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University Paper - Submission to the Canadian Children's Rights Council

The Issue of Fetal Rights in Canada

By Colleen D'Orsay Wintermans, student, Cape Breton University, November 25, 2005

The purpose of this paper to explore the issue of fetal rights in Canada. I do so from the perspective of the UN Convention on the Rights of the Child. My position is that contrary to the spirit of the UN Convention, ratified by Canada in 1991, there is no legal protection for the unborn child in Canada. Even though there is a direct link between the care of the fetus and the health of the child, recent decisions rendered by Canadian courts do not adequately protect the health and well being of the unborn child.  Clearly, the relationship between the pregnant mother and her unborn child is unique and unlike any other human relationship (Borg, 2005).  Because of this, a balance between the rights of the mother and the rights of the fetus can at times be difficult to attain.  As such, the rights of the unborn child have been the subjects of long-standing debate within Canada.  While by no means does this paper intend to be an exhaustive study into fetal rights in Canada, it does highlight recent Canadian court decisions on fetal rights; the effects of maternal factors on the health and well being of the fetus and subsequent child; and fetal rights in relation to the UN Convention on the Rights of the Child.  Suggestions for what can be done to promote fetal care and the rights of the unborn are also examined in the concluding remarks.

Fetal Rights and Current Canadian Law:

Under the Canadian Criminal Code, many sections exist which state parents do have a legal duty to provide the necessities of life to their children (Byfield, 2002).  Sections of the Code (such as Section 242, relating to the requirement to obtain assistance in childbirth and Section 238 (1), which makes a person culpable, if causing the death of a child in the act of birth) also exist that give special attention to childbirth and the vulnerability in the health and delivery of babies and children.  In protecting rights of the unborn child to adequate care however, the Criminal Code seems to come up short.  In an effort to avoid both the heated and oft politically volatile abortion debate and the rights of the mother to control her own body, no section of the Code exists that protects for the health and well being of the unborn developing child in utero.  Section 223(1) of the Criminal Code says that a child becomes a human being when it has "completely proceeded, in a living state, from the body of its mother."  In other words, the child has no protection until after birth (Byfield, 2002).

Interestingly, Canadian Law does recognize that a baby can benefit from certain rights granted to it during its gestation if, in due course, it is born alive.  An example is the right to inherit property if the testator died before the baby was born (Borg, 2005). Once a fetus is delivered alive, injuries caused by others during gestation may be pursued in law and compensated. If, for example, a pregnant woman is injured in a car accident, caused by the negligence of another, the child later born alive could sue to recover against the negligent party (Bowal, & Wanke, 1998).  Yet, this right to sue must be converted from potential to actual by live birth. Until then, the fetus has no legal rights any more than, say, a pair of sneakers has legal rights. Therefore, the fetus had no legal recognition capable of protection. According to the courts, there is, simply, no one to protect (Bowal, & Wanke, 1998).

Recent Canadian court decisions support the position that unborn children do not have legal rights. In August of 1996, the Manitoba Department of Child and Family Services asked a Court of Queen's Bench judge to order a five-months pregnant woman into a drug treatment programme in order to protect her fetus from its mothers solvent abuse. The department was concerned that the nervous system of the developing fetus might be damaged, causing irreparable harm to the subsequent child.  The woman had already given birth to three children, all of whom have been removed from her care.  Two of the children have neurological damage because of their mother's addiction (Mitchell, 1996).   In rendering the lower court decision that required the mother to receive treatment, the judge wrote, because the rights of the mother are inextricably involved, the court should only step in when it is certain that the mother intends to proceed to give birth (Mitchell, 1996).  However, the case was subsequently overturned by the Supreme Court of Canada (the Winnipeg Child and Family Services v. G., 1997).  In more than 25 printed pages of judgment, the Supreme Court stated that they were not going to intervene by creating any common law principle to protect the fetus. They surveyed the law and simply found that no current judge-made principle permitted intervention for the sake of the fetus, which has no status at all in the law (Bowal, & Wanke, 1998).  This decision was in keeping with a prior Supreme Court decision in 1991, in which a case was heard involving midwives who were charged with manslaughter when their patient's baby was stillborn. The Supreme Court decided that legal rights do not exist until a child is born alive (Mitchell, 1996).

