WHEN DO RIGHTS BEGIN?

In many ways, the most interesting discussion in last month's Supreme Court
decision in the case of the gluesniffing pregnant woman (who, the Court
decided, could not be held against her will for the protection of her
child) concerned the legal doctrine of "born alive."

The law of this land, upheld by the 72 vote of the Court, is that a fetus
does not have rights, at least not while it is a fetus. Once it has been
born, a child can sue for damage done to it by its mother or someone else
while it was a fetus. But until it has been born its interest cannot be
represented in court. In effect, damages can be compensated for but not
prevented.

In his dissenting opinion, Justice John Major argues that this view arises
not from any moral principle but from the practical difficulty that until
this century science knew very little about the (how to put it?) life of
the fetus. It was therefore difficult to know whether stillborn or
miscarried children had met with their tragic ends because of anything done
to them. Moreover, as one commentator wrote in 1861: "To provide against
the danger of erroneous accusation, the law humanely presumes that every
newborn child has been born dead, until the contrary appears from medical
or other evidence ... No evidence imputing murder can be received, unless
it be made certain by medical or other facts, that the child survived its
birth and was actually living when the violence was offered to it."

Justice Major argues very convincingly that this view is now anachronistic
and he cites several scientific studies of the harmful effects of glue
sniffing and alcohol abuse on fetuses and the children they become. The
difficulty of interpreting evidence having been significantly reduced, he
argues that the Court should now consider the moral question of whether the
fetus has rights.

The majority of the Court, in an opinion written by Justice Beverley
McLachlin, declines to do so, on the grounds that this would be too great a
reach for the Court though Justice Major effectively counters that in
its 1933 case granting children the right to sue for damage done them while
in the womb, the Court had made a substantial reach beyond existing
jurisprudence, and so had the legal system as a whole when, in 1928, the
Privy Council "overruled precedent and a unanimous Supreme Court of Canada"
and held in the Persons case that women were legal as well as corporeal
persons.

What is most striking about this argument, however, is what the two sides
in the Court agree on, which is that whether or not a mother can harm a
fetus she has decided to carry to term, she can decide to abort the fetus
virtually at will. Writing for the majority, Justice McLachlin argues that
measures to avoid harm to a fetus should not be allowed because they "could
ultimately result in its destruction," which is a very peculiar line of
reasoning: If the fetus does not have rights, why do we worry that a mother
might decide to abort it rather than suffer any restriction of her liberty
the state might seek to impose on her in order to safeguard her child's
health?

For his part, Justice Major turns the same point in favour of state
intervention in the fetus' interests by arguing, in effect, that
restrictions on the mother's liberty can never be draconian because "her
option for an abortion is always available," she has the "ability to choose
abortion at any time during her pregnancy [emphases supplied]." The reason,
of course, that this option is always available is that since the
Morgentaler decisions, Canada has not had any law on abortion.

In our view and, we suspect, that of most Canadians, neither of these
doctrines is satisfactory. The idea that the fetus has no rights at all
until it is born is surely preposterous: 24 hours is barely threetenths of
one per cent of nine months. In the last 24 hours before birth a fetus
changes imperceptibly. And yet at birth minus 24 hours it is entirely
without rights, while at birth plus 24 seconds it is vested with full
rights?

On the other hand, Justice Major's argument is also implausible. The fetus
has rights but "always ... at any time" its rights can be trumped by those
of its mother, who may decide to have an abortion. Rights that can be
extinguished summarily are hardly worthy of the name.

One way out of this logical dilemma is to argue that from the moment of
conception a fetus has all the rights of a human being and that no one, not
even its mother, can choose to deprive it of these rights, including, most
fundamentally, the right to life.

A second way out is to recognize that both the fetus and its mother have
rights, and that in weighing them, greater weight will be given to the
mother's interests during the first months of the pregnancy, and to the
fetus' interest in the later months.

The balancing of rights is often messy, and the system of balancing just
proposed is not as gleamingly precise as the competing doctrines that
fetuses have either no rights or all rights. It has the virtue, however, of
reflecting what appears to be a consensus among Canadians, first, that
women should have the option of choosing an abortion early in their
pregnancy and, second, that a woman addicted to glue who has already given
birth to two braindamaged children should not be permitted to damage a
third.

Rights should not always be determined by a survey of public opinion: We
expect the robust freedom of the press that we favour might not be approved
in a thoroughgoing survey of Canadians' opinions. Still, the ability to
command the confidence of a large majority of citizens should normally be
counted as a virtue in judging our national legal arrangements.

In a world in which the courts make altogether too much law, the Supreme
Court's decision not to overturn what Justice McLachlin calls the
"timehonoured rule" that legal rights are vested only at birth is
heartening, if also, it must be said, hypocritical: The Court has shown
little reluctance to overturn other timehonoured rules, such as the
thousandsofyearsold tradition that marriage means the union of a man and
a woman.

Be that as it may, the Court having turned the issue of fetal rights back
to Parliament, Parliament should act. The unborn child may not have
absolute rights directly from the moment of conception, but the idea that
it has no rights at all is rejected by morality, even in this increasingly
amoral age.

Copyright 1997 The Ottawa Citizen