Incarceration of a vulnerable group that needs protection:

A Study on the situation of pregnant women detainees in the

Philippines

GENDER AND THE LAW

Final Requirement

Submitted by:
Ville Marvin V. Magbuhos

Submitted to:
Atty. Amparita Sta. Maria
Atty. Ryan Jeremiah Quan
Atty. Cathleen Terry Caga-anan

Word Count: 2, 939

 A person accused of committing a crime is presumed to be innocent until proven guilty.
Presumption of innocence is one of the basic tenets of our criminal justice system, as enshrined in
the 1987 Constitution. Despite this constitutional mandate, the circumstances of some detainees
make it difficult for them to see how this presumption of innocence is applied in real life. While
detainees—those who are imprisoned while their cases are under trial—are already considered a
marginalized sector, a sub-section of this group is more vulnerable due to their personal
circumstance: pregnant women detainees.

The story of Andrea Rosal, a political prisoner detained at Camp Bagong Diwa, became
controversial in 2014 when she lost her child after giving birth wherein she experienced uterine
contractions while under detention. Allegedly, the denial of her right to receive immediate medical
care and the environment of the detention cell caused the death of her child.1 Accordingly, she was
detained in a 5x10 meter cell which she shared with 31 other inmates.2 Further, despite the court
order allowing her transfer to Philippine General Hospital, such transfer was not made in time.3

Andrea’s story is not an isolated case. Miradel Torres, also a political prisoner, experienced
threatened abortion on her fourth month of pregnancy and was advised to get bed rest by the doctor,
but was instead transferred from Quezon Province to Taguig City. 4 While incarcerated, she
experienced a series of bleeding and was confined at Taguig Hospital prior to giving birth at
Philippine General Hospital.5 Within two months after giving birth and confinement, she was
returned to Taguig City together with her baby.6

The cases of Andrea and Miradel showcase the unfortunate reality that pregnant detainees
experience in the Philippines. According to a spokesperson of Bureau of Jail Management and

1
Voltaire Tupaz, Government blamed for death of detained mother’s baby, RAPPLER, May 18, 2014, available at:
https://www.rappler.com/nation/58338-granddaughter-roger-rosal-dies (last accessed Jun. 23, 2019).
2
Arbi Marie Dela Cruz, Life and death in captivity: The Story of Andrea Rosal, RAPPLER, May 18, 2015, available
at: https://www.rappler.com/move-ph/ispeak/93424-anniversary-andrea-diona-rosal-tragic-fate (last accessed Jun.
23, 2019).
3
Id.
4
Tetch Torres-Tupas, Rights group laments return to jail of political prisoner with 2-month old baby, PHIL. DAILY
INQ., Jan. 28, 2015, available at: https://newsinfo.inquirer.net/668566/human-rights-group-laments-return-to-jail-
of-political-prisoner-with-2-month-old-baby (last accessed Jun. 23, 2019).
5
Id.
6
Id.
Penology, the facilities of BJMP are not fit for pregnant women.7 With this, focus must be given
to the vulnerable group of pregnant detainees in order to ensure the State’s compliance with its
obligations under Convention on the Elimination of Discrimination Against Women (CEDAW)
and other laws safeguarding the rights of pregnant women.

This paper seeks to explore the intersectionality of discrimination that pregnant women
detainees face amidst the State’s obligation to protect their rights. It shall discuss the pertinent
treaty obligations and local legislations protecting the rights of pregnant women, particularly those
under detention. Finally, it shall aim to propose some solutions and to showcase the best practices
with regard to safeguarding women’s rights.

The legal framework of combating discrimination against women

Philippines is one of the signatories of CEDAW, and as such, it is bound to comply with its
treaty obligations thereunder. According to Article 1 of CEDAW, "discrimination against women"
is defined as:

“any distinction, exclusion or restriction made on the basis of sex which has the effect
or purpose of impairing or nullifying the recognition, enjoyment or exercise by
women, irrespective of their marital status, on a basis of equality of men and women,
of human rights and fundamental freedoms in the political, economic, social, cultural,
civil or any other field.”8

The main crux of CEDAW is to prohibit any form of discrimination against women. Apart
from the prohibition on any form of discrimination, the said treaty also provides that “adoption of
special measures aimed at protecting maternity shall not be discriminatory.”9 Hence, this provision
does not bar the State from enacting legislations that would protect and safeguard maternity.
Unfortunately, there is no specific legislation yet that protects the rights of pregnant detainees in
the Philippines. Based on General Recommendation No. 25 of CEDAW, the special measures

