G.R. No. 184535 - Separate Opinion

G.R. No. 184535, September 3, 2019,
♦ Resolution, Per Curiam
♦ Separate Opinion, Peralta, [J]
♦ Separate Opinion, Leonen, [J]
♦ Separate Opinion, Jardeleza, [J]
♦ Separate Opinion, Caguioa, [J]
♦ Separate Opinion, Reyes, [J]

SISTER PILAR VERSOZA, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, MICHELINA S. AGUIRRE-OLONDRIZ, PEDRO AGUIRRE, AND DR. MARISSA PASCUAL, RESPONDENTS.

I submit this Opinion, however, to respond to the following views offered by Associate Justice Marvic Leonen in his Separate Opinion: (1) a person with intellectual disability1 has a fundamental right to procreation and parenthood; (2) sterilization2 performed on the individual, at the instance of his/her parents or guardian without the individual's express consent, violates this right; and (3) sterilization under such circumstances is punishable as a crime of cruelty or child abuse under Section 10(a) of Republic Act No. 7610 (RA 7610).3

I also submit this Opinion to clarify the concept of fundamental rights under constitutional law.

Larry was a charge of the Heart of Mary Villa. In June 1980, he was, formally taken in as a ward by respondents Pedro Aguirre and the latter's spouse Lourdes S. Aguirre (Aguirres) by virtue of an Affidavit of Consent to Legal Guardianship executed by Sister Mary Concepta Bellosillo, Superior of the Heart of Mary Villa. Several years later, or on June 19, 1980, the Regional Trial Court (RTC), Balanga, Bataan, granted the Aguirres joint guardianship of Larry's person and property. In 1989, when Larry was eleven years old, and given his "somewhat slow mental development,"5 he was taken to specialists for neurological and psychological evaluations which revealed that he had mild mental deficiency. In 2001, when Larry was 21 years old, the Aguirres approached respondent Dr. Juvido Agatep (Dr. Agatep), a urologist/surgeon, concerning their intention to have Larry vasectomized. Dr. Agatep, however, required that Larry first be evaluated by a psychiatrist to determine whether Larry is able, given his mental deficiency, to give consent to the requested medical procedure. In a psychiatric report dated January 21, 2002, respondent psychiatrist Dr. Marissa Pascual (Dr. Pascual) confirmed Larry's mental deficiency, finding that he is "very much dependent on his family for his needs, adaptive functioning, direction and in making major life decisions."6 According to Dr. Pascual, Larry, "[a]t his capacity, x x x may never understand the nature, the foreseeable risks and benefits, and consequences of the procedure (vasectomy) that his family wants for his protection. Thus, the responsibility of decision making may be given to his parent or guardian."7 On January 31, 2002, and with respondent Pedro's written consent, respondent Dr. Agatep performed bilateral vasectomy on Larry.8

In two complaint-affidavits dated September 9, 2002, Gloria Pilar S. Aguirre and Sister Pilar Versoza (Versoza) charged respondents Pedro, his daughter Michelina Aguirre-Olondriz, Dr. Agatep, and Dr. Pascual of falsification and mutilation under Articles 172 and 262, respectively, of the Revised Penal Code (RPC) and/or Child Abuse under Sections 3 and 10 of RA 7610. The complaints for falsification and mutilation were dismissed by the Office of the City Prosecutor (OCP) for insufficiency of evidence.9

It appears, however, that the OCP reconsidered its earlier resolution and ordered the filing of criminal Informations against respondents with the RTC for violation of RA 7610. Upon respondents' motions, the RTC, in an Order10 dated November 8, 2005, nevertheless dismissed the case for lack of probable cause. Petitioner thus elevated the matter to the Court of Appeals (CA). In its Decision11 dated May 16, 2008, the CA held that the bilateral vasectomy performed on Larry is neither child abuse nor cruelty punishable under RA 7610. It also held that then appellant (now petitioner) Versoza is neither Larry's parent, adopter, or legal guardian, and therefore had no legal personality to institute the complaint against respondents. Aggrieved, petitioner filed this action before the Court.

In the meantime, respondents Michelina S. Aguirre-Olondriz and Pedro B. Aguirre, in a motion to dismiss, informed this Court that petitioner died on September 9, 2012, three days after suffering from a brain aneurysm.12 This was not denied by petitioner's counsel, who also maintained that, given the "transcendent importance" of the issue at hand, the case survives petitioner Versoza's death.13

In my view, RA 7610 does not criminalize vasectomy. There is no showing of any clear legislative intent to make sterilization of intellectually-disabled individuals, conducted with the consent of their parents or legally-constituted guardians, a criminal act.14 In fact, and contrary to what Justice Leonen suggests,15 legislative deliberations would appear to define acts of cruelty as "unreasonable infliction of physical injury or inhuman treatment on the physical being of a child"16 citing physical maltreatment and beatings, as examples.17 Basic rules of statutory construction would therefore instruct against such reading, especially when, as pointed out by the Office of the Solicitor General, such procedure, a "recognized" and "medically accepted"18 method of contraception, was conducted with the consent of Larry's legally-appointed guardian, after much deliberation and in consultation with a psychiatrist.19

Existing laws also militate against Justice Leonen's proposed reading of RA 7610. The Congress, through several legislative enactments, has identified other equally important interests, including those of parents and the State, which arguably have a direct bearing on the asserted liberty interest to procreation and parenthood. These should be properly taken into account.

Republic Act No. 10354 (RA 10354), otherwise known as the "Responsible Parenthood and Reproductive Health Act of 2012," and which the Separate Opinion makes fleeting reference to,20 provides for, and lays down, a "national policy" on "responsible parenthood and reproductive health." Examination of the provisions of RA 10354 in its entirety shows how the Congress struck a balance between the demands of responsible parenthood and reproductive rights, resting on the fulcrum of free, informed consent.