The position that a fetus does not have the independent legal rights of a human being until it has completely emerged from the womb was also upheld in Ontario provincial court in 1997.  Brenda Drummond, a postal clerk, returned home from work on May 30, 1996, and gave birth to a baby in her home. She claimed to have been unaware of the pregnancy.  However, when doctors undertook an emergency brain scan, the scan revealed a pellet in the baby boy's brain. Two days prior to giving birth, Drummond had inserted a pellet gun in her vagina and shot the fetus. Originally charged with attempted murder, the charge was later thrown out.  In making the case, the prosecutor had argued that fetal rights are de facto created by a Criminal Code provision that provides sanctions against people whose actions injure a fetus that is later born alive but subsequently dies. Even though the baby survived, it was argued that the homicide clause's provision was applicable because the real intent of the law was to protect fetuses (Kondro, 1997).  In making Drummonds case, the defence contended a conviction would invite charges against women who have abortions; doctors who perform them; or even pregnant women who drink, smoke, or use drugs. Upon rendering a decision, the judge agreed with Drummonds defence lawyer, who also argued that Canadian law provides only a remedy for the murder of a person and a fetus is not defined as a person, thus no one can be charged with attempting to murder a fetus. In this vein, it was the ruling of the Court that the mothers actions did not constitute an offence under Canadian law, even if observers believe the woman acted immorally (Kondro, 1997).

The cases cited above created much controversy and debate amongst the Canadian people, government, and court system in general.  It should be mentioned that the Supreme Court does not state that the legal status of the unborn child could or should not be changed or extended.  However, the Court has asserted that it is not the role of Canadian judges to make this change: "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 (Bowal, & Wanke, 1998).  For example, in rendering a decision in the Drummond case, the judge stated that the court "is not required to deal with questions of morality adding it is up to politicians to redress deficiencies in the law. "This is a matter on which parliament can legislate" (Kondro, 1997).

That being said, it can be difficult to amend the status and legal definition of a human being to extend to the fetus within the legislature. Legislatures are notorious for avoiding politically polarized domains (e.g., abortion, physician-assisted suicides), for fear of electoral consequences (Bowal, & Wanke, 1998).  Because private members bills and motions, which are deemed controversial almost never achieve the consensus required to move them forward, perhaps it is the role of the courts to protect the rights of the unborn. For example, difficulties in amending fetal rights have been experienced repeatedly by Garry Breitkreuz, an Alliance MP for Yorkton-Melville in 2001.  He says Canada's current law may violate the United Nations Convention on the Rights of the Child, which calls for legal protection of children before and after birth.  That debate has been rendered virtually meaningless, however, since the subcommittee on Private Members' Business decided that the motion was unvotable.  That meant it would be debated for one hour and then the issue would die (Byfield, 2002).  Within the court system however, the Court can anytime freely make and re-make any of its common law rules. It often does so in other contexts such as its rulings about tort, abortion, sex and gender rights (Bowal, & Wanke, 1998).

Fetal Development Considerations:

It can be asserted that the Supreme Court of Canada is hesitant to contend with the social, biological, and legal issues that might flow from any change to the law.  They have characterized these legal changes as major- for what they consider are essentially lifestyle choices of pregnant women (Bowal, & Wanke, 1998).  Furthermore, the Court seems to believe, that by pitting the rights of the mother against the rights of the fetus and causing maternal resentment, legal intervention itself might cause more harm than good to fetuses. However, this view does not take into account that almost from the moment of conception, children are part of a social and a psychological context.  They do not begin life with a clean slate (Craig, 1986).

