I write better when I smoke. Don’t ask me to reduce it to a science.

Sex is Speech

From DJB, via Filipino Voices:

Five Points on Reproductive Health Bill
by Atty. Alan F. Paguia

1. Under the Preamble of the Constitution, the general objective of the Philippine legal system is “to build a just and HUMANE SOCIETY”. Such humaneness includes both the born and the unborn. Therefore, it would not be humane for Congress to promote the use of contraceptives since it is directed against the life of the unborn.

2. The life of the unborn constitutes the process of PROCREATION. It has its alpha and omega.

3. Procreation begins with the SEXUAL ACT. It ends when the unborn is born. Under Article 41 of the Civil Code, the unborn is considered BORN if it is alive at the time it is completely delivered from the mother’s womb. Why is the sexual act the alpha of procreation? Because without it, generally speaking, NO sperm would enter the female body. If no sperm enters the female body, conception becomes a physical impossibility. Therefore, procreation or reproduction begins with the sexual act and ends with the complete separation of the unborn from the mother’s womb. It follows that any discussion on procreation or reproduction – to be complete – must include the sexual act.

4. Under the Constitution, the FAMILY is the foundation of the nation, and MARRIAGE is the foundation of the family. These are the foundations of responsible parenthood. Clearly, marriage LEGITIMIZES the sexual act between the husband and the wife (Art. XV). In other words, under the Constitution, any sexual act outside marriage is ILLEGITIMATE or IMMORAL.

5. May Congress properly pass a law that would make the life of the unborn a physical impossibility? NO. It would be unconstitutional as it would violate the “guidelines for legislation” set out in Article II of the Constitution (Oposa v. Factoran, 224 SCRA 792; Kilosbayan v. Morato, 246 SCRA 540; Tañada v. Angara, 272 SCRA 18).


First, the Preamble has limited legal authority, serving only to outline the vision of the sovereign people. It’s contents, therefore, are in the nature of generalities and normally cannot be construed to limit the plenary power of Congress to enact laws that, in its wisdom, it deems necessary. 

What Paguia has set out to do with these points, is to try to establish the unconstitutionality of the Reproductive Health Bill, long before it becomes a law, let alone for any constitutional issue to arise. Worse, he is trying to do it by laying down a definition of humaneness that apparently includes even non-existent life.

Second, while it is true that procreation begins with the sexual act, it does not necessarily follow that all sexual intercourse is an act of procreation. Paguia’s entire argument hinges on sexual congress to be a condition sine qua non for procreation. Needless to say, it no longer is. His conclusion therefore, that “procreation or reproduction begins with the sexual act and ends with the complete separation of the unborn from the mother’s womb,” is flawed. But that is just a side note.

If we were to adhere strictly to Paguia’s tortured logic, then merely abstaining from sex would be unconstitutional as it prevents the possibility of conception – an act clearly “directed against the life of the unborn.” In fact, withdrawal – one of the more common alternatives to artificial contraception – would be felonious as well.

As this is patently absurd, it must be conceded that intent is at issue and that, as Paguia would have it, the intent not to make babies is excusable when you choose abstention, but unconstitutional when you choose protection. 

While there is still a great deal of controversy about when the ball of cells in the woman’s womb becomes vested with legal personality – and therefore entitled to the protection of laws – there can hardly be any debate that until that zygote comes into existence there is nothing to protect. 

Third, the freshman syllogism about family and marriage Paguia employs is a canard. It presupposes that the only purpose of sex is procreation, and that therefore, any sex engaged in for any other reason would be illegal. With one fell swoop, Paguia has turned every unmarried sexually active person – not to mention persons of alternative sexual orientations – into a criminal.

Sex is speech, and the right to have sex with anyone – hetero or homo -you desire should be protected as vigorously as we defend the right to speak our mind, subject of course to such reasonable limitations as the rules on rape – statutory and otherwise.

Worse, it adopts a definition of family that is archaic and – totally not in keeping with the changing standards of the community it seeks to govern. Of course, this should be the subject of an entirely separate discussion. 