RA 10354 declares as national policy the recognition of human rights and the right to non-discrimination. It declares that the right to health includes reproductive health which, in turn, refers to the rights of individuals to decide freely and responsibly whether or not to have children.21 It recognizes a mental health aspect to reproductive health22 and, in fact, defines the latter to refer to a state of, among others, mental well-being as to imply that people have the capability to reproduce and the freedom to decide if, when, and how often to do so.23 RA 10354 also defines responsible parenthood as follows:

It also provides that all individuals shall have access to family planning, which is the full range of safe, affordable, effective, non-abortifacient modern methods of planning pregnancy.24

RA 10354 recognizes the parents' shared responsibility to decide when to have children, their number and spacing, and to make the decision in light of their family life aspirations, health, and economic circumstances. Arguably, this same responsibility applies to parents of the intellectually-disabled child, over whom they owe the duty to determine, using the same guidelines, whether to beget children. This responsibility springs from the fundamental right and interest of parents over children under their care.

In the United States (US), this interest of parents in the "care, custody, and control of their children" has been held by the US Supreme Court in Troxel v. Granville25 as "perhaps the oldest of the fundamental liberty interests recognized by this Court."26 Similarly, this Court, in Imbong v. Ochoa, Jr. ,27 upheld the primacy of parental authority over their children when it struck down a provision in RA 10354 which does away with the consent of parents for the conduct of a family planning procedure on their child in cases where said child is already a parent or has had a miscarriage:

Vasectomy is a legitimate modern family planning method under RA 10354.29 As such, and consistent with Imbong where the Court recognized as constitutionally permissible family planning methods which work prior to fertilization, parents/legal guardians of an intellectually-disabled child can arguably claim a constitutional right and duty to decide whether vasectomy or tubal ligation would be in the latter's best interests. Whether the decision is in the best interest of said child in a particular case would, of course, be a triable question of fact to be resolved after the reception of evidence on the condition of the child and the situation of the parent/legal guardian.

Here, Justice Leonen cannot cite from the record sufficient scientific and medical evidence to show that Larry understands the nature and consequences of his sexuality, of his having a child, and of his being a parent. Dr. Pascual's conclusion that Larry may never understand the nature and consequences of vasectomy does not substitute for evidence that he understands the nature and consequences of bearing a child and being a parent. Neither is there evidence introduced below to show that Larry is' possessed of the will and ability to respond to the "needs and aspirations" of children he may beget, taking into account his (Larry's) "psychological preparedness, health status" and attendant "sociocultural and economic concerns," according to the provisions of RA 10354 on responsible parenthood.

On the contrary, Dr. Pascual, after examining Larry, noted that he "still needs supervision in taking a bath," "cannot prepare his own meal" or run errands alone, and whose human figure "is comparable to a 7-8 year old."30 Larry also does not appear to have a source of income independent from his family. These, it must be emphasized, were never controverted by petitioner.

Similarly, there is no medical or scientific evidence on record to support either Justice Leonen's claim that Larry's mental age will grow to be 18 years of age or beyond at some point in the future or its theory of "supported parenting." Given the advancing age and medical problems of Larry's guardians, and their financial standing, it is imperative that there must be some showing that they are (or will still be) possessed with the resources to meet the requirements of "supported parenting" for any of Larry's future children.

Notably, Justice Leonen himself, in his Opinion holding curfew ordinances on minors unconstitutional, has characterized a parent's rights with respect to his/her family as no less "fundamental," "an integral aspect of liberty and privacy," which ought to "receive the support of Government," their interests being "superior" to the State whose decision can only substitute or supplement "when parental authority is established to be absent or grossly deficient."31

Here, Larry's guardians claim that they made the decision to sterilize him due to the following considerations: they "are already old and have medical problem and x x x could no longer monitor and take care of him like before,"32 and "because of Larry's emerging sexuality and inability to take care of himself much less a child."33 Absent any clear showing that this exercise of parental authority is absent or grossly deficient, it should be considered that respondent Pedro, as Larry's legally-constituted guardian with the obligation to ensure his well-being, has an equally important right to decide matters affecting the latter. Justice Leonen conspicuously fails to cite any basis on the record which would show how respondent Pedro's exercise of parental authority in this particular instance was absent or grossly deficient, much less that it actually operated to Larry's detriment.

With respect, I also take exception to Justice Leonen's insinuation that respondent Pedro "deprive[d] him of all the options [that] his life had to offer,"34 even expressly characterizing their decision as "an act of selfishness; not one borne out of love."35 First, and considering that there is simply no evidence on record to support these statements, I find Justice Leonen's conclusions to be unfounded and unfair. Furthermore, parents, probably more than anyone else, are the ones expected to love and care for their child, to do their best to ensure and look after their child's best interests. This is even acknowledged by the law which provides a father's diligence as the default standard of care required in the general performance of obligations.36 Absent evidence to the contrary, respondent Pedro is presumed to always act in Larry's best interests; he would never have been granted guardianship over Larry otherwise. Respondent Pedro has taken Larry, an orphan, into his house and, from all available indications, brought him up like one of his own. I thus hesitate to be so harsh as to question respondent Pedro's motivations and impute bad faith on his parenting on account of Justice Leonen's disagreement (with the decision to vasectomize) based on a still to be established legal "principle."