Evidence clearly shows that socio-economic, racial, cultural, physiological, age, health, and illness factors of the mother greatly impact upon the development of the fetus and subsequent child.  While some of these factors are beyond the pregnant mothers immediate control, there are things a woman can choose to do to increase her chances of having a normal, healthy child.  Stopping lifelong addictive behaviours can be difficult, and a woman who suffers from them requires support and assistance not only from family members and individuals close to her, but also from the health care system and society (Cheung, & Chomitz, & Lieberman, 1995).  Because the Supreme Court has reasoned it would be impossible for judges to determine the standard of behaviour or lifestyle pregnant women should engage in to be within the law, it can place health care providers in a difficult position (Borg, 2005).  Health care providers must attempt to balance the needs of the fetus against the rights of the mother.  A pregnant woman who is dreading her babys arrival may pay little or no attention to her nutrition or general health, causing damage to her unborn child (Craig, 1986).  In order to alleviate some of the mothers concerns, education and prenatal counselling may be an avenue for health care providers to consider.

A woman unprepared or uncertain about her pregnancy may require additional supports to help her meet the developmental needs of the fetus.  As such, voluntary compliance, education, and making treatment available, rather than coercive sanctions, remain the most desirable policies (Paltrow, & Robertson, 1989).  During pregnancy, for example, the need for calories and nutrients, such as protein, iron, folate, and the other B vitamins, is increased to meet the demands of the fetus as well as the expansion of the maternal tissues that support the fetus (Cheung, & Chomitz, & Lieberman, 1995).  Women at particular risk of nutritional inadequacy during pregnancy may require nutritional counselling (Cheung, & Chomitz, & Lieberman, 1995).  Providing educational and nutritional programs that allow the mother to buy and eat healthy foods can greatly enhance her self-esteem and ability to adequately meet the nutritional requirements of her unborn child. Visits to the grocery store, planning a menu, learning to make healthy food choices from fast food items and how to prepare simple meals foster positive self-care practices, enhance self-esteem and increase control (Hunt, & Kelen, & Stones, & Varga, 1991).  Proper nutrition of the fetus is important because a fetus, malnourished in the womb, may never make up for the brain cells and structures that never came properly into being.  Malnutrition both before and after birth virtually dooms a child to stunted brain development and therefore considerably diminished mental capacity for the rest of his life (Rosenfeld, 1974).

Lifestyle behaviours such as cigarette smoking, weight gain during pregnancy, and use of other drugs play an important role in determining fetal growth (Cheung, & Chomitz, & Lieberman, 1995). This is important because the weight of infants at birth is a principal determinant of their chances for survival and good health.  Low birth weight (less than 2500 grams) can result in physical and mental difficulties and in more extreme cases, death (Statistics Canada, 1996-1997).  In 1996, Statistics Canada reported that 5.8 % of all infants born alive were underweight, placing Canada in the middle of other industrialized countries in terms of underweight births.  Over half of low birth weights were due to premature births (before the 37th week). The rest were due to lack of nourishment in utero, preeclampsia (pregnancy induced hypertension), or heavy smoking by the mother during pregnancy.  According to a report written for the Center for the Future of Children of the David and Lucile Packard Foundation, approximately 20 % to 30 % of all low birth rates and 10 % of fetal and infant deaths could be avoided if women did not smoke during pregnancy.  Furthermore, this growth disadvantage may continue for several years after birth (Craig, 1986).  As such, programs that encourage women to reduce or stop smoking during pregnancy could greatly reduce the adverse affects on her unborn child.

