THE RIGHT OF A MAN TO BEQUEATH HIS SPERM: LAYING THE LEGAL FOUNDATIONS FOR POSTMORTEM INSEMINATION IN THE PHILIPPINES

Earth hath swallowed all my hopes but she;She is the hopeful lady of my earth.

- William Shakespeare


Immortality to the mortals’ earnest plea is just the idea of walking this earth duly remembered. Human nature strives for genealogical perpetuity largely upon such consideration. Men and women engage in sexual intercourse not so much for pleasure but because sexual communion is the only way to beget another human being to succeed them both in their name and in their worldly possessions. Men and women enter into marriage to have sex. Men and women have sex to beget children through whose veins the genealogical blood will gush forth and upon whose hands the earthly belongings of the progenitors will ultimately be passed to. A begotten child is the end and the means in stoking the flame of human survival.

The private laws of the Philippines and in other civil law jurisdictions on the status of a neonate and his successional rights are deeply moored upon this rubric of cause-effect-and-repeat. The begotten child is the creation of a man and a woman who had sexual intercourse five to nine months ere his birth; his status exclusively dependent on the existence or lack of marital thread between his parents. The begotten child to become an heir—compulsory or testamentary—should be alive or at least conceived at the time of the death of the decedent-parent. These legal finalities have not been born just yesterday; they trace foundational anchorage to the Mesopotamian’s Code of Lipit-Isthar[1] and the Laws of Hammurabi,[2] and the Ancient Roman’s Twelve Tables.[3] When the same were restated in the New Civil Code of the Philippines,[4] the primeval postulates have been reintroduced to a country in the cusp of modernity. The world, however, took a much precipitous turn.

The equation was rudimentary then: sexual congress between a man and a woman begets a child, the child succeeds his parents, the human race marches on. It still is and remains pretty much so but science fiction reared its prolific head, the fiction part has recently become starkly real. Sexual congress, as it has been construed, has now morphed into an array of altered forms and has already assumed an inference stretched to no end. Sexual intercourse is no longer the only means of human reproduction with the discovery of artificial insemination, vitro fertilization and embryo transfer, and science trudges on.

In an alternate history, the Apollo astronauts and the paratroopers of the two Desert Storms brightlined the practical justifications of artificial insemination and its scientific predecessor, the cryopreservation of sperm. No longer a what-if in the twilight zone, the technology to freeze sperm and later thaw it while still retaining its fertility has been available since the 1940s[5] but its practical significance has not been so discussed until artificial insemination, especially when the procedure is of a postmortem or posthumous kind, raised rabid questions of morality and of law.

The more recent Family Code of the Philippines[6] has introduced certain provisions touching on artificial insemination but has kept mum on postmortem insemination and its civil law implications. The legislative gloss is either due to incomprehension or conventional reticence. With the high number of Filipino patients up for a chemotherapy session, a recipe for sterility, and the equally healthy number of American soldiers in Iraq who resorted to the procedure, it is not far a possibility that postmortem insemination will also be openly sought to by Filipino couples in this age of science fiction becoming real. When they do, the new frontier breached will usher a plethora of questions centering on the legal status of the begotten child and his successional rights with respect to his deceased father, questions which were left unanswered, untouched if they may be, by the framers of the Family Code.

The issues posed as they affect on the common law Rule Against Perpetuities have been extensively discussed in legal literature for over forty years.[7] They have not been so in the Philippines’ civil law jurisdiction. The panacea for the likely confusion is no easy picking. The issues are not to be resolved by peering into the future but by looking back. The foundational genesis of the civil law finalities on the classification of property, the status and the inheritance rights of a neonate need to be examined if ever this jurisdiction endeavors to rationalize its laws and jurisprudential underpinnings when Filipino men starts siring their children even when they are already dead.



[1] Russ Ver Steeg, Law in the Ancient World § 1.05, at 9 (2002).

[2] Id. § 1.07, at 12.

[3] Alan Watson, Roman Law and Comparative Law 77 (1991).

[4] Republic Act No. 386, June 18, 1949.

[5] Carolyn Sappideen, Life After Death—Sperm Banks, Wills and Perpetuities, 53 AUSTL. L.J. 311, 311 n.4 (1979).