We should also consider the provisions of the Family Code which prohibits persons under the age of 18 from contracting marriage;37 and' allows the annulment of marriages contracted by parties between the ages of 18 and 21 when parental consent is not secured38 or when either party was of unsound mind at the time of marriage.39 These provisions evince a State interest to ensure that parties contracting a marriage know their enormous responsibilities as future parents. The Family Code is replete with provisions making up the bundle of duties and responsibilities imposed upon parents/guardians with respect to their children/wards,40 including the duty to support, educate and provide for the child's upbringing. Pursuant thereto, should the State issue a marriage license in favor of an intellectually-disabled individual? A case can arguably be made that the same State interest (which allows the State to prohibit minors from contracting marriage) applies in cases of intellectually-disabled individuals who may wish to marry and have children. To my mind, an assertion of an unqualified right of an intellectually-disabled person to have children, because it implicates State interests, would require the reception of evidence to prove that the individual is willing and able to meet the bundle of duties and responsibilities imposed by the State as a consequence of parenthood.41

There is also Republic Act No. 11036 (RA 11036), otherwise known as the "Mental Health Act," which was approved only in June of last year. Under this law, the Congress, after consultation with a wide range of public mental health individuals, experts, academics, professionals, governmental and non-government associations,42 declared as policy that mental health conditions be treated and that persons affected by mental health conditions are able to exercise the full range of human rights.43 RA 11036 further states as an objective the protection of the rights and freedoms of persons with psychiatric, neurologic, and psychosocial health needs.44 After defining a mental health condition as follows:

the law goes on to enumerate the rights of the person with a health condition, whom it calls the service user. These include: (1) the right against treatment that are cruel, inhumane, harmful or degrading and invasive procedures not backed by scientific evidence;46 (2) the right to give informed consent before receiving treatment, such consent is required to be in writing and recorded in the service user's record;47 and (3) the right to designate a person of legal age as his or her legal representative, who may act as substitute decision maker.48 Where the service user fails to appoint, RA 11036 identifies the persons qualified to be his/her legal representative, in a prescribed order, as follows:

(c) Failure to Appoint. If the service user fails to appoint a legal representative, the following persons shall act as the service user's legal representative, in the order provided below:

RA 11036 further requires public and private health facilities to create. internal review boards to assess and decide, motu proprio or upon written complaint or petition, all cases, disputes and controversies involving the treatment, restraint or confinement of service users within their facilities.49 Mental health professionals are also given the right to advocate for the rights of a service user, where the latter's wishes are deemed to be at odds with those of his/her family or legal representative.50

Through RA 11036, the Congress has put in place a legal regime requiring the informed consent of the service user prior to treatment. In the same measure, it nevertheless provided for: (1) exceptions to the requirement of informed consent, in cases of emergencies, or "when there is impairment x x x of decision-making capacity on the part of a service user,"51 subject to certain safeguards and conditions;52 and (2) penalties in case of violation of its provisions.53

Both RA 10354 and RA 11036 make possible alternative views on sterilization in relation to intellectually-disabled individuals. Under RA 10354, for example, vasectomy can be viewed as a family planning procedure that the parent/legal guardian of an intellectually-disabled child/individual may decide that the latter should undergo. In like manner, vasectomy can arguably qualify as a possible treatment or medical intervention for an individual with a mental health condition (to which his/her parents can give substituted consent to under certain specified conditions). By these lights, the view that vasectomy on intellectually-disabled individuals is criminal should be tested in a proper, prospective case.

More, it should also be considered that there are differing kinds and levels of intellectual disabilities; treating all of them similarly and without due consideration of their differences may only end up doing the concerned intellectually-disabled individual a disservice. The US Supreme Court, for example, has acknowledged the existence of levels of intellectual disabilities and how, in the context of the constitutional right forbidding the execution of the intellectually-disabled, they play a critical role in providing information on how intellectual disability should be measured and assessed.54 Aside from acknowledging that its decisions on the matter is better informed by the views and assessments of medical experts and the professional medical community, the Court also recognized DSM-5, which provides for four severity levels for intellectual disability, namely: mild, moderate, severe and profound, as an authoritative reference.55

This Court, in a prosecution for rape and sexual assault of a 21 year-old intellectually-disabled person with a mental age of six years and an IQ of 38, has itself acknowledged differences with respect to mental/intellectual' deficiencies:

The term, "deprived of reason," is associated with insanity or madness. A person deprived of reason has mental abnormalities that affect his or her reasoning and perception of reality and, therefore, his or her capacity to resist, make decisions, and give consent.

The term, "demented," refers to a person who suffers from a mental condition called dementia. Dementia refers to the deterioration or loss of mental functions such as memory, learning, speaking, and social condition, which impairs one's independence in everyday activities.

We are aware that the terms, "mental retardation" or "intellectual disability," had been classified under "deprived of reason." The terms, "deprived of reason" and "demented," however, should be differentiated from the term, "mentally retarded" or "intellectually disabled." An intellectually disabled person is not necessarily deprived of reason or demented. This court had even ruled that they may be credible witnesses. However, his or her maturity is not there despite the physical age. He or she is deficient in general mental abilities and has an impaired conceptual, social, and practical functioning relative to his or her age, gender, and peers. Because of such impairment, he or she does not meet the "socio-cultural standards of personal independence and social responsibility."

These viewpoints, to me, show that Justice Leonen's grand assertion of a "fundamental" right on the part of the intellectually-disabled to procreation and parenthood is not as self-evident as he makes it appear. The cited laws and court holdings, both here and abroad, underscore that rights do not exist in isolation; one man's liberty ends where another man's begins.57 As a constitutional scholar writes:

Even when it has recognized a core kind of fundamental right, such as the right to autonomy in procreative matters, the Court should be reluctant to extend the protected interest to novel circumstances without considering countervailing factors, xxx Instead, it should be recognized that there is a needed region of legislative flexibility to prevent negative consequences of these endeavors in which the State has legitimate interests and in which a "right" may destroy countervailing "rights." xxx [T]he initial decision to recognize the interest as a fundamental right should not be undertaken without an inquiry into other individual interests that might be compromised by the categorization.58 (Emphasis supplied.)

Ignoring the reality of competing interests would mean wrongly presupposing, in the words of Justice Scalia, that "x x x there is only one side to this controversy—that one disposition can expand a 'liberty' of sorts-without contracting an equivalent 'liberty' on the other side. Such a happy, choice is rarely available."59 The "ramifications and gravity of the issue involved"60 simply does not justify traversing the complex issues pertaining to the reproductive rights of the intellectually-disabled, absent any evidence supporting the conflicting claims and arguments surveyed.

