BALANCING THE RIGHTS OF
THE WOMAN AND HER FETUS
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Most discussions of fetal rights relate to whether a woman should be able to request an
abortion, and thus terminate the life of her fetus. But there are other situations where
this balance of rights is important. Consider a woman who has decided to take her
pregnancy to term, and yet is abusive to the fetus. Does the state have the right to
forcibly take the woman into custody in order to prevent her damaging the fetus?
A situation like this arose in Winnipeg, Manitoba, Canada in 1996-AUG. A 21 year old woman, D.G.,
was 5 months pregnant and hopelessly addicted to glue & solvent sniffing. She had
previously given birth to three children; at least two of them were permanently harmed in
the womb as a result of her addiction. They became wards of the state
immediately after they were born. Social workers from Winnipeg
Child and Family Services (CFS) had tried repeatedly to obtain help for
the woman, but she
had refused treatment. Once, she was willing to accept help, but there was none available at the
time.
Family Services applied for a court order to force her to spend the rest of her
pregnancy in a medical facility. Their lawyer, Heather Leonoff, argued that a mother
exposing her fetus to poison breached the standard of care that Canadian law requires of
mothers-to-be. Mr. Phillips represented Ms. G. He argued that since a fetus is legally a
non-entity under Canadian law, then there was no person being harmed by the poison, other
than his client. In a controversial decision, Judge Schulman rejected both arguments. He
ordered the woman to undergo a psychiatric examination. He reasoned that if she suffered
from a psychiatric disorder than he could commit her to custody to be treated for
addiction. He later rejected the psychiatric assessment and ordered that she be taken into
the custody of social-welfare authorities.
The Manitoba Court of Appeal overturned the Judge's order. Part of their
argument was that any damage to the fetus would have been done in the first trimester, and
she already was 5 months pregnant, near the end of her second trimester. They were also worried about the civil rights of Ms. G.
She remained in the hospital voluntarily until she overcame her addiction. Both she and
the fetus suffered a difficult withdrawal; both experienced seizures.
CFS appealed the case to the Supreme Court of Canada in 1996-OCT. 12 interest
groups, representing religious denominations, women's rights groups, civil liberties
organizations and native groups addressed the court. On 1997-OCT-31, the Supreme Court of
Canada ruled by a 7 to 2 majority that nobody has the right to interfere with a woman's
pregnancy against her will, even if her behavior threatens her fetus. It is perhaps ironic
that the decision was handed down on Halloween.
Madam Justice Beverley McLachlin wrote the decision for the majority. She stated:
"The only law recognized is that of the born person. Any right or interest the
fetus may have remains inchoate and incomplete until the birth of the child." She
concluded that any attempt to forcibly treat a pregnant woman would violate "the
most sacred sphere of personal liberty - the right of every person to live and move in
freedom...A pregnant woman and her unborn child are one...To make orders protecting
fetuses would radically impinge on the fundamental liberties of the mother - both as to
lifestyle choices and as to where she chooses to live..." She expressed concern
that if the state were found to have a right to interfere with a pregnancy then women who
smoke cigarettes or who exercise strenuously might be the next to be taken into custody.
This could cause the problem to be driven underground: pregnant women might refuse
counseling and medical help out of fear of being confined; some might even resort to
having an abortion in order to continue their addiction. "In the end, orders made
to protect a fetus's health could ultimately result in its destruction."
Judge McLachlin wrote that if "the unborn child is [considered] a legal person with legal
rights" then all types of ramifications would result. For example:
Carissima Mathen, a lawyer with the Women's Legal and Education and Addiction Fund
agreed with the decision. She said: "It was a very serious case, a very grave
case. I was surprised at how completely they appeared to agree with us. They grasped that
this is an issue of fundamental rights for women."
Mr. Justice John Sopinka and John Major issued a dissenting judgment, stating that
intervention against the wishes of a pregnant woman should be possible if there is a
reasonable probability that her behavior would cause "serious irreparable harm to
the unborn child...In any event, this interference is always subject to the mother's right
to end it by deciding to have an abortion...When a woman chooses to carry a fetus to term,
she must accept some responsibility for its well-being and the state has an interest in
trying to ensure the child's health."
Jim Hughes, president of Campaign Life Canada, (a "pro-life group) called
"on Parliament to immediately enact legislation to protect the most defenseless
member of our human family - the pre-born child. It is a matter of scientific truth and
fundamental justice."
Ms. G has overcome her addiction, became pregnant again, and was married in 1997-NOV. She has
become a born-again Evangelical Christian. Her child appears to not have been damage by
his mother's addiction. He is thriving. The couple has withdrawn from the spotlight.
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