from deathbed and beyond

I was going boing boing boing at 4 a.m. a while ago because efavirenz high is taking over me. Until a fellow pozzie (let's call him A, hereafter) messaged me, "Si partner na stroke."

There was a sudden stop to whatever fantasizing I'm having in my head. It turned out that what I read was real and A's non-positive partner is in the hospital's ICU--already revived twice.

If that is not already heartbreaking, what was more devastating is that A (as I grasped it from his story) could be somewhere in the waiting room of the hospital because of a "family-only" policy. Sakit 'di ba? For eight years of love and bliss, still you are not a "family."

At 4 a.m., while I am floating in my head with stupid ideations, here I have a friend whose heart is crushed when he told me: "I don't know what to do without him." The weight of those words decimated my entirety.

It didn't take too long when I recalled this one discussion the class had in Persons and Family Law--area of civil law where we discuss relations of the family from cradle to grave. We were already at the last stretch of the course, talking about "Provisions on Funerals" when I, in my curiosity and operating from a same-sex point of view, asked my professor if only legal spouses are allowed to have the finaly say about the funeral rites of their beloved.

My professor agreed. Jurisprudence-wise, the Supreme Court in the recent case of Valino v. Adriano (G.R. No. 182894, 2014), the Court said that "Even if a deceased person has validly expressed his wish to be buried at the mausoleum of his paramour’s family, the deceased’s legal wife has the legal right to bury the deceased elsewhere, because the deceased’s wishes are compulsory only with respect to the ‘form’ of his funeral" (Link here).

The reason is simple: Philippine family law does not recognize common law unions, except in the case of co-ownership. But in the sentimental and often highly emotional area of funeral and last wishes, it will be the legal spouse which will have the final say.

At this rate, who are those who should fix the funerals? In the strict order given by the Civil Code (Art. 305 in relation to Art. 199), the following are: (1) The spouse; (2) The descendants in the nearest degree; (3) The ascendants in the nearest degree; and (4) The brothers and sisters.

Unfortunately, the "spouse" there must be the legitimate civil spouse, not the common-law spouse. So imagine yourself being entrusted with your lover's final words and after your lover's passing, you tell his mother (your "mother-in-law), "Tita, gusto daw po niyang ipa-cremate." With a blink of an eye, you can expect that what you just said will be thrown at the backburner because being only the gay lover of your gay husband, you are not the legal spouse. Sounds like, Mano Po, right? Yes'm.

It's not a stretch of thought to consider that two men living under one roof beneath the banner of eternal love is still common law union. Common law unions are those only consented between two people without the benefit of any law. Short to say, they just shacked up; cannot avail of tax breaks, the surviving spouse do not have the strong right to enforce what the deceased spouse said in articulo mortis (at the point of death), and other benefits accorded to man and woman who tied the knot with the sanctity of law (i.e. civil union). Nil. Nada. Zilch. Because they're only common law and the law still looks at their civil statuses as "single" persons.

The few slivers of my wakefulness went out to A and his partner on the context of civil unions. I've had too many what if's that tired my brain and fortunately lulled me to sleep. But the fact remains that sometimes, even if no matter how proud we are to put into Twitter trending #LoveWins, still Love is short when the might of Law is flexed.

For common law unions (and here is where same-sex unions are right now because we don't have same-sex marriage or civil unions yet) even if, say, I can attest to the truth that my hubby wants to be cremated, I have no right if my words are pitched against the family of my lover, who may want the body of my hubby otherwise like buried in their family lot or wherever.

My point being is, factor in the sentimentality of "til death do us apart" in most marriage vows, same-sex unions cannot fully have this advantage because Philippine laws do not recognize them. And I think that let alone the squabbling over tax, co-ownership, adoption and whathaveyou's, the bitter end of it all is that, isn't it human nature to leave our final words about what to do with our corpse to the person who has this infinite and immeasurable respect and love for us from deathbed and beyond?

Let's not quibble over what it's supposed to be called: same-sex marriage, legal partnerships, civil unions. The lawmakers are off to that debate. But what we need just about now is the protective mantle of law so that at the end, whatever happen to our bodies, that one great love in our lifetime is honored enough to do it for us--respected by the people around us and supported with what the law vests.

P.S. A's partner is now in a better condition. And his story is posted here with proper permission.

P.P.S. Dami kong feels while writing this. Shet.

compulsory testing?

What about compulsory HIV testing in extreme cases?

One kind soul approached me at my PlanetRomeo HIV account, let's call him F, and asked about the early symptoms of HIV onset. Since I am no doctor but a disciple of law, I could not be too exact as to what the "symptoms" are regarding HIV. HIV could be asymptomatic. But it could also show early signs when we are properly informed about HIV literature as applied to how raunchy we are in bed.

