Medico-legal aspects of Abortion been the subject of considerable debate in the legal sphere

By John Manolong and within the Supreme Court.

Article II of the 1987 Philippine Constitution says, in An analysis by the Population Division of the United

part, "Section 12. The State recognizes the sanctity of family Nations Department of Economic and Social Affairs

life and shall protect and strengthen the family as a basic concluded that although the Revised Penal Code does not list

autonomous social institution. It shall equally protect the life specific exceptions to the general prohibition on abortion,

of the mother and the life of the unborn from conception." under the general criminal law principles of necessity as set

forth in Article 11(4) of the Revised Penal Code, an abortion

The act is criminalized by Philippine law. Articles may be legally performed to save the pregnant woman's life

256, 258 and 259 of the Revised Penal Code of the Philippines (Therapeutic Abortion).

mandate imprisonment for women who undergo abortion,

as well as for any person who assists in the procedure. Article Therapeutic Abortion

258 further imposes a higher prison term on the woman or There are two main medico-legal problems which may

her parents if the abortion is undertaken "in order to conceal confront a medical practitioner.

the woman's dishonor". 1. The first concerns his ethical behavior towards so-

called therapeutic abortion, and

There is no law in the Philippines that expressly 2. The second, his professional and civil behavior

authorizes abortions in order to save the woman's life; and once an abortion or attempted abortion has taken

the general provisions which do penalize abortion make no place.

qualifications if the woman's life is endangered. It may be

argued that an abortion to save the mother's life could be There is evidence to suggest that 60% of the

classified as a justifying circumstance (duress as opposed to abortions worldwide are natural, or at any rate, noncriminal

self-defense) that would bar criminal prosecution under the events. In other words, the medical practitioner should not

Revised Penal Code. However, this has yet to be adjudicated assume that every abortion is the result of some form of

by the Philippine Supreme Court. criminal interference.

Proposals to liberalize Philippine abortion laws Generally, the only lawful justification for a

have been opposed by the Catholic Church, and its therapeutic abortion is to save the life of the mother; this idea

opposition has considerable influence in the predominantly was greatly amplified in one case in the United Kingdom, R.

Catholic country. However, the constitutionality of abortion v. Bourne, where the judge considered that it was the

restrictions has yet to be challenged before the Philippine surgeon's duty to perform the operation of abortion if, on

Supreme Court. reasonable grounds and with adequate knowledge, he was

of the opinion that the probable consequence of the

The constitutional provision that "The State shall continuation of pregnancy would be to make the patient a

equally protect the life of the mother and the life of the physical and mental wreck.

unborn from conception" was crafted by the Constitutional

Commission which drafted the charter with the intention of There are many cases where therapeutic abortion

providing for constitutional protection of the abortion ban, can be allowed to save the life of a woman or to prevent

although the enactment of a more definitive provision disability. Pregnant women with conditions such as advanced

sanctioning the ban was not successful. The provision is heart disease, chronic nephritis, dwarfism, hypertensive

enumerated among several state policies, which are generally disorders, tuberculosis, diabetes, bronchial asthma, goiter,

regarded in law as unenforceable in the absence of HIV, malaria, severe anemia, malnutrition, and pregnant

implementing legislation. The 1987 Constitution also contains women who are less than 18 or greater than 35 years of age,

several other provisions enumerating various state policies. have a fourth or more children, are battered by their

Whether these provisions may, by themselves, be the source husbands or partners, and have spinal metal plates may die

