Why we need a law for the unborn

Monday, November 3, 1997

CAN a pregnant, gluesniffing woman be prevented from harming her unborn
child? Wouldn't standing by and doing nothing harm the childtobe? Would
intervention undermine the woman's autonomy? Given this legal riddle of
Solomonic proportions, the Supreme Court offered the only valid response:
It is, said the court, up to Parliament and the legislatures of the
provinces, not the courts, to answer these questions. There is no law in
Canada covering this situation, and the Supreme Court declined to create
one. If you want legislation in this area, said seven of nine judges, don't
call us.

The case involved a Manitoba mother, a solvent abuser who had already given
birth to two substancedamaged infants. Both children are today wards of
the state. In August, 1996, five months into her latest pregnancy, Winnipeg
Child and Family Services went to court, seeking to place her in the
protective custody of a substanceabuse centre, for the good of her unborn
child. The trial judge, grasping at legal straws, issued the order. The
Manitoba Court of Appeal overturned his decision, saying that Canadian law
as it now stands does not authorize a court to take such an action, since
in the law's current form a fetus is not a person in law, and a woman most
certainly is. The Supreme Court agreed.

The fetus has no rights under Canadian law, and the duty of care that one
must take to protect it vests only upon birth. For example, a child could
sue a mother for injuries suffered during a prepartum car accident caused
by the mother's negligence. But until that child is born, the law as it now
stands gives a childtobe no legal standing the courts can recognize.

We say "the law as it now stands," because laws, both provincial and
federal, can be changed. In this case, the law should be. In the majority
ruling written by Madam Justice Beverley McLachlin, the idea that
parliamentarians, not judges, must chose whether to rewrite this law is
more than just hinted at. In a short decision, phrases such as "best left
to Parliament," "more appropriate for the legislatures than the courts" and
"best left to the wisdom of the elected legislature" recur 18 times. Just
in case we didn't get the message, the ruling repeats it, repeatedly.

The court's admonition is, as lawyers say, on point. Parliament and the
provincial legislatures must address this matter. While respecting a
pregnant woman's right to autonomy, Canadian law must also recognize that a
woman who has indicated she intends to carry a fetus to term has a duty to
care for that potential life. The law can do this without necessarily
jeopardizing a woman's private right to abortion. While recognizing a right
to abortion, the law should at the same time clearly spell out the
responsibilities of those mothers who have not expressed a wish to abort.
This is not a contradictory position. Just as the law allows mothers to put
children up for adoption but imposes obligations upon those who choose to
keep their children, so the law can balance both the right to terminate a
pregnancy and the obligations upon those who choose not to abort to respect
and nurture a potential life.

We leave the final word to Judge McLachlin: "I conclude that the common law
does not clothe the courts with power to order the detention of a pregnant
woman for the purpose of preventing harm to her unborn child. Nor, given
the magnitude of the changes and their potential ramifications, would it be
appropriate for the courts to extend their power to make such an order. The
changes to the law sought on this appeal are best left to the wisdom of the
elected legislature." We await that legislative wisdom.

Copyright (c) 1997, The Globe and Mail Company