In a precedent-setting case, a British Columbia woman has been awarded $10,000 damages against a doctor who failed to abort her twins, now seven years old.
In 1978, Beverley Hack, a 17 year old high school student, underwent a suction and curettage abortion, performed by Dr. Ellen Wiebe, at Vancouver’s Shaughnessy. She was in her fifth week of pregnancy, having become pregnant during a reunion with her then boyfriend. Dr. Wiebe obtained a Therapeutic Abortion Certificate on the grounds that Hack felt unable to bear a child at that stage in her life.
Hack failed to attend a post-operative check up and Dr. Wiebe neglected to read a pathology report that showed no fetal remains were present in the tissue sent for examination. In March 1979, Hack went to another doctor and an ultrasound examination showed her twin fetuses. She testified that it was the ultrasound picture that changed her mind about undergoing a second abortion.
In his judgment, Mr. Justice Martin Taylor of the Supreme Court of British Columbia, noted that he refused to accept the defence’s contention that Hack as a “reasonable woman” should have undergone a second abortion or given the children up for adoption. He wrote:
“I must do the best I can, in deciding the probable reaction of the ordinary reasonable woman, by relying on what I believe to be reasonable inference from the evidence, including the evidence of the plaintiff. On the basis of the evidence I have concluded that the advance of pregnancy may be expected to be accompanied by progressive development in the expectant mother of a need to bear the child – the need to have, to know and to raise the child – which may not necessarily have been felt at all earlier in the pregnancy. I think it is for this reason wrong to say of a woman who seeks an abortion in the early stage of pregnancy and at a later stage decided to keep her child that she has simply “changed her mind.” It will certainly be true that her mind has changed. That change is likely to a large extent to be caused, I think, by a process linked to the physical advance in her pregnancy.
“I am for that reason unable to accept the contention advanced by the defence that a reasonable woman in Beverley’s position would have undergone a second abortion operation on discovering she was still pregnant in mid-March, 1979, or would have offered the twins for adoption when they were born. I find that her change in attitude was foreseeable, was not inconsistent and was, in essence, a reasonable response to her changing stage of pregnancy.”
Mr. Justice Taylor ruled that she was entitled to $20,000 damages, plus costs, in recognition of her “anxiety, inconvenience, physical suffering, loss of amenities and loss of enjoyment of life resulting from her pregnancy…and for the additional difficulties which she faced in caring for them for approximately the first 18 months,” after which time she was supported by the man she eventually married. The judge reduced the damages to $10,000 because he found Hack negligent in not going for a post-abortion check up.
Beverley Hack, who is married today and has another child, is pleased with the judgment. She says she is happy with her children and plans to explain to them the circumstances of their birth when they are older. “I presume that she feels she can safely do so,” Mr. Justice Taylor wrote, “because her claim is in respect of the extra burden cast on her in having them when she did, and in no way based on any reluctance to have them.”
This case should highlight two important items for pro-lifers. The first was the ultrasound image of the unborn child is of great significance to a mother ambivalent about her pregnancy and can help save a child’s life. The second is that the judge stressed that maternal feelings develop slowly and that a decision made to abort during the early weeks of pregnancy can radically change as the pregnancy advances.