of enforceable rights without implementing legislation has from complications from pregnancy and childbirth and may
need access to safe abortion to save their lives and prevent
life-long disability.
Worldwide, many women die from pregnancy and
childbirth, e.g., 27.1% due to post-partum hemorrhage, 14%
due to hypertensive disorders, and about 9% due to various
reasons.
Many of these conditions are common to Filipino
pregnant women and girls. In August 2016, a 21-year old rape
victim who became pregnant as a result of the rape died a
day after giving birth due to complications from her risky
childbirth resulting from her dwarfism condition. Her mother
lamented that her daughter might be alive today had her
daughter been able to access safe and legal abortion.
A woman may also have suffered a previous post-
partum hemorrhage (PPH) in the past and may want to
induce abortion to avoid risk to her health and life due to PPH.
Although interventions exist to prevent these maternal
deaths and address the preexisting health concerns of
women, the services and information regarding the health
services may not be accessible to poor, rural, and young
women.
A leading question also of the termination of
pregnancy following maternal infection with rubella. In a
recent leading article (British Medical Journal, 1951, 2, 592) a
factual analysis of the material then available led the writer to
the conclusion that if a woman has rubella during the first
three months of her pregnancy there is a serious chance –
perhaps 25%, perhaps over 80%– of her baby having one or
more abnormalities, but these will not necessarily themselves
be serious.
Even taking the lower figure of a 25% incidence of
congenital abnormality there seems to be some social
argument for the termination of pregnancy in circumstances
where further pregnancies are probable and not
contraindicated. However, there can be no doubt that the
strict interpretation of the law would make such termination
illegal.
There are women who become suicidal because of
their pregnancy. These include rape victim-survivors who
suffer depression, become suicidal, and resort to clandestine
and unsafe abortion. Some incest rape victim-survivors who
became pregnant after being raped by their own fathers
whether adolescents or adults have resorted to clandestine
and unsafe abortion risking their health and lives. About one
in every nine Filipino women who induce abortion are rape
victim-survivors. Without access to safe and legal abortion,
they end up part of the statistics of women who die from
unsafe abortion complications. These cases fall under the
ambit of therapeutic abortions to save the life and health of
the woman.
Criminal Abortion
The State shall equally protect the life of the mother
and the life of the unborn from conception (Section 12, Article
2, 1987 Philippine Constitution). Pursuant to the said
constitutional provision, abortion remains illegal in the
Philippines under all circumstances and is highly stigmatized.
While a liberal interpretation of the law could
exempt abortion provision from criminal liability when done
to save the woman’s life, there are no such explicit provisions.
There are also no explicit exceptions to allow abortion in cases
of rape, incest or fetal impairment.
The Revised Penal Code considers abortion to be a
criminal offense punishable by up to six years in prison for
doctors and midwives who perform abortions and by 2‒6
years in prison for women who undergo the procedure,
regardless of the reason.
Article 256 | Intentional Abortion
Any person who shall intentionally cause an
abortion shall suffer:
1. The penalty of reclusion temporal, if he shall use any
violence upon the person of the pregnant woman.
2. The penalty of prision mayor if, without using
violence, he shall act without the consent of the
woman.
3. The penalty of prision correccional in its medium
and maximum periods, if the woman shall have
consented.
Article 257 | Unintentional Abortion
The penalty of prision correccional in its minimum
and medium period shall be imposed upon any person who
shall cause an abortion by violence, but unintentionally.
Article 258 | Abortion practiced by the woman herself of by her
parents
The penalty of prision correccional in its medium
and maximum periods shall be imposed upon a woman who
shall practice abortion upon herself or shall consent that any amount to knowledge of the fact, can be charged with

other person should do so. misprision of felony if he does not report the matter.

Any woman who shall commit this offense to

conceal her dishonor, shall suffer the penalty of prision
correccional in its minimum and medium periods.
If this crime be committed by the parents of the
pregnant woman or either of them, and they act with the
consent of said woman for the purpose of concealing her
dishonor, the offenders shall suffer the penalty of prision
correccional in its medium and maximum periods.
In other jurisdictions, it is generally conceded and
taught that if the abortion is thought to have been self-
induced, and that the patient is likely to recover from the
effects, then information gained in the professional
relationship should not be disclosed. Little advantage is to be
gained in the same circumstances if recovery is unlikely, from
either the patient's point of view or that of the general public-
unless it be to safeguard innocent persons from criminal

allegation.
Article 259 | Abortion practiced by a physician or midwife and

dispensing of abortives Where information has been gained under

The penalties provided in Article 256 shall be circumstances of professional secrecy that another person is

imposed in its maximum period, respectively, upon any responsible for the abortion, such information should not be

physician or midwife who, taking advantage of their scientific disclosed without the patient's permission.