7
Tetch Torres-Tupas, BJMP not fit for pregnant women, says spokesman, PHIL. DAILY INQ., Aug. 8, 2014,
available at: https://newsinfo.inquirer.net/627544/bjmp-not-fit-for-pregnant-women-says-spokesman (last accessed
Jun. 23, 2019).
8
UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18
December 1979, United Nations, Treaty Series, vol. 1249, p. 13
9
Id.
referred to in Paragraph 2 of Article 4 affords a non-identical treatment of women and due to their
biological differences.10 Such special measures are of a permanent nature.11

Apart from CEDAW, the Philippine Constitution also recognizes the rights of women in
general. Based on Article 2 of the 1987 Constitution, it is policy of the state to value the dignity of
every human person and guarantee full respect of human rights. 12 Moreover, state policies also
include: protection of the lives of both the mother and the unborn from conception13; recognition
of the role of women in nation building14; and ensuring the fundamental equality before the law of
women and men15. Furthermore, the Bill of Rights include due process of law, presumption of
innocence, protection from torture and inhuman treatment, and equality between women and men,
among others.

A Focus on Intersectionality of Discrimination: How are pregnant detainees discriminated

against?

Intersectional Discrimination occurs when a person is discriminated against based on two

protected characteristics. Accordingly, intersectionality theory “denies that identity can be
dissected into mutually exclusive categories of experience and analysis, instead asserting that
identity is a complex amalgation of different categories.”16 Hence, it can be argued that while both
pregnant women detainees and men detainees experience discrimination during incarceration, the
experiences of pregnant detainees cannot be compared to that of male detainees. It must be noted
that pregnancy is not a disease that requires isolated treatment in medical setting, but rather, it is a

10
UN Committee on the Elimination of Discrimination Against Women (CEDAW), General recommendation No.
25, on article 4, paragraph 1, of the Convention on the Elimination of All Forms of Discrimination against Women,
on temporary special measures, 2004, available at: https://www.refworld.org/docid/453882a7e0.html [accessed 24
June 2019]
11
Id.
12
PHIL. CONST. art. II, § 11.
13
PHIL. CONST. art. II, § 12.
14
PHIL. CONST. art. II, § 12.
15
PHIL. CONST. art. II, § 12.
16
Ben Smith, Intersectional Discrimination and Substantive Equality: A Comparative and Theoretical Perspective,
16 EQUAL RIGHTS REVIEW 73, 76 (2016)
condition that requires day-to-day care in the context of institutional routine.17 Therefore, pregnant
women require more protracted, specialized care than most prisoners need.18

According to a study conducted by Jo Baker and Danish Institute Against Torture

(DIGNITY), women who give birth while detained experience trauma as well as stigmatization
and shame upon release.19 In addition, pregnant detainees experience frustration due to
overcrowding as well as worries about nutrition and poor sanitary facilities.20 Consequently, Baker
and DIGNITY observed:

“Healthcare was a primary struggle in all the facilities visited, due to an acute shortage
of medication, staff and facilities. Large gaps were indicated in general and gender-
specific treatment, particularly mental and reproductive health, and specific care for
substance abusers, pregnant women and new mothers, and victims of gender-based
violence. Some steps were being taken to build a semi-therapeutic environment.
Welfare officers could fill some of these gaps if they were given more support from
their bureaus.”21
Clearly, these issues do not just concern about their physical and mental health but also
their dignity as human beings.22 More alarmingly, the study found that they experience gender-
based violence such as rape, sexual abuse, and torture while being detained.23

Gender-based violence is defined as “violence that is directed against a woman because

she is a woman or that affects women disproportionately.”24 Moreover, “it includes acts that inflict
physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations

17
Gerald Austin McHugh, Protection on the Rights of Pregnant Women in Prisons and Detention Facilities 231,
232, (1980).
18
Id.
19
Jo Baker and DIGNITY, Conditions for Women in Detention in the Philippines: Needs, Vulnerabilities and Good
Practices, 11, DIGNITY PUBLICATION SERIES ON TORTURE AND ORGANISED VIOLENCE (2015).
20
Id.
21
Id.
22
Id.
23
Id.
24
UN Committee on the Elimination of Discrimination Against Women (CEDAW), CEDAW General
Recommendation No. 19: Violence against women, 1992, available at:
https://www.refworld.org/docid/52d920c54.html [accessed 24 June 2019]
of liberty.”25 It is basically a form of discrimination that seriously hinders a woman’s ability to
enjoy the rights and freedoms on a basis of equality with a man.26