The use of alcohol, illicit drugs and prescription drug abuse amoung pregnant women has received extensive coverage in recent years.  Generally speaking, maternal drug use can depress fetal respiration and decrease the responsiveness of newborns.  In addition, these babies experience withdrawal symptoms- extreme irritability, shrill crying, vomiting, shaking, and faulty temperature control (Craig, 1986).   Decreasing maternal drug use not only increases the health of the unborn child, but also avoids maternal stress associated with caring for newborns experiencing symptoms of withdrawal. Reducing heavy use of alcohol and other drugs during pregnancy could also reduce the rate of low birth rate births (Cheung, & Chomitz, & Lieberman, 1995).  These rates are important to the growth and development of children, because most detectable fetuses, which are not aborted, are eventually born alive, and the injurious impact of alcohol and drug use on their development is well known (Bowal, & Wanke, 1998).  Alcohol abuse during pregnancy is clearly related to a series of congenital malformations described as fetal alcohol syndrome, or FAS (Cheung, & Chomitz, & Lieberman, 1995).  FAS is characterized by small size and low birth weight, prenatal and postnatal growth retardation, central nervous system disorders, cranial and facial malformations, mental retardation, and neurological abnormalities.  In fact, heavy alcohol consumption has been cited as the leading preventable cause of mental retardation worldwide (Cheung, & Chomitz, & Lieberman, 1995).  Less severe syndromes such as Fetal Alcohol Effects (FAE) have also been confirmed.  FAE is a term used to describe the presence of some, but not all, FAS characteristics. This term is also used occasionally when maternal alcohol consumption is uncertain (Hubert, & Raftis, 1996).  These abnormalities, particularly maladaptive disorders (attention deficits, poor judgement, lower comprehension and defiance) can persist into adulthood and significantly impair the quality of life of the individual (Overholser, 1990).

Education of pregnant mothers and support from health care providers have been shown to greatly reduce incidences of substandard prenatal maternal practices, including the prevention of low birth weights, smoking cessation during pregnancy, and decreased maternal drug use.  Additionally, it has been proven that a womans first interaction with health care providers will greatly influence her carrying out the health care plan (Sherwen et al., 1991). As such, the creation of a safe and stable environment that provides trust is necessary.  The atmosphere needed to build trust will not exist if the mother senses that the nurse (or health care provider) is rushed or that she is just another case.  On subsequent visits, a continuity of staff maintains this trusting relationship (Sherwen et al., 1991).   Mothers at risk for providing inadequate prenatal care to their unborn child can perform well during pregnancy, labour, and delivery, if they receive adequate prenatal care and some degree of personal care (Morris, 1991).  It has been further stated that new skills such as childcare cannot be taught if people continue to feel worthless, powerless and receive no positive reinforcement (Vera, & Wrath, 1995).  Teaching pregnant mothers to take care of the daily needs of her infant reinforces her ability to make decisions and enhances self-esteem (Dickason, & Schult, & Silverman, 1994).

Fathers/ partners of the expectant mothers can also play an important role in the health of the unborn child.  In fact, a study by Giblin, Poland and Ager  (1990) found a clear association between the level of tangible/behavioural, emotional and informational support of the expectant fathers and the prenatal care utilization and health behaviours exhibited by the expectant mother (Guion, 1997).  Research conducted by Westney, Cole and Munford in 1988 suggest that the expectant mother is more strongly influenced by input from her partner than from any other significant person, including other relatives and health care professionals. This research suggests that expectant fathers were most influential in getting the expectant mother to comply with medical protocol and exercise good health behaviours. As such, the expectant fathers are key in providing prenatal information to the expectant mother because the expectant mothers will listen to them more readily (Guion, 1997).  It has been suggested that as a starting point in trying to address expectant fathers special needs in traditional prenatal programs, program planners can include the roles that the expectant fathers perceived as the most important, such as the role of nurturer and supporter.  In this way, the programs will address the knowledge, skills and/or learning needs associated with fulfilling those prenatal care roles (Guion, 1997).

It is important to note that while fathers, nurses, and health care providers can do much to promote healthy maternal prenatal care, it is ultimately up to the pregnant mother to follow through on these supports and practices.  Nurses and other health care providers who have concerns about a fetus because of the pregnant womans behaviour should educate themselves about any applicable policy or practice approved by their employer or licensing body.  Provincial/territorial legislation or local initiatives may provide a way to involve a social worker or to work with the womans pre-existing caseworker.  A concerned nurse, acting in good faith, may contact the local child welfare authority (for example, the Childrens Aid Society), which may have a system to keep track of pregnant women at risk, with a view to protecting the child at birth if necessary (Borg, 2005).

