1995]
S. MARTIN & M. COLEMAN – JUDICIAL INTERVENTION
Judicial Intervention in Pregnancy
Sheilah Martin and Murray Coleman*
The authors postulate that judicial intervention in
pregnancy is one of the means by which control is le-
gally exercised on women’s bodies and lives. Despite
the recommendations of the Royal Commission on New
Reproductive Technologies, which rejected proposals
for intervention, and the fact that the movement to rec-
ognize fetal “rights” has been stronger in the United
States than in Canada, the authors suggest that these
proposals nevertheless pose a subsisting threat
to
women. Women’s Charter rights, notably their right to
equality, are especially compromised.
To illustrate the extent and nature of the threat, the
authors canvass the proposals for intervention in preg-
nancy put forward in academic writings, certain express
statutory provisions, and through the judicial interpreta-
tion of child welfare legislation. These proposals are all
the more worrisome to the extent that they include the
imposition of broad civil and criminal
liability on
women for their conduct during pregnancy.
The authors suggest that the difference between
the position of the Royal Commission and of many
courts on the one hand, and that of proponents of these
interventions on the other hand, lies in their respective
approaches to the debate over the recognition of fetal
“rights”, a recognition which would result in the crea-
tion of maternal-fetal conflict. In Canada, however, fetal
rights have not been judicially recognized and any
claims against a woman’s body on behalf of a fetus
would have to be based on the power of the state.
Les auteurs postulent que l’intervention judiciaire
dans la grossesse est un moyen d’exercer un contr6le sur
le corps et ]a vie des femmes. Maigi les recommanda-
tions de la Commission royale sur les nouvelles techni-
ques de reproduction, qui a rejet6 les propositions favo-
risant l’intervention, et malgr6 le fait que le mouvement
pour la reconnaissance des “droits” du foetus est plus
puissant aux
tats-Unis qu’au Canada, les auteurs
maintiennent que ces propositions posent une menace
persistante pour les fermmes. Les droits protdg.s par la
Charte, notamment le droit h l’galitd, sont particuli-
rement compromis.
Afin d’illustrer l’6tendue et la nature de ce danger,
les auteurs passent en revue les propositions avancdes
dans des dcrits acaddmiques, certaines provisions lgis-
latives et par l’intermdiaire de l’interprdtation juridique
des lois protdgeant les enfants. Ces propositions sont en-
core plus inquidtantes dans ]a mesure oh elles compren-
nent l’imposition d’une large responsabilit6 civile et
criminelle sur les femmes pour leur conduite pendant la
grossesse.
Les auteurs suggbrent que la diffdrence entre la
position de la Commission royale et de plusieurs cours
d’une part, et celle des partisans de ces interventions
d’autre part, reside dans leur approche au ddbat portant
sur la reconnaissance des “droits” du fetus, une recon-
naissance qui aboutirait a la cration d’un conflit mere-
fetus. Au Canada, cependant, les droits du fRetus ne sont
pas reconnus judiciairement et toute revendication sur le
corps d’une femme de la part du fetus devra s’appuyer
sur le pouvoir 6tatique.
Dr. Sheilah Martin is a professor of law and Dean of the Faculty of Law at the University of Cal-
gary. She obtained B.C.L. and LL.B. degrees from McGill University in 1981. She obtained her
LL.M. in 1983 from the University of Alberta. Dr. Martin completed an SJ.D. degree in 1991 from
the University of Toronto and her thesis was on legal controls on human reproduction and the impli-
cations of the Canadian Charter of Rights and Freedoms.
Murray Coleman was a third year law student when this paper was written, and is currently a law
clerk at the Alberta Court of Appeal.
o McGill Law Journal 1995
Revue de droit de McGill
To be cited as: (1995) 40 McGill L.J. 947
Mode de r6fdrence: (1995) 40 R.D. McGill 947
MCGILL LAw JOURNAL/REVUE DE DROIT DE MCGILL
[Vol. 40
Synopsis
Introduction
I. The Commission’s Recommendations
H. The Coerced Medical Treatment of Pregnant Women and “Child” Abuse
A. Academic Witing
B. Express Statutory Provisions
C. Judicial Interpretation of Child Protection Legislation for the Born Alive
Child
D. The Coerced Medical Treatment of Pregnant Women
HL Criminal Liability for Women’s Conduct During Pregnancy
A. Direct Attempts to Crimninalize Women’s Conduct During Pregnancy
B. Judicial Interpretation of Criminal Prohibitions
IV. Civil Liability for Women’s Conduct During Pregnancy
V. The One Dissenting Opinion
VI. Rationalizing Intervention: The Creation of Fetal Rights and Constructing
Maternal-Fetal Conflicts
Conclusion
1995]
S. MARTIN & M. COLEMAN – JUDICIAL INTERVENTION
Introduction
In December 1993, the Royal Commission on New Reproductive Technologies
released its report, Proceed With Care.’ The mandate of the Royal Commission was
exceptionally broad and the resulting report suitably lengthy. It would not be difficult
for even a significant topic to be lost in’this two-tome collection. Chapter 30 of this re-
port, entitled “Judicial Intervention in Pregnancy and Birth,”2 may not receive the at-
tention it deserves. This chapter deals with whether legal controls should dictate how
pregnant women manage their pregnancies and deliver their children.4 In the United
States, there have been many cases of women forced to undergo caesarean sections or
subjected to criminal sanctions or civil liability for their conduct during pregnancy.5 At
this time, the myriad forms of intervention into pregnancy attempted in Canada have
been largely unsuccessful and, while the number of cases which have sanctioned pre-
natal invasions may appear small, the threat they pose to women is real, existing, and
systematic. The issues raised by legal interventions into pregnancy have ominous and
far-reaching consequences for all women and, for that reason, were considered as a
separate topic by the Royal Commission.6
In some respects it is not obvious why a Royal Commission on new reproductive
technologies would be asked to examine the extent to which legal controls should be
placed on pregnant women. After all, some of the proposed controls bear no relation to
the emergence or use of new technologies and certain calls to regulate pregnant women
are in no way tied to recent scientific innovations. There are, however, important con-
nections between reproductive technologies and proposals to control the conduct of
Canada, Royal Commission on New Reproductive Technologies, Proceed With Care: Final Re-
port of the Royal Coiwnission on New Reproductive Technologies (Ottawa: Minister of Government
Services, 1993) [hereinafter Report].
2 Ibid. at 949.
3 While the topic of judicial intervention in pregnancy was expressly included in the Commis-
sion’s mandate, it began as a little-known component of a much larger project.
4 Attempts to regulate the conduct of women who carry their fetuses to term are best approached
as only one of the many ways in which the state asserts an interest in human reproduction. Attempts
to impose regulations during pregnancy illustrate how legal controls on women span the entire bio-
logical process of procreation, from sexual intercourse through to pregnancy management and birth.
5 We should not be overconfident that this is an American problem. Judicial intervention, legisla-
tion, mental health considerations, and academic literature in Canada all mirror the American posi-
tion, albeit to a lesser extent. While American law differs in significant respects from Canadian law,
the case studies, examples, and proposals from the United States are nevertheless relevant and pro-
vide part of the background and context of the Commission’s deliberations.
Not all of the proposed interventions studied by the Commission are “judicial”. The chapter
considers claims that legislative standards should be changed to create new criminal penalties and
tort liabilities for women’s conduct which may harm the fetuses they carry; the introduction or use
of child protection powers to apprehend a fetus thought to be in need of protection, both after birth
and while in utero; and the forced medical treatment of the pregnant woman for the sake of the fe-
tus, even over her express objections, and including such dramatic and physically violent interven-
tions as mandatory caesarean sections.
MCGILL LAW JOURNAL/REVUE DE DROITDE MCGILL
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pregnant women: both issues involve women’s equality and physical integrity and raise
questions about the relationship between pregnant women and the fetuses they carry. In
addition, certain technologies may be used in ways which encourage or result in the
judicial management of women’s pregnancies.
An issue as fundamental as the legal treatment of pregnant women is likely to raise
many difficult questions and thus reveal whatever divergent viewpoints and competing
philosophies existed among the Commissioners. As the Report discloses, judicial in-
tervention in pregnancy was one of the six topics on which a dissenting opinion was
written. It is interesting to note, however, that the majority shows little uncertainty or
equivocation. Its recommendations are found in a succinct chapter, which contains
bright line standards designed to promote and protect the rights of women and to
clearly outline what the law should be in the future. This issue also challenged the
Commissioners in their use of the ethical principles established as part of their overall
framework for decision-making and in the extent to which they incorporated the
Charter7 rights of women into their analysis.
A primary purpose of this paper is to explain some of the background to the ma-
jority’s conclusions. Following an outline of the Commissioners’ three recommenda-
tions in Chapter 30, most of the remaining text focuses on an explanation and analysis
of why the Commission so strongly rejected the imposition of medical treatment, the
creation of new child welfare obligations, criminal law liabilities, and novel civil re-
sponsibilities as appropriate means of promoting the health of women and children. To
properly assess its recommendations, we adopt a critical review of the origin, nature,
magnitude, and animus of suggested interventions in pregnancy and explore the extent
to which certain people are prepared to go to promote their view of fetal health. These
proposed interventions are a threat to women in both Canada and in the United States,
and illustrate how women’s constitutional rights in reproduction-related matters may
be subordinated or even ignored. We argue that the majority position is most consistent
with the constitutional rights of women: it embraced a more holistic approach to the
relationship between women and their fetuses by refusing to redefine certain forms of
the woman’s conduct as giving rise to a “maternal-fetal conflict”! Therefore, the ma-
jority recognized that women are full rights-bearers who do not relinquish the general
ability to determine the course of their medical treatment by the mere fact of their
pregnancy. We thus provide an assessment of the equality implications of these pro-
posals to explain why the Commission concluded that interventions in pregnancy are
improper in a post-Charter Canada and should not be permitted.
7 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B
to the Canada Act 1982 (U.K.), 1982, c. 11.
8 Under this paradigm it is suggested that the construed conflict can only be resolved by recogniz-
ing “fetal rights” and creating new legal responsibilities for pregnant women. This paradigm has
significant implications for all pregnancy-related issues and the legislative proposals derived under
it would impact upon almost every aspect of a pregnant woman’s life.
