“While cleaning a recently vacated apartment, a building superintendent discovered on the balcony a bag containing the remains of a human baby,” reads a Supreme Court decision from earlier this month.

The child’s mother, Ivana Levkovic, was charged with contravening section 243 of the Criminal Code in that she “disposed of the dead body of a child (her newborn daughter) with intent to conceal the fact that its mother (she) has been delivered of it.” The trial judge acquitted her on the grounds that the offence was too vaguely defined, in that he “could not identify the point when a fetus becomes a dead body for the purposes of the law in question.” The Ontario Court of Appeal overruled the trial judge’s decision and sent the case back for retrial. The Supreme Court of Canada has just upheld this decision.

A central issue is what a “child” means in the law and the uncertainty which surrounds this.

The Criminal Code includes the words child, adult, person, and human being. Except for child and adult, these are not necessarily exclusive of each other. Notably, the word fetus does not appear in the Code.

The offences of culpable homicide — murder, manslaughter and infanticide — all involve killing a “human being.” Section 223 of the Criminal Code provides that “a child becomes a human being … when it has completely proceeded, in a living state, from the body of its mother.” Therefore, clearly, a fetus is a child. On normal rules of statutory interpretation the word child should be taken to mean the same in all the instances where it is used in the same piece of legislation, so the word “child” in section 243 includes a fetus.

But the Supreme Court relied on an 1854 English case to limit the application of section 243 with respect to fetuses born dead, to those likely to have been born alive except for some external event or circumstance, that is, to viable fetuses. It justified this on the grounds that the offences protecting fetuses all had a “late term focus” and ruled that a fetus born dead only becomes a child within section 243, when there is a likelihood it could have been born alive. In short, the Supreme Court divided “children” into two groups and added a new category of humans, fetuses, to the Criminal Code, in order to avoid the Code’s protections of “children” applying to all fetuses.

In the past, courts used such restrictions because they feared wrongful convictions when it was very difficult, even impossible, to know the cause of death of a child early in pregnancy and to rule out natural causes. But, in the light of current medical science, such a restriction may no longer be justified. The Supreme Court almost certainly chose this approach in order to seek some accommodation of the offence of “disposing of the dead body of a child” with the present total absence of any law restricting abortion. Killing the child in utero — abortion — is not an offence; disposing of its body ex utero with intent to conceal its birth is.

We need to see the Canadian Criminal Code’s offences relating to the fetus and newborn child in context and historically. First enacted in 1892, reflecting over eight centuries of the development of the “common law of crime” in England, these offences established a sequential series of protections.

Unlawful abortion was prohibited. The courts interpreted that to mean some abortions could be lawful and held that an abortion required to save the life of the mother was lawful. An extended version of this justification was expressly added to the Code in 1969. It provided abortion was not a crime when continuation of the pregnancy would, or would be likely to endanger the woman’s life or health; was approved by a therapeutic abortion committee; and carried out in an approved or accredited hospital.

In the Morgentaler case, in 1988, a majority of the Supreme Court held this requirement was unconstitutional because it contravened a woman’s Charter right to “security of the person,” as she could need an abortion to save her life or health and not have access to a legal abortion. The court did not rule, as pro-choice advocates often claim and others erroneously believe, “that banning abortion was unconstitutional.” Rather, all judges agreed abortion could be legally regulated provided constitutional requirements were respected.

Other protections include section 242, which proscribes the failure to obtain assistance in childbirth, resulting in permanent injury or death of the child immediately before, during, or a short time after birth. Section 238 prohibits “killing an unborn child in the act of birth.” Once the child has exited its mother’s body in a living state, it’s protected by the same laws prohibiting culpable homicide as protect everyone else, but the crime of infanticide applies to a mother who kills “her newly born child.” As explained, disposing of a child’s body in order to conceal its birth is an offence. This allows for verification that the child was not intentionally killed, whether before, during or after birth.

At the time these laws were put in place there was no perinatal or neonatal medicine, premature babies and even many born at full term died, so there was no possibility, as there is today, of delivering a premature baby in order to protect the woman’s life or health (a very rare necessity) — or, even, just because the woman wants to terminate the pregnancy — and having the baby survive. Evacuation of a woman’s uterus used to necessarily mean destruction of the unborn child. Today evacuation and destruction can be unlinked, which raises the question of whether abortion allows simply becoming unpregnant or also killing the unborn child, when it is past viability, that is, would have a chance of surviving if not intentionally killed in utero.

The courts are having problems interpreting the shield of criminal law protection now due to the unborn child for three reasons. First, striking down the provision limiting abortion, especially as there is now no law at all to protect the unborn child from abortion, has left a huge hole in the protective shield. Second, this situation is inconsistent with the protective laws that remain intact. And third, modern medicine allows us both to see the unborn child and know how human it is at a very early stage, and to give it a chance of living, if born even as early as 20 weeks gestation.

It is Parliament’s responsibility to deal with this issue, as the Supreme Court has made clear on several occasions (for example, in the Morgentaler case) and alludes to in the Levkovic case. Speaking for a unanimous court, Justice Morris Fish writes: “I would in any case hesitate to import into s. 243 a fixed threshold based on gestational age that Parliament has so far chosen to omit.”

Parliament must take the lead on deciding at what stage in development (at conception or some time later) the fetus should be protected by law. As recent events in Parliament have manifestly demonstrated, many members, wherever they might stand on the pro-choice pro-life spectrum, lack the courage to do so.

Margaret Somerville is director of the McGill Centre for Medicine, Ethics and Law.

Margaret Somerville AM, DSG, FRSC, FRSN, DCL is Professor of Bioethics at the University of Notre Dame Australia School of Medicine (Sydney campus). She is also Samuel Gale Professor of Law Emerita, Professor...