Beruflich Dokumente
Kultur Dokumente
Submitted to:
Atty. Victor Eleazar
3 December 2010
I. FACTS:
Manuel and Wendy were married in 1992. They are both professionals, with stable jobs. In the five years that they were married, they tried to have a baby but have not been successful. Manuel wanted to have a baby for so long that on the day Wendy received news that she was pregnant, Manuel was ecstatic. As Wendys pregnancy progressed, she started having difficulty breathing and was easily fatigued. One day, she was rushed to the hospital because she could not breathe. The doctors diagnosed her as having mitral valve stenosis, a congestion of the heart due to a valve defect. As explained by the doctors, her heart has to work double time to be able to circulate blood in her system. Her condition was one of functional class III, and women with functional class III to IV heart conditions are strongly advised against pregnancy because of high maternal mortality rate. The Medical Certificate issued to Wendy is found hereunder:
MEDICAL CERTIFICATE Date: January 21, 1997 Name of Patient Age Sex : Wendy G. Soriano : 30 years : Female
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SYMPTOMS: Difficulty of breathing Pounding of heart Easily tired without doing anything PHYSICAL EXAMINATION: Intrauterine pregnancy 9 4/7 weeks age of gestation by last menstrual period * 10 3/7 by first ultrasound * currently not in labor G1PO BP 130/90 Cardiac rate 110 (normal 60-100) Respiratory rate 30 (normal 16-20) Head & neck: * (+) neck vein engorgement * jugular venous pressure 10 cm H20 Chest & lungs: * crackles all lung fields * enlargement of the left atrium th * (+) grade 3/6 murmur of the heart, best heard at the left 5 intercostal space, parasternal border and at the apex, with radiation to anterior axillary line, systolic Extremities: edema, grade 3, pitting MEDICAL HISTORY: Rheumatic fever at age 15, poor follow up Paroxysmal nocturnal dyspnea (difficulty of breathing before going to sleep) Easy fatigability, relieved by 3-4 pillows Bipedal edema (swelling of feet) FINAL DIAGNOSIS: Mitral valve stenotic: congestive heart failure functional class II, secondary to acquired valvular heart disease, secondary to rheumatic heart disease. (Signed) DR. BETTINA COLORO, MD Attending Physician License Number: 0987-35593
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The doctors say that the chances of Wendy carrying the baby to term are slim because her heart would not be able to take it. She was then 10 weeks pregnant. Wendy was scared; she does not want to die. She contemplates the possibility of abortion. Wendy and Manuel sought the advice of Louis, their close friend who was the high school buddy of Manuel and who happened to be a lawyer.
PROBLEM AREAS IN LEGAL ETHICS Legal Ethics in Family Law II. PROBLEMS:
A. AFTER EXPLAINING WENDYS MEDICAL CONDITION, MANUEL TOLD LOUIS THAT THEY ARE THINKING OF HAVING THE CHILD ABORTED. HE THEN ASKS, WHAT DO YOU THINK OF THIS? IS THIS LEGALLY PERMISSIBLE? A common dilemma is determining if the advice sought is one solicited from a friend who happens to be a lawyer making it more of a friendly advice or was it asked from you because you are a lawyer who happens to be a friend also making it more of a lawyerly advice. Lawyers tend to blurt out off-thecuff opinions without considering the possible implications of their giving an advice to a friend and whether that act establishes a lawyer-client relationship. If Louis were to answer the query of Wendy, would a lawyer-client relationship be established? Consider the case of Hadjula v. Atty. Madianda, A.C. No. 6711, July 3, 2007, 526 SCRA 241, where the Supreme Court held that from the moment the client approached a receptive lawyer to seek legal advice, a veritable lawyer-client relationship evolved between the two. Consider also the case of Burbe v. Atty. Magulta, AC No. 99-634, June 10, 2002, 383 SCRA 276, where the Supreme Court held that a lawyerclient relationship was established from the very first moment client asked the lawyer for legal advice regarding the former's business. Bearing in mind this caveat, should a lawyer qualify his advice that it is being made as a friend or as a lawyer? Note that Wendy could have asked a priest or a second opinion from another doctor but she chose to ask Louis who is a lawyer. B. IF LOUIS, AS A FAMILY FRIEND, ADVISES WENDY TO HAVE AN ABORTION, WOULD HE BE BREAKING HIS OATH AS A LAWYER? Consider the following: i. ii. iii. iv. v. Code of Professional Responsibility, Canons 1, 1.01, 9, 15.08 and 17 1987 Constitution, Section 12, Article II Revised Penal Code, Articles 256-259 Civil Code, Art. 41-42 You have known the couple since your high school days.