1995]
S. MARTIN & M. COLEMAN – JUDICIAL INTERVENTION
I. The Commission’s Recommendations
The Commission made three recommendations on judicial intervention in preg-
nancy which give some indication of the range of issues involved. They read:
273. Judicial intervention in pregnancy and birth not be permissible. Specifi-
cally, the Commission recommends that
a) medical treatment never be imposed upon a pregnant woman against
her wishes;
b) the criminal law, or any other law, never be used to confine or im-
prison a pregnant woman in the interests of her fetus;
c) the conduct of a pregnant woman in relation to her fetus not be crimi-
nalized;
d) child welfare or other legislation never be used to control a woman’s
behaviour during pregnancy or birth; and
e) civil liability never be imposed upon a woman for harm done to her
fetus during pregnancy.
274. Unwanted medical treatment and other interferences, or threatened inter-
ferences, with the physical autonomy of pregnant women be recognized
explicitly under the Criminal Code as criminal assault.
275. All provinces/territories ensure that they have in place
a) information and education programs directed to pregnant women so
that they do not inadvertently put a fetus at risk;
b) outreach and culturally appropriate support services for pregnant
women and young women in potentially vulnerable groups; and
c) counselling, rehabilitation, outreach, and support services designed
specifically to meet the needs of pregnant women with drug/alcohol
addictions.’
These conclusions reject state-sanctioned interventions in pregnancy and birth, and
recognize the need to ensure support for women and their fetuses without interfering
with the equality interests and physical autonomy of pregnant women. In fact, recom-
mendation 275 received the support of all Commissioners.
H. The Coerced Medical Treatment of Pregnant Women and “Child” Abuse
As recommendation 273 provides, the majority of the Commissioners expressly
rejected claims to assimilate the position of an unborn fetus to that of a born child and
refused to create and impose special legal obligations on pregnant women. They stated
that medical treatment should “never” be imposed upon a pregnant woman against her
wishes and that child welfare or other legislation should “never” be used to control a
woman’s behaviour during pregnancy or birth.
9 Report, supra note 1 at 964-65.
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In order to understand the Commission’s position, th& origin, nature, and extent of
legal restrictions on the conduct of pregnant women which have been proposed, and in
some cases implemented in Canada, must be explored. Legal restrictions have been
outlined in academic writing, expressly delineated in certain provincial child welfare
legislation and indirectly recognized by some courts which have read existing child
welfare legislation to support the mandatory medical treatment of pregnant women.
These restrictions seek to control the conduct of women during their pregnancies and
therefore directly affect the physical integrity of pregnant women. They are premised
on the view that the threatened damage to the fetus is of sufficient severity to be pre-
vented by prescriptive means, rather than subsequently redressed through punishment
or compensation. These restrictions imply that, after assessing the balance of conven-
ience and weighing rights and interests, the claim of the fetus to the right to certain
conduct or treatment is sufficiently strong to justify curtailment of the woman’s free-
doms.
A. Academic Writing
Perhaps the most common argument for legal restrictions is that the government’s
wide powers concerning child abuse both can, and should, be invoked to prevent
“prenatal abuse”. The combined force of the state’s parens patriae jurisdiction and its
police power is cited to support an extensive and invasive array of legal controls. The
fetus is labelled and treated as an “unborn child” and its needs, vulnerabilities, and sus-
ceptibilities are equated with those of existing children.
In Canada, Dr. Keyserlingk is a leading proponent of such a position; however, his
analysis and the scope and content of the sweeping state interventions he proposes rep-
resent an extreme position within the Canadian literature. He suggests that “[i]n most
respects but one, the transfer from the protection of the womb to the protection of the
crib and nursery, there is unbroken continuity between the unborn and the child.”‘ He
argues that the general legal obligations which parents owe to their children should be
imposed, with equal rigour but with necessary modifications, upon pregnant women
and the fetuses they carry. In employing the child abuse paradigm, he proposes an in-
credible number of wide-ranging restraints on pregnant women.”
Addiction to drugs, alcohol, or cigarettes, inadequate maternal diet, exposure to in-
fectious disease, and the failure to have adequate prenatal medical checkups are cited
as examples of conduct which could injure the fetus and therefore requires some form
10 E.W. Keyserlingk, “The Unborn Child’s Right to Prenatal Care (Part 1)” (1982) 3 Health L.
Can. 10 at 18 [hereinafter “Unborn (Part I)”].
” Ibid.; E.W. Keyserlingk, “The Unborn Child’s Right to Prenatal Care (Part II)” (1982) 3 Health
L. Can. 31 [hereinafter “Unborn (Part I)”]; E.W. Keyserlingk, The Unborn Child’s Right to Prena-
tal Care: A Comparative Law Perspective (Montreal: Quebec Research Center of Private and Com-
parative Law, 1983) [hereinafter The Unborn Child’s Right]. The arguments in both publications are
essentially the same.
1995]
S. MARTIN & M. COLEMAN – JUDICIAL INTERVENTION
of state intervention.’ 2 In order to enforce the obligations he creates, Keyserlingk ar-
gues that provincial legislation, such as the Quebec Youth Protection Act,I should ap-
ply, by analogy, to protect “unborn children”. 14
If there is the appearance of neglect, Keyserlingk supports placing a “homemaker”
in the home of the pregnant woman to supervise her conduct.”5 He also supports the
following court-ordered “prenatal protective mechanisms” if the fetus is found to be
“in need of protection”: injunctions against certain acts or decisions of the pregnant
woman; appointment of guardians for the fetus; granting legal custody to a child wel-
fare service to officially supervise the woman’s conduct; and removing an abusive
husband from proximity to his wife if his conduct poses a serious risk to the unborn
child. 6 Furthermore, as part of the fetus’ alleged right to be born healthy and to receive
“prenatal care”, state powers should be used to regulate the medical care of pregnant
women, outlining which procedures could be lawfully undertaken or imposed. 7
According to this proposal, a woman could be forced to submit to prenatal care
when a procedure may be necessary for the health or survival of the fetus and it poses a
relatively small health risk to her.”‘ To accept this principle would not merely create a
new obligation for pregnant women, but it would also introduce a unique duty to res-
cue owed by pregnant women to the fetuses they carry.” Keyserlingk also proposes
12 “Unborn (Part I)”, ibid. at 16.
3 R.S.Q. 1977, c. P-34, para. 1(f).
1
1, “Unborn (Part II)”, supra note 11 at 33.
15Ibid.
6 Ibid.
1
17 Ibid.
18 See also J.A. Robertson, “Procreative Liberty and the Control of Conception, Pregnancy, and
Childbirth” (1983) 69 Virginia L. Rev. 405 at 444 [hereinafter “Procreative Liberty”]. But see also J.
Gallagher, “Prenatal Invasions & Interventions: What’s Wrong With Fetal Rights” (1987) 10 Harv.
Women’s L.J. 9 at 13-14 [hereinafter “Prenatal Invasions”], who argues that the woman’s decision
must be honoured in all cases because “[t]he individual and societal costs of placing the power of
decision making anywhere but with the pregnant woman are all simply too great.”
19 These obligations are unique because they force women to assume medical risks and forfeit
their legal autonomy in a manner not required of competent men or non-pregnant women. They are
also unique because they involve an obligation to rescue which places positive obligations on the
woman to act, and in a way so as to benefit her fetus. This is inconsistent with and foreign to the
Anglo-American legal tradition that one need not act to save another. Even though the principle
against rescue is being eroded and has been cogently criticized, other serious problems with forced
treatment remain (see E.J. Weinrib, “The Case for a Duty to Rescue” (1980) 90 Yale L.J. 247, who
argues that there should be a duty to make an “easy” rescue. See also the judgment of Justice Wil-
son in Crocker v. Sundance Northwest Resorts Ltd., [1988] 1 S.C.R. 1186, 51 D.L.R. (4th) 321,
where she questions the continued relevance of the distinction between misfeasance and nonfea-
sance). It is perhaps best to see the issue of duty from the equality standpoint. For example, in the
American Case of McFall v. Shinp, 127 Pittsburgh Leg. J. 14 (1978), the Court refused to order one
cousin to “donate” the 21 ounces of bone marrow necessary to double his cousin’s chances of sur-
viving a plastic anaemia because legal tradition did not allow one person’s body to be invaded or
appropriated for the use of another. There is therefore an equality argument that the rights of preg-
MCGiLL LAW JOURNAL/REVUE DE DROITDE MCGILL
[Vol. 40
that a woman could be forced to take certain medication, undergo blood transfusions,
and suffer surgical intervention. Another author even suggests that an anorexic woman
could be force-fed if a danger to the fetus was clearly established. 0 The line of reason-
ing advanced by Keyserlingk is also invoked to support the imposition of court-
ordered caesarean sections,2’ even though they involve major surgery and pose a sub-
stantial health risk to the woman, one which greatly exceeds the risk of vaginal birth.2
Although Keyserlingk makes some notional concession to women’s rights, little
weight is actually given to the woman’s interests. His interventionist views are not
widely shared, however, and most work in this area is highly critical of his approach
because he does not fully appreciate nor adequately discuss the far-reaching and radical
implications of his proposals.23 A chief complaint is that he is, stereotypically and im-
properly, treating women as nothing more than fetal “incubators” or simply as a means
to an end.24 As a result, his proposals have met with only limited statutory support and
sparse, if not marginal, judicial endorsement. Nevertheless, this position, epitomized in
Canada by Keyserlingk’s writing, is a concrete and effective warning of the dire impli-
cations for women if the legal status of the fetus and the child are assimilated in the
nant women would be selectively and disparately burdened by legal obligations to submit to major
and risky surgery to benefit their fetuses. See N.K. Rhoden, “The Judge in the Delivery Room: The
Emergence of Court-Ordered Cesareans” (1986) 74 California L. Rev. 1951 at 1969 [hereinafter
“Judge in Delivery Room”], who comments that to “compel major surgery for the fetus’s sake is an
imposition unparalleled in American law, and unjustified according to equal protection doctrine.”
