The Court's tangled web.

Oh, what a tangled web we weave, When first we practise to deceive!

Walter Scott, Lochinvar

In the October 31, 1997, Supreme Court case involving women's rights versus fetal rights, newspaper reporters noted that the Court wanted to avoid getting tangled in the thorny question of the rights of the unborn. The Court's problem, however, is not to avoid getting entangled, but how to become untangled from the situation it has been in ever since its extraordinary January 1988 Morgentaler judgement. At that time it ruled that pregnancy deprived a woman of security of the person and therefore abortion was a reasonable option for her. As a consequence of this erroneous decision, other problems which our legal system has since faced have become so insoluble that not even the wisdom of Solomon could resolve them--and there are no Solomons on our Supreme Court.

Manitoba 'sniffing solvent' case

The case began in August 1996, when the Winnipeg Child and Family Services Agency asked that a woman be forced into treatment to protect the health of her unborn baby. She had already had three children, all of them in the care of the Agency, two of them born suffering from the effects of her addiction. Therefore, the Agency contended, the public had an interest in restricting the woman's liberty: her solvent-sniffing habit was likely to produce a brain-damaged child, and the care of that child during its lifetime, likely at public expense, might well cost over a million dollars. Once a woman has decided to bring her pregnancy to term, the lawyer for the Agency contended, she has a legal obligation to care for the unborn infant. Mr. Justice Perry Schulman agreed; he ordered the woman confined to a treatment centre until the birth of her child. He also said that the fetus has a right to protection once the mother has decided to bear it.

"That decision was bad ethics, bad law, bad social policy and bad medicine," declared Arthur Schafer, director of the Centre for Applied Ethics at the University of Manitoba. He maintained that forcing pregnant, addicted women to take treatment for the sake of their fetuses would make matters worse.

The Globe and Mail, in turn, argued editorially that Schafer was wrong on all counts:

"Society at large had a strong interest in helping this woman and preventing her from giving birth to a child that might require a lifetime of special care. And it was certainly good ethics. Almost everyone who heard how this woman was poisoning her unborn child could not help but feel it was terribly wrong--a far sounder ethical guide than the theorizing of university professors."

Court of appeal ruling

However, the Court of Appeal sided with Schafer and overturned the lower court's verdict.

"Here is a classic dilemma," wrote Mr. Justice Kerr Twaddle of the Manitoba Court of Appeal. "An expectant mother sniffs solvent to the probable detriment of her unborn child. If nothing is done, the child when born will surely suffer. Yet anything which can be done necessarily involves restricting the mother's freedom of choice, and, if she persists in the habit, her liberty."

The judge then declared that the courts have no legal basis to order a mentally competent person to undergo treatment, even if it is necessary for the protection of the unborn child. He also pointed out that fetuses have no rights in Canada, though perhaps they should have:

"That is not to say that legislative intervention is not desirable. An extension of child protection law to those yet unborn involves moral choices and a balancing of a mother's rights against those of her future child. The making of those choices and the delicate balancing task would more appropriately be undertaken by a body directly answerable to society

In other words, if the unborn child was to be given protection, it was not for the courts, but for Parliament, to take the necessary steps.

In passing, one notes how Judge Twaddle speaks erroneously of "her future child," when the issue centred on her child already in her womb. Though Judge Schulman's order was overturned, it had some good effects. The woman voluntarily remained in the hospital to which she had been confined, and promised to stop the sniffing of solvents for the rest of her pregnancy.

Supreme Court

The Court of Appeal's ruling was referred in turn to the Supreme Court of Canada, and on October 31, 1997, months after the child had been born, this Court confirmed that the woman could not be forced to enter a treatment program to protect the health of her unborn child. Madam Justice Beverley McLachlin, for the majority, reaffirmed earlier judgments that a fetus does not attain legal status as a person until it is born. She maintained that "to make orders protecting fetuses would radically impinge on the fundamental liberties of the mother..." In her ruling, she made one completely extraordinary and scientifically inaccurate statement: "A pregnant woman and her child are one." Medical science reveals that a woman and her preborn child are two separate persons, with different brains, different hearts and different bloodstreams.

Feminists approve

Naturally this ruling was applauded by leading radical feminists, including the Liberal federal Minister of Justice, Anne McLellan. Though courts have repeatedly urged the legislators to deal with the question of when an unborn child becomes a human being, she declared that she would not be bringing forward legislation that would recognize fetal rights.

"What one does," she said, "is acknowledge the very clear rights in terms of the autonomy of women. The fetus does not have standing in terms of our laws, be they criminal or otherwise."