My views on the prematurity of reaching the constitutional issues notwithstanding, I take this occasion to discuss the concept of fundamental rights. I do so in response to Justice Leonen's assertion that the vasectomy conducted on Larry, an intellectually-disabled person, violated his "fundamental right to life and liberty,"61 particularly, his rights "to procreate,"62 to "start a family,"63to be a "parent,"64 and that the decision to subject him to vasectomy required Larry's consent.65

The concept of fundamental rights, once described as "liberties that operate as trumps,"66 was first extensively covered by the Court, through Chief Justice Puno, in Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas,67 There, the Court, citing Gerald Gunther, traced its history and development in the context of American constitutional equal protection analysis.68 The liberty interests declared by the US Supreme Court to be "fundamental" are the right to procreation, the right to marry, the right to exercise First Amendment freedoms such as free speech, political expression, press, assembly, the right to travel and the right to vote.69 By way of continued acceptance of the concept, this Court, very recently in Republic v. Manalo70 and applying equal protection analysis, identified marriage, among others, as a fundamental right.

The recognition of an asserted liberty interest as "fundamental" has significant legal consequences. Traditionally, liberty interests are protected only against arbitrary government interference. If the government can show a rational basis for believing that its interference advances a legitimate legislative objective, a claim to a liberty interest may fail.71 Where, however, a liberty interest has been accorded an "elevated" status by characterizing it as a right (or a fundamental right), then the government is subject to a higher burden of proof to justify intrusions into these interests, namely, the requirements of strict scrutiny in equal protection cases72 and that of compelling State interest in due process cases.73 As the US Supreme Court has warned, affixing the label "fundamental" to such liberty interests would place them outside the arena of public debate and legislative action.74 Resultantly, and as is also true in this jurisdiction, fundamental rights have been deemed to include only those basic liberties explicitly or implicitly guaranteed by the Bill of Rights of the Constitution.75

There seems to me little disagreement as to the "fundamental" nature of an asserted liberty interest when the same can be read from the text of the Bill of Rights of the Constitution itself. Thus, when a State act is alleged to have implicated an explicit "fundamental right," i.e., a right textually found in the Bill of Rights, the Court has been wont to subject the government to a higher burden to justify its challenged action:

In Ebralinag v. The Division Superintendent of Schools of Cebu,76 the Court annulled and set aside orders expelling petitioners from school, thereby upholding their right under the Constitution to refuse to salute the Philippine flag on account of their religious beliefs as guaranteed under' Section 5, Article III.77

In Legaspi v. Civil Service Commission (CSC),78 the CSC was ordered, via mandamus, to open its register of eligibles for the position of sanitarian, and to confirm or deny, the civil service eligibility of certain identified individuals for said position in the Health Department of Cebu City, in furtherance of the fundamental right of the people to information on matters of public concern provided under Section 7, Article III of the Constitution.79

In Disini, Jr. v. Secretary of Justice80 the Court struck down as unconstitutional Sections 4(c)(3), 12, and 19 of the Cybercrime Law81 for being violative of the right to freedom of expression, right to privacy, and right against unreasonable searches and seizures, as explicitly provided under Sections 4, 3, and 2, respectively, of Article III of the Constitution.82

The case of Samahan ng mga Progresibong Kabataan (SPARK) v, Quezon City83 involved a challenge against curfew ordinances for minors for being violative of the constitutional right to travel. There, the Court chose to apply the strict scrutiny test and found that while the government was able to show a compelling State interest, it failed to show that the regulation set forth was the least restrictive means to protect such interest or the means chosen is narrowly tailored to accomplish the interest.

In Chavez v. Gonzales,84 the Court nullified the official government statements warning the media against airing the alleged wiretapped conversation between the President and other personalities. According to the Court, any attempt to restrict the exercise of freedom of the press guaranteed under Section 4, Article III must be met with "an examination so critical that only a danger that is clear and present would be allowed to curtail it."85

In Newsounds Broadcasting Network, Inc. v. Dy,86 on the other hand, the Court held that respondents' actions, which ranged from withholding permits to operate to the physical closure of those stations under color of legal authority, failed to pass the test of strict scrutiny which it deemed appropriate to assess content-based restrictions on free speech and press. According to the Court, "[a]s content regulation cannot be done in the absence of any compelling reason, the burden lies with the government to establish such compelling reason to infringe the right to free expression."87 Due to the government's failure to show a compelling State interest, the Court granted petitioner's prayer for a writ of mandamus and ordered respondents to immediately issue the requisite permits.

In Kabataan Party-List v. Commission on Elections (COMELEC),88 a challenge was made against a COMELEC resolution setting a shorter deadline for voter registration, one outside of the period provided by Section 8 of Republic Act No. 8189, otherwise known as the "Voter's Registration Act of 1996." The Court found that existing laws grant the COMELEC the power to fix other periods and dates for pre-election activities only if the same cannot be reasonably held within the period provided by law. Since the COMELEC was unable to justify why the mandate of continuing voter registration cannot be reasonably held within the period provided, the Court nullified the deadline set by the COMELEC for being unduly restrictive of the people's right to vote.89

Justice Harlan of the US Supreme Court has famously noted that "the full scope of the liberty guaranteed by the Due Process Clause cannot be found in, or limited by, the precise terms of the specific guarantees elsewhere provided in the Constitution."90 Thus, American jurisprudence is replete with instances wherein their Supreme Court has given "fundamental" status to otherwise unenumerated rights.