See also “Prenatal Invasions”, ibid. at 24-25, where Gallagher argues that a woman cannot be con-
trolled for the sake of her fetus. In addition, even if a duty to rescue is imposed, it is unlikely to re-
quire the rescuer to submit to medical treatment as invasive and risky as a caesarean section.
20 The same author also posits that pregnant women at risk should be liable for a failure to un-
dergo prenatal tests and foresees mandatory screening of the fetus backed up with criminal penalties
(“Procreative Liberty”, supra note 18 at 450).
21 The forced medical treatment of pregnant women is often equated, although improperly, with
cases where courts have allowed medical care to children over parental objection (see J.E.B. Myers,
“Abuse and Neglect of the Unborn: Can the State Intervene?” (1984) 23 Duquesne L. Rev. I at 32ff
[hereinafter “Abuse and Neglect”]).
22 D.B. Petitti, “Maternal Morality and Morbidity in Cesarean Section” (1985) 28 Clinical Obstet-
rics & Gynecology 763, describes the risks associated with caesarean sections:
Cesarean section is a major operative procedure. As such, it is associated with injuries
that do not occur in vaginal deliveries. The list of these injuries is long and includes
injuries to the ureter, bladder, and bowel; injuries to blood vessels; and lacerations of
the cervix, vagina, and broad ligaments. Cesarean section also increases the risk of
postpartum hemorrhage, pulmonary embolism, paralytic ileus, and endometritis, uri-
nary tract infections, and other infections. Hysterectomy as a result of hemorrhage or
infection occurs after cesarean section, and postcesarean infection may compromise
future fertility (ibid. at 765, as cited by I. Grant, “Forced Obstetrical Intervention: A
Charter Analysis” (1989) 39 U.T.L.J. 217 at note 74, p. 252).
23 See e.g. W.W. Watters et al., “Response To Edward W. Keyserlingk’s Article: The Unborn
Child’s Right to Prenatal Care” (1983) 4 Health L. Can. 32; E.W. Keyserlingk, “Clarifying The
Right To Prenatal Care: A Reply To A Response” (1983) 4 Health L. Can. 35 [hereinafter
“Clarifying the Right”].
24 Watters et aL, ibid. at 32.
1995]
S. MARTIN & M. COLEMAN – JUDICIAL INTERVENTION
manner he advocates. It is precisely this form of intervention which the Commission
expressly rejects in recommendation 273.
B. Express Statutory Provisions
Certain laws in Canada contain provisions which conflict with the Commission’s
recommendations. Express provisions which control the conduct of pregnant women
have been enacted in New Brunswick and in the Yukon.26 The New Brunswick Fam-
ily Services Act is the only provincial child welfare law which expressly defines “child”
to include an “unborn child”.2 7 While there is some ambiguity in the term “unborn
child”, it would appear that the legislative intention was to confer the statutory rights of
the child on the fetus.21 Theoretically, this definition allows the state to use its wide
powers to intervene in the lives of children and parents in favour of the fetus and thus
to control the conduct of pregnant women.2 9 While there is only one reported case un-
der the New Brunswick child welfare legislation, the province’s express statutory ju-
risdiction over fetuses may have been a factor in unreported cases. In the reported case,
the Minister sought a six month supervisory order with respect to the respondent and
her fetus as well as guardianship of the child.0 Justice Boisvert granted the order on the
basis of what he believed was the pregnant woman’s “irresponsible behaviour”. 3
Child and Family Services and Family Relations Act, S.N.B. 1980, c. C-2.1 [hereinafter Family
Services Act].
26 Children’s Act, R.S.Y.T. 1986, c. 22, s. 133.
27 Family Services Act, supra note 25, s. 1:
“child” means a person actually or apparently under the age of majority, unless other-
wise specified or prescribed in this Act or the regulations, and includes
an unborn child;
(a)
(b) a stillbom child;…
“Child” has been most frequently-defined as a person under the age of 18 years (see Child Welfare
Act, S.A. 1984, c. C-8.1, para. l(1)(d); Child and Family Services Act, R.S.O. 1990, c. C.11, s. 3(l);
Children’s Act, ibicL, s. 104; Youth Protection Act, supra note 13).
28It is interesting to note that when the definition of child was changed in 1980, the Hansard De-
bates reveal that this amendment was never discussed or explained by the Tory Minister or ques-
tioned by any member of the Liberal opposition (see Journal of Debates of the Legislative Assembly
of the Province of New Brunswick, vol. xv (10 July 1980) at 6588f).
29In the Family Services Act, if the Minister has received information from any person that a child
has been neglected or abandoned, he or she can investigate the situation and take the necessary
steps, such as: ordering the pregnant woman to undergo fetal surgery or a caesarean section; placing
the child under protective care; or arranging for medical examination and treatment of the child.
See Nouveau-Brunswick (Ministre de la Santd et des Services connnunautaires) v. A.D. (1990),
109 N.B.R. (2d) 192,273 A.PR. 192 (Q.B.) [hereinafterA.D. cited to N.B.R.].
31 Ibid. The court noted that several custody/supervisory orders had been made in relation to the
woman’s other “born” children, and that she had no “normal” mother-child bond with her children
(for example, she did not exhibit a “joyful reaction” when she saw them after a separation (ibid. at
194-95)). The woman was ordered to be attended to by a public health nurse, to consult a physician
on a regular basis, to meet with a social worker to identify her plans for her unborn child, and to
give birth at a hospital (ibiL at 197).
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Boisvert J. noted, however: “I must specify that the respondent has not argued that
there has been a violation of the Canadian Charter of Rights and Freedoms.”32 This is
an interesting and perhaps fatal omission because one of the main reasons for which
the Commission adopted recommendation 273 was to ensure that the Charter rights of
women were recognized and given full effect. Specifically, the Royal Commission
stated:
Like other women and men, pregnant women therefore have a constitutional
right to refuse unwanted medical treatment or control that threatens their bodily
integrity or interferes with their ability to make independent decisions about
their medical care.3
The provision in the Yukon Children ‘ Act is far more limited in scope than is the
one in the New Brunswick Act. It provides narrowly prescribed powers to the Director
of Children, which can only be exercised if a pregnant woman has a substance abuse
problem. The provision reads:
134(1) Where the Director has reasonable and probable grounds to believe
and does believe that a foetus is being subjected to a serious risk of
stiffering from foetal alcohol syndrome or other congenital injury at-
tributable to the pregnant woman subjecting herself during preg-
nancy to addictive or intoxicating substances, the Director may ap-
ply to a judge for an order requiring the woman to participate in such
reasonable supervision or counselling as the order specifies in re-
spect of her use of addictive or intoxicating substances.3
The powers of the Director are limited by the requirement of reasonable and prob-
able grounds for the operative belief and the necessity of going before the court to ob-
tain an order. These limits may reflect the government’s professed goal of enacting
legislation which was “as close as we can possibly get to protecting the right of the fe-
tus without infringing on the right of the individual who is carrying the fetus.”
In light
of Charter jurisprudence and the Commission’s analysis, it is highly debatable whether
this provision achieves that goal.”
32 Ibid. at 194.
3 Report, supra note 1 at 955.
34S.Y. 1984, c. 2, s. 134. This section generated very little discussion or debate when it was intro-
duced in 1984. Supporters claimed that its aim was to prevent the “prenatal abuse of the unborn
child” but argued that its purpose was educational rather than coercive (Yukon Legislative Assembly
(16 April 1984) at 269).
35Yukon Legislative Assembly, ibid.
16See Joe v. Yukon Territories (Director of Family and Children’s Services) (1986), 5 B.C.L.R.
(2d) 267 (Y.T.S.C.), a preliminary but inconclusive case. Justice Maddison held that subsection
134(1) violated the woman’s right to life, liberty, and security of the person under section 7 of the
Charter because there was no accepted definition of fetal alcohol syndrome. The Court held that it
would have ordered a new trial solely on the grounds that the trial judge took judicial notice of what
fetal alcohol syndrome was and refused to hear expert evidence. Since the Crown had failed to raise
section 1 of the Charter at the trial, Justice Maddison held that failure to raise it should result in the
Crown losing the appeal. Although this judgement is not entirely satisfactory in that it does not
19951
S. MARTIN & M. COLEMAN – JUDICIAL INTERVENTION
C. Judicial Interpretation of Child Protection Legislation for the Born Alive
Child
In Canada, the claim that child protection provisions implicitly include the fetus
has arisen in two factually and legally diverse circumstances. In the first type of case,
the court is asked to consider evidence of what happened to the fetus as proof that the
child, once born, was in need of the state’s protection. This type of case will be consid-
ered in this section. The second type of case involves the attempt to use child protec-
tion provisions to coerce the medical treatment of pregnant women, and will be dis-
cussed in the next section.
The first reported Canadian case endorsing an inquiry into “prenatal abuse!’ in-
volved the apprehension of a four-day-old baby born with fetal alcohol syndrome. The
judge in Re Children’s Aid Society for the District of Kenora and J.L.37 held that what
happened to the fetus was relevant evidence in a post-birth wardship hearing. He
stated:
ITihe child was a child in need of protection prior to birth, at birth and on [the
date of apprehension] … by reason of the physical abuse of the child by the
mother in her excessive consumption of alcohol during pregnancy, which con-
duct endangered the health of J.L., and further, by her neglecting or refusing to
obtain proper remedial care or treatment for the child’s health, when it was rec-
ommended by a legally qualified practitioner?’
Relying on Kenora as authority, the British Columbia Supreme Court subsequently
held that a drug-addicted child was bom abused in Superintendent of Family and Child
Service v. M.(B). 9 The Court stated that a child can qualify as abused during the gesta-
conclude whether such legislation can or cannot be saved by section 1, it outlines that legislation
imposing this onus on women can be held to offend section 7 of the Charter.
37 (1981), 134 D.L.R. (3d) 249, [1982] W.D.F.L. 390 (Ont. Prov. Ct) [hereinafter Kenora cited to
D.L.R.]. The child was found to be in need of protection and therefore made a ward of the court.
is Ibid. at 252. This statement alone shows a lack of understanding on the part of the judiciary in
holding that a woman who is addicted to alcohol, which is often classified as a disease, had wilfully
inflicted this syndrome upon her child. It operates to impute a level of moral culpability that the
woman probably did not have. Judge Bradley found that there had been prenatal abuse and relied on
the views of Judge David Steinberg who argues that language in the Child Welfare Act, S.O. 1978, c.
