CANADA

A unanimous view

The Supreme Court finds no fetal rights

LISA VAN DUSEN November 27 1989
CANADA

A unanimous view

The Supreme Court finds no fetal rights

LISA VAN DUSEN November 27 1989

A unanimous view

CANADA

The Supreme Court finds no fetal rights

It was a public conclusion to what began as a moment of personal intimacy. Last week, Chantal Daigle, 21, and Jean-Guy Tremblay, 25, held separate news conferences to respond to the reasoning just made public by the country’s highest court for a ruling it had made last August. The Supreme Court of Canada had decreed then that Daigle was within her rights to seek and receive an abortion that Tremblay, the father of the fetus, opposed. The summer ruling struck down a court injunction secured by Tremblay in order to prevent the abortion. In Val-d’Or, Que., 325 km from Chibougamau, where she now lives with her father and works in a local office, Daigle told reporters last week, “When the injunction was lifted, I was very touched, but having the judgment made me even more happy.” But in Montreal, a chain-smoking Tremblay was bitter. Said the former car salesman and part-time model: “I lost my baby and it cost me a lot of money. I regret the whole thing.” In their unanimous written judgment, the nine Supreme Court justices made it clear that Tremblay’s case was legally groundless. The justices

explained that a fetus is not a legally recognized person under either Quebec’s civil law or the common law traditions of other provinces, or under the Quebec charter of rights. And, in a move clearly directed at deterring other men from copying Tremblay’s tactics, the court ruled that potential fathers have no special right to intervene in a woman’s decision to seek an abortion. “We have been unable to find a single decision in Quebec or elsewhere,” the court declared, “which would support the allegation of ‘father’s rights’ necessary to support this injunction.” The liaison that led to controversy last summer began one year ago. Last November, Daigle met Tremblay in a Montreal shopping centre. The two began a relationship, with Tremblay moving into Daigle’s east-end Montreal apartment, and later became engaged. By March, Daigle was pregnant. But, according to Daigle, Tremblay became violent and possessive; she left him and decided to have an abortion. But then Tremblay intervened, obtaining an injunction from a Quebec lower court, ordering her not to undergo the procedure. Tremblay acted in the wake of a similar injunction granted in Ontario to the boyfriend of Toronto exotic dancer Barbara Dodd, which prevented her from having an abortion.

The injunction against Dodd was overturned in the Supreme Court of Ontario. But although Daigle promptly appealed Tremblay’s action, the Quebec Court of Appeal upheld the injunc-

tion—ruling that the fetus was protected under the Quebec Charter of Rights and Freedoms. Within days, Daigle appealed to the Supreme Court of Canada. But on the afternoon that her case was being heard, her lawyer startled the justices by announcing that his client had already obtained her abortion—at a private clinic in Boston. Ignoring Daigle’s apparent defiance of the lower court order, the Supreme Court continued its hearing and, later that day, quashed the injunction. But the justices withheld their reasons for that decision.

When the court finally revealed those reasons last week, spokesmen for the campaign in favor of abortion as an option immediately welcomed them, while abortion opponents condemned them. Said Judy Rebick, spokesman

for the National Action Committee on the Status of Women: “This judgment clearly settles the question of whether a potential father can veto a woman’s right to decide whether to have an abortion.” But opponents of abortion challenged that interpretation, maintaining that the ruling was a signal to the federal government to bring in specific legislation to protect fetal rights.

For its part, Ottawa has already introduced a new abortion bill, tabled on Nov. 3. That bill would make abortion a medical decision to be made privately by a woman and her doctor on the basis of risk to the woman’s physical, mental and psychological health, with no gestational time limits. But the bill would also restore abortion to the Criminal Code, making the procedure a criminal act if it were performed without a medical determination of a health risk. Critics have attacked the constitutionality of the bill, pointing out that a Supreme Court decision in January, 1988, overturned Canada’s previous abortion legislation on the grounds that it restricted access to abortion. And they also point out that last week’s decision again upheld the concept of a woman’s right to have an abortion. One expert who said that the proposed law could come under legal attack was constitutional lawyer Robert Decary,

who acted as adviser to Daigle’s lawyer, Daniel Bédard. Said Decary: “The Supreme Court has said that the woman’s right to decide what to do with her own body comes first. You could

argue that the new law could violate that by bringing a doctor’s consent into it.” But Helene Ouellet, press secretary for Justice Minister Douglas Lewis, who tabled the bill, dismissed Decary’s contention. Still, Ouellet acknowledged that the proposed law might offer potential fathers new legal grounds on which to challenge a woman’s right to an abortion—by allowing them to challenge a doctor’s decision that the woman’s health was endangered by the pregnancy. Amid the irreconcilable differences in the abortion debate, it appeared

likely that the Supreme Court will be called upon again to decide whose rights predominate at the dawn of life,

LISA VAN DUSEN