At the end of October, a significant case came before the Supreme Court, which once again, brings the legal status of the unborn child before the nation’s highest judicial body.

In 1985, a baby which British Columbia midwives Mary Sullivan and Gloria Lemay were delivering dies from lack of oxygen.  The baby’s head had emerged, but its body had not.

The women were charged with criminal negligence causing death to the fetus and criminal negligence causing bodily harm to the mother.  Were they responsible for the death of a person, or was it simply a case of harm to the mother?

The first B.C. court found them guilty of criminal negligence to the baby, ruling that the fetus was a person under the Criminal code.

Dilemma

The B.C. Court of appeal rejected this finding, and convicted the two of causing bodily harm to the mother.  The court said that the fetus, while still in the birth canal, “remains part of the mother as a matter of law,” and is, therefore, not a person.

The Supreme Court of Canada is faced with a dilemma.  On the one hand, the B.C. government argues that the Appeal Court was correct because the fetus has no independent legal rights until it emerges alive.

Not a person

On the other hand, REAL Women, intervening in the case, says that the unborn child is clearly a person.  The midwives contend that although the fetus is not a person, it clearly has interests which do not necessarily coincide with the mother’s.

Last year, the Supreme Court tied itself in knots in the Chantal Daigle case: Quebec’s Charter of Rights refers to the rights of an etre humain, a human being, but the Court maintained that this could not have meant that the unborn person had rights because this fact would have been spelled out!

There is a section of the Criminal code which declares that a baby does not become a human being until it is born.  This legal assertion is patently false; an unborn baby is a being of the human species before birth as well as after.

The Court could catch up with common sense and strike down this section of the Criminal Code, and decide that the fetus before birth is either a person, or an entity whose rights and welfare are distinct from those of its mother.  If this happens there will be profound implications for the understanding of abortion in Canada.  The rights of the fetus will really have to be balanced against the rights of the mother.  It may mean the reversal of Bill C-43 if it has passed the Senate and become law.

Bill C-43 provides no protection of any kind for the unborn.