85, para. 6(2)(g), could be construed to apply to a child en ventre sa nzre (D.M. Steinberg, Family
Law in the Family Courts, vol. 1, 2d ed. (Toronto: Carswell, 1981) at 112).
39 (1982), 28 R.EL. (2d) 278, (sub nor. Re Superintendent of Family and Child Services and
MacDonald) 135 D.L.R. (3d) 330 (B.C.S.C.) [hereinafter M.(B.)]. The mother, Ms. MacDonald,
was undergoing methadone maintenance therapy, when, halfway through her pregnancy, she con-
sulted a physician who told her that it was too late in the pregnancy to discontinue the treatment
without injury to the fetus. The child was bom with an addiction to methadone. At trial, Judge
Collings found that the child was not in need of protection as it had not yet left the hospital. It is in-
teresting to note that in this case, Ms. MacDonald was a member of the First Nations. This is sig-
nificant in the face of the American study which reveals the high incidence of judicial intervention
in the cases of minority women. It is also noteworthy that in this case and the prior case, Kenora, the
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tion period and reversed the trial judge’s holding that the child must first be placed with
its parents after birth to meet the statutory test of being in need of protection.40 Despite
the finding that the child was in need of protection, the child was allowed to remain
with its mother, subject to strict conditions of supervision by the provincial authori-
ties.4
‘ The Court of Appeal later upheld another order made by Proudfoot J. granting
permanent custody to the Superintendent of Family and Child Services following the
apprehension of the child from its mother.
There is a risk that the significance of prenatal treatment could be exaggerated, be-
cause its relevance was expressly addressed in the cases. Placed in its proper perspec-
tive, it becomes clear that the woman’s conduct during pregnancy was not a primary or
determinative consideration. 42 In both cases, the court canvassed, evaluated, and at-
tached great weight to the child’s living conditions after birth and any actual threat they
could pose to the child’s safety.43
It is factually and legally significant that both these cases involved applications to
apprehend a child who was already born. In both cases, the woman’s substance abuse
during pregnancy was used as evidence of her past abuse of the fetus, a factor in de-
termining the child’s existing need for protection and proof of anticipated deprivation
or prospective neglect. Even though there was a real risk the probative value ascribed
to the pregnant woman’s dependency would be exaggerated, 44 and severe legal conse-
quences were attached to her activities, in both cases the court did not directly mandate
her conduct. This first type of child protection case does not go beyond the use of es-
tablished legal principles, which allow a born child to assert certain property or tort law
claims, in a different area of the law.45 While these cases may appear to greatly extend
courts commented that the relationships between the parents were marked by male violence. See
also another pregnancy case, Ackennan v. McGoldrick, [1990] B.C.J. No. 2832 (Prov. Ct.) (QL).
40However, prenatal conduct and anticipated deprivation were not the only factors in the decision.
In fact, the Court spent a lot of time discussing the threat to a drug-addicted baby from living with a
stepfather with little patience and his own drug addiction (M.(B.), ibid. at 285-86). It is interesting to
note that the Court employed the standard of the best interest of the child and not the more exacting
one of a child in need of protection. The judge explained the choice of this standard because, where
there is the risk of injury, a “much lower test would be applicable” (ibid. at 287). The best interest
standard was also used in Kenora.
41 Supervision included homemaker services seven days a week; daily visits by a social worker;
and visits from the community health nurse three times a week for a six month period (ibid.).
42In Kenora, supra note 37 at 252, the Court stated that “[t]he finding with respect to the child
being a child in need of protection prior to birth is not essential to the finding that the child was in
need of protection at the time of apprehension.”
43See ibiL See also Re Rabbitt and Child Welfare Branch, Department of Social Services of Al-
berta (1981), 11 A.C.W.S. (2d) 228 (Alta. Q.B.); M.(B.), supra note 39 at 285-86.
See “Judge in Delivery Room”, supra note 19 at note 75, p. 1962, where Rhoden argues that
maternal substance abuse “cannot be probative of anything except the fact of addiction.” She says
there is no evidence that addiction alone renders a woman an unfit parent.
45For an overview, see K.M. Weiler & K. Catton, “The Unborn Child in Canadian Law” (1976)
14 Osgoode Hall L.J. 643. The rule in property law was based on the parents’ presumed desire to
provide for children conceived but not yet born at the time of their death. The tort law principle,
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S. MARTIN & M. COLEMAN – JUDICIAL INTERVENTION
existing jurisprudence, the courts’ conclusions really did nothing more than implement
the “bom alive rule” and acknowledge that the fetus had an in utero existence when it
was called upon to determine if a child, once born, was in need of protection.
D. The Coerced Medical Treatment of Pregnant Women
In the second type of case, however, child welfare authorities have tried to use
these same powers to apprehend an unborn fetus. This type of case raises different is-
sues because any apprehension order made in relation to the fetus directly affects the
pregnant woman.
46
The first case to extend child protection legislation to an unborn fetus occurred in
Ontario.47 The first application to apprehend the unborn fetus was based on the
mother’s refusal to submit to a full medical examination to determine whether the fetus
was at risk.4 Kirkland J. invoked the Kenora case to support his conclusion that, at
least in theory, a child “en ventre sa mre”‘ could be found to be in need of protection.
On the facts before him, he nevertheless concluded that the evidence was insufficient
to demonstrate that this fetus was in need of protection at the time of the hearing.
Two days later, in C.A.S., Belleville v. T(L.), 49 the provincial authorities made a
second application, introducing new evidence and joining a claim for custody of the
fetus with a mental health warrant against the pregnant woman. The same judge con-
cluded that the fetus was in need of protection because there was “a possibility that this
child will not be born alive or that the child, although born alive, would be born with
certain health defects.”5 He made the fetus a ward of the state for a period of three
months” and he also granted the application requesting an involuntary assessment un-
der the provincial Mental Health Act.52 He found reasonable cause to believe that the
woman was suffering from a mental disorder and that her conduct was likely to result
in serious bodily harm to herself or to “others”. The judge was prepared to include a
fetus within the term “other” under the Mental Health Act because, in a previous para-
which looked to the period prior to birth to allow a cause of action for prenatal injuries, sought to
compensate those born alive who suffered loss.
46In Canada, attempts to mandate the medical treatment of pregnant women have been treated
under the rubric of child protection legislation, whereas in the United States, coerced medical treat-
ment is usually effected by the use of court orders.
47Re Children’s Aid Society of Belleville v. Unborn Child of LT and G.K. (30 March 1987),
Belleville 10/87 (Ont. Prov. Ct.).
48 S. Tateishi, “Apprehending the*Fetus En Ventre Sa Mre: A Study in Judicial Sleight of Hand”
(1989) 53 Sask. L. Rev. 113 at 121.
49 (1987), 59 O.R. (2d) 204,7 R.F.L. (3d) 191 (Prov. CL) [hereinafter Belleville cited to R.F.L.].
50 Ibid. at 192. The judge did not accept the argument that these problems were “economically
based”. He based this finding on the medical evidence of a vaginal discharge and abdominal pain
(which she denied), her “erratic” conduct (she slept in a garage one night and sat in a puddle), and be-
cause her refusal to seek, maintain, or accept medical assistance was not “conducive to the safe and
healthy delivery of the child” (ibicL at 193).
5, Ibid. at 195-96.
52 R.S.O. 1980, c. 262, s. 10(1), as am. by S.O. 1986, c. 64, para. 33(a).
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graph, he included a fetus within the term “child” under the province’s child protection
legislation.”
However, not all courts have taken the position that it is appropriate to use child
welfare legislation to apprehend an unborn fetus. Re A. (in utero)”
4 involved an appli-
cation for custody of a fetus and for an order that the pregnant woman receive prenatal
care. The Children’s Aid Society proceeded by an ex parte motion and used the preg-
nant woman’s past parenting inadequacies and troubles with the criminal law as evi-
dence. Judge Steinberg nevertheless concluded that there was nothing within Ontario’s
Act Respecting the Protection and Well-Being of Children and their Families”, which
gave the fetus a right to protection, and that any state interest in protecting the fetus
should be expressed by the legislature rather than by the judiciary.56
‘
In a subsequent case, the child care authorities went even further when they sought
a prebirth apprehension order to require a pregnant woman to deliver by caesarean
section. The case of Re Baby R 7 merits close analysis because it is the only such re-
ported case in Canada.5 The case is typical of the factual and legal situations which
may arise in the pregnancy and prebirth context and illustrates the numerous dangerous
and disturbing features of this latest attempt to manufacture pro-fetal jurisprudence.
5. A similar conclusion was reached in In the Matter of the Family Relations Act; R.S.B.C. 1979
Chapter 121 and amendments, [1994] B.C.J. No. 485 (Prov. Ct.) (QL), decided under the British
Columbia Family Relations Act, R.S.B.C. 1979, c. 121. See also Re Unborn Child “H” (1979), 38
N.S.R. (2d) 432, (sub nom. Re Simms and H-) 106 D.L.R. (3d) 435 (Fam. Ct.), where the Court al-
lowed an anti-abortion crusader to be appointed a guardian ad litem for a fetus because use of the
term “child” in the province’s Children’s Services Act, S.N.S. 1976, c. 8, was interpreted to include a
fetus. In referring to this case, B.M. Dickens, “Artificial Reproduction and Child Custody” (1987)
66 Can. Bar Rev. 49 at 57, notes that “[t]here are many legal obstacles to confident acceptance” of
this interpretation.
54 (1990), 28 R.FL. (3d) 288,72 D.L.R. (4th) 722 (Ont. Unif. Fam. Ct.).
55 S.O. 1984, c. 55.
56See, however, J. Oliver, “State Intervention During Pregnancy and Childbirth: The Newest
Challenge to Women’s Reproductive Freedom” (1993-94) 2:3 Health L. Rev. 3 at 7, where she
states: ‘These cases illustrate the apparent readiness of Canadian courts to make orders compelling
pregnant women to undergo treatment and surgery for the benefit of the fetus if provinces amend
their child welfare statutes to include the protection of a fetus.” Any such state action would be
obliged to confonn to women’s Charter rights.