[6] Executive Order No. 209, July 6, 1987.
[7] W. Barton Leach, Perpetuities in the Atomic Age: The Sperm Bank and the Fertile Decedent, 48 A.B.A. J. 942, 943 (1962).

A Legal Framework for Legislated Corporate Social Responsibility Principles: Effects and Underpinnings of PHAP v. Duque III, et al. and the New Milk C

The metaphor “motherhood and apple pie” should have been appositely in place. As well indeed, who ever would have thought that the right of mothers to breastfeed as enshrined in the Milk Code1 could still be a subject of intense debates and be left at the end of rabid public reproof and chastisement. The hues and cries can be traced back to what lies at the path of the implementation of the Code: the small number of Pharmaceutical Companies selling infant milk formula. As of last count, however, 51 of the 63 members of the Pharmaceutical and Health Care Association of the Philippines (PHAP)2 are multinational companies and firms. The small number of members thus deceives, their confederacy is by any measure no less formidable. As had been in fact the case, the Milk Code hit the wall.

When the Philippine Supreme Court gave imprimatur in some measure to the implementation by the Department of Health of the Revised Implementing Rules and Regulations of the Milk Code in its landmark ruling in Pharmaceutical and Health Care Association of the Philippines v. Secretary Duque III, et al.,3 it has already taken all of two decades and more to just operationalize a law anchored on what now has been internationally recognized as the mother’s right to breastfeed their infants. As if begging for another round, the ruling of the court was not readily received by the stakeholders as the definitive disquisition to end the bitter and emotional debate on the matter. While spawning mistaken beliefs, the Court’s cautious approach did not embed grey areas at all as it did in fact underline new perspectives and points of law whence any buttressing of the Milk Code should be founded.

PHAP v. Duque III, et al. more than the public debates that anteceded it brought to fore the international law facet of the Code and its implementing rules which in previous considerations were relegated to preambular utterances. This perceptual shift is far-reaching as it presaged a change of approach: while priorly the controversy was simply regarded as a question of construction and quasi-legislation, the Court just scratched the surface and laid bare a set of questions that can only be settled by international law and by norms and regulations governing the conduct of multinational companies.

Quite contrary to its “as a curious bystander” claim in the media, the place of the MNCs in the debate is not dissimilar to where the World Health Organization is perched; it is a necessary and indispensable party. As such, the much-vaunted corporate social responsibility principles of the MNCs--the self-regulation and cleansing, undertaken voluntarily by corporations4--are bright-lined not just as puffery in their websites and policy statements but as a focal point where one can exact accountability from the MNCs and pinpointedly gauge their actual conduct vis a vis a universally lobbied social good legislation as the Milk Code.

PHAP v. Duque III, et al., like the Milk Code, prescribes rules and regulations. As CSR principles are in the mix, this could be a stride to a crystallization of what is recently alluded in international law as a domestically legislated CSR principles to govern the conduct of MNCs. In this curious mix, along came House Bill 1541 introduced by Akbayan Representative Ana Theresia Hontiveros-Baraquel seeking to introduce a new Milk Code. By all indications, the proposed new Milk Code impinges more upon whatever proprietary and business interest the MNCs sought to protect. More than a rectification of the embattled Milk Code and its implementing rules and regulations, the proposed legislation invites the same academic prying of whether it is a set of legislated CSR principles for MNCs to abide by and defer to. If indeed it is, another progressive legal construct for making MNCs liable for business misconduct is rightly in place. If it is still not, PHAP v. Duque III, et al. and the new Milk Code may well just be the decisive building blocks of a legal framework MNCs will certainly contend with while and after its relative space in this age of integration and interconnection is already settled for good.

1 Executive Order 51, Adopting a National Code of Marketing of Breastmilk Substitutes, Breastmilk Supplements and Related Products, Penalizing Violations Thereof, and for Other Purposes (October 28, 1986).

2 Pharmaceutical and Health Care Association of the Philippines (PHAP), accessed at http:/www.phap.org.ph/directory.aspx. (last accessed December 3, 2007).

3 GR No. 173034, October 9, 2007.

4 Ilias Bantekas, Corporate Social Responsibility in International Law, 22 BOSTON UNIVERSITY

INTERNATIONAL LAW JOURNAL 309 (2004).

Eastward

At the fringes of midlife, gravity swaggers
back to love, my broken limbs awashed
with love stories hinting charlock,
my duffel still choked with conquests
and manuals on deception and white lies.