The first unenumerated right to be widely recognized was the liberty of contract in the 1905 landmark case of Lochner v. New York.91 In Lochner, the US Supreme Court invalidated a New York statute which provided that employees shall not be required to work in bakeries for more than 60 hours in a week, or 10 hours a day.ᇈWᑭHIL It found the regulation "an unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract in relation to labor, and, as such, it is in conflict with, and void under, the Federal Constitution."92

In what became known as the Lochner-era, the US Supreme Court during this time focused on the term "liberty" under the Due Process Clause, construed it to include the "freedom of contract," and subjected any attempt by the State to regulate contractual relations to a level of review "that was as demanding as implied by the modern term 'strict scrutiny.'"93 Thus, "liberty of contract" was used as basis to invalidate laws providing for maximum working hours,94 minimum wage laws,95 and even those which allowed employers to require, as a condition for hiring or continued employment, non-membership in unions.96

Interestingly, around this time, the US Supreme Court also had occasion to interpret "liberty" outside of contracts and in the specific context of family relations. In Meyer v. Nebraska,97 the US Supreme Court reversed a conviction of an instructor in a parochial school who taught the subject of reading in German language to a child of 10 years and who had not attained and successfully passed the eighth grade. It found that Meyer's right thus to teach foreign languages and the right of parents to engage him so to instruct their children fall within the liberty of the Fourth Amendment.98

Similarly, in Pierce v. Society of Sisters,99 the US Supreme Court invalidated a State statute mandating, with limited exceptions, the enrollment of children in public schools within their residential districts. According to the Court, the challenged law "unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control:"100

[A]s often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the State. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.101 (Emphasis supplied.)

Come 1937, the US Supreme Court would abandon its "broad" stance on economic liberties, signaling the decline of the Lochner-era.. Scholars would debate that this new attitude (reduction of judicial intervention in economic regulation) was a reaction to then President Franklin D. Roosevelt's "Court-Packing Plan,"102 purportedly an attempt by the president to stem the Court's continuous invalidation of federal New Deal statutes.103 In any case, by 1937, the Court would decide West Coast Hotel Co. v. Parrish,104 upholding a statute providing for minimum wages (and expressly reversing its earlier ruling in Adkins). In a sharp retreat from the philosophy characteristic of its Lochner-era, holdings, the Court in Parrish found that the liberty protected by the Due Process Clause was neither absolute nor uncontrollable but rather subject to regulation which is reasonable in relation to its subject.

From then on, the Court never looked back, marking the demise of the now infamous Lochner-era. With Parrish, the practice of subjecting to rigid scrutiny government regulation of business and commercial matters (in the name of protecting constitutional liberty) was stopped. The Court thereafter shifted its focus to deciding "substantive" rights under the Due Process and Equal Protection Clauses. While the aspect of Lochner severely curtailing economic regulation waned, the future significant cases touching on fundamental "non-economic" rights would build on Lochner insofar as it protected "fundamentals" which, as demonstrated by Meyer and Pierce, was "not wholly limited to economic rights: to the Court of that era, there was no sharp distinction between economic and non-economic, 'personal' liberties x xx."105

In Skinner v. Oklahoma ex rel Williamson,106 the US Court struck down a state statute providing for compulsory sterilization after a third conviction for a felony "involving moral turpitude," but excluding felonies such as embezzlement, for being violative of the guarantee of equal protection. There, it declared that the challenged legislation involved "one of the basic civil rights of man," marriage and procreation both being "fundamental to the very existence and survival of the race."107 Gunther writes:

[T]he 1942 reference in Skinner to "fundamental," "basic" liberties in the area of marriage and procreation was extraordinary: that decision mixing due process and equal protection considerations was virtually the only one in that period from the demise of Lochner x x x to exercise special scrutiny in favor of a "basic liberty" not tied to or justifiable by a specific constitutional guarantee.108

Subsequently, in the 1967 case of Loving v. Virginia109 the freedom to marry was recognized such that any restriction of such freedom based solely on racial classifications violates the central meaning of the Equal Protection Clause.

In Lawrence v. Texas,110 the Supreme Court reversed its earlier ruling in Bowers v. Hardwick111 and recognized a liberty of consensual sexual conduct.

In Cruzan v. Director, Missouri Department of Health,112 the Court found a constitutionally protected liberty interest in refusing unwanted medical treatment.

Furthermore, while the US Constitution does not explicitly mention it, the US Supreme Court, in a line of cases, has recognized a general right to personal privacy, finding that liberties extend to "certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs."113 In Griswold v. Connecticut,114 the Court recognized a privacy right in favour of married couples to use contraceptives.115 A similar right would later on be recognized in Eisenstadt v. Baird116 in favor of unmarried individuals.117 Roe v. Wade118 would find the Court holding that the right of privacy is broad enough to encompass a woman's decision whether or not to terminate her pregnancy and under what conditions.119 Two decades later, the Court would reaffirm the essential ruling in Roe through its 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey.120

More recently, the American Supreme Court, in Obergefell v. Hodges,121 held that the right of same-sex couples to marry is part of the liberty under both the Due Process and Equal Protection Clauses; that these couples may exercise their fundamental right to marry in all States; and that States have no legal basis to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.

Not all assertions to unenumerated fundamental rights, however, are able to obtain recognition from the Court:

San Antonio Independent School District v. Rodriguez122 involved a suit brought by Mexican-American parents on behalf of school children said to be members of poor families who reside in school districts having a low property tax base. Asserting an implied right to education, which they claim is necessary for their effective exercise of their rights to free speech and suffrage, petitioners challenged the Texas system of financing public education (which provides that State funding for basic education is to be supplemented by each district through an ad valorem tax on property within its jurisdiction) insofar as it allegedly favored children from more affluent neighborhoods, in violation of equal protection requirements. The Court found unpersuasive, the reasons for the asserted liberty claim and held as follows:

The US Supreme Court has also refused to recognize an asserted implied fundamental right to die in Washington v. Glucksberg.124 In Glucksberg, which involved the constitutionality of a Washington statute prohibiting persons from aiding another to attempt suicide, the Court was confronted with the issue of whether the "liberty" protected under the Due Process Clause includes a right to commit suicide (as well as a right to assistance in doing so). After examining relevant history, tradition and practice, the Court ruled in the negative and held:

The Court also sought to differentiate the liberty interest asserted in Glucksberg from that asserted (and recognized) in Cruzan which, as earlier stated, involved the right to refuse unwanted medical treatment:

The right assumed in Cruzan, however, was not simply deduced from abstract concepts of personal autonomy. Given the common-law rule that forced medication was a battery, and the long legal tradition protecting the decision to refuse unwanted medical treatment, our assumption was entirely consistent with this Nation's history and constitutional traditions. The decision to commit suicide with the assistance of another may be just as personal and profound as the decision to refuse unwanted medical treatment, but it has never enjoyed similar legal protection. Indeed, the two acts are widely and reasonably regarded as quite distinct, x x x In Cruzan itself, we recognized that most States outlawed assisted suicide—and even more do today—and we certainly gave no intimation that the right to refuse unwanted medical treatment could be somehow transmuted into a right to assistance in committing suicide. x x x126

It also found that the Washington ban on assisted suicide was rationally related to (or implicated) legitimate State interests, such as interests in the preservation of human life and protection of the integrity and ethics of the medical profession.