57 (1988), 15 R.FL. (3d) 225, 53 D.L.R. (4th) 69 (B.C.S.C.) [hereinafter Baby R cited to R.FL.].
There are two annotations of this case in (1987) 15 R.FL. (3d): D. Majury at 225 and D.W. Phillips
at 228. See also T.B. Dawson, “Re Baby R: A Comment on Fetal Apprehension” (1990) 4 C.J.W.L.
265 [hereinafter “Fetal Apprehension”].
58 The nature of coerced obstetrical interventions makes it difficult to accurately estimate the true
incidence of their occurrence. Often they are not reported and sometimes merely the threat of pro-
ceedings forces the woman to change her mind. Children Aid Society of Niagara Region v. W
(C.A.), [1987] OJ. No. 1838 (Prov. Ct.) (QL), is an example which highlights the coercive potential
of threats.
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S. MARTIN & M. COLEMAN- JUDICIAL INTERVENTION
In Re Baby R, the province’s Superintendent of Children issued an apprehension
order which simultaneously told the doctor to do what was medically necessary for the
fetus and expressly stated that there was no authorization for any medical procedure to
be performed on the pregnant woman. The prebirth apprehension order was never used
because the woman “consented” to the surgery at the door of the operating room and
before she was apprised of the apprehension order. Nonetheless, the order had tremen-
dous legal significance as it was used to take physical custody of the child at birth. As a
result, the mother was never given custody and, in subsequent proceedings, the child
was made a permanent ward of the state.
Justice MacDonnell of the British Columbia Supreme Court held that a fetus was
not a “child” within the terms of the Family and Child Service Acd 9 and that the super-
intendent therefore had no jurisdiction to make a prebirth apprehension order.6 The
question of statutory interpretation was thus placed into its broader factual and legal
context. The judge noted that the relevant legislation gave the superintendent
“awesome” powers, which did not exist at common law and which could only be
granted by statute. He stated that the apprehension of a live child was a “drastic step”
and implied that the apprehension of a fetus would therefore be even more excep-
tional.6’ He noted that legislation which restricts the rights of citizens must receive a
strict interpretation and concluded:
For the apprehension of a child to be effective there must be a measure of con-‘
trol over the body of the mother. Should it be lawful in this case to apprehend
an unborn child hours before birth, then it would logically follow that an ap-
prehension could take place a month or more before term. Such powers to in-
terfere with the rights of women, if granted and if lawful, must be done by
specific legislation and anything less will not do.’
59 S.B.C. 1980, c. 11, s. 1.
60 He construed the term “child” by reference to the Act as a whole and, in light of its history and
purpose, compared it with a provision in another Act which expressly stated that a “child” includes a
child not yet born, considered the criminal law definition of a “human being”, and relied on Canadian
and English cases which establish that legal rights vest at birth (Baby R, supra note 57 at 234ff). He
relied on K. v. K. (1933), 41 Man. R. 504, [1933] 3 W.W.R. 351 (K.B.), where the Court awarded
custody of a fetus to the mother, but only if the fetus was subsequently born alive. See also Solowan
v. Solowan, [1953] 8 W.W.R. 288 (Alta. S.C.); Dehler v. Ottawa Civic Hospital (1979), 25 O.R. (2d)
748, 101 D.L.R. (3d) 686 (H.C.J.), aff’d (1980), 29 O.R. (2d) 677, 117 D.L.R. (3d) 512 (C.A.);
Medhurst v. Medhurst (1984), 46 O.R. (2d) 263, 38 R.FL. (2d) 225 (H.C.J.). MacDonnell J. also
cited two English cases: Paton v. British Pregnancy Advisory Service (1978), [1979] Q.B. 276,
[1978] 2 All E.R. 987; and the remarkably similar case of Re F (in utero), [1988] 2 W.L.R. 1288,
[1988] 2 All E.R. 193 (C.A.).
61 Baby R, ibid. at 233. For an articulation of this argument see J. Kahn, “Of Woman’s First Diso-
bedience: Forsaking a Duty of Care to Her Fetus –
Is this a Mother’s Crime?” (1987) 53 Brooklyn
L.R. 807 at 840, who argues that “where a pregnant woman’s actions are unlawful and undeniably
detrimental to her fetus [drug and alcohol addiction], the state may regulate a woman’s pregnancy
only to the extent of taking temporary custody of the postnatal child.”
62 Baby R, ibid. at 237. The reference to “if lawful” raises questions of whether even an express
grant would be constitutional.
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Therefore, the authorities could not take custody of an unborn fetus, even one in the
process of being born. 63 The case did not, however, deal with the constitutionality of
statutes authorizing prebirth apprehensions of fetuses.
In Re Baby R, Justice MacDonnell also expressly recognized that prebirth appre-
hensions directly and fundamentally involve women and women’s rights.0 His analy-
sis is to be preferred to the lower court judge’s rather incredible claim that there was no
need to determine whether this apprehension order violated the rights of the woman
because “[t]he purpose of the apprehension was to ensure proper medical attention for
the baby.”‘5 Failing to appreciate that pregnant women are the direct targets of prebirth
apprehensions is as absurd as the Superintendent’s order authorizing a caesarean sec-
tion for the sake of the fetus yet denying that the order imposed surgery on an uncon-
senting patient.16 The contradictory components of this double-barrelled order clearly
illustrate the dangers of treating the unborn fetus as a separate patient with independent
legal rights. The biological reality of complete fetal dependence cannot be neutralized
63 There are, however, American authors who believe that child abuse statutes should be applied
to the unborn, even if the legislators did not so intend (see e.g. “Abuse and Neglect”, supra note 21
at 26; J.A. Robertson, “The Right to Procreate and In Utero Fetal Therapy” (1982) 3 J. Legal Medi-
cine 333 at 357 [hereinafter “The Right to Procreate”]). Cases where American courts have held
child abuse statutes to apply to the unborn include: Department of Social Senices v. Felicia B., 543
N.Y.S.2d 637 (Fain. Ct. 1989); Re Ruiz, 500 N.E.2d 935 (Ohio Ct. C.P. 1986); Re Smith, 492
N.YS.2d 331 (Fam. Ct. 1985). Contra: Welch v. Kentucky, No. 90-CA-1189-MR (Ky. Ct. App., 7
February 1992) [hereinafter Welch]; State v. Gray, 584 N.E.2d 710 (Ohio Sup. Ct. 1992)
[hereinafter Gray].
(AFor the argument that the fetus is protected at the expense of the woman, see D.E. Johnsen,
“The Creation of Fetal Rights: Conflicts with Women’s Constitutional Rights to Liberty, Privacy and
Equal Protection” (1986) 95 Yale L.J. 559 [hereinafter “Creation of Fetal Rights”]. She claims that
granting rights to fetuses infringes women’s constitutional rights to equality, conflicts with women’s
autonomy, and “reinforces the tradition of disadvantaging women on the basis of their reproductive
capacity” (ibid. at 624). Other authors also reject the forced medical treatment of pregnant women
(see e.g. “Prenatal Invasions”, supra note 18; Rhoden, supra note 19; M. Jackman, “The Canadian
Charter as a Barrier to Unwanted Medical Treatment of Pregnant Women in the Interests of the
Foetus” (1993) 14 Health L. Can. 49; J.E. Hanigsberg, “Power and Procreation: State Interference in
Pregnancy” (1991) 23 Ottawa L. Rev. 35; T.B. Dawson, “A Feminist Response to ‘Unborn Child
Abuse: Contemporary Legal Solution”‘ (1991) 9:2 Can. J. Fam. L. 157 [hereinafter “A Feminist Re-
sponse”]; Grant, supra note 22). For the other authors who accept the idea in principle, the debate
concerns the appropriate circumstances for state intervention. Most such authors consider the same
list of factors but evaluate them differently (see e.g. A.M. Noble-Allgire, “Court-Ordered Cesarean
Sections: A Judicial Standard for Resolving the Conflict Between Fetal Interests and Maternal
Rights” (1989) 10 J. Legal Medicine 211). See also P.L. Hallisey, “The Fetal Patient and the Unwill-
ing Mother. A Standard for Judicial Intervention” (1982-83) 14 Pacific L.J. 1065, who proposes a
standard which grants the mother specific authority to refuse recommended fetal therapy that would
prolong or salvage a life of low quality, or that would provide anything less than a “clear benefit” to
the fetus. See also “Clarifying the Right”, supra note 23 at 36ff.
65 Re R (1987), 9 R.F.L. (3d) 415 at 420 (B.C. Prov. Ct.).
At least in some of the American cases, there exists the recognition that the medical treatment is
done to the mother (see Jefferson v. Griffin Spalding County Hospital, 274 S.E.2d 457 (Ga. Sup. Ct.
1981) [hereinafter Jefferson]).
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S. MARTIN & M. COLEMAN – JUDICIAL INTERVENTION
through abstraction nor ignored by the use of a clever verbal formulation.
Many factors in this case support the wisdom of both the British Columbia Su-
preme Court’s conclusion that child protection legislation cannot be used indirectly to
control the conduct of pregnant women and the Royal Commission’s position that such
interventions should not merely be forbidden, but should also be criminalized as a
deprivation of the pregnant woman’s physical inviolability and autonomy. Certain fea-
tures of the Re Baby R case are similar to the more numerous attempts at forced inter-
ventions in the United States and provide reasons for the Commission’s and Canadian
courts’ reluctance to endorse any form of pregnancy-related intervention.67 The simi-
larities between American jurisprudence and Re Baby R suggest that many of the
complaints levelled against the use of court-ordered caesarean sections in the United
States are also applicable to the use of similar powers by child care workers or courts
in Canada. For example, it took less than three hours to obtain the apprehension order
in Re Baby R. This is consistent with American studies which show that eighty-eight
per cent of court orders for caesarean sections were obtained in six hours and nineteen
per cent were obtained in less than one hour, sometimes by phone.69 Often, the emer-
gency nature of forced interventions, means that the time available to make a decision
on such an important matter will be extremely short and the decision-maker often has
no time to adequately deliberate or to review and analyze existing precedent. This in-
creases the chances of a misapplication of controlling legal principles and a derogation
from constitutional rights.70
67 There are also numerous similarities to the Belleville case in American jurisprudence. We
should not adopt the rather divided American jurisprudence on court-ordered medical treatment of
pregnant women. First, there has been no determinative examination of these orders by the United
States Supreme Court from a constitutional perspective and too many courts are unthinking in their
acceptance of forced medical treatment for pregnant women. Second, the American cases, basing
themselves on Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705 (1973), often draw distinctions based on vi-
ability where post-viability interventions are seen to be more acceptable, because the state has the
power to proscribe abortion at that stage of fetal development. Viability does not have the same le-
gal significance in the Canadian system. Third, in the United States, petitioners for intervention into
pregnancy have relied on the court’s parens patriae jurisdiction, as well as on statutory authority,
whereas, in Canada, there have only been attempts to invoke child protection legislation.
