Court puts mothers before fetuses

Supreme Court judges rule forcible treatment of pregnant glue addict
illegal, say 'woman and her unborn child are one'

Nobody has the legal right to interfere with a pregnant woman whose
behaviour threatens her fetus, the Supreme Court of Canada said in a
landmark ruling yesterday.

The court rejected the idea that a pregnant Winnipeg woman addicted to glue
sniffing could be forcibly confined and treated in the hope of protecting
her unborn child from harm.

"The only law recognized is that of the born person," the court said by a
72 majority. "Any right or interest the fetus may have remains inchoate
and incomplete until the birth of the child."

It said that to permit a private party or the courts to confine or forcibly
treat a pregnant woman would violate "the most sacred sphere of personal
liberty the right of every person to live and move in freedom."

"A pregnant woman and her unborn child are one," Madam Justice Beverley
McLachlin said, writing on behalf of the majority. "To make orders
protecting fetuses would radically impinge on the fundamental liberties of
the mother both as to lifestyle choices and as to where she chooses to
live and be."

The majority said that if legal rights are ever extended to the unborn, it
will be elected legislators not judges who pry open that Pandora's
box of competing moral viewpoints and overlapping legal interests.

"To describe such a change as 'major' is to understate the matter," they
observed. "To predict that it would have important ramifications is to
state the obvious."

Many groups advocating for the rights of women breathed a collective sigh
of relief in the wake of the judgment.

"It was a very serious case, a very grave case," said Carissima Mathen, a
lawyer with the Women's Legal Education and Action Fund, a group that
intervened before the Supreme Court.

"I was surprised how completely they appeared to agree with us," Ms. Mathen
said. "They grasped that this is an issue of fundamental rights for women.
I don't think this should be taken as an invitation for the legislature to
act."

To others, the decision was the latest blow in a sustained assault on fetal
rights by the court.

"We call on Parliament to immediately enact legislation to protect the most
defenceless member of our human family the preborn child," Campaign Life
Canada president Jim Hughes said. "It is a matter of scientific truth and
fundamental justice."

His call was bolstered by the dissenting judgment, in which Mr. Justice
John Sopinka and Mr. Justice John Major said the "born alive" rule has been
superseded by medical advances. "The born alive rule is a legal anachronism
and should be set aside, at least for the purposes of this appeal," they
wrote.

The gluesniffing case hit the headlines in August of 1996, when a Winnipeg
judge ordered the mother known as D. F. G. into the custody of
socialwelfare authorities.

The woman was five months pregnant and hopelessly addicted to glue. She
already had three children, two of whom had suffered permanent harm in the
womb from her addiction and are wards of the state. Social workers had been
consistently rebuffed in their efforts to obtain treatment for her. She did
try to get help once, but it was unavailable.

Although the judge's order was overturned two days after it was made, the
23yearold woman did stay in hospital until the child was born, apparently
health, last December. The woman has stopped sniffing glue and is to be
married today.

"This is not a story of heroes and villains," Judge McLachlin wrote in her
decision. "It is the more prosaic but all too common story of people
struggling to do their best in the face of inadequate facilities and the
ravages of addiction."

Given that the physical existence of a fetus is utterly dependent on the
mother, she said, the potential for intrusion into a woman's right to make
choices is great.

"As a result, any intervention to further the fetus's interests will
necessarily implicate and possibly conflict with the mother's interest."

Solvent abuse cannot be described as a "lifestyle choice," the judge wrote.
"If outside intervention were permitted in such instances, however, women
who smoke cigarettes or engage in strenuous exercise while pregnant may not
be far behind."

She also said that, aside from the civilliberties issue, it is far from
clear that forcibly protecting the interests of fetuses can prevent
injuries in the first place.

Aggressive intervention might simply drive the problem underground, the
court said. Women with substance abuse problems might avoid seeking help
for fear of being forcibly confined, and some might even abort their fetus
rather than risk being separated from their heroin or solvents.

"In the end, orders made to protect a fetus's health could ultimately
result in its destruction."

The court, which has been accused in some quarters of usurping the role of
Parliament, stated over and over in the judgment that it had no intention
of doing so in such a complex case.

"If anything is to be done, the legislature is in a much better position to
weigh the competing interests and arrive at a solution that is principled
and minimally intrusive to pregnant women," it said.

The majority also observed that generally speaking, people should not
consistently look to the courts to tailor remedies for every perceived
problem. "It is not every evil that attracts court action," it said. "Some
evils remain for the legislature to correct."

Even if intervention was justified in the gluesniffing case, the court
said, it would necessitate stretching the law far beyond where it currently
stands. Worse, there could be profound and unseen consequences.

Some of the devilishly complex questions the court said might result: At
what stage would a fetus acquire rights? Could women seeking abortions face
injunctions to stop them? Could the family of a pregnant woman killed by a
dangerous driver sue for the death of her unborn child as well?

"If the unborn child is a legal person with legal rights, arguments can be
made in favour of all these propositions," Judge McLachlin wrote. "Some
might endorse such changes; others deplore them.

"The point is that they are major changes attracting an array of
consequences that would place the courts at the heart of a web of thorny
moral and social issues which are better dealt with by elected legislators
than by the courts."

In their dissenting judgment, Judges Sopinka and Major said that in order
to safeguard a mother's rights, intervention in her pregnancy could be
restricted to cases where it is reasonably probable that her behaviour
would cause "serious irreparable harm to the unborn child."

Confinement and treatment would be limited to instances where no other
solution was workable, they said.

"In any event, this interference is always subject to the mother's right to
end it by deciding to have an abortion," they observed.

"When a woman chooses to carry a fetus to term, she must accept some
responsibility for its wellbeing, and the state has an interest in trying
to ensure the child's health."

Copyright © 1997, The Globe and Mail Company