I asked absolution of everyone who loved me
--you have been gravely deceived.
I did it proficiently well, business-like
--we can only hope others should do as well.
I now return the cloaks I have worn for
disguise, promises I have thrown in every
turn, the veneer of pretense and happiness
for the upkeep of delusions--just the right
dose to keep me busy.



I now relinquish my story
and all my recollections of it.
Another affair claims me. Constancy
offers me yet another delusion
hopefully whence I can no longer
be awakened. Who else sees me
past my appearances, another body
riddled with betrayals and mistrusts?
I feed my confusion to the fire.
I wavered too often in the corners:
driving lost the eager mouths in place.
I devoured hopes in every transition,
scaring away objects of lust as well
as of piety. I reside in the slums of duty,
far from the prying of those held captive
in awe. This is the shadow I call home.
Away from stickers and names. The chatter
of guns and good manners forever
lost in translation.



The time has come. A valediction for
loves past and present. Red carpet
entrance for the nameless and for those
who cannot be spoken. A treacherous
sword still warm stuck in the marrow
of the departed. Forgotten.

Fight Club

How much do you know about yourself if you’ve not been to a fight? Well, Mr. Tyler Durden, soapman-pugilist, I’ve been to a lot and, man, I’ve been mauled and mangled in some I pretty should have enough Freudian understanding of my broken jaw and bruised ribs. As it has been imparted and repeated to banal heights, the fights you’ve been define your character and puissance, that is if you come out of it still breathing and not mortally maimed. But, man, if I may violently object, today’s not a good time to babble about fights and fighting still. As we speak, this country and that could be trading blistering missiles already and GATT-WTO has nothing to do with the trade, mind you, and, oh my, their neighboring countries want to join the fray in no friendly terms. More, the politicos, our politicos, God bless their filth, are already gearing to a fight—closed fist, rock-solid Aikido stance, intense pa-cute a la Hon. Cong. Villanueva—Signora Presidente should tremble in fear of having her Senate slate beaten to a pulp. Pity. Petty. All right then, back to broken jaws and bruised ribs.

As campily suggested, there are multifaceted ways of looking at good old-fashion bare-knuckled slugfest in the same manner that there are multifold means of dealing with our quotidian lives. Seemingly, the choices are mapped out between roughing it up and running away from a fight—between getting black eyes and losing face. After a quarter century of shameless brawls, beaten ego and all, and yes, after reading Sun Tzu in jail and watching the Gracies and the Shamrocks from the hospital bed, the sophistical choices seemed as they are: naïve and simplistic. It’s more convoluted than that though. Once, I practically ran a century meter away only to spot and pick the perfect craggy rock and there staggered right back to broken jaws and bruised ribs. In another, I was in deep—throwing punches right on the flesh and in the air and at the same time clumsily ducking and huffing from brick fists—when I ungracefully wiggled to exit only to be clubbed some more with sticks and elbows hardened by what not. Stitches and wounds. Broken jaws and bruised ribs. Ah, the sweet simple joy of physical violence.

If it’s anything to come by, the way one handled his fights pretty much describes the manner he will handle his problems in life. Saccharine. Quite certainly. A slugfest is cathartic but it’s no chicken soup stuff. Grit and bloody fistfights are not chicken soup for the soul, they are by the soul, parboiled by the gentle shadow at the back of one’s head violently wrenching to throw a punch before death does. Saccharine still. Well, somehow, a good brawl makes one cleanse himself of all the fury and violent tendencies teetering to fulminate from within. But that begs the question, a brawl, good or bad, is violence in action. At the very least, it’s therapeutic and spares one from committing murder and staging carnage even if for some it is a prelude if not a downright justification for the commission of the fatal assaults. Since starting a fistfight for the heck of it is not easily defensible, let us look the other way but let us try not to sound an adherent of the S and M variety. O the sweet simple joy of physical violence.

Often, noble and no less virtuous impulses animate a prototypical bare-fisted assault. In one of my childhood fisticuffs in Surigao del Sur, the other boy egged by some others touched my earlobe so I balled my fist so tightly and threw it straight to his left eye. I regained my self-respect but the members of his entourage took turn in beating me just as badly. In yet another, a classmate pushed me off the stage so I grabbed his head, pinned him to the ground and bloodied his nose. I felt invincible and I was suspended from school for a week. Professional boxers brawl for money, advertising spots, political leverage, home country’s legacy and, yes, para sa yo, yeah, right. UFC’s MMA warriors maim and risk to be maimed not so much for money as it is for vainglory and good old testosterone charge. If I come-a-charging to a slugfest it better be for a worthwhile and civilized consideration like, well, a poked earlobe, and it better be good.

