Parents and Children: When Law and Technology Unbundle Traditional Identities

1. Parents and Children: When Law and Technology Unbundle Traditional Identities Elizabeth H. Aguiling-Pangalangan Professor, College of Law, University of the Philippines Professorial Chair Holder, Chief Justice Panganiban Professorial Chairs on Liberty and Prosperity Liberty & Prosperity.2019

2. Liberty and Prosperity “Liberty must include the freedoms that prosperity allows, and in the same manner, prosperity must include liberty, especially the liberty to strive for the ‘good life’ according to a person’s conception.” • Chief Justice Artemio Panganiban • LIBERTY AND PROSPERITY 41 (2006) Liberty & Prosperity.2019

3. Liberty and Prosperity • “Liberty” embraces civil and political rights. • “Prosperity” embodies economic, social, and cultural rights. Liberty & Prosperity.2019

4. Classification of rights Civil and political rights • Pertain to the personal autonomy of the individual, protecting him/her from the arbitrary exercise of power by the State, and enabling him/her to participate in shaping its policies. • Referred to as the “first generation rights.” • State traditionally  performs a negative duty to guarantee their protection. • ICCPR imposes on States the duty to protect and promote civil and political rights. Liberty & Prosperity.2019

5. Civil and Political Rights 2. Right to individual liberties • Right of privacy • Freedom of thought, conscience, and religion • Freedom of opinion and expression • Right of marriage • Right to a fair trial • Right to vote • Right of every child to a name and nationality • These are rights to physical integrity and individual liberties: • 1. Right to physical integrity Include: • Right to life • Right to be free from inhuman or degrading treatment or punishment • Freedom from slavery and servitude • Freedom from discrimination Liberty & Prosperity.2019

6. Classification of rights Economic, social and cultural rights • Seek to promote a better quality of life and insure the well-being and economic security of the individual. • Referred to as the “second generation rights.” • ICESCR only provides for the progressive realizationby States of economic, social, and cultural rights “to the maximum of its available resources.” • Economic and social rights are applied differently in different places. Liberty & Prosperity.2019

7. Economic, Social and Cultural rights • Right to work • Right to health • Right to education • Right to an adequate standard of living • Right to food • Right to water • Right to family life • Right of both spouses to enter the marriage with their free consent • Right of mothers to special protection; • Right of children to be free from exploitation • Right to enjoy benefits of scientific progress Liberty & Prosperity.2019

8. Human Rights • Basic rights which all humans are presumed to have. • Rights that are • Legally demandable • Protected by law • NOT subject to political majorities Liberty & Prosperity.2019

9. Characteristics of Human Rights • Indivisible, interdependent and interrelated • Different human rights are intrinsically connected and cannot be viewed in isolation from each other. • Improves the enjoyment of one right and facilitates the advancement of other rights. • Universal • They apply equally to all people everywhere in the world, and with no time limit. • Inalienable • “A set of human rights that are fundamental, are not awarded by human power, and cannot be surrendered." Liberty & Prosperity.2019

10. No distinction • Thus, an analysis of the nature of human rights establishes absence of a principled distinction between CP and SEC rights. • UDHR made no distinction between these rights. • Both are derived from the same ideal of human dignity. • There is no hierarchy of rights. [United Nations Office of the High Commissioner for Human Rights, Key Concepts on ESCRs ] Liberty & Prosperity.2019

11. No distinction • Reversion to how the UDHR intended it—indivisible rights which are equally important. • Seen from recent human rights treaties such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), Convention on the Rights of the Child(CRC), and the Convention on the Rights of Persons with Disabilities, where the enjoyment of all human rights is interconnected. Liberty & Prosperity.2019

12. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) • Entered into force in September 1981. • Ratified by 189 states, including the Philippines on August 1981. • The principal international legal instrument for the protection and promotion of women’s human rights. • Known as: • Women’s Convention • International Bill of Rights for Women Liberty & Prosperity.2019

13. Convention on the Rights of the Child Entry into force in 1990. Acceded to by every country in the world except for the US and Somalia. Signed by the Philippines on August 21, 1990.

