The speech below was delivered at the 2007 International Conference on Bioethics and the Family hosted by the Catholic Bishops' Conference of the Philippines last January 9 and 10, 2007 at the EDSA Shangri-la Hotel.
Legislating for Human Life and the Family
Human Life and Human Dignity as Law
By Francisco S. Tatad
Former Senate Majority Leader, Philippine Senate;
Board Member, International Right to Life Federation; World Youth Alliance
Your Excellency, Most Reverend Chair, Excellencies, Distinguished Speakers and Reactors, Esteemed Delegates, Friends:
My first and most pleasant duty is to thank the Catholic Bishops’ Conference of the Philippines most sincerely for organizing this wonderful conference, and for including in its program the topic of this lecture. The preceding papers by our distinguished experts from the Holy See, the United States, Europe, and the Philippines ---none of whom we can ever thank enough--- have shown us how the genetic revolution, which has thrown up so many amazing discoveries in biomedicine, has ineluctably raised questions of ethics which must be resolved in life and in law in favor of the dignity of the human person. Having seen that, we shall now try to examine: 1) how lawmakers and political leaders have responded to the dizzying pace of biomedical progress, 2) what ethical criteria they have employed, and 3) what we – or they -- must do to mitigate any lapses which they or others before them may have committed, and reaffirm the position of man as the true end, rule and measure of all genuine scientific achievement.
At best, the record is mixed. The possibility of cloning of humans causes the gravest moral concern, and a great number of moral philosophers, bioethicists, legal luminaries, and eminent scientists appear to be in agreement that this is a “limit case” in the area of scientific research and experimentation. It is forbidden territory which none may breach. The Congregation for the Doctrine of the Faith made this abundantly clear in its 1987 document Donum Vitae , which absolutely rejects human cloning, and which teaching the Holy See had since reaffirmed with utmost clarity after the cloning of a sheep was performed in an industrial research project in Britain. [ The world does not want us to play God ---and neither does God. Yet when the UNESCO Declaration on Human Genome, prohibiting reproductive cloning of human beings, came to the United Nations General Assembly it passed by only a few votes’ margin, with so many reservations. And it obviously has not dampened some people’s enthusiasm for cloning. In his report to the International Right to Life Federation board, Dr. John Willke cites the case of Missouri, where a referendum premised on the state’s vaunted opposition to cloning ended with a vote in favor of “nuclear cell transplant,” which is simply another term for cloning.
There are any number of issues where the principles of ethics and the pride of science stare at each other across a great divide. This is most evident in medically assisted procreation ---i.e., in vitro fertilization with embryo transfer (ivf-et); in the use of human embryos as well as embryos obtained by in vitro fertilization for research and experimentation; and in other procedures involving embryos in search of new human reproductive technology. Ethics rejects anything that assaults the life or dignity of the human person, the integrity of procreation, the dignity of marriage. Any number of scientists, however, simply want to see how far science can go; and any number of lawmakers and politicians simply want to cooperate with science, without any ethical consideration. And the parliamentary majority prevails.
Even in the case of antibiotics, which has proved to be such a boon to mankind, no biomedical discovery has ever been free from ethical debate. What is of genuine regret, though, is not so much that some scientists could believe themselves and their work to be above ethics – there can be no greater illusion -- as that lawmakers could believe they could enact anything as law, including that which is intrinsically wrong and harmful, just because they are lawmakers, and quicker to enact laws than to sort out ethical questions.
Indeed, it is to be regretted that sitting as lawmakers around the world today are men and women whose idea of law or lawmaking bears no resemblance whatsoever to anything found in any text or tenet of philosophy or legal doctrine. Thus, we have such “laws” legalizing that which can never be made right or good or binding upon conscience---- abortion, sterilization, divorce, same-sex marriage, euthanasia, assisted suicide, etc.