In this jurisdiction, this Court has also had some occasions to rule on assertions of unenumerated fundamental rights:

In the 1924 case of People v. Pomar,127 and reminiscent of the Lochner-era rulings, this Court declared unconstitutional provisions of law which required employers to pay a woman employee, who may become pregnant, her wages for 30 days before and 30 days after confinement. Citing a long line of US Supreme Court Lochner-era decisions, this Court found that the right to liberty includes the right to enter into (and terminate) contracts. Accordingly, it held:

[S]aid section creates a term or condition in every contract made by every person, firm, or corporation with any woman who may, during the course of her employment, become pregnant, and a failure to include in said contract the terms fixed by the law, makes the employer criminally liable subject to a fine and imprisonment. Clearly, therefore, the law has deprived, every person, firm, or corporation owning or managing a factory, shop or place of labor of any description within the Philippine Islands, of his right to enter into contracts of employment upon such terms as he and the employee may agree upon. The law creates a term in every such contract, without the consent of the parties. Such persons are, therefore, deprived of their liberty to contract. The [C]onstitution of the Philippine Islands guarantees to every citizen his liberty and one of his liberties is the liberty to contract.128 (Emphasis supplied.)

Philippine adherence to this ruling would, however, be short-lived.129 As Justice Fernando would later explain in Edu v. Ericta,130 the decision in Pomar was largely brought about by the fact that "our Supreme Court had no other choice as the Philippines was then under the United States," where only a year before Pomar, a statute providing for minimum wages was declared in Adkins to be constitutionally infirm. The Court (and the Constitutional Convention) would adopt a more deferential attitude towards government regulation of economic relations and covering such subjects as "collective bargaining, security of tenure, minimum wages, compulsory arbitration, the regulation of tenancy as well as the issuance of securities, and control of public services."131

In the meantime, and taking its cue from the US Supreme Court, this Court would also go on to recognize unenumerated, yet fundamental, non-economic rights:

Although the Bill of Rights speaks only of a right of privacy over communication and correspondence, the Court, in the 1968 case of Morfe v. Mutuc,132 adopted the reasoning in Griswold and recognized a constitutional right to personal privacy. It declared that "[t]he right to privacy x x x is accorded recognition independently of its identification with liberty; in itself, it is fully deserving of constitutional protection."133 Morfe concerned the validity of a law requiring the periodic submission of sworn statements of financial conditions, assets and liabilities of an official or employee of the government. Considering the avowed purpose behind the requirement of periodic submission, the Court held:

Even with due recognition of such a view, it cannot be said that the challenged statutory provision calls for disclosure of information which infringes on the right of a person to privacy. It cannot be denied that the rational relationship such a requirement possesses with the objective of a valid statute goes very far in precluding assent to an objection of such character. This is not to say that a public officer, by virtue of a position he holds, is bereft of constitutional protection; it is only to emphasize that in subjecting him to such a further compulsory revelation of his assets and liabilities, including the statement of the amounts and sources of income, the amounts of personal and family expenses, and the amount of income taxes paid for the next preceding calendar year, there is no unconstitutional intrusion into what otherwise would be a private sphere.134 (Emphasis supplied.)

In Oposa v. Factor an, Jr.,135 this Court accorded fundamental right status to an asserted liberty interest in "a balanced and healthful ecology" under Section 16, Article II of the 1987 Constitution. Petitioners filed suit to question the grant of timber licensing agreements by the Secretary of Environment and Natural Resources, arguing that the continued allowance of timber licenses "to cut and deforest the remaining forest stands will work great damage and irreparable injury to plaintiffs—especially plaintiff minors and their successors—who may never see, use, benefit from and enjoy this rare and unique natural resource treasure."136 While conceding that the asserted right cannot be found in the Bill of Rights, the Court declared that such right was "no less important" because "it concerns nothing less than self-preservation and self-perpetuation[,] x x x the advancement of which may even be said to predate all governments and constitutions."137

In Imbong v. Ochoa, Jr.,138 which involved a number of challenges against the constitutionality of RA 10354, this Court recognized the constitutional right of parents to exercise parental control over their minor-child:

To insist on a rule that interferes with the right of parents to exercise parental control over their minor-child or the right of the spouses to mutually decide on matters which very well affect the very purpose of marriage, that is, the establishment of conjugal and family life, would result in the violation of one's privacy with respect to his family. It would be dismissive of the unique and strongly-held Filipino tradition of maintaining close family ties and violative of the recognition that the State affords couples entering into the special contract of marriage to as one unit in forming the foundation of the family and society.

The State cannot, without a compelling state interest, take over the role of parents in the care and custody of a minor child, whether or not the latter is already a parent or has had a miscarriage. Only a compelling state interest can justify a state substitution of their parental authority.139

A liberty interest in the access to safe and non-abortifacient contraceptives, hinged on a right to health under Section 15, Article II,140 and other sections of the Constitution, was also recognized in Imbong. Petitioners therein questioned the inclusion of hormonal contraceptives, intrauterine devices, injectables and family products and supplies in the National Drug Formulary, the use of which, they claimed, greatly increased risks of developing breast and cervical cancer and other serious medical conditions. Although the Court declared that "the constitutional right to health" is a component of the right to life,141 it, nevertheless, found petitioners' assertion of impairment of said right unfounded142 and premature:143

The distribution of contraceptive drugs and devices must not be indiscriminately done. The public health must be protected by all possible means. As pointed out by Justice De Castro, a heavy responsibility and burden are assumed by the government in supplying contraceptive drugs and devices, for it may be held accountable for any injury, illness or loss of life resulting from or incidental to their use.144 (Emphasis omitted.)