knowledge or skill, shall cause an abortion or assist in causing

the same. However, the individual practitioner may feel very

differently, and particularly if he has reason to believe that a

Any pharmacist who, without the proper
certain neighborhood is being worked by an abortionist.
prescription from a physician, shall dispense any abortive shall
Under such circumstances it is generally possible to inform
suffer arresto mayor and a fine not exceeding 1,000 pesos.
the police authorities, without disclosing the particular

patient's name, that such an abortionist is working in a given

A separate set of laws under the Midwifery Act,
neighborhood.
Medical Act and Pharmaceutical Act permit the revocation or
suspension of the licenses of any practitioner who performs
In police jargon, there is a popular expression-"
abortions or provides abortifacients.
acting on information received." Most responsible medical

practitioners should be on such reasonable terms with the

Much commoner than the problem of therapeutic
local police force as to be able to give such information
abortion, however, are the cases in which the medical
without transgressing professional secrecy.
practitioner is consulted after the attempted abortion has
been made. He now has to consider his code of professional
There are two extremes of thought on this vexed
secrecy, so far as the patient is concerned, and his civil duty
subject of professional secrecy: one held by the purist who
to prevent the repetition of a felony. His first duty is, of course,
will disclose nothing to authority, the other held by those who
to the health and life of his patient, but it is frequently of value
have seen the awful-the word is used in its strictest sense
in the treatment of patients suffering from the effects of
mortality and morbidity resulting from the activities of the
abortion to know something of the condition.
professional abortionist.

The chances of infection and other complications

During the treatment of cases of abortion the
in abortion from natural causes are very much less than when
question of taking a dying declaration or of instituting action
an instrument has been used, and a knowledge that
leading to a magistrate's court in the hospital ward may have
instrumentation is responsible will obviously put the
to be considered. To many people it will appear that it is no
practitioner on the look-out for the more dangerous
part of any doctor's treatment to agree with a patient that she
complications.
is dying, however certain of that fact he may be in his own

mind.
In law, a medical practitioner who has such reason
Furthermore, a dying declaration not being subject
to believe that an abortion has been criminally procured,
to cross-examination is, with respect of abortion not given a
whether by the patient herself or by another person, as to
great deal of weight by the justices. A magistrate's court on At the 'post-mortem examination there was no

the other hand does not require the patient's acquiescence doubt that this woman had died of air embolism following
to the term "knowing that I am about to die," and her the introduction of soapy fluid into the pregnant uterus.

statement can be subject to cross-examination. Again, When the husband was interviewed, he stated that he was

however, the patient's physical state is the prime well aware of his wife's condition, that the baby was expected
consideration of the practitioner, and the occasions on which in July, and his wife was attending a local doctor for antenatal

such a procedure can be carried through are few and far treatment and had every reasonable preparation for the birth.
between. All this proved to be true. He also stated that he had known

his wife to use an enema syringe for vaginal douching,

Common Hazards particularly in Egypt, where they were married. It would

Probably more than half the abortions are natural appear, therefore, that this woman, on the night previously,

events; it must also be admitted that of the remainder a large was preparing to go to bed in the usual way and took with

proportion are intentionally self-induced, while a small her to the lavatory an enema syringe and a bowl of diluted

number (2% to 3%) are accidentally self-induced as the result antiseptic solution. After douching herself, she walked to the

of hygienic syringing. kitchen (a matter of six or seven steps in this type of house)

Furthermore, the methods which are used by and laid the syringe on the draining board. She was able to

professional abortionists, excluding the highly skilled medical return and sit on the water-closet seat before the effect of the

abortionists, can be used by the woman herself, so that the air embolism killed her.

method employed, if it can be diagnosed, does not give an

indication of the person responsible. Air embolism, shock due to vagal inhibition, sepsis

particularly anaerobic infection-and lower nephron nephrosis

It may be said rather loosely that, the more severe are the commonest causes of death following abortion.