Further, Chief Public Attorney Persida Rueda-Acosta noted in her study that the jail
congestion has problematic effects particularly to pregnant detainees, to wit:

1. “Survey results show that although 90% of the inmates receive enough food
in prison, 31% among them go hungry or are forced to find other ways to
obtain food for survival;
2. More than half of the inmates said that they are not properly serviced by an
optician and a dentist. Roughly 28% are not satisfied with the medical officers
in the prison and almost 30% are dissatisfied with the overall healthcare
provided by the jail managers;
3. 78.67% of inmates have their own bed space, more than 20% of the prisoners
are left to sleep on the ground or elsewhere;
4. All surveyed jails are congested. The nationwide congestion rates of the
Bureau of Jail Management and Penology and Bureau of Corrections are
239% and 139%, respectively.
5. There is a very strong direct relationship between crude death rate and
congestion rate. As congestion rate increases, crude death rate also increases.
6. The reported incidents of ovarian cancer and sepsis indicate that women
inmates are more prone than male inmates to gender-specific disease.”27
(emphasis supplied)

The findings above evidently show how disproportionate and adverse the effect of jail
congestion to women, especially to pregnant detainees. While the conditions of detention prisons
are already onerous to male and female detainees, such burden is magnified and more severe to
pregnant women detainees due to their special maternity needs. Therefore, this particular

25
Id.
26
Id.
27
Persida Rueda-Acosta, Chief Public Attorney, Pregnant Inmates in Philippine Prisons: Securing and Saving Them
with Gender-Sensitive Policy Reforms Address at International Corrections and Prisons Association 17th Annual
Conference (Oct. 25, 2015) (transcript available at:
http://www.pao.gov.ph/UserFiles/Public_Attorney's_Office/file/ICPA%20PAPER%20-%202015.pdf)
intersectionality pertains to discrimination on the basis of their sex and being persons deprived of
liberty (PDLs).

Towards a better future: What could be done to address the discrimination experienced by
pregnant detainees?

The lack of specific legislation protecting pregnant women detainees is indicative of their
vulnerability as a marginalized sector. This can be attributed to the fact that detention prisons have
been traditionally designed for men. While no specific legislation addresses the discrimination
they experience, there have been efforts to ensure the safety and well-being of women PDLs,
particularly that of pregnant detainees.

In 2008, Gawad Kalinga, in collaboration with Davao city government, BJMP, and New
City Commercial Center built GK Ray of Hope Village inside the compound of Ma-at City Jail.28
It was built to inspire and to give hope to female detainees that they are not forgotten.29 This facility
is spread over the 5,400 square meter area of jail compound and has 10 duplexes, a multipurpose
hall, a nursing room and other amenities for children.30 According to Jail Chief Inspector
Ferdinand Pontillo, constructing a village inside the jail is a concept of freeing inmates before they
are released.31 This particular practice is evidently an advancement of the rights of women PDLs.
Apart from ensuring the health and safety of women detainees, it imbibes the concept of restorative
justice wherein the detainees are being prepared for their reintegration in the society. Hopefully,
more local government units will have the initiative to adopt this concept in order to guarantee
PDLs’ human rights.

On the other hand, the concept of rehabilitation as an alternative of incarceration is

promising. The gravity of the offense, amount of evidence adduced implicating the detainee, and
the detainee’s willingness to be rehabilitated should be taken into account. Given the limited

28
Patricia Esteves, Gawad Kalinga builds humane haven for Davao female inmates, PHIL. STAR., Mar. 16, 2008,
available at: https://www.philstar.com/headlines/2008/03/16/50455/gawad-kalinga-builds-humane-haven-davao-
female-inmates (last accessed Jan. 23, 2019).
29
Id.
30
Germelina Lacorte, Davao’s new jailhouse gives hope to women behind bars, DAVAO TODAY, Mar. 30, 2008,
available at: http://davaotoday.com/main/politics/crime-public-safety/davaos-new-jailhouse-gives-hope-to-women-
behind-bars/ (last accessed Jan. 23, 2019).
31
Id.
resources that we have, perhaps it is high time for the government to review the effectiveness of
incarcerating offenders especially those whose cases have been stagnant for quite some time. In
fact, Dr. Marina Gamo proposes inmate-centered rehabilitation by “building of communities of
care both inside and outside penal system that will function as a support mechanism within the
institution and as a reinforcement mechanism for inmates and former prisoners in the free
society.”32