C. WOULD ABORTION BE JUSTIFIED IF THERE WAS A SERIOUS RISK TO THE LIFE OF THE MOTHER? Consider Canons 15, 15.05 and 15.07 of the CPR. D. IF LOUIS ACTS INSTINCTIVELY BASED ON HIS RELIGIOUS CONVICTION, GIVES A LEGAL OPINION THAT ABORTION IS CRIMINAL AND DOES NOT ALLOW FOR ANY EXCEPTION, DOES HE VIOLATE ANY LAW OR ETHICAL PRINCIPLE? Consider Canons 1, 15, 15.05 and 15.07 of the CPR. Comment on the action of some lawyers who because of their strong religious conviction would not handle cases of declaration of nullity of marriage due to psychological incapacity because of the policy of the Church against divorce. Read the case of People v. Judge Veneracion, 249 SCRA 244. When the Civil Rights Act of 1964 was put to vote in the US Senate, Republican Senator Barry Goldwater of Arizona voted against the bill and remarked: You cant legislate morality. Comment on this proposition. E. IN ADDITION TO THE ABORTION ISSUE, WENDY CONSIDERS UNDERGOING A TUBAL LIGATION. SHE AGAIN ASKS LOUIS IF THIS IS LEGALLY PERMISSIBLE. IF LOUIS ACTS INSTINCTIVELY BASED ON HIS RELIGIOUS CONVICTION, GIVES A LEGAL OPINION THAT TUBAL LIGATION IS A FORM OF ABORTION AND THEREFORE CRIMINAL AND DOES NOT ALLOW FOR ANY EXCEPTION, DOES HE VIOLATE ANY LAW OR ETHICAL PRINCIPLE? CONSIDER ALSO THE PENDING REPRODUCTIVE HEALTH BILL BEFORE CONGRESS. IN ARGUING FOR OR AGAINST THE RH BILL, DO YOU THINK YOU CAN LIMIT THE DISCUSSION ON PURELY LEGAL ISSUES WHETHER MODERN METHODS OF FAMILY PLANNING SHOULD INCLUDE METHODS TO PREVENT PREGNANCY SUCH AS THE PILL, IUD, INJECTIBLES, CONDOM, LIGATION, AND VASECTOMY OR IS THE ISSUE, AS THE CHURCH PUTS IT, INEXTRICABLY INTERTWINED WITH MORAL ISSUES?
PROBLEM AREAS IN LEGAL ETHICS Legal Ethics in Family Law III. COMMENTS:
A. AFTER EXPLAINING WENDYS MEDICAL CONDITION, MANUEL TOLD LOUIS THAT THEY ARE THINKING OF HAVING THE CHILD ABORTED. HE THEN ASKS, WHAT DO YOU THINK OF THIS? IS THIS LEGALLY PERMISSIBLE? The question raises the following considerations vis-a vis the facts presented: y Friendly advice versus lawyerly advice y If Louis were to answer the query of Wendy, would a lawyer-client relationship be established? y Should a lawyer qualify his advice that it is being made as a friend or as a lawyer? y In the Philippines, abortion is considered illegal. Article II, Section 12 of the 1987 of the Constitution provides that the State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. In addition, the Revised Penal Code (RPC), particularly, Articles 256, 257, 258 and 259, penalizes abortion, to wit: ARTICLE 256. Intentional Abortion. Any person who shall intentionally cause an abortion shall suffer: 1. The penalty of reclusin temporal, if he shall use any violence upon the person of the pregnant woman. 2. The penalty of prisin mayor if, without using violence, he shall act without the consent of the woman. 3. The penalty of prisin correccional in its medium and maximum periods, if the woman shall have consented. ARTICLE 257. Unintentional Abortion. The penalty of prisin correccional in its minimum and medium period shall be imposed upon any person who shall cause an abortion by violence, but unintentionally. ARTICLE 258. Abortion Practiced by the Woman Herself or by Her Parents. The penalty of prisin correccional in its medium and maximum periods shall be imposed upon a woman who shall practice an abortion upon herself or shall consent that any other person should do so. Any woman who shall commit this offense to conceal her dishonor, shall suffer the penalty of prisin correccional in its minimum and medium periods. If this crime be committed by the parents of the pregnant woman or either of them, and they act with the consent of said woman for the purpose of concealing her dishonor, the offenders shall suffer the penalty of prisin correccional in its medium and maximum periods. ARTICLE 259. Abortion Practiced by a Physician or Midwife and Dispensing of Abortives. The penalties provided in article 256 shall be imposed in its maximum period, respectively, upon any physician or midwife who, taking advantage of their scientific knowledge or skill, shall cause an abortion or assist in causing the same. Any pharmacist who, without the proper prescription from a physician, shall dispense any abortive shall suffer arresto mayor and a fine not exceeding 1,000 pesos. (emphasis supplied) Applying the foregoing in the case of Wendy, there is in fact, no express provision which authorizes abortion in order to save the woman's life. More so, there is no qualification provided that in case the woman's life is endangered during her pregnancy, abortion may be justified. However, it may be arguable that under the principles of necessity as set forth in Article 11(4) of the RPC, abortion may be legally performed to save the pregnant womans life. Nonetheless, there is still no existing Supreme Court decision relative to this issue (see related discussion below).