68 V.E.B. Kolder, J. Gallagher & M.T. Parsons, “Court-ordered Obstetrical Interventions” (1987)
316 New England J. Medicine 1192. See also L.C. Ikemoto, “Furthering the Inquiry: Race, Class,
and Culture in the Forced Medical Treatment of Pregnant Women” (1992) 59 Tennessee L. Rev. 487
at 489 [hereinafter “Furthering the Inquiry”], who notes that “[m]ost cases simply go unreported.
But according to cases described in other medical articles and law reporters, the trend of performing
cesarean surgeries, blood transfusions, and other therapies against the woman’s will continue.”
69 Kolder, Gallagher & Parsons, ibiL at 1193.
70 The emergent nature of prebirth apprehensions means that they share certain parallels with the
abortion injunction cases. However, the haste of the proceedings cannot justify the absence of fun-
damental legal protections. If anything, it raises the larger issue of whether the child care authorities
or courts ought to have any role to play at all (see G-J. Annas, “Forced Cesarean: The Most Unkind-
est Cut of All” (1982) 12:3 Hastings Center Report 16 [hereinafter “Forced Cesarean”]). Note that,
even if a lawyer for the woman can be found, research time will be limited because the woman is
usually already in labour. K. Jost, “Mother Versus Child” (1989) 75 A.B.A.J. 84 at 86, reports that,
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Another interesting feature of the Re Baby R case involves the allegations of men-
tal incompetency against a patient who has refused recommended medical care. The
British Columbia Mental Health Act, by authorizing nonconsensual medical treatment,
provides an alternative to the child protection legislation. 7′ In the Belleville case, the
child care authorities in British Columbia considered twinning an allegation of fetal
abuse with one of mental incompetency in order to make a stronger case for interven-
tion.72 Even when allegations concerning the woman’s mental health do not lead to in-
voluntary psychiatric assessment, supervision, or detainment, child care authorities
may nevertheless suggest that the woman be treated with a certain degree of suspicion.
Putting her mental capacity in issue may serve an ideological function: if the woman
can be presented as unstable, mandating her medical treatment becomes more defensi-
ble under established legal doctrines. The problem is one of an individual case of in-
competency and not a complete, categorized reversal of the general rules of informed
consent for pregnant women. It is thus easier to claim that substitutional consent is an
exception and a recognized legal response to mental incompetency in individual cases.
Allegations of mental incompetency are acute and frightening when the evidence
upon which they are based implicitly equates the woman’s refusal of medical care with
mental incompetence. 73 In short, this reasoning would hold that a pregnant woman is
unstable if she does not follow the doctor’s orders. Such a conclusion would be based
on the following string of value judgments: a pregnant woman who has not had an
abortion must want.the fetus delivered in the safest possible means; health care profes-
sionals are best equipped to evaluate and determine what is the safest means; a reason-
able woman would, therefore, submit to whatever surgery is recommended for the sake
of her fetus. Added to this thinking process is the widespread belief that the mother-
child relationship is a paradigmatic example of benevolence4 under which a compe-
tent woman would not risk the health of her fetus for her own selfish reasons.
in the American cases, there is rarely balanced evidence, and the cases are characterized by terse,
conclusion-oriented judgments, where two pages is considered long.
71R.S.B.C. 1979, c. 256.
72 In Baby R, supra note 57 at 229, such a joint submission was not pursued because the hospital’s
psychiatric unit found no signs of mental illness and refused to take the necessary legal action.
73 See “Furthering the Inquiry”, supra note 68 at 502-503, where Ikemoto reports that “[w]hen
women refuse they are often characterized as stubborn, guilty, and irrational, even when the court
specifically finds them to be clearly competent.”
74 The phrase is taken from P. King, “Should Mom be Constrained in the Best Interest of the Fe-
tus” (1989) 13 Nova L. Rev. 393 at 395 [hereinafter “Should Mom be Constrained”]. L.C. Ikemoto,
“The Code of Perfect Pregnancy: At the Intersection of the Ideology of Motherhood, the Practice of
Defaulting to Science, and the Interventionist Mindset of Law” (1992) 53 Ohio State L.J. 1205
[hereinafter “Code of Perfect Pregnancy”], also states:
[J]udges have joined doctors in the delivery room to referee the conflict. Underlying
the court’s balancing-test language is a set of assumptions –
that a normal woman
would do anything for the sake of her unborn child even if it endangered her own life;
that there must be something wrong with the woman who refuses consent; that doctors
and lawyers who call for intervention speak with authority and know better than the
woman who refuses consent to cesarean surgery (ibiL at 1245-46).
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S. MARTIN & M. COLEMAN – JUDICIAL INTERVENTION
Generally, a patient’s decisions concerning medical treatment receive a great deal
of legal protection because they involve individual liberty, personal beliefs, private
value judgments, and cultural differences. Cases involving the forced medical treat-
ment of pregnant women, however, show very little deference to the decisions of these
women concerning their health care.75 Rarely is there even an attempt to understand the
decision from the perspective of the woman involved. Sometimes, the woman’s own
reasons for refusing the surgery are not even sought, given, or explained7 6 and if pro-
vided, they are often trivialized.77 This observation is consistent with one writer’s
opinion that “[t]he view that women who refuse cesarean sections are in some way
75See “Judge in Delivery Room”, supra note 19 at note 275, p. 2006, where Rhoden describes
how individuals from certain places, like Jamaica, Haiti, and Africa, have cultural reservations
about caesarean section delivery. For cases involving the refusal on religious grounds of medical
treatment by pregnant women, see Raleigh Fitkin – Paul Morgan Memorial Hospital v. Anderson,
201 A.2d 537 (N.J. Sup. Ct. 1964), in which the Court ordered blood transfusions over the objec-
tions of a pregnant Jehovah’s Witness woman to save the life of the fetus. See also Re Jamaica
Hospital, 491 N.Y.S.2d 898 (Sup. Ct. 1985); Crouse Irving Memorial Hospital Inc. v. Paddock, 485
N.Y.S.2d 443 (Sup. Ct. 1985). See also Re Madyun, 114 Daily Washington L. Rptr. 2233 (D.C. Sup.
Ct. 1986), in which a caesarian section was performed on a Muslim woman. In that case, the Court
held that there was a compelling state interest in the circumstances of the case, which outweighed
the woman’s right to refuse the operation on religious grounds.
76Even when the wishes of the women are expressed, they may be redefined as ambiguous or
unclear, to leave the small opening necessary to introduce the thin edge of the wedge of paternalism.
See Re A.C., 533 A.2d 611 (D.C. Cir. 1987), petition for re-hearing granted 539 A.2d 203 (D.C. Cir.
1988), rev’d 573 A.2d 1235 (D.C. Cir. 1990), where the District Court of Columbia ordered a cae-
sarean section to be performed on a dying woman in a failed attempt to “save” her 26-week-old fe-
tus. The trial judge, who convened an emergency hearing at the hospital, said that he did not clearly
know what Angela’s present views were, but he did not go down the hall and ask her. The Court of
Appeal ultimately held that, where a pregnant patient with a viable fetus is near death, the question
of what medical treatment she should receive is to be decided by the patient on behalf of herself and
the fetus, unless she is incompetent or otherwise unable to give informed consent, in which case her
decision is to be ascertained via “substituted judgement”. The Court distinguished cases where the
pregnant woman’s decision to refuse treatment creates a “maternal-fetal conflict”. In this case, be-
cause the operation endangered the life of A.C., her decision was paramount. Her right to bodily
integrity was not diminished because she was dying (ibid. at 1243, 1247). For case comments, see
M. Phillips, “Maternal Rights v. Fetal Rights: Court-Ordered Caesareans” (1991) 56 Missouri L.
Rev. 411-14; M. Diamond, “Echoes from Darkness: The Case of Angela C.” (1990) 51 U. Pitt. L.
Rev. 1061. For a critique, see G.J. Annas, “She’s Going to Die: The Case of Angela C” (1988) 18:1
Hastings Center Report 23; Noble-Allgire, supra note 64; E.E. Drigotas, “Forced Cesarean Sec-
tions: Do the Ends Justify the Means” (1991) 70 N.C. L. Rev. 297 at 307-308; B.A. Leavine,
“Court-Ordered Cesareans: Can a Pregnant Woman Refuse?” (1992) 29 Houston L. Rev. 185 at
193.77 See Kolder, Gallagher & Parsons, supra note 68, where they report that the women are often la-
belled as irrational. See also T.B. Mackenzie & T.C. Nagel, “When a Pregnant Woman Endangers
Her Fetus” (1986) 16:1 Hastings Center Report 24. But see the analysis provided by B.K. Rothman,
Commentary (1986) 16:1 Hastings Center Report 25, where she concludes: “A more appropriate
and ultimately more useful perspective is to see the pregnant woman as a biological and social unit.