None of these “laws” meet the moral requirements of law, strictly speaking, if by law we mean St. Thomas Aquinas’s timeless definition ---rationis ordinatio ad bonum commune ab eo qui curam communitatis habet promulgata---an ordinance of reason for the common good, made by him who has care of the community, and promulgated. Because state-of-the-art biomedicine speaks of endless discoveries and endless possibilities, and these endless discoveries tend to demand a new ethics -- now called “the new global ethic” ----and new laws, morally indifferent legislatures mechanically grind out such laws. But because ethics cannot, does not, and will not bend or break to pressure, man – rather than science--remains the absolute value, although not the only absolute value, to which all scientific and material progress is, and should be, subordinate. The insistence of some scientists to be free from ethical criteria – supported by irresponsible legislation -- is what creates the moral, cultural and legal disconnect of our day.
All this, however, is a consequence rather than a cause of our global disarray. Throughout his long pontificate, John Paul II spoke of the culture of death that threatens to engulf the whole of humanity. Just before Pope Benedict XVI was raised to St. Peter’s chair, he spoke of the “dictatorship of relativism” that seeks to place everything on the altar of one’s ego. Relativism divests everything of its objective character and value – “things are valued only in relation to the culture of the time, to what is ‘generally accepted’ here and now, practically eliminating all absolutes, all permanent realities,” in the words of the Spanish philosophy professor, Joseph M. de Torre. These are, indeed, manifestations of a great evil, but even these are mere consequences of a more fundamental cause.
The more fundamental cause, it seems to me, is that the world has forgotten the truth of man. Men and women no longer know what and who they are ---whether in relation to themselves or in relation to others, most especially in relation to the Wholly Other. Christianity, according to Frank Sheed, produced a civilization that listened to God while looking at man. Post-modernity has simply exploded our ear drums. Men and women have become so absorbed and so immersed in themselves that they have forgotten whom they should be listening to and what they should be looking for. The lament we heard in T. S. Eliot’s Choruses from “The Rock” more than three quarters of a century ago is the same lament we hear today:
The endless cycle of idea and action,
Endless invention, endless experiment,
Brings knowledge of motion, but not of stillness;
Knowledge of speech, but not of silence;
Knowledge of words, and ignorance of the Word.
All our knowledge brings us nearer to our ignorance.
All our ignorance brings us near to death,
But nearness to death no nearer to God.
Where is the Life we have lost in living?
Where is the wisdom we have lost in knowledge?
Where is the knowledge we have lost in information?
The cycle of Heaven in twenty centuries
Brings us farther from God and nearer to the Dust”
Indeed, we have so filled ourselves with ourselves to overflowing that we have no space left for anyone or anything else. This is apparent in our social discourse, in our politics, even in our worship, and certainly in our laws. To postmodern man, the pleasure principle has replaced the first principle of practical reason (synderesis), which commands us to do good and avoid evil.
This first became apparent when the “sexual revolution” unleashed the pleasure principle as the foundation stone of the “dogma of hedonism” , which would eventually turn upside down everything that Christian moral philosophy and anthropology had tried to teach mankind. But the Cold War was still there, and not even the recklessly amoral invitation of Herbert Marcuse (1898-1979), one of the high priests of that revolution, for everyone to “try all types of sexual situations” could grab the thunder from that ruling madness of the day, which fed on the universal fear that the world could go up in flames at any time, from one single act of madness or carelessness by any one of those who had their fingers on the nuclear trigger. After the Cold War ended, a purely materialistic order, driven by the pleasure principle, quickly filled the void created by the “end of history” or the “end of ideology,” and turned the two previously antithetical camps into each other’s “other self.”
It became clear that a new paradigm was out to reshape the world --- one that called for the deconstruction of language, of sexuality, of reproduction, of family relations, of education, of religion, of culture, of law, and of society as a whole. Deconstruction is a philosophical and literary technique that tries to show that “things—texts, institutions, traditions, societies, beliefs, and practices, etc.—do not have definable meanings and determinable missions, that they are always more than any mission would impose, that they exceed the boundaries they currently occupy.” According to most accounts, the German philosopher Friedrich Nietzche invented this technique. But for many years the French philosopher Jacques Derrida held court as its acknowledged master until his death in 2004.