The need for a specific legislation is glaring. In 2010, BJMP issued a draft Memorandum
Circular entitled “Policy on Pregnant Inmates and their Infants”. While this document is capable
of fulfilling the rights of pregnant detainees, it is unclear whether it was actually signed and
implemented. Accordingly, it prescribes the following pertinent policies, among others:

(a) dormitories and rooms used for accommodation of female inmates shall have facilities
and materials required to meet their hygiene needs;

(b) mandatory pregnancy test shall be performed prior to classification and segregation and
those who are found positive shall be placed in a separate cell specifically for pregnant
women, nursing mothers, and infants;

(c) pregnant women are given priority or special accommodation over female inmates;

(d) as much as possible, no pregnant inmate shall deliver a baby inside the jail and in case
of the unforeseen and inevitable situation that the inmate will give birth very soon, she may
be brought to hospital notwithstanding the lack of court order;

(e) an infant born while the mother is detained in jail may be allowed to stay with the
mother for a period not exceeding 1 month but may be extended by the Warden based on
a written medical recommendation of a jail nurse or a qualified medical personnel.

Another promising source of legislation is the United Nations General Assembly Resolution
adopting the United Nations Rules for the Treatment of Women Prisoners and Non-Custodial
Measures for Women Offenders (the Bangkok Rules). These rules did not replace the Standard

32
Marina Gamo, Voices behind Prison Walls: Rehabilitation from the perspective of inmates, 61 PHILIPPINE
SOCIOLOGICAL SOCIETY 205, 224 (2013).
Minimum Rules for the Treatment of Prisoners but instead supplemented them. It is divided into
4 sections, to wit33:

Section I of the present rules, covering the general management of institutions, is applicable to all
categories of women deprived of their liberty, including criminal or civil, untried or convicted women
prisoners, as well as women subject to “security measures” or corrective measures ordered by a judge.

Section II contains rules applicable only to the special categories dealt with in each subsection.
Nevertheless, the rules under subsection A, applicable to prisoners under sentence, shall be equally
applicable to the category of prisoners dealt with in subsection B, provided they do not conflict with the
rules governing that category of women and are for their benefit.

Subsections A and B both provide additional rules for the treatment of juvenile female prisoners. It is
important to note, however, that separate strategies and policies in accordance with international
standards, in particular the United Nations Standard Minimum Rules for the Administration of Juvenile
Justice (Beijing Rules), the United Nations Guidelines for the Prevention of Juvenile Delinquency (the
Riyadh Guidelines), the United Nations Rules for the Protection of Juveniles Deprived of their Liberty
an the Guidelines for Action on Children in the Criminal Justice System, need to be designed for the
treatment and rehabilitation of this category of prisoners, while institutionalization shall be avoided to
the maximum possible extent.

Section III contains rules covering the application of non-custodial sanctions and measures for women
and juvenile female offenders, including on arrest and at the pretrial, sentencing and post-sentencing
stages of the criminal justice process.

Section IV contains rules on research, planning, evaluation, public awareness-raising and sharing of
information, and is applicable to all categories of female offenders covered in these rules.

Pregnant women detainees are not entirely left in the dark. Considering the Bangkok Rules,
the draft policy of BJMP, and the practice of GK Ray of Hope Village, it can be deduced that the
Philippine government is undertaking steps that focus on the rights of pregnant women detainees.
However, in spite of these efforts, what is essential is the enactment of a specific legislation
protecting their rights. Memorandum Circulars or other policies do not suffice because ensuring
the rights of pregnant women detainees shall entail cost. As such, there must be a consistent source
of funding that shall sustain the programs and facilities.

33
UN Economic and Social Council (ECOSOC), UN Economic and Social Council Resolution 2010/16: United
Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the
Bangkok Rules), 22 July 2010, E/RES/2010/16, available at: https://www.refworld.org/docid/4d92e5392.html
[accessed 24 June 2019]
 The dignity of a human being is the core of human rights. Even incarcerated people, let alone
those who have not yet been convicted, do not lose this dignity. This is one of the underlying
principles behind presumption of innocence. It is unfortunate that Andrea and Miradel were
somehow deprived of this dignity because of their circumstances. The alarming issue for every
case of deprivation of rights of pregnant women detainees is the fact that the unborn is made to
suffer for something she/he has never done. It is important to highlight that every pregnant woman
carries with her another human being—thus, any maltreatment to her is also a maltreatment to her
unborn.