14. Convention on the Rights of the Child First legally binding international instrument which incorporates the full range of human rights - civil, political, economic, social and cultural rights – of children. “The CRC offers us a measuring rod. It provides a criteria for an audit…It is international law’s response to the paradigm shift in thinking about children as both ‘beings’ and ‘becomings.’” (Freeman, 2011:27)

15. Classification of Child’s Rights • Survival rights- the right to life and have the most basic needs met (e.g. right to a family, to an adequate standard of living, shelter, nutrition, & medical treatment). • Development rights- the rights enabling children to reach their fullest potential (e.g. education, play and leisure, cultural activities and freedom of thought, conscience and religion). Liberty & Prosperity.2019

16. Classification of Child’s Rights • Participation rights- rights that allow children and adolescents to take an active role in their communities (e.g. freedom to express opinions; and to have a say in matters affecting their own lives). • Protection rights- rights essential for safeguarding children and adolescents from all forms of abuse, neglect and exploitation (e.g. protection against child labor & sexual exploitation). Liberty & Prosperity.2019

17. Key CRC rights Key CRC rights find resonance in other conventions: • Right to life • Article 6 of both the CRC and the ICCPR, and • Article 2 of the UDHR • Right to health and health services • Article 24 of the CRC, and • Article 12 of the ICESCR. • CEDAW Article 12, 14(b) Liberty & Prosperity.2019

18. Key CRC rights Key CRC principles and rights • Freedom from discrimination • Article 2, of the CRC • Article 2 of the UDHR, Article 2(2)  of the ICESCR    • Article 2, (1) of ICCPR and • Article 1-5 of the CEDAW • Right education • Article28  of the CRC • Article 26 of UDHR   • Article 13 of the ICESCR. • Articles 5, 10, 11(c), 14(2)(d) of the CEDAW Liberty & Prosperity.2019

19. Key CRC rights Key CRC Principles& Rights • Right to a family • The Preamble, Articles 5 and 18 of the CRC: family as the natural environment for the growth and well-being of all its members; recognize that parents have both the right and the responsibility to bring up their children. • Article 16 of the UDHR, Article 23 of the ICCPR, Article 10 of the ICESCR that acknowledge the family as the natural and fundamental unit of society entitled to protection and assistance. • Articles 13(a), 14(1), 16 of CEDAW. Liberty & Prosperity.2019

20. Obligations of States • Respect- requires non-interference with the enjoyment of human rights • Protect-requires States to prevent violations of such rights by third parties. • Fulfill-taking positive action to facilitate the enjoyment of basic human rights. Liberty & Prosperity.2019

21. Obligation of the State Badillo v. Tayag [ 2003] “ The State has an obligation to recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions.  According to Isagani Cruz, "[I]t is now obligatory upon the State itself to promote social justice, … and to adopt other measures intended to ensure the dignity, welfare and security of its citizens. x x x. These functions, while traditionally regarded as merely ministrant and optional, have been made compulsory by the Constitution.” CJPanganiban, ponente Liberty & Prosperity.2019

22. State Accountability • State responsibility arises when a state fails to act appropriately under its municipal law to punish and/or provide redress for violationsof international human rights law or fails to act to prevent anticipated violation of human rights. • “Indeed, a state may be considered to have facilitated an international wrong or to be complicit in its commission when the wrong is of a pervasive or persistent character. “(Rebecca Cook) Liberty & Prosperity.2019

23. Serrano v. NLRC: Panganiban, separate opinion • “[T]raditional doctrine holds that constitutional rights may be invoked only against the State. This is because in the past, only the State was in a position to violate these rights, including the due process clause. • However, with the advent of liberalization, deregulation and privatization, the State tended to cede some of its powers to the "market forces." Hence, corporate behemoths and even individuals may now be sources of abuses and threats to human rights and liberties.” Liberty & Prosperity.2019

24. State Accountability • States are liable for the acts of, authorized by, and attributable to different organs of government. • For example: States parties agree to take "all appropriate measures" in Article 2(c) of the Women's Convention • Refers to the duty of the State to establish the legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination. Liberty & Prosperity.2019

