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Blupete's Weekly Commentary


November 17, 1997.

"Fetal Rights."

Recently a decision was handed down by the Supreme Court of Canada dealing with very large questions which, we, are all obliged to face. These questions arose in the context of the legal battle between a department of the state, the Winnipeg Child and Family Services, and a woman who did not like to be locked up by them. The case was framed as a contest between the rights of the unborn, versus, the rights of the mother to be let alone.

The issue evolved because of a pregnant woman who was addicted to glue sniffing. In the lower court, the judge ordered detention and treatment of the mother to prevent harm to her unborn child. The Supreme Court of Canada, by a majority decision, found that the law of Canada does not recognize that the unborn child is a legal person possessing rights.

The case in its full text can be downloaded, as I did, from the Supreme Court of Canada site which I list in my legal links.

The SCC (Supreme Court of Canada, the highest in the land) found that rights of a juridical person are conferred at birth; they come along as if with the child's first breath: this is what the law has been for some period of time, a legal principle which has been cast up by that marvelous legal mechanism known as the English common law. In the Winnipeg case, the SCC could not see any good reason to change this legal principle; but, left it open for the legislature to try if it thought it could. But, as I write elsewhere, the necessary majority consent to adopt a position in respect to such a social issue as that of fetal rights; would, in all likelihood, where fractional groups will argue and attempt to advance differing positions, not be forthcoming, though all will feel the effect of much rancor. Resolutions on large questions will not (and, it cannot be expected) be found in the legislative process, either; unless, the country puts a dictator or a set of dictators in place, which of course brings on a different set of serious problems. While such great questions should be fully aired and exposed, I am afraid it is not possible to legislate solutions any more than these problems can be resolved by a sitting judiciary (as the SCC found): in the final analysis, the solution lies with each person who is faced with the problem.

As Justice McLachlin in the majority decision observed: "To permit intervention prior to birth in recognition of a duty of care owed to the fetus in utero would constitute a major departure from the common law as it has stood for decades. ..." (para. 23) ... "This change to the law ... is fraught with complexities and ramifications, the consequences of which cannot be precisely foretold. At what stage would a fetus acquire rights? ..." (para. 24) For the state to get itself involved in the forcible detention and mandatory treatment of a person would involve the state, of necessity, to involve itself "into the most sacred sphere of personal liberty -- the right of every person to live and move in freedom.

Justice McLachlin:

"46 ... There exist only two ways in which the state may lawfully involuntarily confine a person: (1) by the criminal law, whose proper concern is the incarceration of those found guilty of criminal offences against society; and (2) by an order made under a provincial Mental Health Act that a person is not competent to manage his or her own affairs. It is open to Parliament and the legislature to enact new grounds for involuntary confinement, subject to compliance with the Canadian Charter of Rights and Freedoms. But to suggest that judges at common law should do so is unprecedented. To describe such a change as 'major' is to understate the matter; to predict that it would have important ramifications is to state the obvious. This final change is one which, if it is to be made, must be left to Parliament or the legislature."
And,
"55 ... The law sees birth as the necessary condition of legal personhood. The pregnant woman and her unborn child are one. Finally, to make orders protecting fetuses would radically impinge on the fundamental liberties of the pregnant woman, both as to lifestyle choices and how and as to where she chooses to live and be."

I remind the reader that the full text of this important decision can be directly downloaded from the Supreme Court of Canada site which I list in my legal links.

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Peter Landry

November, 1997 (2016)