Inquiry into access to contraception in Manila: CEDAW Committee finds that the Philippines violated CEDAW

In 2008, the Committee on the Elimination of Discrimination against Women (CEDAW Committee or Committee) received a joint submission from three non-governmental organisations requesting an inquiry into the Philippines under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women. The request alleged that the implementation of Executive Order No. 003 (2000), which regulated access to contraceptives in Manila, violated the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

In 2008, the CEDAW Committee determined that the information submitted to it was reliable and indicated grave or systematic violations of CEDAW. In 2010, it decided to establish an inquiry and appointed two Committee members to conduct the inquiry. In 2012, the members visited the State Party, with its consent.

In 2015, the CEDAW Committee issued a summary of its findings and its recommendations. It concluded that the State Party had failed to fulfil its obligations under CEDAW and is responsible for grave and systematic violations of the rights under: article 12, read alone; article 12, read in conjunction with articles 2(c), 2(d), 2(f), 5 and 10(h); and article 16(1)(e), read alone.

Findings of fact

Executive Order No. 003 states that the City of Manila promotes responsible parenthood and upholds natural family planning “not just as a method but as a way of self-awareness in promoting the culture of life while discouraging the use of artificial methods of contraception like condoms, pills, intrauterine devices, surgical sterilization, and other.” Among other things, the Order declares that the City of Manila takes an “affirmative stand on pro-life issues and responsible parenthood.” The constitutionality of the order was challenged in the Osil case, but all attempts have been unsuccessful and inconclusive.

The CEDAW Committee found that although contraceptives are not explicitly prohibited by Executive Order No. 003, its implementation has led to:

  • health facilities, funded by the local government, withdrawing contraceptives
  • women being refused family planning information and counselling, unless related to so-called “natural family planning
  • misinformation about modern methods of contraception
  • the discontinuation of supplies, information and training on modern contraceptives.

This, it concluded, demonstrated a ban on modern contraception in local government-run public health facilities, which denied women access to the full range of reproductive and sexual health services, commodities and information, with devastating consequences for their lives and health. It also concluded that national policies condoned and even reinforced the order and the lack of any government response to its implementation was because order aligned with the Government’s own position on contraception.

In 2011, the Mayor adopted Executive Order No. 030, which permitted couples to “exercise full and absolute discretion in deciding on which form of family planning to use conformably with their religious beliefs and practices.” Nevertheless, it provided that the City of Manila was not to “disburse and appropriate funds or finance any program or purchase materials, medicines for artificial birth control.” It did this despite acknowledging the unavailability of reproductive services and commodities and the adverse impact of its policy on financially disadvantaged women.

The Committee found that Order No. 030 did not address the flaws and weaknesses of the health system resulting from Order No. 003. This was because women were not afforded a real choice between modern or natural family planning in practice, since the order was not accompanied by the means necessary to make those choices available and affordable. According to the Committee, the order was therefore an inadequate response to the problem.

The CEDAW Committee took the view that the implementation of both orders negatively affected economically disadvantaged women in particular and drove them further into poverty, by denying them the opportunity to control the number and spacing of children. It also recalled testimonies that revealed the pervasive impact of the orders on the lives and health of women in Manila, particularly the economic, social, physical and psychological consequences for women from low-income groups. This included risks of domestic violence, mental and physical health resulting from multiple pregnancies and increased exposure to HIV/AIDS and other STIs.

Legal findings

The CEDAW Committee found that the State Party failed to fulfil its obligations under CEDAW and is responsible for grave and systematic violations of rights under the Convention. According to the Committee, the State Party failed to address the effects of the orders’ implementation and that, between 2004 and 2010, either supported or condoned Manila’s policies. In those circumstances, it concluded, the State Party is responsible for the violations of CEDAW described below. It affirmed that “[d]ecentralization of power through devolution in no way negates or reduces the direct responsibility of the State party to fulfil its obligation to respect and ensure the rights of all women within its jurisdiction.”