… [Her physician] might consider what her needs are –
and how he might help her to meet those, rather than calling on the courts to control her.”
social and economic as well as medical –
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willfully abusing their fetuses seems prevalent and deeply held, at least by some male
obstetricians and judges. ’78
Failure to acknowledge a pregnant woman’s individual motivation or group af-
filiation may also help explain American studies which showed that caesarean sections
performed pursuant to court order are disproportionately directed to low-income and
minority women. 79 One study indicated that eighty-eight per cent of cases in which
court-ordered obstetrical procedures were sought involved Black, Hispanic, or Asian
women. Forty-four per cent were unmarried, and twenty-four per cent did not speak
English as their primary language. All the women were treated in a teaching-hospital
clinic or were receiving public assistance. In such cases of racism and multiple disad-
vantages, it is especially difficult for the voices of women to be heard and for their de-
cisions to be respected as determinative.8
Normally, as in Re Baby R, the apprehension process will be set in motion by the
woman’s doctor. This is problematic for many reasons. First, it is highly likely that the
decision-maker, whether a child care worker or a court, will receive only one version
of the medical evidence.’ 2 The child care worker’s mandate to focus on the best interest
and needs of the child, when no equivalent agent is charged with respecting the rights,
interest, or needs of the pregnant woman, may skew what information is presented and
accepted as relevant.83 Furthermore, even if it were institutionally possible to make
submissions on behalf of the woman, she might not be afforded a realistic opportunity
to accumulate and submit whatever contrary evidence may exist or to obtain a second
medical opinion. 4 These cases involve contests between what are constructed to be the
competing interests of a woman and of her fetus. The absence of balanced medical
evidence is problematic because it results in derogation from the accepted safeguards
which normally apply under an adversarial model. In other contexts, such important
determinations would normally be addressed only after a full inquiry, where both par-
ties to the dispute have been adequately represented, where both sides of the argument
,”Forced Cesarean”, supra note 70 at 16.
78
79 While these statistics reflect the further victimization of the disadvantaged, it may also be the
case that these women are not as easily persuaded by the doctor’s entreaties (see J.A. Daniels,
“Court-Ordered Cesareans: A Growing Concern for Indigent Women” (1988) 21 Clearinghouse
Rev. 1064; L. Nsiah-Jefferson, “Reproductive Laws, Women of Color, and Low-Income Women” in
N. Taub & S. Cohen, eds., Reproductive Lmvsfor the 1990s (New Jersey: Humana Press, 1989) 23).
80 Kolder, Gallagher & Parsons, supra note 68 at 1193.
81In the Canadian context, at least four out of the six reported cases referred to in this section have
involved aboriginal women or women of colour (see Jackman, supra note 64 at 54; “A Feminist Re-
sponse”, supra note 64 at 170ff).
82 Forced Cesarean”, supra note 70.
83 See Grant, supra note 22 at 229, who argues that, among their faults, child protection acts do
not provide a constitutionally acceptable mechanism for apprehending a fetus because “[t]here is no
requirement that the woman be informed immediately of the apprehension; there is no provision al-
lowing the pregnant woman to make submissions on her own behalf… ; and there is no reference to
her having a right to consult legal counsel.”
8″Forced Cesarean”, supra note 70.
1995]
S. MARTIN & M. COLEMAN – JUDICIAL INTERVENTION
have been fully canvassed, and where scrupulous attention has been given to proce-
dural rights.
Second, there may be a tendency to defer to the professional judgment of doctors.85
This is problematic because the medical diagnosis, even if confirmed by other doctors,
may be inaccurate or outdated. 6 In the United States, some women under court order
to deliver by caesarean section nevertheless gave birth vaginally to healthy babies. 7
Studies also show that doctors are conservative decision-makers and proceed on a
worst-case-scenario basis.88 Therefore, even if one accepts that the woman can be
forced to act to save the fetus (and we do not), there is a real risk that doctors can over-
estimate the danger to the fetus, and thereby require women to submit to unnecessary
medical treatment.
There may also be a tendency to believe that the situation is especially serious if a
doctor intervenes and overrides the express wishes of the patient. 9 As a general rule,
doctors do not involve the legal system in the practice of medicine. In addition, the
prospect of a physician applying for a court order to mandate medical treatment threat-
85 See “Should Mom be Constrained”, supra note 74 at 404; “Code of Perfect Pregnancy”, supra
note 74 at 1237-38; H.E. Berkman, “A Discussion of Medical Malpractice and Cesarian Section”
(1991) 70 Oregon L. Rev. 629. She reports:
The United States has the highest cesarean section rate in the world. The rate has in-
creased from 5.5% in 1970 to 24.7% in 1988. Since 1988, the rate has stabilized, but
stabilized at a level where nearly one in four babies are delivered by cesarean section.
… In 1987 the Public Citizen Health Research Group called cesarean section the most
unnecessary surgical procedure performed. However, some physicians say that fear of
medical malpractice suits is the primary factor behind the high percentage of caesarean
sections (ibid. at 629 [references omitted]).
Berkman, ibid. at 637, also notes that financial factors play an important role: “Cesarian sections
cost at least twice as much as vaginal births. Physicians* therefore make substantially more money
by performing a cesarean”. For a discussion of the increase in the number of caesareans being per-
formed, see G.S. Berkowitz et aL, “Effective Physician Characteristics on the Caesarean Birth Rate’
(1989) 61 Obstetrics & Gynecology 146; H.I. Marieskind, “Cesarean Section in the United States:
Has It Changed Since 1979?” (1989) 16 Birth 196; R.B. Porreco et aL, “Commentaries: The Cesar-
ean Section Rate Is 25 Percent and Rising: Why? What Can Be Done About It?” (1989) 16 Birth
118.
86The fallibility of medical diagnosis and the limits to current technologies are pointed out in
Rothman, supra note 77.
87See e.g. Jefferson, supra note 66. In the Provincial Court judgment in Re R, supra note 65 at
416, the judge merely accepted the medical evidence at face value.
88 See N. Rhoden, “Informed Consent in Obstetrics: Some Special Problems” (1987) 23 New
England L. Rev. 67 [hereinafter “Informed Consent”], where she explains that physicians faced with
uncertainty and potential legal liability tend to adopt a maximum treatment or last hope strategy.
The effect of this, combined with the emergent nature of these cases, means that judges will be
tempted to reallocate decision-making to the physician.
89 For an interesting example of the role of the physician, see Kenora, supra note 37, where the
doctor wrote to the child care authorities about the mother’s alcoholism halfway through her preg-
nancy. See also M.(B.), supra note 39.
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ens the trust at the base of the traditional doctor-patient relationship.9 While the trust
factor may inhibit certain physicians, others may be pursuing their own private agendas
and using medicine to intervene in a woman’s pregnancy as a form of social control. 9′
Doctors may also be motivated by the legal shelter provided by an apprehension or
court order: they insulate the doctor’s activities by providing the “consent” necessary
to the intervention. 9′ The doctor’s desire to secure personal and professional protection
against liability suits may influence his or her decision to invite the state into the deliv-
ery room.
Furthermore, an American study indicates that there is an alarmingly high level of
support among physicians for the mandated medical treatment of pregnant women. 9″3 In
one study, a full forty-six per cent of doctors who head fellowship programs in mater-
nal-fetal medicine thought that mothers who refused medical advice and thereby en-
dangered the life of the fetus should be detained in hospitals or other facilities to ensure
compliance, and forty-seven per cent believed that the precedent set by the American
courts in cases requiring emergency caesarean sections should be extended to include
other procedures that are potentially life-saving for the fetus, such as intrauterine trans-
fusion.94
The decision in Re Baby R and the recommendations of the Royal Commission
may help curb disingenuous attempts to use child protection statutes to compel medical
treatment of pregnant women. Although the province’s bid to seek custody of the fetus
and to mandate the woman’s medical treatment was unsuccessful, the case does stand
as a warning against prenatal invasions. When intervention starts with mandated surgi-
cal intervention and encompasses a procedure as personally invasive and medically
dangerous as a caesarean section, it is sensible to be alarmist. Even though the decision
does not bind other provinces or preclude the creation of express statutory powers
90 The possibility of coercion exists because of the real imbalance of power.
91 Even absent an apprehension order, doctors can exert undue pressure and many even use the
threat of legal intervention to secure compliance (see “Informed Consent”, supra note 88), See H.L.
Hirsh, “Mother v. Fetus: The Dilemma” (1989) 17 Legal Aspects of Medical Practice 1 at 8, where
the author claims that while the doctor’s role is to be an informant, counsellor, and persuader, lie as-
serts, without citing any authority, that “the responsibility of the physician, after using all means of
explanation and communication, is to inform an intransigent patient that she may be committing a
felony.” The absence of any real legal grounds on which to base this warning transform it into an
improper means of intimidation. The potential for coercion by doctors is particularly troublesome
because it indicates that, even in the absence of overt state intervention, there will be insufficient
protection of the woman’s integrity, autonomy, and equality.
92In our view, there is often too much concern for the doctor’s dilemma and not sufficient value
placed on the physical integrity and autonomy of the woman (see e.g. E.-H.W. Kluge, “There ought
to be a law” (1987) 29 B.C. Medical J. 62 [hereinafter “There ought to be a law”]).
9 3 Kolder, Gallagher & Parsons, supra note 68.
94R. Hubbard, “Legal and Policy Implications of Recent Advances in Prenatal Diagnosis and Fe-
tal Therapy” (1982) 7 Women’s Rights L. Rep. 201 at 217, states that “[w]hen physicians and
judges become guardians of ‘fetal rights’, mothers and fetuses lose, because their respective ‘rights’
cannot be sorted out any better than their respective biology.”
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S. MARTIN & M. COLEMAN – JUDICIAL INTERVENTION
similar to the ones claimed in this case,95 the strong reasoning in Re Baby R is backed
by plentiful precedent and sound policy. 96 The Royal Commission accepts the reason-
ing and result in Re Baby R by stating that attempts to encroach on the autonomy of
pregnant women will not be tolerated:
A woman has the right to make her own choices, whether they are good or bad,
because it is the woman whose body and health are affected, the woman who
must live with her decision, and the woman who must bear the consequences
of that decision for the rest of her life. In this respect, pregnant women are no
different from any other responsible individual; to treat pregnant women differ-
ently from other women and men, or to impose a different standard of behav-
iour on them, is neither morally nor legally defensible.9
Both as a result of jurisprudential propriety and the strength of the Royal Com-
mission’s recommendations, it is most unlikely that Canadian courts, especially the
Supreme Court of Canada, will permit provincial authorities to reinterpret existing
child protection legislation to augment their jurisdiction in a manner so obviously con-
trary to the rights and interests of women. To transform the province’s jurisdiction over
children into a mandate to intervene in a woman’s pregnancy would do more than ac-
cord a fresh and elevated status to the fetus: it would allow representatives of the state
to effectively apprehend the woman and mandate the course of her medical treatment
by formally seeking custody of her fetus. In this regard, the existing case law in Can-
ada indicates that the more the authorities have sought to strain and extend their exist-
ing powers, the more clearly such extension has been refused.