Derrida deconstructed philosophy, and tried to show that certain fundamental Western concepts---like democracy, like state, etc---are not truly universal. In one memorable interview with the French newspaper Le Monde, Derrida proposed that the word “marriage” be deleted from the French civil code to clear the juridical path for homosexual couples. From Derrida the gender feminists learned how to “deconstruct gender” in their bid to destroy what they called “hegemonic ideas,” defined as ideas or concepts universally accepted as natural but which are no more than social constructs. These include the permanent subordination of women to men, which they called “patriarchy”; “mandatory heterosexuality,” which is self-explanatory; and “homophobia,” which means fear of relations with persons of the same sex. From the ashes of these hegemonic ideas would rise the sun of “polymorphous sexuality,” which would allow everyone to direct their sexual desire to anyone they chose.
Thus, the two sexes known to man from the beginning of time –- male and female – were quickly sucked inside the belly of the beast called “gender” and then thrown up again as male, female, homosexual, lesbian, transsexual and transvestite. In 1949, when Simone de Beauvoir famously declared, “You are not born a woman! They make you into a woman,” many thought ---naively, it now turns out ---that she was simply talking of the rite of passage a female must go through to become fully a woman. But homosexuals and lesbians have since made it clear that since gender was merely socially determined, the biological male, if so minded, could turn himself into a female, and the biological female into a male –thereby defying the principle of non-contradiction.
In 1994, the European Parliament, by resolution, asked member states of the European Union to remove the prohibition on same-sex marriage or its equivalent, and end all restrictions on the “right” of homosexual and lesbian couples to adopt and raise children as their own. In 1999, the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) Committee urged the governments of Chile, Armenia, Belarus, and Ireland to revise their laws in order to change the stereotypical role of women as wives and mothers chained to the kitchen. It called on Belarus in particular to abolish “Mother’s Day,” on Chile to legalize divorce, and on Liechtenstein and China to decriminalize prostitution.
That same year, the Youth Forum of the Five-Year Review of the International Conference on Population and Development in Cairo came out with a Declaration that demanded, among other things, the following: [
1) Sexual and reproductive health services, including emergency contraceptives, must be furnished to all youth, and those services must be confidential, accessible, free, non-judgmental, with most of the services designed, composed of and evaluated by young people in collaboration with trained professionals;
2) Comprehensive sex education should be mandatory in school programs at all levels. Teachers must receive an adequate education in this domain.
This so angered the 22 year-old Canadian-American music scholar Ana Halpine that she walked out of the U.N. hall where the document was being read, and came back a couple of hours later with a Declaration of her own, saying this ---rather than that ( the ICPD-inspired paper)– represented what the youth of the world were yearning for. That marked the birth of World Youth Alliance, an association of young people from the five continents of the world, working inside the halls and corridors of the United Nations and various organs of the European Union for the promotion of human dignity around the world. WYA has its central headquarters in New York. In March last year, upon invitation of WYA’s President and Chair, I joined its Governing and International Boards, composed of members from Africa, Europe, North America, Latin America, and the Middle East.
Today, same-sex marriage is performed nationwide in at least five countries, and in one American state; actively debated in at least sixteen countries. By judicial fiat, Israel recognizes same-sex marriage performed in other countries, but will not allow it to be performed within its borders. Civil unions, domestic partnerships, common law contracts, pacts of common interests, civil pacts of solidarity, etc. now grant to homosexual couples, benefits akin to those associated with marriage, in at least twenty-three countries, including some parts of the United States.
