St. Louis University at Baguio City. Prof. Karen Jimeno talked about law and economics, Prof. Ernesto Maceda discoursed on law and governance, Dean Sed Candelaria, on law and social contexts. I spoke on philosophy in the teaching of law. It was a very well-attended, efficiently-organized seminar, and the LEB as well as St. Louis University’s law dean, Prof. Justin Morales and the wonderful members of his faculty as well as the law students who attended to our every need courteously must be commended. I have not given up on the prospect of the teaching of law that is truly heir to the great tradition of the law faculties of Bologna, Padua and Paris in the Middle Ages where law was not principally what judges said it was nor in what Codes and pandects provided, but in what professors — who were thoroughly philosophical in their reflections — made of it in their scholarly treatises and learned lectures to equally perspicacious students. Then, maybe, flies would not get into bottles as easily as they apparently do these days!