What good then does a good fistfight entail? It should be working well with the Taiwenese legislators; a madhouse rough and tumble brawl seems to be a crucial part in the passage of their laws. A Filipino Congressman once threw a wayward palm to a Security Officer of Congress yet it hastened the impeachment of the President for whose graces the fist was for. I have this firm belief that a good mano a mano saves us from killing sprees and maniacal bloodbaths, well, at least, I have not been put to the brig for the said felonies, ugly fights notwithstanding. From some twisted vantage-point, it restores order; it’s the more civilized alternative to killing an adversary or a person whose presence you cannot tolerate. In some culture, fistfights are not even viewed as violent confrontations as they are in fact deeply regarded as a major form of communication. A fist talking to another, boom, whack, thud, what a lovely point you have.

In this mall and automaton generation, the benefit of good old slugfest cannot be under-emphasized. We have been so charmed with comfort and easy living that we lost track of our selves when faced with adversity. Grit is totally eschewed and so are determination, perseverance and resiliency. Gender roles are reversed when it should just be counterbalanced. The ultra-sensitive male chiseled by generational castration cannot and will not throw a punch anymore because there are better things to do like applying the scented body lotion and surfing the net in Starbucks. Next to a courtroom brawl, a free-for-all in a Starbucks outlet tops my to-be-in list. For all we know, the world’s a parking lot for us to slug it out.

We have now a softened world, we just have to harden up. A tad toughened up. Everything is easy anyway. Let’s get it on. The world’s our parking lot. Broken jaws and bruised ribs. Perfect.

The Ex-Generation

Teenage riot in a public stationGonna fight and tear it up in a hypernation for you
-Sonic Youth

It is damn easy to argue that a generation is not a generation at all. Generation X–-that evil marketing buzzword of years ago—just as any further generationalizing or psychographic sheepherding is an anomaly. Of course generation X in our midst is a freak concept if we hasten to suggest that the faux demographic is totally inappropriate for our own cultural milieu noting with alacrity that gen xers here might identify say, Introvoys as our Teenage Fanclub or Romnick Sarmenta as our Ethan Hawke. A generation be it X, Y, Z or what other mutation there is, according to Douglas Coupland, is where the we pronoun stopped. It was and is in fact a negation of collectivity. Even within the psychographic blanket, the only Xers or Yers who accepted membership are just hustling the brand to commercial, pseudo-literary or cultural renown. If there is anything left to denote in all honesty the collectivity of the Xers as would the present generation is that we are all the we-missed generation: We just missed Martial Law as our American cohorts missed Vietnam. We are treading whatever grounds not so much as a matter of choice as it is by default. In the meantime, we partake with guilty tongues the feast that our predecessors have thrown us—and without political self-identification, cynicism, boredom, and stupidity ruled us like sneering overseers.

This generation, whatever it is indeed, is what its social and cultural advances represent. It being axiomatically more a by-product of technology than of economics and public health paranoia, the dotcoms, the DVDs, the Internet, the laptops, the ever upgraded mobile phones are this generation’s greatest legacy and its face just as goatees, no wave and grunge, and Winona Ryder were to every self-respecting Xer. For anything else, the Internet has taught us even that people self-identify in thousands of ways—cultural, religious, geographical, intellectual, moral–-and that we in turn connect with one another in such many ways. We have found out to our chagrin that we are armies of one and with technology and information, we are molded and twisted to new forms–-into hardware components of the colossal computer that is our world. We have become dynamos of our computerized times; old ways and old wisdom have to be forsaken, our mind disowned even. Now that books are being uploaded to PCs and mobile phones, we should start burning libraries and museums and convert the spaces in our minds into new hubs, portals and dotcoms of automation and warp speed.