Regarding the gravity of the violations, the CEDAW Committee stressed: the high number of people affected by the orders; higher rates of unwanted pregnancies and unsafe abortions; increased maternal morbidity and mortality and increased exposure to HIV and STIs; and the significant consequences for women’s health, personal development and economic security, in particular for economically disadvantaged women. It also noted the potentially life-threatening consequences of resorting to unsafe abortion as a method of contraception and recalled the direct link between high maternal mortality rates resulting from unsafe abortion and lack of access to modern methods of contraception.

Regarding the systematic nature of the violations, the CEDAW Committee noted that “the systematic character of each of the violations found is evident from the prevalent pattern of violations that occurred as a result of policies disproportionately affecting women and discriminating against them.” It further noted that the lack of access to contraception is particularly egregious in Manila “as a result of an official and deliberate policy that places a certain ideology above the well-being of women and that was designed and implemented by the local government to deny access to the full range of modern contraceptive methods, information and services.” It continued by outlining its expert view that:

the violations are not isolated cases, given that the continued implementation of Executive Order No. 003 over a decade resulted in the health system’s incapacity to deliver sexual and reproductive health services other than so-called “natural family planning” and caused women to continuously face significant barriers to gaining access to affordable sexual and reproductive health services, commodities and information. The above factual findings demonstrate that the State party condoned a situation that lasted for more than 12 years, during the successive terms of two different mayors.

Violations of articles 2(d), 2(f) and 12

In finding that the State Party had violated articles 2(d), 2(f) and 12 of CEDAW, the Committee affirmed that all levels and organs of government must refrain from discriminating against women and must abolish laws, policies or actions that have the effect or result of so discriminating. According to the Committee, the adoption and implementation of the orders by the local government of Manila were attributable to the State Party, which had failed to ensure the local government refrained from discriminating against women. It explained that the State Party was aware of the adverse effects of the orders on women in Manila, especially among economically disadvantaged women, but had failed to: take any action against local public authorities; review the orders; and take sufficient and adequate measures to address the flaws of Manila’s health system. Furthermore, the Committee concluded that the strict application of the State Party’s criminal law further intensified the harmful effects of the orders.

Violations of articles 10(h) and 12

In finding that the State Party had violated articles 10(h) and 12 of CEDAW, the Committee affirmed that lack of access to contraceptives affects women’s health disproportionately because only women can become pregnant. In its expert opinion, women in Manila were discriminated against because they were disproportionately disadvantaged by the lack of access to, and use of, the full range of reproductive and sexual health services, including contraceptives. According to the Committee, the orders severely affected women’s lives and health over a number of years and resulted in unplanned pregnancies, unsafe abortions and unnecessary and preventable maternal deaths. It also

particularly harmed disadvantaged groups of women, including poor women, adolescent girls and women in abusive relationships. For example, adolescent girls were exposed to an increased risk of unwanted pregnancies and pregnancy-related injuries or death following unprotected or coerced sex, to which they are particularly vulnerable. Furthermore, the inability of women with little or no income to control their fertility is directly linked to high poverty levels in Manila. … The Committee also stresse[d] … an increasing exposure of women to HIV/AIDS and other sexually transmitted diseases.

The Committee concluded that the State Party had failed to take appropriate and effective measures to ensure access to the full range of reproductive and sexual health services, commodities and information for women in Manila.

It further concluded that the State Party had failed to ensure that women receive appropriate information and advice about modern contraceptives to enable them to make fully informed choices about their reproductive and sexual health. In so doing, it recalled that

women in Manila, especially young women and teenage girls, have not had access to adequate information about modern methods of contraception as a result of the implementation of Executive Orders Nos. 003 and 030 and/or have been consistently misinformed about the risks, side effects and benefits of modern contraception.

It found that

women’s practical access to reproductive health services was therefore compromised by their lack of knowledge or awareness for informed decision-making, such as information on the legal permissibility of being provided with modern contraceptives in public health facilities, their effectiveness, their risks and their benefits.