On the other hand, Capin-Cadiz v. Brent Hospital and Colleges, Inc.145 involved a suit questioning Brent Hospital's act of putting an unwed, pregnant employee on suspension until such time that she married her child's father in accordance with law. The Court there found the employer's condition for re-employment "coercive, oppressive, and discriminatory," depriving the employee of her "freedom to choose her status, which is a privilege that inheres in her as an intangible and inalienable right."146 It was also proposed that the constitutional right to personal liberty and privacy should be read to include a woman's right to choose whether to marry and to decide whether she will bear and rear her child outside of marriage.147

Most recently, this Court in Republic v. Manalo,148 applying equal protection analysis, upheld, pursuant to the fundamental right to marry, a liberty interest on the part of a Filipino spouse to be recapacitated to marry, in cases where a valid foreign divorce has been obtained.

Unlike the case of rights that can be located on the text of the Bill of Rights, the rules with respect to locating unenumerated "fundamental" rights, however, are not clear. According to Justice Harlan, speaking in the context of identifying the full scope of liberty protected under the Due Process Clause, the endeavor essentially entails an attempt at finding a balance between "respect for the liberty of the individual x x x and the demands of organized society."149

The question that presents itself then is how one determines whether an implied liberty interest being asserted is "fundamental," as to call for the application of strict scrutiny. For its part, the US Supreme Court has attempted, over time, to craft principled formulations on how to identify such "unenumerated" or "implied" rights:

[T]he Court has used a wide variety of methods, ranging from the restrained approach of locating protected interests in the constitutional text to the generous test of evaluating interests by the importance they have for contemporary individuals. Because the Justices do not uniformly agree upon these methods, it is also understandable that opinions for the Court rarely express consensus about the way the methods are chosen, or whether they fit into the hierarchy, or whether some methods are preferable in some situations and others in other situations, x x x

These methods lie along a continuum, all the way from hair-trigger formulas that can support a cornucopia of fundamental rights to stingy theories that protect virtually nothing that is not undeniably enumerated, x x x [n]o one method is comprehensive or exclusive, and indeed, the Justices themselves often have used two or three different theories in combination while analyzing a single interest, x xx150 (Citations omitted.)

This Court has not laid down clear guidelines on this matter. Thus, reference to American scholarly commentary is again instructive.

In his article An Excess of Methods: Identifying Implied Fundamental Rights in the Supreme Court, Robert Farrell wrote that the US Supreme Court uses "a multiplicity of methods of identifying implied fundamental rights."151 After a survey of US Supreme Court cases, Farrell has classified the different methods used by the Court in categorizing certain rights as fundamental. These are either because the asserted rights: (1) are important;152 (2) are implicit in the concept of ordered liberty153 or implicitly guaranteed by the Constitution;154 (3) are deeply rooted in the Nation's history and tradition;155 (4) need protection from government action that shocks the conscience;156 (5) are necessarily implied from the structure of government157 or from the structure of the Constitution;158 (6) provide necessary access to government processes;159 and (7) are identified in previous Supreme Court precedents.160

There is no one mode of constitutional interpretation that has been recognized as appropriate under all circumstances. In fact, one would find critiques for every approach in scholarly commentaries on the subject.161 Nevertheless, and despite the particular shortcomings of each individual approach, it is my view that, the Court should endeavor to be deliberate and open about its choice of approach in fundamental rights cases. This, to my mind, would help greatly not only in furthering the public's understanding of the Court's decisions in complex constitutional cases; it would reinforce the credibility of Our decisions, by exacting upon the Court and its members the duty to clearly articulate with consistency the bases of its decisions in difficult constitutional cases.

With all due respect, Justice Leonen has not provided sufficient basis to justify his view of "fundamental right" status, whether expressly or impliedly sourced, to the asserted liberty interest of an intellectually-disabled person in procreation and parenthood. Firstly, Justice Leonen cites the Constitution's express guarantee to due process of law.162 An examination of the due process clause, however, will immediately show that it does not textually grant upon an intellectually-disabled person a liberty interest in procreation and parenthood.

Justice Leonen then relies on the fundamental right to privacy, citing Morfe v. Mutuc163 which, in turn, cited Griswold v. Connecticut,164 holding that there are "zones of privacy," including martial privacy, which cannot be unconstitutionally violated.165 For that matter, Eisenstadt v. Baird,166 building on the foundations of Griswold, would provide even stronger precedent. In the context of the right of unmarried persons to access contraceptives, the US Supreme Court held: "[i]f the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."167 Despite Griswold and Eisenstadt, however, the US Supreme Court has yet to recognize a fundamental right to procreation or parenthood on the part of the intellectually-disabled.168 In fact, the various American State Supreme Courts are split on the issue, depending in part on whether the State legislatures have statutes governing sterilization.169

The reason is understandable. Recognizing a fundamental right in a single person to bear or beget a child, and becoming a parent, is a far cry from recognizing in an intellectually-disabled person a fundamental right to make the same decision on procreation or parenthood. The underlying issues that have bedeviled the courts and the state legislatures in the US include whether an intellectually-disabled person can make that decision and whether the parent or guardian can substitute the disabled child or ward in making that decision. As a commentator has so aptly stated, the ruling in Eisenstadt begs the question: "[b]ut what happens when that individual lacks the capacity to comprehend the possession of a reproductive function and, right, and is not capable of making any decision regarding that right?"170 It presents, as the Supreme Court of New Jersey puts it, a "disturbing paradox: how we can preserve the personal freedom of one incapable of exercising it by allowing others to make a profoundly personal decision on her behalf?"171