Word Count: 2, 939

 BIBLIOGRAPHY
I. Primary Sources
UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18
December 1979, United Nations, Treaty Series, vol. 1249, p. 13

UN Committee on the Elimination of Discrimination Against Women (CEDAW), General recommendation No. 25,
on article 4, paragraph 1, of the Convention on the Elimination of All Forms of Discrimination against Women, on
temporary special measures, 2004, available at: https://www.refworld.org/docid/453882a7e0.html [accessed 24
June 2019]

PHIL. CONST.

UN Committee on the Elimination of Discrimination Against Women (CEDAW), CEDAW General

Recommendation No. 19: Violence against women, 1992, available at:
https://www.refworld.org/docid/52d920c54.html [accessed 24 June 2019]

UN Economic and Social Council (ECOSOC), UN Economic and Social Council Resolution 2010/16: United
Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the
Bangkok Rules), 22 July 2010, E/RES/2010/16, available at: https://www.refworld.org/docid/4d92e5392.html
[accessed 24 June 2019]

II. Secondary Sources

Voltaire Tupaz, Government blamed for death of detained mother’s baby, RAPPLER, May 18, 2014, available at:
https://www.rappler.com/nation/58338-granddaughter-roger-rosal-dies (last accessed Jun. 23, 2019).

Arbi Marie Dela Cruz, Life and death in captivity: The Story of Andrea Rosal, RAPPLER, May 18, 2015, available
at: https://www.rappler.com/move-ph/ispeak/93424-anniversary-andrea-diona-rosal-tragic-fate (last accessed Jun.
23, 2019).

Tetch Torres-Tupas, Rights group laments return to jail of political prisoner with 2-month old baby, PHIL. DAILY
INQ., Jan. 28, 2015, available at: https://newsinfo.inquirer.net/668566/human-rights-group-laments-return-to-jail-
of-political-prisoner-with-2-month-old-baby (last accessed Jun. 23, 2019).

Tetch Torres-Tupas, BJMP not fit for pregnant women, says spokesman, PHIL. DAILY INQ., Aug. 8, 2014,
available at: https://newsinfo.inquirer.net/627544/bjmp-not-fit-for-pregnant-women-says-spokesman (last accessed
Jun. 23, 2019).

Ben Smith, Intersectional Discrimination and Substantive Equality: A Comparative and Theoretical Perspective, 16
EQUAL RIGHTS REVIEW 73, 76 (2016)

Gerald Austin McHugh, Protection on the Rights of Pregnant Women in Prisons and Detention Facilities 231, 232,
(1980).

Jo Baker and DIGNITY, Conditions for Women in Detention in the Philippines: Needs, Vulnerabilities and Good
Practices, 11, DIGNITY PUBLICATION SERIES ON TORTURE AND ORGANISED VIOLENCE (2015).
Persida Rueda-Acosta, Chief Public Attorney, Pregnant Inmates in Philippine Prisons: Securing and Saving Them
with Gender-Sensitive Policy Reforms Address at International Corrections and Prisons Association 17 th Annual
Conference (Oct. 25, 2015) (transcript available at:
http://www.pao.gov.ph/UserFiles/Public_Attorney's_Office/file/ICPA%20PAPER%20-%202015.pdf)
Patricia Esteves, Gawad Kalinga builds humane haven for Davao female inmates, PHIL. STAR., Mar. 16, 2008,
available at: https://www.philstar.com/headlines/2008/03/16/50455/gawad-kalinga-builds-humane-haven-davao-
female-inmates (last accessed Jan. 23, 2019).

Germelina Lacorte, Davao’s new jailhouse gives hope to women behind bars, DAVAO TODAY, Mar. 30, 2008,
available at: http://davaotoday.com/main/politics/crime-public-safety/davaos-new-jailhouse-gives-hope-to-women-
behind-bars/ (last accessed Jan. 23, 2019).

Marina Gamo, Voices behind Prison Walls: Rehabilitation from the perspective of inmates, 61 PHILIPPINE
SOCIOLOGICAL SOCIETY 205, 224 (2013).