PETITION FOR THE ESTABLISHMENT OF A CORRECTIONAL NURSERY PROGRAM FOR INCARCERATED MOTHERS AND THEIR INFANTS IN THE PHILIPPINES

 

Condition of Incarcerated Mothers and their Infants in the Philippines

 

It is undisputed that the relationship between a mother and her child during the critical first months of infant development of the child needs to be given special consideration as it plays a vital role in the emotional and psychological well-being and development of the child. Maternal-infant bonding has tremendous implications for the child’s future development. It is widely accepted that the development of the first social tie between the mother and child serves as a prototype for all future relationships.[1] This bond is so unique that it is irreplaceable.

In 2008, then Senate President Manny Villar passed Senate Bill no. 2287 which was an act aimed to establish a correctional nursery program in all correctional facilities for women. Villar acknowledged the unfortunate reality that there are women who are incarcerated while in pregnancy. Currently, mothers in prison are separated from their children after they are newly born. This is because the environment in correctional institutions is not conducive to the proper growth and development of infants. However, Villar also recognized the fact that the bonding of women with their new born children has its benefits; motherhood has become a factor that prevents women from further committing crimes.

Villar hopes that the establishment of a correctional nursery can be beneficial not only to the children but also to the mothers. Aside from a proper place to nurse their children, the bill aims to promote the rehabilitation of women prisoners through various programs such as counseling and to provide them with proper medical care and assistance.

Unfortunately, the establishment of this program has yet to be seen and benefited from by incarcerated mothers and their children as this bill and other similar bills have remained pending in their respective committees.

The best interests of the children must be the paramount concern of the state. This principle is enshrined in Article 3 of the Convention on the Rights of the Child which declares that the best interests of children must be the primary concern in making decisions that may affect them. All adults should do what is best for children. When adults make decisions, they should think about how their decisions will affect children.[2] Therefore, the state must endeavor all possible measures to preserve this bond even when mothers are in prison

Similarly, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) gives emphasis on the importance of the role of the mother as to the upbringing of their children, to wit:

“Article 5- x x x (b) To ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children, it being understood that the interest of the children is the primordial consideration in all cases.”[3]

It is sad to learn that in the Philippines, correctional facilities are not mandated to implement programs such as the one being proposed in this petition.

A continuing increase in the Philippine prison population results to overcrowded and congested prisons and jails. The present set up of the Philippine corrections system is far from maintaining comprehensive management. According to Mildred Alvor [4], this resulted in functional overlaps and dissemination problems in the manner of executing corrections and restoration activities. Alvor identified this as the fragmented set-up of the corrections system. He also raised the issue of the inadequacy of training to the prison officials and staff. This has been cited as one of the reasons why some prison officials and staff are not aware of the rights of inmates[5].

Proposal of rehabilitation had been started in 1949 when Department of Justice issued rules on how to treat prisoners in connection with the rehabilitation of the criminal. This prison system is not only to punish the crime but also to correct the wrongdoings of the criminal.

The congestion inside the prison and jail had been targeted to be solved but remains to be a continuing problem. According to Albis Jr, et al [6], the DOJ guideline did not significantly alleviate the conditions of the prisons. In the 1950’s and the 1960’s, it was cited that over congestion, insufficient food, bad quality of accommodation and idleness of the prisoners as reasons of the prison riots. Also, findings of the Senate committee on Justice of the Fourth Session of the Sixth Congress in the conducted investigation revealed that there were sub-human conditions inside the prisons[7].

Under the 1987 Constitution, it is a declared policy that the State values the dignity of every human person and guarantees full respect for human rights[8].  Also as a State Party, Philippines has an obligation to the relevant international human rights instruments.

 

The Proposal

 

A law should be passed mandating the appropriate government agencies to establish programs that advance the rights of mothers who are imprisoned and their children in order to ensure that the mothers are able to perform their parental and child-rearing responsibilities despite their condition. Special assistance and consideration must be given to the imprisoned mothers and their children so that the adverse impacts to the emotional and psychological well-being of the child brought about by this family setup may be mitigated.