And fourth, the question “May Congress properly pass a law that would make the life of the unborn a physical impossibility?” is a shameless misrepresentation; an act of pandering to the holier-than-thou crowd. As he formulates the question, Paguia is speaking of ABORTION, not the prevention of unplanned pregnancies which is, to my mind, the intent of the Bill.

Incidentally, the citation of Oposa is misplaced. In that case, the Supreme Court ruled that the locus standi of the petitioners to represent unborn generations heir could be sustained “based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned.” The underlying idea there is that existing generations aren’t the only ones who will be using the fruits of nature, and therefore there is the responsibility to preserve nature so that those who come after will be able to use those fruits as well. 

The decision did not establish unborn souls as legal personalities deserving of protection beyond the right to a balanced and healthful ecology. It merely took judicial notice of the fact that there will be more generations yet to come, and that they need to be guaranteed a chance to utilize nature and her fruits. It does not guarantee these unborn generations the right to live, just that when they do begin to live, it shouldn’t be in a barren wasteland.


Filed under: musings, , ,

26 Responses

  1. sparks says:

    many thanks rom. i was scratching my head looking for answers for what djb has brought up. hehe. debate begins next week. *quaking in my boots* the defense has got to hold!!! we’ve got 30 reps lined up to batter our champions…

  2. rom says:

    sparks: welcome to the smoking room! I’ve looked at the website and your defense looks solid. I’ve no doubt you’ll prevail!

    p.s., I’m promoting the site here – my little bit of support to this really really good thing that you’re doing.

  3. DJB Rizalist says:

    thanks for a such a swift and comprehensive, if cutting riposte, Rom! But some points of clarification if you will, as this is how I apprehend his meaning…

    Paguia says that the “process of procreation” begins with the sexual act (the “alpha”) and ends at birth (the “omega”). This “process of procreation” he defines in Point #2 to be “the life of the unborn”. He then arrives at the conclusion that anything which interferes with this “life of the unborn” or “process of procreation” would be inhumane if not allowed to complete its course.

    I think it is fair to say he identifies quite distinctly the beginning and end points of a process or a time in every living person’s life when he or she was but a foetus: from conception during a successful mission sexual act to live birth after about a customary nine months.

    If you think about the above, he is really presenting a possibly valid argument against ABORTION of a viable pregnancy. But I think consequently Prof. Paguia fails to prove that prevention of conception and the avoidance of becoming pregnant through artificial birth control methods have the same moral or legal force as that, because such preventative actions occur before there is a viable pregnancy to interfere with.

    But I agree with you entirely on his position that sex outside marriage is illegal and unconstitutional.

  4. DJB Rizalist says:

    “Sex is speech, and the right to have sex with anyone – hetero or homo -you desire should be protected as vigorously as we defend the right to speak our mind, subject of course to such reasonable limitations as the rules on rape – statutory and otherwise.”

    Taken out of its legal context, such a statement might be construed as mere wishful thinking for most of us. But also, is it not true the right or liberty of sex is far more restricted than speech, by conditions of age, marital status, blood relationships, and is already severely abridged by both law and custom in many ways. Unlike freedom of speech which is much more comprehensive and unfettered.

  5. rom says:

    DJB: As you said – and as I indicated also – his five points speak to abortion, not the prevention of pregnancy.

    As to restrictions on sex, I mentioned reasonable limitations such as the rules on rape, both statutory and otherwise.

    Relating this to the enumeration you provided:

    Age – this is what I meant about limitations based on the rules of statutory rape.

    Marital status – sex outside of marriage is grounds for adultery. So in that sense, yes, it is a limitation on the freedom to have sex as we will. But in a technical sense, this only applies to women, because men can only be charged with concubinage – which isn’t punitive of mere sexual intercourse (the way the charge of adultery is) but of the practice of keeping women as demi-wives, if you will. Bigamy of course is not about sex at all.