The  UN Convention and Fetal Rights:

Clearly, the health and development of the fetus has great impact upon the health and quality of life of the subsequent child at birth and beyond.  In light of this evidence, Dr. Bonks assertion that there is no such thing as the rights of the unborn child in Canada, could suggest that the state is not looking after the health and well being of its children.  Therefore, Canada would be in violation of an international agreement ratified by all nations in the world, with the exception of two nations.  In 1991, the Canadian Parliament and provinces (with the exception of Alberta) ratified the United Nations Convention of the Child (Covell, & Howe, 2001). Through this convention, Canada committed itself to providing for the basic rights, care and well being of all Canadian children.  The Convention states that all children are entitled to have their basic human rights protected.  In fact, the convention is unique in that it makes special human rights provisions for children, due to their inherent vulnerability as children.  In the preamble to the Convention, it specifically bears in mind that the child, by reason of his physical and mental immaturity needs special safeguards and care, including appropriate legal protection, before as well as after birth.  The preamble specifically recognizes the importance of the development of the child- both before and after birth. However, in order to avoid the abortion debate, the authors of the convention purposely chose not to specifically define the beginnings, or minimum age of childhood.  While Article 1 of the convention sets out to define the upper limits of childhood, defining a child as every human being below the age of eighteen years, unless, under the law applicable to the child, majority is attained earlier, it makes no mention of a minimum age. As such, individual countries could decide for themselves whether to define childhood as beginning at conception or birth (Covell, & Howe, 2001).

Article 2 of the Convention states parties shall respect and ensure the rights set forth in the present convention to each child within their jurisdiction without discrimination of any kind, irrespective of the childs or his or her parents or legal guardians/ birth or other status.  Therefore, a case could be made that under the Convention, it is discriminatory for the Canadian legal system to discriminate against the child based on its status in utero.  Such a case is strengthened, when the spirit of the Conventions preamble is taken into account- to care and safeguard the health and care, including appropriate legal protection, before as well as after birth.  Protection of the fetus could be argued under Article 6 of the Convention, which recognizes that every child has an inherent right to life.  Furthermore, state parties are required to ensure to the maximum extent possible the survival and development of the child.  Surely, as it is impossible to divorce the survival of the fetus from that of the child, Article 6 would extend to include the unborn child.  Ensuring the health and well being of the fetus to protect the health of the child would also extend to Article 24 of the Convention.  The article states parties recognize the right of the child to the enjoyment of the highest attainable standard of health/ and state parties shall strive to ensure that no child is deprived of his or her right to access health care services.  Since Article 24 goes on to state parties shall pursue full implementation of this right (to health care) and, in particular, shall take appropriate measures to diminish infant and child mortality and to ensure appropriate pre-natal and post-natal health care for the mother, it could be assumed that the rights of the unborn child are implied by the Convention.  As such, current Canadian practices are not in keeping with the requirements of the convention it ratified.

Conclusion:

Unfortunately for Canadian children and children worldwide, it does appear that the rights of the unborn are not being protected to the fullest extent possible.  In an attempt to avoid dealing with the rights of a woman to control her body and more specifically, the debate over abortion, the Canadian government, legislature, and court systems have gone to great lengths to avoid and/ or pass the buck on issues surrounding fetal rights.  Even the authors of the United Nations Convention on the Rights of the Child have failed the children they pledge to protect.  By not defining the minimum age of the child in the legally binding sections of the Convention, its authors have also gone to great lengths to avoid taking a stand on fetal rights and abortion.  In failing to do so, the framers of the Convention have done a grave disservice to children at a time in their development when children are at their most vulnerable and in need of protection.  The fact that the authors of the Convention refer to the special care and protection requirements of the child both before and after birth in its preamble and in various articles throughout the Convention, it has been proven that its authors cannot divorce the welfare of the fetus from that of the child.  However, this recognition has not resulted in concrete and specific fetal rights protection under the Convention.  Special provisions exist within the Convention to protect other populations of especially vulnerable children, such as refugees and the disabled.  Likewise, additional articles and provisions should be added to the legally binding text of the Convention, protecting the fetus from termination and harm.

