National Affairs Rory Leishman

National Affairs Rory Leishman

In recent years, there has been an appalling increase in the number of newborn Canadian babies who suffer acutely from opioid drugs that were passed on to them in the womb by their drug addicted mothers.

According to a recent article in the Canadian Medical Association Journal, literally thousands of Canadian newborns have suffered in recent years from diarrhea, fever, rapid breathing, seizures, trembling, vomiting and/or other symptoms of opioid poisoning to an extent that “often necessitates care in a neonatal intensive care unit.” Worse, the crisis is escalating rapidly. In Ontario alone, there has been a 15-fold increase in the incidence of neonatal abstinence syndrome in the two decades ending in 2010 with most of the increase occurring in just the last five years.

Other addictions such as smoking, alcohol and glue-sniffing during pregnancy can also inflict severe damage on babies in the womb. In 1996, child-care workers in Winnipeg encountered a mother with a glue-sniffing addiction who was five-months pregnant. She had already given birth to two babies who, as a result of her addiction, were permanently disabled at birth and had become permanent wards of the state. Given that the mother had chosen – to her credit – not to have an abortion, the Director of Child and Family Services in Winnipeg sought a court order to have her detained in a health centre for addiction treatment until the birth of her child.

A judge of the Superior Court of Manitoba granted the order on the ground that the state has authority under the parens patriae rule of the common law to act as a parent for the protection of a vulnerable child. Alas, this judgment was overturned on appeal by the Supreme Court of Canada. In reasons for the Court, Chief Justice Beverley McLachlin contended that “the court’s parens patriae jurisdiction is only exercisable after the child is born.”

Former Justices John Major and John Sopinka dissented. They held that while the born-alive interpretation of parens patriae made sense prior to the 1970s when damage to a “live child” could only be diagnosed after birth, that is no longer the case. The two judges noted: “Today by the use of ultrasound and other advanced techniques, the sex and health of a foetus can be determined and monitored from a short time after conception.”

For this reason, Major and Sopinka concluded that in compliance with the principle of parens patriae as originally understood, the courts should protect vulnerable babies both before and after birth. Appeal courts in the United States have taken the same view. For example, in 1985, the Supreme Court of New York ordered a blood transfusion to protect the life of a sick, 18-week-old, unborn child over the objections of the baby’s mother who was a Jehovah Witness. The Court stated, “for the purposes of this proceeding, the fetus can be regarded as a human being, to whom the court stands in parens patriae, and to whom the court has an obligation to protect.”

Meanwhile, in 1997, the Wisconsin State Legislature enacted a law that authorizes a court to compel a pregnant drug addict to undergo treatment for her addiction if she “habitually lacks self-control” in the abuse of alcohol or illegal drugs “to the extent that there is a substantial risk that the physical health of the child will be seriously endangered.” Similar laws are now also on the books in Minnesota, Oklahoma and South Dakota.

Suppose the Parliament of Canada were likewise to enact legislation authorizing child-protection workers to seek a drug-treatment court order for a pregnant woman with a drug addiction that seriously threatens the life and health of her baby in the womb: Would such an enactment pass muster with our judicial dictators on the Supreme Court of Canada?

That is questionable. In the Winnipeg glue-sniffing case, McLachlin observed that if the Court were to hold that it has legal authority to direct a pregnant mother to undergo drug treatment, we could face the “spectre of mothers being sued by their children for various activities or lifestyle choices, such as smoking, drinking and the taking or refusal of medication, during pregnancy that injure the child, with the result that mothers will be unable to control their own bodies and make autonomous choices.” Exactly.

As it is, thanks to the Supreme Court of Canada, we have no legal restrictions on abortion and no legal protection for a baby in the womb exposed to serious injury arising from the wilful neglect of the child’s own mother. Future generations will surely look back with horror on such barbarous disregard for the lives and safety of our most vulnerable children.