The proposal seeks to address the common notion that incarcerated mothers should not be allowed to keep their babies with them behind bars because the prison is not a safe environment for them and would only be detrimental to the child’s development. It is through this proposal that the bond between the mother and the child are promoted and ensured despite the unfortunate circumstances that they are in. The mothers should not be prevented from fulfilling their parental and child-rearing responsibilities just because they are imprisoned. Infants should not be deprived of their right to be with their mothers for reasons beyond their control and for causes out of their hands.

 

Support from Local Laws

 

The proposal finds support from various Philippine laws. These laws focus on the need to maintain the bond of the mother and her child.

In the 1987 Constitution, Article 2 Section 12 provides that the state shall equally protect the life of the mother and the life of the unborn child from conception. The bill strengthens the declaration by providing a means for imprisoned women to also enjoy this right.  Moreover, it is established in Article 11, Section 12:

“The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution.”[9]

            The proposal is also reinforced by Article 3(2) of P.D. 603 or The Child and Youth Welfare Code since the proposal seeks to help the child have a better family atmosphere. The provision states:

Article 3. Rights of the Child. - All children shall be entitled to the rights herein set forth without distinction as to legitimacy or illegitimacy, sex, social status, religion, political antecedents, and other factors.

xxx

(2) Every child has the right to a wholesome family life that will provide him with love, care and understanding, guidance and counseling, and moral and material security.[10]

            Another law that would support this proposal is the Family Code of the Philippines. Article 211 of the Family Code states that:

Art. 211. The father and the mother shall jointly exercise parental authority over the persons of their common children[11]

This provision provides that the persons mainly responsible in taking care of children are their own parents. In order to elaborate on the importance of mothers, the case of Perez v Court of Appeals must be stated. The case is actually a custody case of child below 7 years old but the Supreme Court elaborated on a child’s need for his or her mother’s loving care. The Supreme Court in the case stated the following:

The general rule that a child under seven years of age shall not be separated from his mother finds its raison d'être in the basic need of a child for his mother's loving car.e[12]

 

Support from International Sources

 

            More importantly, the rights of the incarcerated mothers and their children are recognized by the Universal Declaration of Human Rights under Article 25 that proclaims that “Motherhood and childhood are entitled to special care and assistance.”[13]

And in the International Covenant on Civil and Political Rights (ICCPR), it is declared

“xxx Pregnant women who are deprived of their liberty should receive humane treatment and respect for their inherent dignity at all times, and in particular during the birth and while caring for their newborn children; States parties should report on facilities to ensure this and on medical and health care for such mothers and their babies” (Human Rights Committee, General Comment 28 on Article 3 of the ICCPR).[14]

The proposal is not novel and has been, in fact, implemented already in a number of countries. It is feasible, practical and has yielded positive results in some countries where it has been enforced. For instance, in the United States, there are over nine (9) states that have already established prison nurseries and recognized the importance of uniting mothers in prison with their babies, at least until they reach one (1) year old. Among the states which enforce a nursery program are Illinois (Decatur Correctional Facility), Indiana (Indiana Women’s Prison), Nebraska (Nebraska Correctional Center for Women), New York (Bedford Hills Correctional Facility), Ohio (Ohio Reformatory for Women), South Dakota (South Dakota Women’s Prison), Washington (Washington Corrections Center for Women), and West Virginia (Lakin Correctional Center).[15]

The proposed nursery program is also consistent with Article 5 of the Convention on the Rights of the Child which proclaims that:

States Parties shall respect the responsibilities, rights and duties of parents xxx, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.[16]

 

Advantages of a Nursery Program

 

A law that mandates appropriate government agencies to establish programs that advance the rights of mothers who are imprisoned benefit both the mother and her child.

There is an underlying presumption that the separation of a parent and child is detrimental to the development of the child. In order not to hamper the development of the child, the attachment of the child and the mother should be intact. Spending time with the mother more often will help the child realize the arrangement they have between them and understand the current situation.[17] Some question the arrangement where mothers in prison are caring for their babies in the same. But while it seems peculiar for some, Dr. Mary Byrne, of Columbia University Sch    ool of Nursing on the Prison Nursery Program implemented in New York, views a mother as the best person to be a baby’s primary caregiver.  Dr. Byrne claims:

 

“In general, children who are suddenly or repeatedly separated from their primary caregivers are more likely to have difficulty learning and become cold and aggressive adults who, in turn, make poor parents. The few studies of children with incarcerated parents show that these children are at higher risk than children in the general population for emotional and behavioral disorders, school failure, and coming to the attention of the criminal justice system as juveniles and adults.”[18]

 

Studies confirm that children who were born in an arrangement where they get to be cared for by their mothers behind bars later exhibit good social skills.[19] According to the study on Early Mother-Child Separation, a child who experiences separation from his mother early in life may experience instability and chaos in other aspects of them home environment.