Fast forward, I told F that I had rashes back then in my chest area which actually were not itchy. He inquired if I have had fever. None, I said. The conversation went on and finally into its climax. F said that his late partner died, but up until now he and the people around him and his late partner cannot be fully sure if it were AIDS behind the late partner's passing because the significant other refused treatment. Even refused to take the HAT or the HIV Anti-bodies Test. The only speculation he had, and mine as well, was that it was AIDS as it already shown dire complications (as what F told me at least). I asked F if he tried talking down his partner to at least get an HAT; he did to no avail and no change of heart. One then can only speculate as much--even the doctors who I think at that moment had the hunch--because the patient waived his right to treatment. At that point and on hindsight, I saw how doctors could be bound by what is only permitted by the patient. A more existential question then: In cases like that, where do we draw the line for doctors to truly heal and to strictly adhere the decisions of their patients? I am in absolutely no position to answer.

Enter law. It is well-within the Philippine Patient's Bill of Right for a patient to refuse treatment, as can be gleamed in paragraph 5, "The patient has the right to refuse treatment/life-giving measures, to the extent permitted by law, and to be informed of the medical consequences of his action."

But, take heed readers of the one important passage: "to the extent permitted by law." That is an important statutory phrase in paragraph 5 because then we ask, which law permits refusal and which law overrides a patient's refusal to treatment? I think there is none yet to date because it would be highly controversial to think of the least if a doctor, who in his utmost good faith and impelled by the good intent of the law, to do what the patient otherwise permits.

Apply it to the scenario of F's partner, what if his doctors, with their healthy medical reasoning, conducted a HAT despite the stern refusal of the patient? Would that be allowed?

Be that as it may, weeks passed and F's story had me thinking, what if there is a law that actually does not permit refusal of patient as regards their care management when life and death is on the line? Are we to look at it on a moralistic viewpoint or on a legal philosophical view of crafting laws for people's sake? I bet it would be a tough consideration because moralists have been on the look out as regards our health laws in this country.

It fancy me to think about the unpopular opinion. Let's give compulsory testing a chance to save lives in dire cases of death. But right now, no law actually permits that unsavory opinion of mine. The rule under the Philippine HIV/AIDS Law (Republic Act 8504) is that it is prohibited to conduct compulsory testing. The last thing I've heard as regards development of RA 8504 is an amendatory bill filed by Rep. Teddy Baguilat of Ifugao province. As to the bill's content, I am not privy to it.

But again, take heed, because Sec. 2(b)(1) of RA 8504 admits of an exception to prohibition against compulsory testing, that is, unless otherwise provided in this Act.

Down in Section 17 of the Act, there are three instances where the Act may allow compulsory HIV testing: criminal charge of rape and injurious substance; relevant issues as regards the Family Code; and compliance as regards organ and blood donation.

The exceptions, in legal parlance, methinks, are not a closed-list exception, which means, instances to allow compulsory testing may still be added as lawmakers have the good faith to include those new instances as worthy exceptions, and, in my whimsical thoughts, in articulo mortis.

The way I see it, if our lawmakers only have the balls to consider--of course, always reaching out to public consultants and experts--the need to have a compulsory testing to determine if a patient's disease is caused by HIV, it will make care management more efficient. Of course, what is only made compulsory is the testing, not the treatment. If after testing and results showed that the patient is reactive to HIV anti-bodies, then this information may be used to properly inform the patient of his situation. Only then will the patient be allowed to choose whether to opt for treatment or not because with HIV now a reality after testing, doctors can now move to explain how HIV in these day and age can be manageable as diabetes or hypertension.

What is important, methinks, is that there is a testing done per se. This may give the patient a new perspective as to his survival if done with the guidance of doctors. Unlike if the testing--not the treatment--is made to depend on the decision of the patient, doctors have no slim chance to fight for the survival of the patient. Doctors are immediately bound to wait for the patients to die.

Surely, after testing, and reactivity, a patient can still choose whether to move on to the treatment. If he opts to, good. If he doesn't, the doctor has done his fair share.

If this is the way, we can save people such as F's partner. If we are to include in articulo mortis as an exception in RA 8504, we can save lives. And since the Patient's Bill of Right is a general law, and HIV Law is a special one, any first year law student will know that special law overrides a general law.

If this is a way to save lives and truly make doctors as lifesavers we can fancy the thought of how long the shot is and try to shorten it by making it a reality. This is where HIV/AIDS and law intersects. This is HIV policy-making and lawmaking. This is where the law can actually respond to a medical phenomenon.

So I ask, how about compulsory testing urgente mortis periculo, any takers?