For one glorious month this year, from August 8 to September 14, there were limited yet real rights for the unborn child in Canada.
For the past eight years, an unborn child has had no rights. Only if the mother is found to be mentally incompetent can society protect her unborn infant.
In March, 1989, the Supreme Court of Canada rejected Joe Borowski’s constitutional argument that the unborn is a person with legal rights. Borowski, who died as this editorial was being written, argued that the unborn child enjoys rights to life, liberty and security of person and equality before the law under the Charter of Rights and Freedoms.
Mr. Justice Perry Schulman on August 8 of this year wrote that the fetus has the right to protection once the mother has decided to bear it. He was ruling in the case of glue-sniffing addict who wanted to give birth to her five-month-old preborn infant, but who refused to seek treatment for her addiction. She already had three children, all of whom are in care, two of whom are neurologically damaged because of her addiction.
But five weeks later, Schulman was overruled by the Manitoba Court of Appeal. Mr. Justice Kerr Twaddle said there was no legal basis for infringing on the mother’s liberties, either to protect the woman from herself or to protect her unborn child.
Twaddle ruled against judicial interference but he did suggest legislative intervention. There is no law said Twaddle. Make a new law. Extend the Child protection laws to cover the child yet-to-be-born (albeit the child that the mother has decided to carry to term).
On the legal surface some waves have been made. It is a limited legal reading but that door was slammed in the face of preborn rights has been opened a crack. The mood of the country has shifted. Public indifference for the unborn child has turned to public concern.
The secular media, which for two decades has sympathized with the woman, now can see another victim, the preborn child. It has finally woken up to at least limited rights for the unborn. The language has changed. Editorials and news stories spoke of “the unborn child, the future child” and protecting “the not-yet-born.”
Pro-abortion rhetoric of “fetal police” and “fetal containers” rings hollow as society examines child abuse. The general public was truly alarmed at the sight of the five-month pregnant mother staggering into court incoherent and truly relieved when she came back after treatment articulate and in control. The woman has apparently kicked her glue-sniffing habit and she has said she wants to deliver a healthy baby. Schulman’s tough love approach benefited both mother and child.
Pro-lifers must continue to show concern for the pregnant addict. Substance abuse is widespread. Early intervention is crucial if we are to save thousands of lives from the devastation of fetal alcohol syndrome.
Twaddle ruled that the mother, whom he found sane, had the right to refuse treatment.
We recognize the right to refuse treatment where only one person is involved and there is fully informed consent as in euthanasia. But the pregnant addict’s refusal of treatment directly damages another human being.
We would argue for treatment for those addicts who are pregnant and who are permanently damaging the lives of their innocent children. How does temporarily losing some autonomy for nine months compare to the permanent health of the child, which may last 90 years?
Would temporary confinement drive women underground? Well we don’t worry about driving abusive parents underground by having health care professionals report suspected child abuse. Mandated care is the resort: encouragement comes first.
The grip of an addiction is far more coercive than court-mandated therapeutic care. With care the mother may attain genuine freedom.
Schulman was ruling narrowly: the unborn child has rights only if the mother wants it. The Globe and Mail agreed. “(The fetus) is by mother’s invocation an unborn child…the abuse of a future child can be considered child abuse.”
Pro-lifers want child protection for all unborn child — whether or not they are “invoked” by their mothers. The right to life is sacrosanct, many would say God-invoked.
The tenor of the debate has changed in the courts, in public opinion and in the media. And not a moment too soon. For a long time, pro-lifers have expressed optimism that the respect for life message has found a receptive audience in students and young adults. Let’s hope the media and other opinion-makers will also open their ears to the message. Only then will this Winnipeg case and others like it lead in a positive direction for the unborn.
Sadly Joe Borowski’s voice will no longer be heard. But his determination to stand up for protection for the unborn, even at a great personal cost, will serve as an inspiring legacy to all pro-life Canadians.
The country’s pro-life community can once again hope to engage in real dialogue in the wake of the Winnipeg case. Joe no doubt would be pleased.