Notably, however, despite the technological largesse and the information interchange, our opinions and attitudes have become even more skeptical, stupid, less-informed, and pointlessly nihilistic than that of our forebears. In our fastfood orientation, we made everything online from dating to gaming in a manner hardcore slackers can only dream of. The online gamer is the new couch potato, deep-stuck in his plastic chair melting hours away, lost in reverie battling demons and nosferatus, meeting and mating with princes and princesses in the next level. While the potatoes of yore routinely spout occasional wisdom imparted by Beavis and Butthead or by the Simpsons, the gamers give us comfort that by World War III, we will have a surfeit of steady nerves, quick reflexes and brains stewed in Counterstrike and Ragnarok. Online dating, on the other hand, serves the primordial design of giving each creature a lay since in the dating super-highway, mass murderers are friendsters just like you and me. With the Internet offering us everything, lucre and crap alike, we have regrettably chosen the latter and called it: our gift, our enlightenment.

The relative ease this generation by default lives, with the net, the gizmos, the gadgets and all that, have made it averse to complexities and hardwork. Generations, so they say, are like teenagers–-they have to rebel against something—but while the weary, the knowing and the bored-before-our-time of the nineties raged against commerce and pop sensibilities, this generation rages against, well, not having enough memory in one’s favorite device. For whatever else, this generation have already reclaimed the mainstream, installed pop culture to the apex of civilization and made crass materialism its cerebellum. The coffee-joint cliques of the French Existentialists, of the Beat poets and of the latter-day grunge-masters are now being reenacted as huddles to trade ideas on Kris Aquino, Cueshe, PBB, the bitchy people in the next table and, well, the sheer cuteness of being there sipping designer coffee. We are so enamored with easy and effortless living and its appearances that we now completely eschew grit, smarts and dirty old tricks. It is actually a simple choice to make like opting for a degree in Marie France than one in Continental Philosophy, or like celebrating Kobe Bryant’s 81 points over Detroit Pistons’s vaunted defense, or like watching Sam Milby’s dumb Valentine’s flick instead of Scorsese’s The Departed. In our superficial eyes, James Yap is the fêted husband of you-know-who and not the flat-footed, fumbling Allan Caidic pretender. In our superficial culture, kitsch is simply not rubbish.

It is a strange twist indeed that this generation, a by-product of frenetic technological advances, has turned out to be another slacker generation teetering on boredom and unprecedented apathy. Despite our post 2001 realities ( EDSA II, 9/11 ), here is still not much of political self-identification that our local politicians have to force ad infinitum imagined political and social cataclysms so as to rally the cynical and the apathetic throng into yet another people power revolution. With the political system going haywire, the fingers stuck in keyboards and controls surfing web sites and PS2 cannot just be stirred not because their owners know better but because politics does not affect them anymore. Screw the poverty statistics and anti-administration propaganda, your everyday neighborhood slum-dweller may not be eating regular meals but his Nokia mobile phone is version circa today. Our relative peace and prosperity (our rapacious political opposition should beg to disagree since in their minds our economy is perpetually worse than Afghanistan, our peace situation worse than Iraq), have exhausted the flames of constructive counter-culture and meaningful political activism and, as it turned out, the critical sensibilities of our dynamic times have been reduced to ashes with them.
As before, funny things did happen. If Nirvana, Pearl Jam and other purveyors of anti-commercial aesthetic of the grunge-era have gotten rich against their will, our information overloaded-generation has gotten dumb and uninformed. The Jesus and Mary Chains, Pixies, Sonic Youth, Jane’s Addiction, and the Alice in Chains of the previous generations are now, what, incarnated as James Blunt, Nickelback, Creed and Avril Lavigne. MTV Pilipinas has no Alternative Nation anymore; MYMP, Nina and Cueshe drenched in fake rain and fake tears occupied the primetime. Dreary teledramas with out-of-sync dialogues, insipid game shows and trashy reality shows are heavily rotated in our TV screens. Notwithstanding the accessibility of everything, the Fight Club syndrome–-the plague of dismissal that hounded everyone who had a hand in filming Chuck Palanuik’s provocative tale—is brandished like a whip abbreviating Kubrador’s stay in the block while Judy Ann’s latest caper stayed in the tills for four long weeks now. This generation, whatever it is indeed, showed that it has not spared anything at all from making things clichéd—from goatees, tattoos, Nirvana, people power to, alas, good taste—to the extent that taking it to a task is next to having social and cultural identification with Hale, Cueshe and everything crap.

And that, even more than death, is truly and totally unacceptable.