Jo Dufay, then current spokeswoman of the Canadian Abortion Rights Action League (CARAL), called the decision a great victory for women: the Court was saying that a woman has a right to control her body at all times, and this is an important reaffirmation of a woman's basic rights.

Carissima Mathen of the Women's Legal Education and Action Fund (LEAF) was actually surprised at how completely the Court agreed with her group: "They grasped that this is an issue of fundamental rights for women."

So the Supreme Court once more demonstrated its solidarity with CARAL, LEAF, and other feminist pressure groups at the expense of medical science and truth.

Faulty biology

Nevertheless the learned judges must have realized that their biology was sadly out of date. In fact they were told so by the two dissenting judges, John Major and the late John Sopinka. These two argued that the "born alive" rule, meaning that the child does not become a human being until it is born, has been superseded by medical advances: they called it a "legal anachronism."

Until the beginning of the twentieth century, it was difficult to know if a stillborn or miscarried child had died because of mistreatment. "To provide against the danger of erroneous accusation," one commentator said in 1861, "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." As Major and Sopinka argue, modern medical knowledge has rendered this 19th-century presumption unnecessary.

As for the presumption that mother and child are one, it was out of date not in Victorian times, not in medieval times, but in Roman times. McLachlin's view of the fetus as part of the mother would turn the woman into a freak, a creature with two heads, four arms, four legs, a large number of fingers and toes, and two hearts pumping different types of blood, one of which would be fatal to the mother if it got into her bloodstream.

Why did the Court majority insist on what was a palpable scientific falsehood? Obviously because this was the only way that they could support the women's lib interpretation of the complete autonomy of the pregnant woman, including the unimportance of the conceived child. They wanted to protect and defend the position taken by Madam Justice Bertha Wilson in the Morgentaler decision of January, 1988, namely that fetal life in the early stages has no real significance and is certainly not deserving of protection.

''When a woman chooses to carry a fetus to term," Sopinka and Major wrote, "she must accept some responsibility for its well-being and the state has an interest in trying to ensure the child's health." But even though these two judges defended the interests of the child, they also said that the rights of the fetus can "always," "at any time," be extinguished by its mother, who may decide to have an abortion. So abortion, in their opinion too, was just a matter of free choice.

Overruling science

An editorial writer in the Ottawa Citizen argued that rights which can be extinguished summarily are hardly worthy of the name. Pursuing this line of thought, he brought out some of the implications which made supporters of CARAL, LEAF, and similar pro-abortion organizations break out in a cold sweat. "One way out of this dilemma," he wrote, "is to argue that from the moment of conception...the fetus has all the rights of a human being and no one, not even its mother, can choose to deprive it of these rights, including, most fundamentally, the right to life."

Referring to the case of Chantal Daigle, which came up in the summer of 1989, where Ms Daigle wanted to abort her 23-week-old unborn child against the wishes of its father, he remarked:

The child conceived but not yet born, regardless of the term that is given to his civil status, constitutes a reality which must be taken into consideration. It is not an inanimate object, nor anyone's property, but a living human entity, distinct from that of the mother that carries it... and which... is entitled to life and to the protection of those who conceived it.

Earlier, Quebec Justice Lebel, in the first stage of the Daigle case, had held that it was difficult to deny that the fetus was part of the human family; sections of the Quebec Civil Code, he noted, authorized the appointment of "curators" for children conceived but not yet born.

Another Quebec judge, Justice Nichols, added that it would be paradoxical if the legislators had wanted to protect the patrimonial rights of the fetus but remained indifferent to his right to life.

Despite these arguments, the Supreme Court Justices- called away from their cottages in August for an unheard-of summer sitting--in a case which was moot because Daigle had been to Boston already to have the abortion actually performed--decided that Chantal Daigle had a right to abort the child. In its haste to uphold a woman's choice, the Court managed to overturn or neglect all the above arguments. They went further and declared that the meaning of the term "human being" is a very controversial issue. As part of its twisting of terms, the Court referred to the child in the womb as only "potential life" and to the man who fathered Chantal's baby as only its "potential" father--as though it had not been fathered once and for all!

As one can see, following the 1988 Morgentaler ruling, the Supreme Court of Canada has sunk deeper and deeper into the morass of untruth. More was yet to come.

