Justice

When does life begin?

The Supreme Court ponders the rights of a fetus

D’ARCY JENISH July 1 1997
Justice

When does life begin?

The Supreme Court ponders the rights of a fetus

D’ARCY JENISH July 1 1997

When does life begin?

Justice

The Supreme Court ponders the rights of a fetus

William G, as he is known, is a six-month-old Winnipeg boy who survived a perilous journey into this world. His mother, a 23-year-old reformed glue and solvent sniffer identified only as Ms. G, had previously given birth to three other children—two suffering mental damage as a result of her addiction. William, who is living with his parents, is said to be healthy and developing normally. Nevertheless, he remains at the centre of a stormy legal battle that has the potential both to limit the rights of pregnant women and, for the first time, bestow legal rights on fetuses.

The issue arose last summer when a Winnipeg social agency obtained a court order forcing Ms. G—then five months pregnant and still sniffing solvents—to seek medical treatment for her addiction. An appeal court later overturned the order. But last week, the case moved to the Supreme Court of Canada, which heard arguments on several hotly controversial issues, including the rights of fetuses and mandatory medical treatment for pregnant women. “The case could lead to a huge change in the law,” says Winnipeg lawyer David Phillips, who represents Ms. G. “Potentially, everything a pregnant woman does could be subject to court scrutiny.”

With so much at stake, 13 organizations and government agencies presented their arguments before the Supreme Court. Women’s groups, pro-choice organizations and the Canadian Civil Liberties Association argued that allowing the state to control the actions of an expectant mother was a serious infringement on the rights of women. Such a power, they said, could potentially be used to curtail access to abortion. Child welfare agencies, pro-life groups and such religious organizations as the Evangelical Fellowship of Canada argued in favor of recognizing the fetus as a person entitled to the full protection of the law— something the Supreme Court has avoided doing in several decisions over the past decade. “If a woman decides to carry a child to term, that child is entitled to be born in as healthy a state as possible,” maintains David Brown, a Toronto lawyer representing the Evangelical Fellowship. ‘You simply can’t ignore the child.”

The nine-member court is not likely to deliver a decision for several months. But officials with Winnipeg Child and Family Services, the agency that obtained the initial

court order, and lawyers for the Manitoba government reject the notion that it could have broad implications for women. Donna Miller, director of the constitutional law branch with the provincial department of justice, says the government simply wants the authority to order women into treatment in the rare cases in which their conduct threatens the health or survival of the fetus. ‘We’re talking about an exceptional remedy,” says Miller. “We’re not talking about any interference in the decision a woman makes about carrying the child to term.”

But other lawyers say that a decision

siding with the Winnipeg agency and the Manitoba government would fundamentally change the law by recognizing the unborn child as a person, independent of its mother. As such, says Phillips, the fetus would automatically acquire legal rights that could be exercised against others, including the mother. Child welfare workers could, for example, seek court protection for the fetus in cases where the mother smokes during pregnancy, he suggests.

According to some women’s groups, recognition of fetal rights would in turn renew the battle over access to abortion. ‘You have five or six pro-life groups intervening in this case,” says Carissima Mathen, a staff lawyer with the Toronto-based Women’s Legal Education and Action Fund. “There’s definitely a link between this case and the bigger question of whether a woman can decide to continue a pregnancy or not.” Jo Dufay, executive director of the Toronto-based Canadian Abortion Rights Action League, adds that conferring legal rights on fetuses would inevitably lead to a battle to define and expand those rights. “It could lead to a situation where a man intervenes because he doesn’t think it is right for a woman to have an abortion,” she says.

But apart from those concerns, many women’s groups staunchly oppose the notion of court-ordered medical treatment for pregnant women—even when the objective is to protect the fetus. Governments should instead put the resources into addiction treatment and counselling, says Mathen. And, cautions Dufay, pregnant women with addictions could avoid doctors and social agenI des if they face the prospect of obligS atory treatment. “You can’t lock a I woman up because she’s pregnant I and you don’t like the way she’s be § having,” says Dufay.

« In Ms. G’s case, she decided to stay £ in the Winnipeg treatment centre o even after the Appeal Court ruled £ she could not be held against her will. She has been free of her addiction for about nine months, says her lawyer, and receives regular visits from child welfare officials. Now, church and prolife groups say it is time for the Supreme Court to define a balance between a pregnant woman’s rights and her responsibilities to the fetus. ‘You can’t find another human relationship where you have such a closeness between two people,” said Brown. “That closeness gives rise to a duty of care.” It has also given rise to a complex case that will undoubtedly tax the collective wisdom of the highest court in the land.

D’ARCY JENISH