By JANESS ANN J. ELLAO
MANILA – Today marks the 40th day since the death of Baby River, daughter of a political prisoner Reina Mae Nasino. The term cruel is an understatement to describe how the mother and child were separated and how it revealed serious gaps if not flaws in the country’s justice system.
The Bureau of Jail Management and Penology reasoned out that it acted on the “best interest of the child” when it opposed Nasino’s appeal to allow her newborn to stay with her inside prison.
The BJMP seems to have a different definition on the “best interest of the child.” A Philippine law on juvenile justice defines the child’s best interest as the totality of circumstances that are essential to a child’s survival, sense of security, or conditions that are encouraging to his or her physical, psychological, and emotional development.
Per a memorandum back in 2010, the BJMP states that the infant may be allowed to stay with the mother for a period of “not exceeding one month but may be extended by the Warden based on a written medical recommendation of the jail nurse or a qualified medical personnel and the best interests of the child” within the scope of domestic laws.
In support of Nasino’s motion, Dr. Jose Fabella Memorial Hospital’s Department of Newborn Medicine appealed before authorities to allow Nasino and her baby to stay together, wherever possible.
Fabella’s honorary consultant, gynecologist-obstetrician Sylvia dela Paz, summed that the best interest of a child boils down to the baby’s basic needs: food and warmth. Separating children from their mothers can pose dangers to their well-being, said Dela Paz.
The court junked Nasino’s motion and ordered that River, then less than two months old, be separated from her mother, thus depriving the newborn the benefits of breast milk.
The United Nations Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders states that women prisoners will not be discouraged from breastfeeding unless there are specific health reasons. Separating mother from child, the UN says, should also be based on “individual assessments and the best interests of the child within the scope of relevant national laws.”
As early as 2002, the World Health Organization has long said that breastfeeding in unparalleled when it comes to nourishing babies, said lactation expert Nona Castillo. This, she added, eventually served as basis to consider breastfeeding as a right that babies and even toddlers should be able to avail of.
Pre-natal and post-natal care
While the BJMP 2010 memorandum states that jail facilities shall afford pregnant inmates with “medical services that the jail can offer at its infirmary” and that it will “exert efforts to construct separate rooms” for pregnant women and nursing mothers, the realities on the ground show that conditions apt for them remain very much wanting.
The Public Attorney’s Office, in a paper presented before the 2015 International Corrections and Prisons Association in Melbourne, Australia, said that in a survey conducted in five detention facilities, 98 percent said pregnant women were “not provided with good and orderly sleeping quarter” and nearly half said no special care is afforded to pregnant inmates.
Dela Paz stressed the importance of pre-natal and post-natal care for pregnant women. Prior to giving birth, at least four check-ups are necessary. While telemedicine can be an option for jailed women, particularly those without serious complications, doctors are able to provide more sound diagnosis if they can physically examine a patient.
Post-natal care, on the other hand, should be provided to patients up to four weeks after giving birth, if there are no complications or infections arising.
Dela Paz also warned of postpartum depression for new mothers as they are deprived of their normal surrounding, presence of loved ones, and are living in cramped spaces.
In a webinar hosted by the Health Action for Human Rights, Dela Paz said Nasino was not provided adequate health care while pregnant, resulting in the low birth weight of her baby. This despite the Fabella hospital being only less than a hundred steps away from Nasino’s detention facility.
Temporary release for pregnant women, mothers
But if jail is truly not in the best interest of both new mother and child, Dela Paz suggested releasing them temporarily. Under the current Philippine law, the Recognizance Act of 2012, a person in custody who cannot post bail due to abject poverty may be released on recognizance to the custody of a qualified member of the local government where the accused resides.
However, as it stands, the law does not cover those charged with crimes punishable by death or life imprisonment, as in the case of Nasino and other women political prisoners who gave birth while in detention in recent years, per human rights lawyer Kathy Panguban of the National Union of Peoples’ Lawyers.
Asked why the State should be compelled to do so, Dela Paz said, “let us not forget that women PDLs are humans. And the fetus growing inside them is a future citizen. Do you want them to be compromised just because health care has been inadequate? They are humans.”
Not a priority
For Gabriela Women’s Party Rep. Arlene Brosas, the rights and welfare of women detainees are far from the Duterte administration’s priorities.
Last year, Gabriela Women’s Party co-authored with Zamboanga del Norte Rep. Isagani Amatong House Bill 5285 or the Dignity for Women Deprived of Liberty Act, which defines the rights of women deprived of liberty in jails and correctional facilities. The bill has been referred to the House Committee on Justice and later to the committees on women and gender equality.
However, Brosas told Bulatlat that no committee hearing has ever been held to look into this.
Among the women’s rights and welfare defined in the bill are the right of pregnant women not to be restrained, in any manner, during medical examinations; transport to hospital to give birth, during labor, and immediately after birth. It also stipulates that women deprived of liberty shall have the right to stay with her child inside correctional facilities until the baby turns one year old.
Women who gave birth while in detention will also be provided with postpartum care, including physical and mental health wellness.
The child may stay with the mother if still deemed advantageous, otherwise she or he will be placed under the care of her or his relatives or other authorities in child care if no relative can come to take care of the child. Continuous communication will be allowed, including the child’s periodical visits to her or his detained mother.