The Sullivan and LeMay case (1991)

In 1985, two B. C. midwives, Mary Sullivan and Gloria Lemay, ran into trouble while they were delivering Jewel Voth's baby. After the head had emerged, the mother's contractions stopped, and they were unable to stimulate them again. Eventually they called Emergency Services, and Jewel was taken to hospital, where the baby was soon delivered--but with no signs of life.

The midwives were charged with criminal negligence causing the death of a child, and a Vancouver court found them guilty; on a second charge, of criminal negligence causing bodily harm to Jewel Voth, they were acquitted. When the case went to the B.C. Court of Appeal, however, these two decisions were reversed. There was harm done to the mother, the Court ruled, but because the fetus had not completely separated itself from its mother's body, it could not be a person within the meaning of the Criminal Code, and the charge of criminal negligence causing the death of a child could not stand. There was no child.

"If Parliament considers it appropriate to protect a child during the birth process from criminally negligent acts by those attending and assisting at the birth," the court ruled, "that is a matter upon which Parliament can legislate." But Parliament had not done so. If the child in the birth canal does not have the status of a person, the judges reasoned--among whom was Beverly McLachlin, now Chief Justice in Ottawa--it must be part of its mother, and so Sullivan and Lemay could be convicted of criminal negligence causing harm to her.

Supreme Court embarrasses everyone

The B.C. judgment was appealed in turn, and so the case wound its way up to the Supreme Court of Canada. When its decision was handed down on March 21, 1991, it was simple and straightforward. Its author was Chief Justice Antonio Lamer--the one who had voted in the 1988 Morgentaler case according to the opinion polls.

Lamer simply cited a few sections of the Criminal Code. Section 206 declared that a child becomes a human being only when it has completely proceeded from the body of its mother, and a person commits homicide when he causes injury to a child before or during its birth as a result of which the child dies after becoming a human being. As far as the Code was concerned, therefore, Jewel Voth's baby was never a human being.

Papers like the Toronto Star and the Globe & Mail, usually quick to applaud the Supreme Court's pro-abortion judgements, were slow to respond editorially to this one; presumably they found it embarrassing. The Toronto Sun, in an editorial headed "Birthright," said the ruling sounded cold, clinical, and lacking in common sense:" How can a fully formed fetus, which is literally moments away from life, not be a human being?" "It is obvious that a baby died here," the paper continued, "no matter how powerful the judges who say it was a non-baby."

In an Ottawa Sun column headed "Evil Logic," Peter Stockland reduced the ruling to farce; from insane premises, he said, came incredible conclusions. Helena Norton, a lawyer associated with LEAF, had described this as "a good decision . . . consistent with women's equality." Judy Rebick, head of NAC, had called it "a very positive decision" because it denied the unborn legal status. Both these responses were perfectly consistent with feminist principles, Stockland observed, but even scant examination of these principles showed them to be so wildly absurd as to border on madness.

Margaret Purcell, spokeswoman for Campaign Life Coalition, had asked, "What did they think that head was if it was not part of a human being?" Stockland took this idea up and elaborated on it: "What indeed! Was it, perchance, some part of a dolphin? Or perhaps it was a chimpanzee? Anyone vote for a cocker spaniel?"

What this case revealed then, was that the Supreme Court agreed with the radical feminist organisations that in the matter of abortion a woman's wishes should be paramount. It may not be clear when or how an unqualified right to abortion became established, but the Court took for granted that such a right existed. And in order to defend its very curious understanding of fetal life, the Court was forced to pronounce judgments which were palpably absurd, such as the one which said that the head of Jewel Voth's baby was not a human head at all, because the infant's body had not entirely separated itself from its mother.

The Brenda Drummond case

The so-called pellet case enmeshed a lower court in similar absurdity. On June 7, 1996, Brenda Drummond of Carleton Place, near Ottawa, was charged with attempted murder after a pellet was found in the brain of her newborn child. She had used a rifle to fire the missile into her vagina while the baby was still in her womb. He was born two days later, had to undergo an emergency operation to remove the pellet from his brain, and fortunately recovered. The question put at a pretrial motion the following November was whether a charge of attempted murder could apply.

Section 223 of the Criminal Code says that it is murder to injure a fetus in utero if the child is born alive and subsequently dies as a result of the injury. Crown Attorney John Waugh seized on the wording of this section to argue that the Code gives the unborn child a separate identity. The law refers to injury to a child, not to the mother, her womb, or some abstraction, and so "Parliament had mandated that an unborn child, under these circumstances, has an existence." Jonathan Drummond suffered near-fatal injuries; it would clearly have been murder if he had died.