Many have argued that in order to protect the inherent right to life of the unborn child and children in general, abortion should be outlawed.  This position involves two claims: not only is the fetus a person, but also that person has a right "to appropriate someone else's body for its own use (Buell, 2002).  It follows the premise that since all persons have an obligation to refrain from harming children after birth, they similarly have obligations to refrain from harming children by prenatal actions. The timing of the conduct does not affect the duty to avoid harm (Paltrow, & Robertson, 1989).  According to this view, an abortion, by definition, is the intentional killing of a fetus by removal from the womb. Proponents of this view further assert that science has relevance to the abortion and fetal rights debate: a fetus, from the moment of conception, is a human being, because it meets the five essential scientific criteria. It is a living organism that (1) has a metabolism, (2) grows, (3) can reproduce at some stage of its normal life process, (4) has a complete and unique set of DNA, and (5) its DNA is classified as belonging to the human species (Shook, 2001).  Therefore, from the moment of conception, the rights of the unborn child should be protected, regardless of its impact upon the rights of the mother.

A more moderate view might be to suggest that once a woman decides to continue with her pregnancy, she should have both a moral and legal obligation to do so in a manner consistent with providing a minimum of reasonable and adequate care to her unborn child.  While the rights of the mother can and should not be ignored, the facts that a fetus is attached and dependent on the mother cannot deprive it of rights (Shook, 2001).  However, in this case, protecting offspring against prenatal harm does not affect a womans right to terminate pregnancy, for the issue arises only if the woman decides to continue the pregnancy (Paltrow, & Robertson, 1989).  Instead of avoiding the issues surrounding abortion and fetal rights, perhaps Canada should follow the lead of the United States in Roe v. Wade, 1973.  Roe v. Wade  was a landmark United States Supreme Court case establishing that most laws against abortion violate a constitutional right to privacy, overturning all state laws outlawing or restricting abortion (Wikipedia, 2005).  Relying on the current state of medical knowledge, the decision established a system of trimesters that attempted to balance the state's legitimate interests with the individual's constitutional rights. The Court ruled that while the state cannot restrict a woman's right to an abortion during the first trimester, the state can regulate the abortion procedure during the second trimester "in ways that are reasonably related to maternal health," and in the third trimester, demarcating the viability of the fetus, a state can choose to restrict or even to proscribe abortion as it sees fit (Wikipedia, 2005).

Legislators, the courts, and the general public need to take into account the affects of proper prenatal care in the development, health, and well being in the life of the child.   Furthermore, while additional sections and articles could be added to the United Nations Convention on the Rights of the Child to protect the rights of the unborn child to adequate care, it does recognize prenatal care as important to the health and well being of the subsequent child.  Therefore, in order to remain in keeping with the United Nations Convention on the Rights of the Child, Canada must do more to recognize fetal rights.  In the meantime, health care practitioners can do much to ensure the health and well being of pregnant mothers and the unborn.  More education on the affects of smoking, maternal drug and alcohol use, nutritional practices, and socio-economic supports are needed to help mothers meet the needs of their children during the prenatal period.  Warm, nurturing, non-judgemental attitudes build trusting relationships that support and encourage good maternal prenatal care.  The implementation of a comprehensive national prenatal program focusing on all factors associated with good prenatal outcomes, (such as drug awareness, nutrition, economic supports, coping mechanisms, smoking cessation, and other health and counselling supports), would go a long way to alleviate the harmful effects of inadequate prenatal care on the health of children and families.  Further research and studies on the male experience in parenthood, including what factors motivate some men to become more involved than others in the health and well being of their offspring might also be helpful.  Such research would help point out any gaps in the educational and health care system, which could promote the father as an additional advocate for the rights of the unborn.

While it is expected that the debate surrounding abortion and fetal rights in general will persist for a long time to come, it can not be argued that prenatal care is independent of child health outcomes. Only by protecting the rights of children and the unborn can we expect to produce healthy and productive children and adults.  In doing so, all of Canadian society will benefit.