In Canada, a legal question mark hangs over the humanity of the unborn child. Pro-abortion advocates have passionately opposed MP Stephen Woodworth’s private member’s motion to set up a parliamentary committee to examine the definition of “human being” in the Canadian Criminal Code, arguing “there is nothing to discuss”. This definition provides that “a child becomes a human being” only at birth. They fear a discussion could result in some legal recognition of unborn children and the enactment of some law governing abortion.
The Canadian Medical Association has just adopted a resolution also recommending that parliamentarians should vote against such a discussion. They, too, are concerned that parliamentarians might agree that some law is needed and physicians would then run the risk of becoming criminals and going to jail. Obviously, they must not believe that their members would obey the law.
Pro-life advocates want the debate.
So what are the issues?
First, let’s be clear that scientifically, biologically, and genetically each new, unique human life begins at conception, not at birth. Everything that that new human life will become is present at the moment of conception. The law could adopt a “legal fiction” that human life begins at birth, or even some time after birth as some “post-birth abortion” (legalized infanticide) advocates urge, but it would be a fiction “for the purposes of the law”.
So, how does the law, in general, view the unborn child?
The common law of successions (the law of wills and estates) speaks of the child “en ventre sa mere” — the child in its mother’s womb. The ancient “rule against perpetuities”, which limited the accumulation of inherited estates by requiring their distribution, designated the unborn child “a life in being” (that is, it was human and a being) for the purposes of inheritance. Provided a child was conceived before a grandparent’s death, that child, after it was born alive and viable, could inherit property left “to all my grandchildren”. Likewise, a child negligently injured while in utero, once born alive and viable, can sue for damages in tort. So the fetus exists for the law and is recognized by it.
What can the Criminal Code tell us about the law’s approach to unborn children? Codes are meant to be comprehensive in legally governing an area and their provisions should be interpreted both individually and within the context of the code as a whole.
In codifying the Common Law of crime, the Criminal Code enacted a comprehensive scheme to implement respect for human life from conception to death and even beyond. It prohibited abortion (except to save the life of the mother or, as of 1969, also to avoid a risk to her health) and made it a crime to kill a child in the act of birth. From birth onwards to natural death, the homicide offences – murder, manslaughter and infanticide – were applicable; and after death the offence of “desecration of the sepulcher”, showing disrespect for human remains, was pertinent.
In 1988, the Supreme Court of Canada in the Morgentaler case created a break in this chain of legal protection when it held that the then current law on abortion was constitutionally invalid, because for an abortion to be legal it had to be approved by a “therapeutic abortion committee”. The court found that not all women in Canada had access to such a committee, so a woman who needed an abortion to save her life or avoid a serious risk to her health might not be able to obtain a legal abortion. This, the majority held, constituted a breach of a woman’s constitutionally protected right under section 7 of the Canadian Charter of Rights and Freedoms to “security of the person”.
The pro-choice lobby has used that case to argue there must be no legal limits on a woman’s choice of abortion. But, the Court, except for Madame Justice Bertha Wilson, did not base its ruling on a woman’s section 7 ”liberty right” or on “choice”, but on her right to “security of the person”, and even Justice Wilson accepted there were valid limits on liberty.
The Court made clear that parliament could legislate on abortion, provided the legislation complied with the Charter and it anticipated that parliament would do so. However, despite several attempts, no such legislation has been enacted.
In the light of this history, let’s look at section 223(1) of the Criminal Code, the section that would be discussed by a Parliamentary committee, if the Hon. Stephen Woodworth’s private member’s motion were passed.
Section 223(1) provides:
A child becomes a human being within the meaning of this Act when it has completely proceeded, in a living state, from the body of its mother, whether or not (a) it has breathed; (b) it has an independent circulation; or (c) the navel string is severed.
This section was intended to protect the child as soon as it was born. The definition of “human being” in the section is meant to extend back to the first moment of full birth the protections of human life from which we all benefit. It was not intended to limit or eliminate any legal protection of the unborn child (which was provided by the abortion offence), as pro-choice advocates are currently arguing it does. Because the culpable homicide offences – murder, manslaughter and infanticide – all involve killing a “human being”, as defined in section 223(1), an unborn child, who is never born alive, is excluded from being the victim of a homicide offence. In the past, reasons for that exclusion included that proof of causation was very difficult and conviction resulted in capital punishment.
Section 223 speaks primarily of the fetus (unborn child) as “a child” – “a child becomes a human being”. That’s to recognize it as human, because only humans have and are children: cats have kittens, dogs have puppies and hens have chickens. So, the unborn child is a “human being”, just not “within the meaning of” that term in the homicide provisions in the Criminal Code.
In short, until the Morgentaler case, in the scheme adopted in the Criminal Code the abortion provision gave legal protection to the child up to birth and the homicide provisions immediately after birth, in an unbroken chain of protection of its life.
Section 223(2) also merits noting. It provides:
A person commits homicide when he causes injury to a child before or during its birth as a result of which the child dies after becoming a human being.
Consequently, abortionists try to ensure a child is dead before it is delivered. If it is delivered alive, injuries inflicted on it before birth that cause its death can constitute culpable homicide.
So, the issue now requiring discussion is what legal protections unborn children should be given. At present, they have none in Canadian law, although the CMA in its own guidelines recognizes that at least abortion-on-demand after 20 weeks gestation – the time at which they place the viability of the unborn child (it has some chance of survival if born) – is ethically wrong.
There is a multitude of other ethical issues in this context that also need discussion. For instance, an increasing number of jurisdictions have banned abortion after 20 weeks gestation, because research shows that the fetus suffers pain as it is dismembered in utero and its skull crushed in order to deliver it dead. When we face up to such facts and what’s involved in abortion, we may decide that the current state of the law is not ethically acceptable.
The pro-choice lobby might be right to be worried about a debate taking place for yet another reason. New research on decision-making about ethics shows that we use a range of human ways of knowing in determining what is ethically right or wrong. What do human memory (history), human imagination, moral intuition, and our “examined emotions” tell us about the ethics of abortion? Engaging in a debate could give us more access to these ways of knowing.
Abortion is not just a private decision; it has major societal impact. This becomes obvious if we consider the cumulative effects of sex-selection abortion or on the basis of conditions such as Down’s syndrome, or the future impact of a rapidly increasing number of genetic tests. And although individual choice is the priority value of many pro-choice advocates, even they recognize that sometimes choice should be restricted to protect society and its values. (An interesting example is the proposal of the leader of the Parti Quebecoise, Pauline Marois, in the current Quebec provincial election campaign, that French-speaking young adults should not be allowed to choose to attend English language post-high-school colleges but must study in French language ones for the good of preserving a French-speaking society.)
The CMA also say that recognizing a fetus as a human being or granting human rights to a fetus could severely restrict the rights of pregnant women, even without regard to abortion. But countries with which Canada commonly compares itself all have laws governing abortion, without prosecuting women for their conduct or doctors. (Only North Korea and China have no law governing abortion.) And does the pro-choice lobby believe that all these countries are failing to respect women, as they allege that enacting a Canadian law on abortion would entail?
We currently have over 100,000 abortions a year in Canada. Abortion has been normalized. I suggest that we need to recover our sense of amazement, wonder and awe at the creation of new human life and that an in-depth discussion about what our law on abortion should be might help us in this regard.
Margaret Somerville is Samuel Gale Professor of Law and Director of the McGill Centre for Medicine, Ethics & Law and is an international leader in the discussion of complex ethical questions in medicine.