In response Lawrence Greenspoon, Mrs Drummond's lawyer, contended that the case involved a failed miscarriage which, if successful, would not have been a criminal offence. Waugh said that this paled into insignificance "when you consider that had Jonathan died during surgery to remove that pellet, it would have been murder." So Mrs. Drummond should be charged with attempted murder.

Judge Inger Hansen ruled, however, that since the child is not recognized as a human being until born, the rare circumstances of this case were not covered by the Criminal Code. In February 1997, the baby's mother pleaded guilty to a ludicrous compromise charge--failing to provide the necessaries of life to her son by not telling doctors that she had shot him. For this offence, she was given thirty months' probation and a suspended sentence. Anna Desilets of Alliance for Life pointed out that the judgment made clear how necessary was a new law to protect unborn children: "The fact that a baby can be shot while still in the womb with no penalty is incredible. It may have been the only possible decision the judge could have come to under the circumstances of the current law, which shows we need new laws pertaining to the unborn."

What should be done?

All that is needed, really, is for the Supreme Court to stop repeating its mantra which says that a child does not become a human being until it is born--a legal fiction which, as Justices Major and Sopinka pointed out, ignores the findings of contemporary science, but also ignores precedents going back to Roman times. Justinian's Digest of Roman law made it clear that a woman sentenced to death could not be executed if she was pregnant: the law could take one life, but not two.

If our judges do not trust Justinian, they might invoke Shakespeare: in his Henry VI Part I, he shows Joan of Arc most unhistorically as a witch and a strumpet who "pleads her belly" when she has been condemned to be burned at the stake:

"I am with child, ye bloody homicides.

Murder not then the fruit within my womb,

Although ye hale me to a violent death."

In a note on these lines, G. B. Harrison writes that "a woman condemned to death could plead that she was pregnant. If the plea was accepted, her life was spared until the child had been born."

Eighteenth-century English literature offers many examples of this principle of the common law--Defoe's Moll Flanders (1722) and Gay's Beggar's Opera (1728), to name two. Several decades before these works were written, in 1692, six citizens of Salem, Massachusetts, were tried for witchcraft, found guilty, and sentenced to death. On August 19th, five of them were hanged. One, Elizabeth Proctor, had her execution stayed until such time as her child should have been born, "on the ground that the child she was carrying was an innocent person."

For Canadian judges to say that the unborn child is a part of its mother is completely absurd; the Romans, the Elizabethans, the citizens of Augustan England knew better, even though they did not have the benefit of modern science to tell them that the baby has its own unique DNA. Even in times which had far less knowledge of fetal life than we have today, therefore, the child in the womb was thought of as a separate entity from its mother--and as something which required protection. As people used to say of a pregnant mother: "She is with child."

Ryan Dobson

A final puzzling case which went to the Supreme Court concerned a New Brunswick boy, Ryan Dobson, suing his own mother for injuries received in an automobile accident. She was 27 weeks pregnant with him in March 1993, when her car struck a half-ton truck on a snowy road near Moncton. Later that day her son was born, with permanent mental and physical disabilities; he cannot speak properly and walks with difficulty. On his behalf, his maternal grandfather, Gerald Price, tried to win damages from the mother's insurance company, on the grounds that she was negligent in not driving carefully enough to avoid the crash.

Predictably, Richard Barnes, a lawyer for Cynthia Dobson, the mother, argued that there are no legal rights prior to birth that can be invoked. If the court allowed the lawsuit to go ahead, he said, women could be sued for all kinds of negligent behaviour to their fetuses, such as failing to keep a sidewalk clear and then slipping on it.

On July 10, 1999, in a 7-2 decision, the Supreme Court ruled that children cannot sue their mothers for injuries sustained while in the womb. Again the court showed that it was not prepared to grant legal rights to unborn children. CARAL had argued during the trial that if Ryan Dobson received an award for an injury which took place within the womb, the Court would be saying that women are in fact liable for any harm that might occur to the fetus before birth and severely infringing on women's freedom.

Jim Hughes of Campaign Life Coalition contended that the Supreme Court ruling flew in the face of modern medical knowledge, and that a pregnant woman obviously has a duty of care to protect her unborn child from unnecessary harm.

Cynthia Dobson, obviously upset over the ruling, accused the pro-abortion movement, in a letter which appeared in several papers, of using her son's sufferings to advance their own cause. "I am angry," she wrote, "at those who find it necessary to use others' hardship as a way of furthering themselves."

David Dooley is professor emeritus of English, St. Michael's College, University of Toronto, and associate editor of Catholic Insight.