 

“… a separation for as long as a week can result in distress for a young child who lacks the cognitive abilities to understand the continuity of maternal availability despite physical unavailability.”[20]

 

Clearly, if a child once separated from the mother even for a period of two (2) weeks may in itself be traumatic for the child, all the more prolonged separation in situations such as an incarcerated mother where contact between parent and child is very limited. The physical availability of the mother in a child’s early years is important in order to provide a child the concept of stability that would avoid any other disorders in terms of behavior because once a child passes beyond the stage where adequate attachment bond may be formed, a child may not only experience difficulty in forming relationships, but also experience developmental retardation.[21]Studies suggest that if a child does not have sufficient contact with an attachment figure between one month and twenty-five months of age, the child may lose his or her ability to form such an attachment. As a result, the said loss may affect the child’s intellectual development and ability to make interpersonal relationships, or even lead to hostility and withdrawal. [22]

Furthermore, Mary Deck of the Boston College of Law found that separating a mother from her child is harmful, adding that this separation may damage a child’s ability to form an attachment bond with the mother to the point that it may result in distress, regression, and detachment, which impairs the child’s ability to form future attachments.[23]  Without the bond with the mother, a child may manifest a tendency to break the law which may adversely impact not only the child, but society as well.[24]

In addition, Deck emphasizes the notion that separating the child from the mother by placing him or her with relatives or in a foster home disrupts the “continuity of care” and may “destroy the child’s ability to bond with the parent.”[25] It should be noted that in a foster home set-up, the child might be relocated several times.  In such a set-up, the child will sorely lack the continuity of human attention and nurturing in which the child requires, hence, causing the child great harm.

Given the foregoing, Deck believes that “legislatively mandated programs to prevent separation serve the interests of convicted mothers and their infants and at the same time preserve the state interests in the institutional goals of deterrence, security, and rehabilitation, as well as the state interest in safeguarding the best interests of children.”[26]

The establishment of a nursery program can also be considered an alternative form of rehabilitation and reformation for the mothers.  Studies provide that acts of misconduct from mothers in prison nursery programs gradually decreased. In Nebraska, no mother under the prison nursery program has ever been found positive for drugs.[27] It was observed that the experience of the mothers who were allowed to spend time and nurse their children behind bars generated a positive influence on them and made them strive harder to reform themselves and be better individuals so that they can someday reunite with their families again.

In a study conducted by Dr. Mary Byrne, the positive influence of allowing incarcerated mothers to serve time with their infants was confirmed. 58 inmate mothers and 60 infants with age ranging from 2 weeks to 13 months old participated in the Dr. Byrne’s study. It was observed that the option of co-detention of inmate mothers with their infants can provide a positive environment given the appropriate support and effective implementation of the program. It was concluded in the study that:

“Incarcerated women serving time in a prison nursery with their infants use the experience to create a sense of self as a parent and to develop parental strengths. The infants in one such nursery achieved developmental milestones appropriate for age during the first year of life.”[28]

            Furthermore, there has been a significant finding that shows that the nursery programs produce lower rates of recidivism among participating mothers. In a study conducted by Columbia University School of Nursing that aims to analyze 3-year recidivism after release from a prison nursery with over139 participating mothers between the period of 2001 and 2007, it was observed that:

“Three years after release 86.3% remained in the community. Only 4% of women returned to prison for new crimes. Survival modeling indicated that women who had previously violated parole had a significantly shorter mean return to prison time than those who were in the nursery for a new crime.”[29]

The results yielded from this study only goes to show that women released from a prison nursery have a low likelihood of recidivism.