Justice Leonen also cites the Convention on the Rights of Persons with Disabilities (Convention), which guarantees persons with disabilities a right to non-discrimination, i.e., full and effective participation in society on an equal basis with others.172 There is, however, no law, rule, nor judicial holding which provides that the Convention can operate to "create" a "fundamental" right in the absence of the enactment by a State party of an implementing law precisely creating such substantive right. Secondly, the Convention itself is carefully worded that it does not textually grant persons with disabilities a right to be treated with absolute equality. Rather, its language is carefully parsed to state that equality is "on an equal basis with others." By so qualifying, it is my view that the Convention realizes that the State must not only consider the particular type of disability affected, but also provide for remedies that relate to the specific type of interest to be promoted and their effect of the exercise of the right on "others." In Our case, the State, through the Congress and in explicit recognition of its obligations under the Convention, enacted RA 11036, or the "Mental Health Act." As discussed, RA 11036 does not treat persons with mental health conditions (which includes the intellectually-disabled) on the same footing as persons without such conditions, in terms of the role that their informed consent bears on their access to treatment (such as vasectomy). The law sought to balance the peculiar interests of the disabled with the interests of the other members of society (which includes their parents) through a very robust and exacting procedure to ensure the exercise of informed consent.

All told, there is no clear showing as to how Justice Leonen has arrived at (much less, justified) his conclusion that the unenumerated liberty interest of an intellectually disabled person to procreation or parenthood warrants accordance of the "fundamental" status. The record is absolutely bereft of evidence to prove the proposition. Thus, and without prejudice to a future and proper case where the modalities/approaches/methods for its analysis and interpretation are clearly and sufficiently set forth and first presented to a trier of fact with supporting evidence, I simply cannot support his view at this time.

Finally, I must note the peculiar process by which the asserted "fundamental" right is sought to be established by Justice Leonen in this case. Jurisprudence would show that assertion of fundamental rights, whether on due process or equal protection grounds, are usually made at the heels of a positive act on the part of the State, an exercise of State powers resulting to unwarranted intrusions into the personal life of individuals. Such exercises of governmental powers are typically manifested in the form of laws,173 ordinances,174 and executive acts175 or issuances176 which are alleged to, either facially or in its operation, actively discriminate and deprive individuals of certain fundamental rights.

Here, while there is an assertion of an infringement of "fundamental" liberties, there is no claim of any law, ordinance, or executive issuance of the State which has caused the infringement alleged. In fact, the specific act" in issue, that is, the vasectomy conducted on Larry, was carried out bymedical practitioners, upon guardian Pedro's request/consent, all of whom are private individuals. Clearly, there is no State action as to call for the guarantee of the protection of "fundamental" liberties. As so clearly held by this Court in People v. Marti:177

That the Bill of Rights embodied in the Constitution is not meant to be invoked against acts of private individuals finds support in the deliberations of the Constitutional Commission. True, the liberties guaranteed by the fundamental law of the land must always be subject to protection. But protection against whom? Commissioner Bernas in his sponsorship speech in the Bill of Rights answers the query which he himself posed, as follows:

First, the general reflections. The protection of fundamental liberties in the essence of constitutional democracy. Protection against whom? Protection against the state. The Bill of Rights governs the relationship between the individual and the state. Its concern is not the relation between individuals, between a private individual and other individuals. What the Bill of Rights does is to declare some forbidden zones in the private sphere inaccessible to any power holder.178 (Emphasis supplied.)

The Bill of Rights, which Justice Leonen cites among his bases for his proposition, affords protection against possible State oppression against its citizens, not against an unjust or repressive conduct by a private party towards another, as explained by Justice Dante Tinga in his Separate Opinion in Agabon v. National Labor Relations Commission.179

Justice Leonen also seems to take the view that existing laws, as they are written, do not suitably protect the reproductive interests of the intellectually-disabled, hence, the proposed interpretation. The Court, however, has no power to dictate unto the Congress the object or subject of bills that the latter should enact into law. The judicial power to review the constitutionality of laws does not include the power to prescribe what laws to enact.180 In any case, the alleged "gap" in the law with respect to decision-making by parents and legal guardians on matters of reproductive rights of the intellectually-disabled can be interpreted to mean that Congress did not intend to criminalize, but only regulate, said act. To reiterate, it is not the province of the Judiciary to speculate what the Legislature should have done:

Even on the assumption that there is in fact a legislative gap caused by such an omission, neither could the Court presume otherwise and supply the details thereof, because a legislative lacuna cannot be filled by judicial fiat. Indeed, courts may not, in the guise of the interpretation, enlarge the scope of a statute and include therein situations not provided nor intended by the lawmakers. An omission at the time of the enactment, whether careless or calculated, cannot be judicially supplied however after later wisdom may recommend the inclusion. Courts are not authorized to insert into the law what they think should be in it or to supply what they think the legislature would have supplied if its attention has been called to the omission.181

I am afraid that Justice Leonen's proposition, however well-intentioned, is fraught with still unseen implications, and I am reminded of the following observation of Easterbrook:

I am nervous when a case is so easy, x x x If "everyone" endorses a particular aspect of liberty, it is easy for the Court to say in the aberrant case (the one where the legislature has not acted) that the judges are the true guardians of the "spirit" of the people and may produce what an "enlightened" legislature would have done, x x x

xxx [E]asy cases, popular and obviously right cases, may produce dangerous doctrines because they establish the principle that the Constitution allows the judges to do whatever the legislature ought to have done, xxx

The easy cases allow judges to establish doctrines that collapse the judicial and legislative processes, x x x182

With these, I would reserve judgment on the issue of whether an intellectually-disabled person has a "fundamental" right to procreate until after Congress passes, if it so decides, a law on the subject. Barring congressional action, a proper petition may still conceivably raise the issue in relation to the implementation of the Mental Health Act, whose provisions I have cited may be tested in a constitutional challenge.183