the injuries to the vagina, the more likely is it that the attempt
was self-induced, but the converse is not true, as is shown by The case cited above illustrates the following facts:

the case of a married woman of 29 who lived in a the introduction of fluid into the pregnant uterus can be easily

prefabricated house with her 20-months-old son. Her achieved by the woman herself; it may be so achieved

husband was a serving soldier stationed on the coast. Early accidentally; and a small amount of voluntary movement is

one morning a neighbor heard the baby crying and later possible afterwards. In this case the woman was capable of

noticed that the child was still crying and that the bread and walking 15 to 20 paces before being overcome by the effects

milk were still on her friend's doorstep. This neighbor of air embolism.

managed to gain entrance to the house through the

kitchenette window and found her friend in the lavatory, the Circumstantial evidence in other cases supports the

door of which was wide open. She was sitting on the water- view that only the simplest voluntary movements are possible

closet seat with her head thrown back, and on the arrival of after the introduction of large quantities of air into the

the police surgeon was found to be dead. Death was thought pregnant uterus. This restriction on activity before death

to have occurred 12 hours previously. A chamber containing makes the recognition of air embolism of great importance,

white fluid was found on the floor of the lavatory. The body since it implies that the attempted abortion was carried out in

was fully clothed except for knickers, which were found neatly the immediate proximity of where the woman died. The

folded on a chair in the living-room. Over the back of the observation of vagal inhibition is similarly of great forensic

chair was a pair of pajamas, and it was subsequently importance, but, being based on virtually negative findings, it

ascertained that it was the deceased woman's habit to is more difficult to recognize.

undress and dress in the living-room to avoid disturbing the

baby in the bedroom. All the electric lights were on except Sepsis, while not categorically implying

that in the bedroom. An enema syringe, apparently recently instrumental interference, is strongly suggestive, particularly

used, was lying on the draining board of the scullery. The when the organism is an anaerobe. A full bacteriological

front and back doors of the house were bolted on the inside. examination of an infected abortion may help not only in the
treatment and prognosis of the case but also in the
identification of the cause.
 Lower nephron nephrosis is much too large a in any event, or more often give rise to a brisk attack of

subject to be dealt with here, but, briefly, it may be said to diarrhea.

occur far from infrequently in cases of infected abortion,

generally manifesting its presence by oliguria about eight to Sources:

ten days after the onset of symptoms and often at a time 1) https://reproductiverights.org/world-abortion-
when the patient seems to be out of the wood. It has laws/philippines-abortion-provisions

accounted for 25% of the fatal cases which I have seen in the 2) Refresher course for general practitioners medico-
past five years. legal aspects of abortion by Donald Teare, M.D.

M.R.C.P

Methods of Effecting Abortion 3) https://www.guttmacher.org/report/unintended-

Of the instruments in common use, undoubtedly pregnancy-and-unsafe-abortion-philippines-

the ordinary enema syringe is the most popular, and context-and-consequences

generally the syringe is new and apparently freshly purchased

for the specific purpose.

The recently used syringe often smells of carbolic

soap or an antiseptic, and the inside of the bulb takes some

time to dry out after use. Slippery elm bark is still available and

appears to carry a rather greater risk of infection.

A pregnant woman aged 20, who was engaged to

be married, visited an abortionist in North London, who

inserted a piece of slippery elm into the cervix at 6 o'clock one

evening. The girl was desperately ill by noon the following day

and died that evening. Her fiance reported the matter to the
police. The most significant features at necropsy were a

bronzed cyanosis, presumably due to haemolysis, and

extraordinary oedema of all the pelvic tissues including the

uterus. Bacteriological examination gave a pure growth of

Clostridium oedematiens, and a sample of slippery elm

retrieved from the abortionist's house was subsequently

examined and showed the same organism.

As might be expected, the most severe local

damage is caused by sharp instruments such as knitting-

needles, umbrella ribs, and the like. A woman aged 29,

engaged in a flourishing business, found herself pregnant

after six months of married life. Her husband came home one

evening to find her almost moribund and lying in a pool of

blood in bed. She was immediately taken to hospital, where

her condition was so serious as the result of hemorrhage that

no extensive repair could ever be made of the severe

lacerations which she admitted having caused in her vagina

by means of a knitting-needle. She died some twenty hours

after being found. While drugs are undoubtedly extensively

used (and easily obtained despite recent legislation) in the
attempt to procure abortion, it is very doubtful if they ever do
more than effect a " trigger " action in a woman who will abort