Lawmakers must decide rights of unborn, top court says

Judges overturn ruling ordering gluesniffer into treatment program

It's now up to politicians, not judges, to decide if unborn children should
be protected from their abusive mothers.

The Supreme Court of Canada ruled yesterday that courts do not have the
power to force a pregnant woman to undergo treatment to prevent harm to her
fetus.

Only lawmakers can make a change of such "major impact and consequence" to
existing legal principles about the status of the unborn, the top court
said in a 72 ruling.

The Supreme Court overturned a Winnipeg judge's controversial ruling last
year that ordered into a treatment program a 22yearold pregnant woman who
was addicted to sniffing glue.

At the time of the unprecedented order, the woman, who was five months
pregnant, already had three children two of whom suffered brain damage
traced to her sniffing of glue, paint thinner and nail polish remover.

Since she became the focus of a national debate on fetal rights, the woman,
who can't be named, has kicked her drug habit and gave birth in December to
an apparently healthy boy, William.

She is now expecting a fifth child in January and is to be married today to
William's father.

"I'm happy that it's over, I just want to be out of the public," the
softspoken woman said from her lawyer's office.

"The mothers that are pregnant out there that are addicted, they should
think of giving their babies a chance to live like their mothers gave them
a chance to live."

Yesterday's ruling broke no new ground on the emotional issue of fetal
rights, strongly reaffirming earlier Supreme Court judgments that a fetus
does not acquire legal rights until it is born alive and viable.

Madame Justice Beverley McLachlin, writing for the majority, said the case
was not a "story of heroes and villains."

"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."

Judge McLachlin said courts cannot remedy "every evil" in society some
remain for legislatures to correct.

Rewriting the law to allow pregnant women to be detained against their will
and forced to undergo treatment, she said, would force judges to confront
"a web of thorny moral and social issues," which are better dealt with by
elected politicians.

"To make orders protecting fetuses would radically impinge on the
fundamental liberties of the pregnant woman, both as to lifestyle choices
and how and where she chooses to live and be," Judge McLachlin wrote.

"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."

However, she warned that any attempt at legislation would have to comply
with the Charter of Rights and Freedoms.

Legal experts say it would be up to the provinces, which have jurisdiction
over health not the federal government, which makes criminal law to
bring in a law allowing the forced treatment of pregnant women.

A spokesman for Justice Minister Anne McLellan said her officials will
discuss the issue with the provinces to determine how they will respond and
whether there is any role for the federal governemnt to play.

Besides bowing to legislators in a controversial policy area, the Supreme
Court majority also said forcing wouldbe mothers into treatment may be
"counterproductive."

Judge McLachlin said it may drive the health problems underground because
pregnant women may not seek prenatal care for fear they will be confined
involuntarily. Addicted women who would otherwise choose to continue their
pregnancies might instead undergo an abortion, she said.

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

And what sorts of maternal lifestyle choices should the fetus be protected
against, the judge asked smoking, drinking, refusal to take medication?

While the Supreme Court majority opinion seemed to focus on the interests
of the mother, the two dissenters concentrated on the fetus "Someone
must speak for those who cannot speak for themselves."

Mr. Justice Jack Major, supported by Mr. Justice John Sopinka, said it
would be wrong for the state to "stand idly by" while a reckless mother
inflicts serious and permanent harm to a child she has decided to bring
into the world.

"Society does not simply sit by and allow a mother to abuse her child after
birth. How then should serious abuse be allowed to occur before the child
is born?" Judge Major wrote in his most powerfully worded opinion since
joining the court five years ago.

Prochoice groups were elated by the ruling and said what is needed is not
a law to force women into treatment but better healthcare services for
wouldbe mothers.

Jo Dufay of the Canadian Abortion Rights Action League said the ruling
sends a strong message that pregnant women can seek medical treatment
"without fear of incarceration."

"(Yesterday's) ruling reaffirms a woman's right to fundamental liberties.
The court is saying that a woman has got a right to control her own body at
all times, including when she's pregnant."

Michelle BlanchetteLavergne of Alliance for Life, the umbrella group for
Canadian prolife organizations, said lawmakers should act to protect a
child that a mother has chosen to carry to term.

"I think it's really up to the people of Canada, to the citizens
themselves, to take the initiative, to stand up for what they believe in,
and put a little bit of pressure on their members (of Parliament)."

Copyright 1997 The Ottawa Citizen