Criticism against homosexuals and homosexual practices –described as homophobic -- is now punished by law in some jurisdictions. The World Health Organization could refuse to hire cigarette smokers and get away with it, but a preacher in Scandinavia may not quote the biblical text on homosexuals without risking arrest. At least one pastor in Sweden has drawn a prison term for quoting said text. In Britain and Wales, a new law requires schools to hire a fixed number of homosexuals, bisexuals and transsexuals as teachers under pain of sanctions. In the United States and Europe, some psychiatric organizations are forbidden to mention their success in helping homosexuals revert to heterosexual status. In the Philippines, no one may publicly criticize homosexuals or homosexual practice without risking a beating in the daily press, where they seem to carry so much influence. Homosexuals in the Philippines are neither coddled nor discriminated against. Nonetheless they want to see a non-discrimination law passed by Congress, and they want to have party-list status in the House of Representatives.
Homosexual and lesbians got a leg up on everybody else when “reproductive rights” became the flagship of the sexual rights movement. From the fourth world conference on women in Beijing onwards, everything was presented as “human rights” in a language that made George Orwell’s Newspeak sadly inadequate. Conflated in “reproductive rights” were newly invented “rights”---gender equality, sexual preference or orientation, safe sex, safe abortion, safe motherhood, freedom of choice, non-discrimination, empowerment, mainstreaming, sustainable development, etc. Everyone was shocked to find out that “reproductive rights” did not include the right to reproduce, but only the opposite.
There is no such right as the “right” not to reproduce. Those who do not dispute the historical account in Genesis will probably point out that the Creator God entrusted to the first male and female a duty, rather than a right, to reproduce. “Be fruitful and multiply, and fill the earth and subdue it; and have dominion over the fish of the sea and over the birds of the air and over every living thing that moves upon the earth.” This duty becomes a right only when the state or somebody else tries to suppress it, violate it, or even simply question it. But one who bears that duty has no right to reject it or denounce it. In a woman’s case, the performance of that duty constitutes an essential and indispensable part of her being, and the reason for her being. Her loving compliance , which happens in marriage, guarantees the other’s right to life ---that of the offspring. A violent rejection of it, as happens in abortion, sterilization, or contraception, is a naked rebellion against Life, against the truth of her being. Maintaining the biblical perspective, it amounts to a second rebellion of the non-serviam.
Since 1973, when the U.S. Supreme Court legalized abortion, 148 other countries have followed suit. In all 149 countries, abortion is performed to save the life of the mother. In 105 countries, it is done to preserve the mother’s physical health; in 87, to preserve her mental health; in 48, in cases of rape or incest; in 68, when the child suffers birth defects or medical problems; in 50, when the mother cannot afford to support a child, or there are other economic and social reasons. In 29, abortion is on demand --no reason need be given to get it. Whatever the reason, killing the unborn is wrong, whether it is the doctor prescribing abortion or the mother telling the doctor to perform the abortion, which makes the crime even more bizarre.
In Roe v. Wade, the U.S. Supreme Court did not deny the humanity of the unborn -- it only ruled that the fetus was not a person. This was the same view that had denied negro slaves their inalienable rights as citizens in Dred Scott v. Stanford, 1857; the same doctrine invoked today by abortionists against the unborn everywhere. First, they deny the unborn human being’s personhood, then they break his skull and crush his bones without having to feel they had committed a crime. But science fully recognizes that the biological identity of a new human individual is already constituted in the zygote which results from fertilization. By the use of reason, one can discern a personal presence at the moment of the first appearance of human life. This forms part of the basis of the Church teaching that the human being has to be respected as a person from the first moment of his existence.
An estimated 50 million unborn children—nearly the exact size of the combined population of Australia and Canada -- are aborted every year. The cumulative total is now greater than all the casualties in all the bloody wars since human warfare began. This is the most unspeakable crime, as far as the enforcers of life are concerned, but ironically not to the international human rights movement. Still, the question must be asked, even if only for purely academic purposes ---may not the same principles that have been invoked to justify the occupation of countries oppressed by dictators and bloodied by genocide be used to deliver those continents which abortion has marked permanently with the scourge of death?