25. State Accountability:Focus on the Judiciary • The judiciary has the responsibility to determine the application of principles of international human rights law at the national level. • If domestic courts commit errors in that task of treaty interpretation or decline to give effect to the treaty that results in obstruction of enforcement of human rights, • The State is in breach of the treaty, • National judicial remedies will be deemed exhausted and the claim will assume an international character. Liberty & Prosperity.2019

26. State Accountability: Judiciary • Important powers and responsibilities lie in the hands of the judiciary to give effect to human rights. • Domestic courts can serve as a “missing link between promulgation and realization of international human rights norms to the benefit of both international and domestic law.”[Anne Bayefski, Law, Policy and International Justice, 108] Liberty & Prosperity.2019

27. Why examine human rights within the family? Liberty & Prosperity.2019

28. “Where after all, do universal human rights begin? In small places, close to home—soclose and so small that they cannot be seen on any map of the world. Yet they are the world of the individual person: the neighborhood he lives in; the school or college he attends; the factory, farms or office where he works. Such are the places where every man, woman or child seeks equal justice, equal opportunity, equal dignity, without discrimination. Unless these rights have meaning there, they have little meaning anywhere.” Eleanor Roosevelt Liberty & Prosperity.2019

29. Survival Right: Right to a family CRC Preamble: “The family, as thefundamentalgroup of society and the natural environment for the growth and well-being of its members should be afforded protection.” Article 5: Respect the responsibilities, rights and duties of parents, or where applicable the rights of the extended family, to provide direction in the exercise by the child of these rights Liberty & Prosperity.2019

30. Survival Right: Right to a family Article 8: Respect the right of the child to preserve his or her identity, including nationality, name and family relations without unlawful interference. Article 9: A child shall not be separated from his/her parents against their will…unless necessary for the best interest of the child. Article 18: Parents have theprimary responsibility for the upbringing and development of the child. Liberty & Prosperity.2019

31. What is a family? • Constitution • Section 1, Art. XV. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development • Art. 149, Family Code (FC) • The family, being the foundation of the nation, is a basic social institutionwhich public policy cherishes and protects. Consequently, family relations are governed by law and no custom, practice or agreement destructive of the family shall be recognized or given effect. Liberty & Prosperity.2019

32. CJ Panganiban on Family “Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity. This is rooted in the fact that both our Constitution and our laws cherish the validity of marriage and unity of the family. Thus, our Constitution devotes an entire Article on the Family, recognizing it “as the foundation of the nation.” It decrees marriage as legally “inviolable,” thereby protecting it from dissolution at the whim of the parties. Both the family and marriage are to be “protected” by the state.  The Family Code echoes this constitutional edict on marriage and the family and emphasizes their permanence, inviolability and solidarity.” [Republic v. Molina, G.R. No. 108763. February 13, 1997] Liberty & Prosperity.2019

33. What is a family? • “A natural and social institutionfounded on conjugal union, binding together the individuals composing it, for the common accomplishment of the individual and spiritual ends of life, under the authority of the original ascendant who heads it.” [Philippine Legal Encyclopedia] • A group of persons usually living together and composed of the head and other persons related to the head by blood, marriage or adoption.  A single person living alone is considered as a separate family. [National Statistics Office (NSO) http://www.nscb.gov.ph]  Liberty & Prosperity.2019

34. Traditional concept of a family • One that is of a married heterosexual couple • with offspring who are genetically related to them, and • their relatives (grandparents, siblings, aunts and uncles, cousins) connected to them by consanguinity or affinity. Family ties are created by “nature.” Liberty & Prosperity.2019

35. Traditional concept of a family Recognized in both Conventions A. Convention on the Rights of the Child Article 9(1). “States Parties shall ensure that a child shall not be separated from his or her parents against their will…” B. Hague Convention for the Protection of Children and Cooperation in respect of Intercountry Adoption (HICAC) Preamble: “Each State should take, as a matter of priority, appropriate measures to enable the child to remain in the care of his or her family of origin..” Liberty & Prosperity.2019

36. Traditional concept of a family Result: • Fixed identities • Predetermined roles Liberty & Prosperity.2019

37. “Times they are a changin” “The advance in telecommunications, the migration of people, the rapid changes in technology, and the scientific realities of our ever-shrinking world have modified the absoluteness of the territoriality doctrine.” CJ Artemio Panganiban LEVELING THE PLAYING FIELD(2004) Liberty & Prosperity.2019