The Roman Catholic Church has consistently condemned abortion the direct and purposeful taking of the life of the unborn child. In principle, Catholic Christians believe that all life is sacred from conception until natural death, and the taking of innocent human life, whether born or unborn, is morally wrong. The Church teaches that human life is sacred because from its beginning it involves the creative action of God and it remains forever in a special relationship with the Creator, who is its sole end. God alone is the Lord of life from its beginning until its end: no one can under any circumstance claim for himself the right directly to destroy an innocent human being" ("Donum vitae," 5)...(Church Has Always Condemned Abortion By Fr. William Saunders) Law defines it as the willful killing of the fetus in the uterus, or the violent expulsion of the fetus from the maternal womb which results in the death of the fetus. On both definitions, abortion is seen as a negative act. The Church perceives it as a sin where the person who committed the act or is involved in the commission of the act will see his afterlife spent in hell; law lists it as felony under Articles 255 to 259 of the Revised Penal Code. The Church has never in any situation justified the commission of abortion --- even if there was a serious risk to the life of the mother. Lawyers, on the other hand, attempted to argue in support of abortion. In order to save the life of the mother, they argue that abortion may be excluded from criminal liability based on the justifying and exempting circumstance under the Revised Penal Code (RPC). Article 11: Justifying Circumstance the following do not incur any criminal liability: xxx 4. Any person who, in order to avoid an evil or injury, does an act which causes damage to another, provided that the following requisites are present; First. That the evil sought to be avoided actual exists; Second. That the injury feared be greater than that done to avoid it; Third. That there be no other practical and less harmful means of preventing it. However, the mentioned justification is not yet recognized, relative to abortion, by the Supreme Court. For obvious reason that there is no case yet, as similarly as the case of Wendy, was passed or submitted to the Supreme Court for decision. There is no debate that life of the unborn is important and sacred, so to speak. But what might be missing point here the equal importance of the life of the mother who carries and give life to the unborn. Not to mention the vital, if not indispensable, role of the mother in rearing their children. Section 12 of the 1987 Constitution, which states that: The State xxx shall equally protect the life of the mother and the life of the unborn from conception xxx, maintains that both lives are equally protected however one may be preferred over the other under certain circumstances. And this hiatus in the law is a continuing violation of the following constitutional guarantees: (1) Section 11 Article 2 of the 1987 Constitution, which states that, The State values the dignity of every human person and guarantees full respect for human rights, and (2) Section 15 also of Article 2 of the 1987 Constitution that states that, The State shall protect and promote the right to health of the people and instill health consciousness among them. It may be recommended that there is the need to clarify the grounds for exception such as (1) to save the life and health of the mother; (2) if a woman is a victim of rape or incest; or (3) if the fetus is impaired. The fundamental reason that abortion is condemnable is because it kills an innocent human being. What do you do, then, when the existence of one human being, through no fault of their own, threatens the life of another human being? Do you end the life of the child, to save the life of the mother? This is the dilemma we face. Philosophically, we might justify the decision to abort a life-threatening pregnancy this way: (A) If the pregnancy continues, the mother will die. If the mother dies, the child will die. (B) If the pregnancy is ended through abortion, the child will die, but the mother will live. In both instances the child will die. Since there is no way to save the child, but there is a way to save the mother, it is morally expedient (even necessary, perhaps) to save the mother by ending the life of the child on the premise that is better to save one life, than to lose two. This conclusion has nothing to do with valuing one life over the other. It merely recognizes that since there is no way to save the baby, the most ethical course of action is to save the mother(Source: http://www.abort73.com/end_abortion/is_abortion_ever_justified/).
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