It also found that “many women in Manila have been making their choices on the basis of misinformation received, for example on the adverse effects of oral contraception or of ligation procedures.”

Violations of article 16(1)(e)

The CEDAW Committee affirmed that article 16(1)(e) affords women the right to decide on the number and spacing of their children and found that the State Party had violated this right by:

  • advocating and providing only natural methods of family planning and denying women in Manila access to information and services on modern contraception
  • depriving those women of the ability and autonomy to make fundamental and intimate decisions affecting their bodies and lives in an informed and safe manner.

The Committee explained that: “[t]he rights of women to family planning and to exercise their choice and independence in making decisions with regard to the number and spacing of their children were thereby rendered futile and their denial exacerbated inequalities between men and women in marriage and family relations.”

Violations of articles 5 and 12

The CEDAW Committee found that the State Party had violated articles 5 and 12 of CEDAW, since the orders reinforced discriminatory gender stereotypes by perpetuating the view that women’s primary role is as child bearers and child rearers and making it acceptable to deny women access to contraception because of that role. In so finding, it affirmed that:

  • stereotypes can undermine women’s capacity to make free and informed decisions about healthcare, sexuality and reproduction and, in turn, their autonomy to determine their own roles in society
  • article 5, read in conjunction with articles 12 and 16, requires States Parties to eliminate gender stereotypes that impede equality in the health sector and marriage and family relations
  • articles 5(b) and 12 require States Parties to ensure that family education includes a proper understanding of maternity as a social function.

Violations of article 2(c) and 12

The CEDAW Committee found that the State Party had violated articles 2(c) and 12 of CEDAW, through its failure to ensure effective judicial action and protection. In particular, it condemned the State Party’s failure to put in place a system to ensure effective judicial protection and provide effective judicial remedies for the violations experienced by women in Manila as a result of Order No. 003, as evidenced by the failure and unwillingness of the judiciary to adjudicate without undue delay the Osil case concerning the revocation of the disputed executive order.

Recommendations

The CEDAW Committee made extensive recommendations to the State Party. Recommendations related to the institutional and legal framework included:

  • fully enforcing the Magna Carta of Women, including its rules and regulations guaranteeing women’s access to effective methods of family planning;
  • ensuring the Executive Orders are revoked, as a matter of urgency;
  • amending the Criminal Code to legalise abortion in cases of rape, incest, threats to the life and/or health of the mother or serious malformation of the foetus, and to decriminalize all other cases in which women undergo abortion;
  • establishing effective monitoring and oversight mechanisms, to ensure that reproductive health laws, strategies and policies strictly comply CEDAW
  • ensuring effective legal remedies for women seeking redress for violations of their right of access to reproductive and sexual health services
  • prioritising protection of women’s health rights over religious postulates that could discriminate against women and negatively affect their access to reproductive and sexual health services, commodities and information.

Recommendations related to the State Party’s reproductive and sexual health rights and services included:

  • addressing the unmet need for contraception, especially in Manila, by ensuring universal and affordable access to the full range of reproductive and sexual health services, commodities and related information, including the safest and most technologically advanced contraception methods
  • removing all economic and structural barriers resulting in unequal access to reproductive and sexual health services
  • ensuring non-biased, scientifically sound and rights-based counselling and information on reproductive and sexual health services are provided in all governmental, provincial and municipal health facilities
  • reintroducing emergency contraception
  • addressing the loss of institutional capacity and knowledge and the erosion of skills resulting from the enforcement of the orders, through systematic training on reproductive and sexual rights, services and commodities
  • providing women with access to high-quality post-abortion care in all public health facilities
  • integrating age-appropriate education on reproductive and sexual health into school curricula.

UN Doc. CEDAW/C/OP.8/PHL/1 (2015)

Acknowledgment 

Thanks and acknowledgement is due to photographer Allen Sarol for generously allowing use of the accompanying photo.   

Advertisements