38. Adoption Liberty & Prosperity.2019

39. Adoption defined “A juridical act which creates between the adopter and the person adopted a relationship similar to that which results from legitimate paternity and filiation.” (4 Velarde,474) “A socio-legal process of providing a permanent family to a child whose parents have voluntarily or involuntarily relinquished parental authority over the child.” (Philippine Domestic Adoption Act, 1998)

40. Ancient Origins of Adoption • Several biblical stories • Moses and the Pharaoh’s daughter (Exodus 2:10) • Orphan Esther who was adopted and became Queen of Persia (Esther 2:7) • Jacobs adoption of Ephraim and Manesseh (Genesis 4:8) • Babylonia back in 2286 BC, the Code of Hammurabi had enduring themes such as permanence of the parent-child relationship created in adoption and the indispensability of the biological parents’ consent to the adoption.(Aguiling-Pangalangan, NOT BONE OF MY BONE BUT STILL MY OWN, 2015) Liberty & Prosperity.2019

41. Purpose of Adoption Historically, adopter-centric for the benefit of the head of a family avoid extinction of the family name enable a person to fall under the paternal power of the new head of a family Effect: Made the adoptee the child of the adopter by legal fiction conditioned on the adopter being a full generation older

42. Purpose of Adoption Adoption must imitate nature. “As if” family.

43. Purpose of Adoption Modern view HC ICAC Preamble: Done in the “best interests of the child and with respect for his or her fundamental rights.” To ensure that children grow up in the “kind of family love and care that will enable tem to grow up with a decent chance of living a healthy and fulfilling life.” [Elizabeth Bartholet, ICA: Thoughts on Human Rights Issues, 152)

44. Central Principles on Child’s Rights Liberty & Prosperity.2019

45. I. Best interests of the Child Convention on the Rights of the Child Article 3. In all actions concerning children the best interests of the child shall be a primary consideration. Article 9(1).States Parties shall ensure that a child shall not be separated from his or her parents against their will, except …separation is necessary for the best interests of the child. Article 21:States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall bethe paramount consideration.

46. Best interests of the Child B. Hague ICAC Article 1: “The objects of the present Convention are: a)  to establish safeguards to ensure that intercountry adoptions take place in the best interests of the child and with respect for his or her fundamental rights as recognised in international law;” Article 4: “An adoption within the scope of the Convention shall take place only if the competent authorities of the State of origin – b) have determined, …that an intercountry adoption is in the child's best interests;”

47. CRC and ICAC CRC and ICAC Both CRC and ICAC recognize The existence of the family ties by nature between the birth family, more often than not, the birth mother and the child. But the HC ICAC Has a narrower focus: While drawing on the CRC principles, it provides minimum safeguard to protect the rights of children affected by ICA. Both CRC and ICAC accept Both Conventions accept that under certain circumstances, the family ties by nature or ties with the family of origin are severed and a new set of parents, who are strangers to the child, take over the parental rights and responsibilities.

48. “A primary consideration” • Distinguished from “the primary consideration.” • BIC are a consideration of first importance among other considerations and have absolute priority over those other considerations. • Does not give the decision-maker flexibility even in extreme cases. • Distinguished from “the paramountconsideration” • Child’s best interests are determinative; more than the first but comes close to being the only consideration.

49. Best Interests of the Child • Human Rights Council (HRC) recommendation (74): • With regard to children, States, international organizations and civil societies should [a]dopt proactive protection measures … on the right of the child to have his or her best interests taken as a primary consideration, including by appointing properly trained and resourced guardians and establishing measures for protection and transition to adulthood;

50. Best Interests of the Child principle:How important? Child and Youth Welfare Code (PD 603) “In all matters relating to the care, custody, education and property of the child, his welfare shall be the paramountconsideration. ” Domestic Adoption Act, (RA 8552) I”n all matters relating to the care, custody ad adoption of a child, his/her interest shall be the paramount considerationin accordance with the tenets of the Convention.”