The logic seems unassailable, except that there is no one with the power or zeal to do it. Not even the Pope could do it, even if it were shown that Stalin had erred in asking how many divisions he had. The Church is not such a power; it has no such role: the task more properly belongs to the United Nations, with its peacekeeping function. Yet not once has the U.N. General Assembly or the Security Council condemned this unending carnage. So it continues, to the eternal shame and horror of the human race.
Faceless U.N. bureaucrats, powerful governments, multilateral institutions, donor agencies, and repro-oriented NGOs continue to export their deadly game of deception and death, and poor countries are compelled to play, even though their pro-life and pro-family Constitution might recognize family life as “sacred” and guarantee “equal protection for the life of the mother and the life of the unborn from the moment of conception,” as in the case of the Philippines, and even if the verified data show a double deceleration in population growth almost everywhere, particularly in Europe. Less and less babies are being born, and less and less people are dying because of medical science, resulting in what Prof. Gerard Francois Dumont of the University of Paris-Sorbonne calls ‘gerontocroissance’ or “gerontogrowth” – i.e., a growing number of old people that must be supported by an aging and thinning labor force whose replacement is threatened by negative birth rates.
The inexorable advance of genetic engineering and biotechnology has incalculably compounded and complicated the issues. But even without it, we are confronted with a situation where the nation-state and the international organization of nation-states, whose very existence is premised on the protection of human rights and the promotion of peace, among others, have become, despite some notable exceptions, the first instruments to deny and cancel those rights. Many U.N. documents begin as “non-binding” but eventually end up as edicts. Some U.N. treaties simply need an x-number of signatures to bind all members, including those who never acceded to the treaty, and may in fact be against it. And although the U.N. was originally intended to govern the conduct and relations of states, it has now entered the realm of personal conduct and relations of individuals, which used to be the exclusive jurisdiction of the state. In fact, U.N. legislation has now entered hyper-sensitive areas which not even the liberal state ever attempted to breach. The greatest danger to human life, marriage, the family, and the society today is not the absence of law but rather the surfeit of laws --laws without justice --- that seek to destroy what is sacred in man, and which the law was meant primarily to enforce.
What then is to be done?
A world of new values is rising before us where the word “truth” is no longer heard ---it has been replaced by “transparency” and other euphemisms, as Bishop Robert Morlino of Madison told the Catholic Prayer Breakfast in Washington, D.C., on April 7, 2006; a world where the meaning of words has been perverted, on Martin Heidegger’s word that “language is the house of Being,” and Ludwig Wittgenstein’s theory that “meaning is use;” where things that have always been wrong and will forever be wrong have been made into law; and nothing has been spared to propagate all these errors. A perverse and retrograde world that celebrates what is morally wrong, provided politically correct, and denounces as “intolerant” those who maintain that human life is a gift that must be respected from conception until natural death; that marriage is an exclusive and indissoluble procreative union between a man and a woman, whom no two persons of the same sex may ever replace; that sex is a beautiful and sacred thing whose only assigned place is in marriage; that freedom to choose means freedom to choose the good rather than the bad, right rather than wrong, life rather than death. Indeed, a depraved and wicked world where the rule of law has been replaced by what one legal scholar has called the “rule by law” ; where what used to be a deviation from the norm has become the norm itself, while that which used to be the norm has become the deviation; where those who try to conserve the values that have stood the test of time are expected to “tolerate” those who wish to live by other values but who cannot tolerate those from whom they plead for “tolerance.”
We cannot allow such a world to prosper, while the one built on truth disappears. We need to restore truth to its rightful place, call things by their proper names, reject what is politically correct but morally wrong, unmask all those laws that do not deserve to be called by that name, and replace them with laws that consecrate the values of our faith and the integrity of the moral order. We need to employ every means available for this, but we also need to reach out for that which lies beyond our grasp. We just cannot “leave heaven to the sparrows, while we take care of the earth and make it a place where we can live,”as the German dramatist Bertolt Brecht (1898-1956) tells us; we must reach for the stars. This may require faith, which the agnostic or apostate will reject, but the practice of liberty demands it. For “despotism may govern without faith,” the old Cardinal Ratzinger, using the words of Alexis de Tocqueville, reminds us, “but liberty cannot.”