    Blood relationships – incest is not a crime, albeit it is frowned upon by society in general. But it is aggravating in rape.

    So all in all, I hesitate to characterize these as severe limitations. In fact, if you think about it, rape isn’t so much an issue of sexual intercourse as it is an issue of consent. Unlike, say, killing someone where even if you their consent – as in assisted suicides – you’d still be liable for homicide at the very least.

    Still, the way things work in this country, yeah, ‘sex is speech’ truly is wishful thinking. LOL!

  6. BrianB says:

    Laws, I suppose, are limited by the scientific and philosophical level of the collective. Other countries may have been informed by modern anthropology (i.e. Margaret Mead, Levi Strauss, etc.), hence their liberal approach on reproductive health… which brings us to my political advocacy… the formation of a Philippine Conservative party.

  7. DJB Rizalist says:

    “Sex is speech”, does not decisively rebut Paguia’s theses about abortion then. But the larger point I guess is this: if you then accept that the Constitution somehow protects “life of the unborn” by making abortion of viable pregnancy unconstitutional, have you not then ceded the future fight for what Americans call “reproductive rights to abortion”? Put another way, which side would win a case like Roe v. Wade under the Philippine Constitution?

    Personally, I am against abortion, although that matter of rape and incest is also controversial.

  8. DJB Rizalist says:

    BTW, if abortion WERE legal and constitutional in the Philippines, then the matter of legal rights to birth control methods would surely be decided too.

  9. rom says:

    DJB: re sex is speech, no it does not. nor was it meant to. i wrote that in reaction to Paguia’s sweeping generalization about the ‘legality’ of sex outside of marriage. Abortion is a separate issue.

    And I only said Paguia speaks to abortion. I don’t know that I am in agreement with him, or that I think his argumentation is particularly valid.

    Myself, I tend towards allowing abortion in very special cases – attended by extensive psychological counseling pre- and post abortion. But my position isn’t fully formed yet. It is, apropos this conversation, quite unborn.

  10. DJB Rizalist says:

    Choose from:

    (1) against abortion, against contraception
    (2) against abortion, for contraception
    (3) for abortion, for contraception

    and an infinite number of cases and modifiers in the spectrum between them.

  11. rom, you are brilliant.

  12. rom says:

    jester: thank you, handsome. *bats eyelashes at the guy with the funny hat* LOL!

  13. rom says:

    DJB: like I said, uncle. My opinion is still a-borning. 😀

  14. […] the “moprality” card comes into play, the excrutiatingly painful effort to apply the tortured logic (institutionalised in the “field of learning” called theology) to backward-engineer […]

  15. DJB Rizalist says:

    Well? Have you given birth yet to an opinion?
    (1) against abortion, against contraception
    (2) against abortion, for contraception
    (3) for abortion, for contraception

    Am thinking about an online debate around the following resolution:

    Resolved: Abortion should be legalized in the Philippines.

    The job of the AFFIRMATIVE Side is to propose the resolution in order to set the terms of the debate, demonstrate and defend its wisdom, benefits, practicability and utility.

    The job of the NEGATIVE Side is to attack, critique and possibly destroy above arguments to force the House into the conclusion that the resolution as proposed be rejected.

    What side would you be comfortable defending?

  16. rom says:

    DJB: I would be on the affirmative side. But I would define an extremely narrow set of parameters within which abortion would be legal, including but not limited to: the circumstances of conception, the age of the fetus, the presence and gravity of medical complications, and compliance with administrative regulations such as (but not limited to) pscyhological counseling, exhaustion of post-delivery alternatives, and mandatory continuing reproductive counseling for the mother.

  17. niki says:

    Number 4 in Paguia’s points on the reproductive health bill somehow made me LOL. I wonder how many of our good officials can say, “In other words, under the Constitution, any sexual act outside marriage is ILLEGITIMATE or IMMORAL” with a straight face. Or okay, how many of the country’s population can say that with a straight face. LOLz.

