In a Belleville court, a landmark decision to protect an unborn child may be a big step forward for the pro-life movement. In the early April Family Court Judge D.K. Kirkland made an unborn child a ward of the Children’s Aid Society. The ruling make the “fetus” a ward of the society for just three months-until birth and for a brief time thereafter.

Judge Kirkland said he believed his decision to refer to the fetus as a child and in need of protection under the terms of Ontario’s Child and Family Services Act is a first for a family court judge in Canada.

The prospective mother, Linda T., 28 years old and 38 weeks pregnant had been living a somewhat transient lifestyle for several weeks previous. Evidence showed she had been sitting in mud puddles in freezing weather, and on one occasion had been found sleeping in the basement of an underground garage. Her disregard for the well-being of the baby, and her unwillingness to seek or accept medical attention, led the Children’s Aid to enlist support of the local police, who then apprehended Linda.

A medical report was ordered. The results showed that Linda was having an odorous discharge, and severe abdominal pain-symptoms which could mean that there is an infection within the fetus itself. In this case, there would be considerable risk that inflammation could penetrate the child’s lungs and lead to fatal pneumonia. Linda denied having these symptoms. And when asked where she thought she might give birth, she replied, “Your guess is as good as mine.”

Judge Kirkland’s final decision in this case is full of implications re the abortion issue. As he stated “a number of significant legal issues spring from this factual situation: most importantly the legal status of the unborn child have a right to protection while still “en ventre sa mere’ Judge Kirkland refereed to two previous decision where this question had been addressed.

In the District of Kenora, a 1981 decision by Judge J. Bradley found that a two month old child born with fetal alcohol syndrome was “in need of protection, prior to birth, at birth…Needless to say, it also raises a number of issues…and in particular the issue as to the responsibility of the Children’s Aid Society in protecting an unborn child.”

In a second case, in a decision by the British Columbia Supreme Court, Judge J. Proudfoot concluded, “it would be incredible to come to any other conclusion that that a drug abused baby is born abused… the baby was born having been abused,”

Having considered the decisions reached by Bradley and Proudfoot,  Judge Kirkland concluded the following: “I am satisfied that I have authority to find a child ‘en ventre sa mere’ to be in need of protection. I am prepared to find the child (unborn) is a person.” In deciding to make the child a ward of the Children’s aid, he stated, “I’m satisfied that Linda’s attitude is one which is not conducive to the safe and healthy delivery of the child. It’s clear that if there is a possibility that this child will not be born alive… the court will be in a position to find the child in need of protection.”

It is hoped then, that Judge Kirkland’s decision will set an influential precedent. After all, a mother who allows herself to become physically unfit to bear her child, is showing the same lack of care for her unborn baby as the woman who plans to abort.


Hamilton Children’s Aid

The Catholic Children’s Aid Society of Hamilton-Wentworth has objected to a story in the April edition of The Interim in which the agency is said to be referring for abortion. The objection involved the Pregnancy Youth Line, co-sponsored by the public and Catholic Children’s Aid societies of the area. The CCAS does not then refer for abortion. However if the appropriate agency is not the CCAS a full range of abortion counseling is available.

The Hamilton-Wentworth Catholic agency feels their position in this matter is “morally defensible” because counseling by the youth line “may also result in a decision not to seek an abortion.” They also argue that they have no “direct co-operation” in the procurement of abortions. The fact that the agency is co-sponsoring a program which one way or another can result in teen abortion referral is one they have chosen to accept and defend, while stressing the “positive, pro-life value” of the Pregnancy Youth Line.