We need to discover all over again, if not indeed for the first time, what truth is all about. “I have come into the world, to bear witness to the truth,” says Jesus to Pilate. “What is truth?” Pilate answers, then turns away. We just cannot turn away anymore. We must remain engaged. “Truth is not the product of politics or the majority,” Pope Benedict XVI wrote before he became Pope, “but is antecedent to political activity and sheds light on it. It is not praxis that creates truth but truth that makes praxis possible.”
I do not propose to engage here in an extended exegesis on the subject. But, the truth of man proceeds from his being. It exists even before the knower and speaker of that same truth appears, perhaps just as the song of the nightingale exists --to elaborate on an insight we owe to Jorge Luis Borges--- before the nightingale of Ruth and John Keats appears. It precedes the state, which cannot create its own truth. Man does not exist for science or the state; but both exist for him. Yet while superior to both, man does not create himself. And though he is now be able to produce men by artificial means, he nevertheless remains a creature who owes his nature and his existence to a Being wholly other and infinitely higher than himself. As citizen, he is subject to the laws of the state, but as man, he is the first law that governs the state. “The law must have as its finality the good of man,” writes a Polish theologian. “Man and his good should be the measure, the standard and the purpose of every law.”
From the United Nations to Congress or Parliament, not to mention the courts that now also legislate above the head of Congress, every law or interpretation of law, as in Roe vs. Wade, that has put the life and dignity of the human person at risk has been justified by the will and wisdom of the majority that voted for it. It is democracy at work. The majority has the right to do what it wants to do, and so it has legalized the murder of the unborn, the “dissolution” of indissoluble marriages, the immoral cohabitation of persons of the same sex, the “mercy killing” of the aged and the sick, the harvesting of human parts for scientific purposes, etc. This is legal positivism at its extreme. But as the old Cardinal asks, are there not some things that can never be legalized, some things that absolutely always remain legally binding, things that precede every majority decision, things that majority decisions must respect? There are some unconditional values that follow from the essence of what it is to be human, and these cannot be altered by shifts in parliamentary majorities.
The “ultimate authority” of the law, writes the Catholic scholar Cormac Burke, does not derive from a majority vote. “Its binding force does not come from popular consent (nor is it removed by popular dissent). It comes from justice. A law does not have more authority because it is approved by many, or less because it is enacted by a few, or even by only one. A just measure ought to be obeyed –i.e. it carries authority ---even if it is a minority decision; and an unjust measure ought to be resisted – it lacks authority ---even if it s backed by a landslide majority. A just law binds as much in a democracy as in a totalitarian state, an unjust law binds in neither.”
We must get rid of all unjust laws, particularly those that trench directly on the dignity of the human person from conception until natural death, and cover them with laws that preserve man in his inherent and irrevocable dignity, which enables him to rise to a higher order of being and grace. But as morality is the basis of law rather than the other way round, these unjust laws will neither go away nor change until there is a real change in the moral order. Total respect for the sacred in man, which ultimately reestablishes his relationship with God, whom the postmodern world has shut out of its existence, is the conditio sine qua non for this change. Man needs to be converted and renewed, in self-knowledge and in love, in order to get there. He must be fully reconciled to the fact that his First End, to use the language of metaphysics, is also his Last End. In Eliot’s words, he must go back to his beginning, and arrive at “where he started and know the place for the first time.”
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Andora, Australia, Croatia, Czech Republic, Denmark, Finland, France, Germany, Iceland, Israel, Luxembourg, New Zealand, Norway, Portugal, Slovenia, Sweden, Switzerland, and the United Kingdom. Also certain parts of Argentina, Brazil, Italy, Mexico, and the U.S. states of California, Connecticut, Hawaii, Maine, New Jersey, Vermont and the U.S. District of Columbia.