    I’m all for the Reproductive Health Bill. It’s long overdue na nga eh. (maybe I should promote this in my blog too hmmm)

  18. ACS says:

    Although I’m not sold on the idea that the sexual act is speech (sorry, that’s a bit of a stretch for me), I am in complete agreement that the 5 points that this Atty Alan Paguia are complete nonsense.

    True enough, any discussion on reproduction or procreation must necessarily include the sexual act (if by sex he means the meeting of the egg and sperm cells) however that does not mean that every discussion of sex necessarily includes a discussion on procreation. As you correctly pointed out, the syllogism is just fallacious. Because if we follow his reasoning to its inevitable end, we come to a situation wherein every form of contraception or family planning method becomes unconstitutional whether the parties involved were married to each other or otherwise. Again, as you pointed out, intent is the key.

    Secondly, I have no idea what code he’s citing Art XV from. He can’t be talking about the Family Code because Art XV there only speaks of the requirement of parental advice for those of ages 21-25 who wish to get married. There is no mention of sex in that article.

    Neither can it be Art XV of the Civil Code because that only speaks of the personal laws (laws on family rights and duties, status, condition and legal capacity of persons) of being binding upon Philippine citizens even if they were living abroad. Arguably, this *might* include those laws which pertain a Philippine citizen’s sexual conduct. But how this “legitimizes” the sexual act through marriage, I cannot see.

    Perhaps he is speaking of the Constitution? And not-so-incidentally, Art XV of the 1987 Constitution is entitled “The Family” and it does speak of how it is the the foundation of the nation and how it shall be accorded the protection of the State. There is absolutely no mention of sex in that article, much less how marriage is the legitimizing factor when it comes to sex. Perhaps the only part of the whole article that can be arguably linked to sex is Sec 3 (1):

    “The right of spouses to found a family in accordance with their religious convictions and the demands of responsible parenthood”

    I say that this has some relevance to sex assuming that by “to found a family,” the framers meant “to start a family” where husband and wife would copulate and have children…which, needless to say, is an absurdly narrow way of construing the provision. But even assuming that the framers intended such a narrow construction of the phrase, one can readily see that the provision only pertains to the right of parents to raise a family based on their religious beliefs. It is only an echo of the Free Exercise Clause.

    Again, there is no mention of marriage as a requisite for “legitimate” sex. It is all too apparent that Atty Alan Paguia only seeks to impose his own narrow, holier-than-thou values on the rest of the populace.

    As an aside, can someone please remind me what was Atty Alan Paguia’s claim to his fifteen minutes of fame? I remember he filed some sort of controversial case…but what it actually was eludes me at the moment.

  19. ACS says:

    Oh and in case anyone’s wondering: NO, I did not bother looking through the Penal Code, the Administrative Code, the Labor Code, the Tax Code or whatever other codes we have in our statutes since it would have been pointless.

  20. rom says:

    ACS: welcome to the smoking room! Please, come around more often. 😉

    Alan Paguia was Joseph Estrada’s hotshot lawyer. One day, he got a bit overzealous and decided to badmouth the Justices of the Supreme Court. And in so doing, proved that being a legal eagle doesn’t necessarily rule out naivete. Oh, and he didn’t win his case either. And I think he got disbarred.

    I’m a little fuzzy on timelines and whatnot, but I think that’s pretty much what happened.

    And like I said, do come around more often. 😀

  21. ACS says:

    Thanks for the warm welcome…but are non-smokers welcome here? Besides I’m allergic to tobacco smoke. =P

    (Sorry, just needed to inject some levity in my day)

  22. rom says:

    ACS: the tobacco smoke in here only gives your brain a nice buzz. hahaha. no nicotine stains, no tar in yer lungs, and no guilt around pregnant women. 😀

  23. midfield says:


    Interesting how Paguia’s managed to get your dander up. But you know what he’s really up to? He’s just riding on the ‘hot’ issue in the hope of reinventing himself from that ignominious run in with the Supreme Court. In the process he’s yanking all your chains. Mental intercourse?

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