By highlighting the benefits of having a prison nursery to cater to incarcerated mothers and their infants in which to strengthen and to form their attachment bonds, this will be beneficial not only for the mother and for the child, but also for the State.  By implementing a prison nursery to cater to the needs of incarcerated mothers and their infants, the State will satisfy its obligation to promote the best interests of the child, and at the same time, maintaining close family relationships during the rehabilitation of the mother in prison.[30]

With the proper formulation and enforcement of rules, policies and safeguards for the nursery program, concerns regarding the safety of the infants shall be addressed. The appropriate government agencies shall develop such rules, policies and safeguards to ensure that the mothers are properly screened and do not pose a threat or danger to the lives of their children and are capable of performing parental and child-rearing responsibilities.

 

 

 

 

 

[1]Spinner, M. (1978). Maternal-Infant Bonding. Can. Fam. Physician. Vol. 24: November 1978. Accessed on 3 April 2014: http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2379718/pdf/canfamphys00296-0067.pdf

[2] Convention on the Rights of the Child. Article 3.

[3] Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Article 2.

[4] Alvor, M. (n.d.) The Philippine Corrections System: Current Situation and Issues retrieved from www.unafei.or.jp/english/pdf/RS_No67/No67_09PA_Alvor.pdf‎;

[5] Ibid.

[6] Albis Jr., A (n.d.) A Study on the Effectivity of the philippine prison System retrieved from http://plj.upd.edu.ph

[7] Ibid.

[8] 1987 Philippine Constitution. Article 2, Section 11.

[9] 1987 Philippine Constitution. Article 11 Section 12.

[10] Article 3(2) P.D. 603 or The Child and Youth Welfare Code

[11] Article 211 Family Code

[12] Perez v. Court of Appeals G.R. No. 118870 March 29, 1996

[13] Universal Declaration of Human Rights. Article 25 (2). Accessed on 4 April 2014: http://www.un.org/en/documents/udhr/

[14]  http://www1.umn.edu/humanrts/gencomm/hrcom28.htm

[15] DeBoer, Hendrik (2012). Prison Nursery Programs in Other States. State of Connecticut General Assembly. Accessed on 4 April 2014 : http://www.cga.ct.gov/2012/rpt/2012-R-0157.htm

[16] Convention on the Rights of the Child. Article 5.

[17] Parke, Ross and Clarke-Stewart K. Alison. Effects of Parental Incarceration on Young Children. U.S. Department of Health and Human Services.

[18] Byrne, Mary. “Do babies belong in prison?” accessed on 4 april 2014: http://www.cumc.columbia.edu/nursing/pdf/InVivoByrne.pdf

[19] Chhaya, Nene (2013). The Controversial, Emerging Notion of Prison Nurseries. Accessed on 4 April 2014: https://chronicleofsocialchange.org/analysis/the-controversial-emerging-notion-of-prison-nurseries/2362

[20] Howard, Kimberly. Early Mother Child Separation. National Institute of Health. Columbia University and Duke University

[21]Deck, Mary V.  "Incarcerated Mothers and Their Infants: Separation or Legislation?", Boston College Law Review.  Accessed on 8 April 2014 http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1870&context=bclr

[22] Id., 694.

[23] Ibid.

[24] Ibid.

[25] Ibid.

[26] Ibid.

[27] Chhaya, Nene (2013). The Controversial, Emerging Notion of Prison Nurseries. Accessed on 4 April 2014: https://chronicleofsocialchange.org/analysis/the-controversial-emerging-notion-of-prison-nurseries/2362

[28] Byrne, Mary (2005). "Ethnographic, Self-Report Questionnaire, and Developmental Screening Data to Profile Maternal and Child Health Needs in a Prison Nursery." 2004 National State of the Science Conference, Washington, D.C., October 6-9, 2004. Accessed on 3 April 2014: http://www.cumc.columbia.edu/nursing/byrne/images/Byrne_Prison_Nursery_Poster.pdf

[29] Goshin, LS, Byrne, MW, Henninger AM (2013). Recidivism after release from a prison nursery program. Wiley Periodiclals Inc. Accessed on 4 April 2014: http://www.ncbi.nlm.nih.gov/pubmed/24588129

[30]Fabian, "Towards the Best Interests of Women Prisoners: Is the System Working?", cited                                          in Mary V. Deck.  "Incarcerated Mothers and Their Infants: Separation or Legislation?",                                 Boston College Law Review.  Accessed on 8 April 2014:

http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1870&context=bclr