There are relatively few express provisions which target the conduct of pregnant
women and the indirect attempt to read general criminal prohibitions and child protec-
tion legislation as including the fetus has not met with success. Nonetheless, these
cases should be addressed seriously because of their practical and ideological signifi-
cance. Proposals to increase the supervision of pregnant women do not give due con-
sideration to the women’s rights. These women, objectified and treated as nothing
95 A clear statement from the English Court of Appeal promises to stymie any future attempt to
use the court’s jurisdiction to make a fetus a ward of the court. See Re F (in utero), supra note 60,
where the Court held that since a fetus at whatever stage of its development had no existence inde-
pendent of its mother, the Court could not exercise the rights, powers, and duties of a parent over the
fetus without controlling the mother’s actions, and that the Court could not extend its wardship ju-
risdiction over minors to a jurisdiction over a mother for the protection of an unborn child, which
had no legal rights or existence, and therefore, it could not make the fetus a ward of the court. See,
however, Re S. (Adult: Refusal of Treatment), [1992] 3 W.L.R. 806 (Fam. Div.), in which the appli-
cation of a health authority was granted for a declaration authorizing an emergency caesarean on
Mrs. S., who refused such an operation on religious grounds. For case comments, see D. Morgan,
“Whatever happened to consent?” (1992) 142 New L.J. 1448; K. Stem, “Court-Ordered Caesarean
Sections: In Whose Interests?” (1993) 56 Modem L. Rev. 238.
96 But any express statutory intervention into a woman’s pregnancy could be challenged under the
Charter.
97Report, supra note 1 at 956.
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more than fetal “incubators ’98 and “ambulatory chalices,” 99 are denied the benefit of the
fundamental cannon of moral philosophy –
that individuals must be respected and
valued in, of and for themselves.
These ominous proposals also have far-reaching implications for the equality
rights of women. -They suggest that pregnant women constitute a special category of
individuals who do not share in the basic rights enjoyed by others.0a The rationale
proffered for this categorical deprivation of the rights of pregnant women is not con-
vincing and rests on the creation of fetal rights and the construction of matemal-fetal
“conflicts” where none existed before.
I. Criminal Liability for Women’s Conduct During Pregnancy
The Commissioners were also called upon to deal with proposals which advocate
that women be held criminally liable for conduct which could injure their fetuses.’0′
They clearly rejected any call to criminalize “fetal abuse” by either endorsing a new
express legislative provision or by extending existing crimes against “persons” to in-
clude the fetus.’O
A. Direct Attempts to Criminialize Women’s Conduct During Pregnancy
The federal government has jurisdiction over criminal law 3 and, while it has used
its power to outline certain specific criminal offences which deal with intentionally
98 Watters et aL, supra note 23 at 32.
99 M. Atwood, The Handmaid’s Tale (Toronto: McClelland & Stewart, 1985). See also D. Johnsen,
“A New Threat to Pregnant Women’s Autonomy” (1987) 17:4 Hastings Center Report 33 at 36
[hereinafter “A New Threat”], who argues that the state should not “attempt to transform a pregnant
woman into an ideal baby-making machine.”
100 Quaere whether the courts would order that the conduct of potential fathers be monitored on
the basis that narcotics affect their sperm? (see Report, supra note 1 at 312, 317).
101 Throughout this paper, we have tried to retain the focus on the pregnant woman. We have tried
to find a single word which conveys a woman-first orientation in pregnancy and have been unsuc-
cessful. We therefore speak of criminalizing the woman’s conduct instead of employing such terms
as “fetal abuse”. In our view, it is important not to uncritically adopt the many examples of termi-
nology which adopt a fetus-first orientation and which invoke the emotional appeal associated with
the mother-child bond. For example, the term “prenatal” focuses attention on the fetus because its
meaning of “existing or occurring before birth” obviously relates to the fetus as subject, because the
woman is already born. See also J.E. Haningsberg, supra note 64 at 39.
102 For a review of Canadian and American authors who seek various forms of criminal liability,
see “Procreative Liberty”, supra note 18; “The Right to Procreate”, supra note 63; J.A. Robertson,
“‘Fetal Abuse’: Should we recognize it as a crime?” (1989) 75 A.B.A.J. 38; “Abuse and Neglect”,
supra note 21; J. Parness & S. Pritchard, “To Be or Not to Be: Protecting the Potentiality of Life”
(1982) 51 U. Cincinnati L. Rev. 257; The Unborn Childs Right, supra note 11; A. Dorczak,
“Unborn Child Abuse: Contemplating Legal Solution” (1991) 9:2 Can. J. Fam. L. 133. In the British
context, see P.R. Glazebrook, “What Care Must be Taken of an Unborn Baby?” (1993) 52 Cam-
bridge L.J. 20.
103 Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, s. 91(27).
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S. MARTIN & M. COLEMAN – JUDICIAL INTERVENTION
causing death during various stages of the gestational and birthing process, there is no
express criminalization of conduct which may be harmful to a fetus.” 4
However, there have been proposals by the Law Reform Commission of Canada to
expressly criminalize the conduct of pregnant women in Working Paper 58 entitled
Crimes Against the Foetus. The Law Reform Commission’s proposal of a new
crime, causing fetal harm or destruction, is a radical departure from existing law and is
not a restatement of a recognized principle.’05 In reality, the proposed crime against the
fetus involves a major rethinking and recasting of existing criminal prohibitions and
There are express prohibitions against killing during the act of birth under the Criminal Code,
R.S.C. 1985, c. C-46, such as section 238, neglecting to obtain reasonable assistance in childbirth,
or section 243, infanticide. By the express terms of the statute all these offences can be committed
by the pregnant woman and some can also be committed by third parties. Most of these offences re-
quire a high level of criminal intent. For example, a woman who fails to obtain reasonable assis-
tance during childbirth would only commit a criminal offence under section 242 if she intends by
her actions that the child shall not live. These express birth-related criminal prohibitions have rarely
been used to punish women, especially in recent years, and they do not cover or contemplate all of
the various ways in which a fetus may be injured. For an historical perspective, see C.B. Backhouse,
“Involuntary Motherhood: Abortion, Birth Control and the Law in Nineteenth Century Canada”
(1983) 3 Windsor YB. Access Just. 61. See R. v. Jacobs (1952), 105 C.C.C. 291 (Ont. Co. Ct.) –
woman acquitted because her act was not “wilful”; R. v. Smith (1976), 32 C.C.C. (2d) 224, 3 C.R.
259 (Nfld. Dist. Ct.) – woman acquitted because her act was not “wilful”; R. v. Szola (1977), 33
convicted, sentence reduced to conditional discharge from
C.C.C. (2d) 572 (Ont. C.A.) -woman
one year in jail; R. v. Dupont, [1981] C.S.P. 1055 (Que. Sup. Ct.) – woman acquitted because her
act was not “wilful”; R. v. Bourne (1938), [1939] 1 K.B. 687, [1938] 3 All E.R. 615 (H.C.J.); R. v.
Bryan (1959), 123 C.C.C. 160, [1959] O.W.N. 105 (Ont. C.A.) – woman acquitted, as death oc-
curred too long after birth (eight hours); R. v. Tutty (1986), 73 N.S.R. (2d) 387, 176 A.PR. 387
(S.C.T.D.).
105 Law Reform Commission of Canada, Crimes Against the Foetus (Working Paper 58) (Ottawa:
Law Reform Commission of Canada, 1989) [hereinafter Crimes Against the Foetus]. (Note that
only one out of five commissioners was a woman: Judge Michele Rivet.) For a synopsis of the case
against criminalization in the American context, see Note, “Matemal Rights and Fetal Wrongs: The
(1988) 101 Harv. L. Rev. 994 [hereinafter
Case Against the Criminalization of ‘Fetal Abuse’
“Maternal Rights”], where the authors evaluate the constitutionality of possible paradigms of fetal
abuse statutes.
106 The Law Reform Commissioners also suggested that their recommendation is consistent with
the approach adopted by certain American states. The Commission asserted that, at the time, Illi-
nois, Indiana, and Iowa had passed general “feticide” type statutes which restrict the unlawful kill-
ing of the fetus (Crines Against the Foetus, ibid. at 51). With the exception of Minnesota, these
provisions do not fully support the claims made by the Commission. In Illinois, the feticide provi-
sion does not apply to the pregnant woman and requires that the third party must intend to cause
death or know such acts would kill or cause great bodily harm (see Ill. Ann. Stat. ch. 38, 9-1.2
(Smith-Hurd Supp. 1987)). In Indiana and Iowa the crime of feticide is limited to prohibiting a sec-
ond trimester abortion. Although the name is different, the feticide provision involves intentionally
terminated pregnancies (see respectively Ind. Code 35-42-1-6 (1982); Iowa Code Ann. 707.7
(West Supp. 1985)). The Minnesota statute most resembles the Commission’s proposals (see Minn.
Stat. Ann. 607.266ff (West Supp. 1987)).
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signifies a profound paradigm shift in favour of the fetus.’07 Its scope is significantly
broader than that of existing prohibitions, both in relation to the persons targeted
(because it expressly engages the liability of the pregnant woman) and the conduct
prohibited (because it extends liability beyond fetal destruction to include criminal re-
sponsibility for serious harm).
The express crime proposed by the Law Reform Commission of Canada would
create two separate offences depending on who caused the destruction or serious harm
to the fetus. Harm caused by a third person would be criminalized as long as it met the
less exacting standard of criminal recklessness or negligence.’
In contrast, the crimi-
nal liability of the pregnant woman would only be triggered when she “purposely”
harmed the fetus.’0 9
107 Much of the similarity which exists between the proposal of the Law Reform Commission and
pro-fetus law journal articles is explained by the fact that the man who wrote in support of a fetus’
right to prenatal care (Keyserlingk) was also appointed as the Coordinator of the Law Reform
Commission’s Protection of Life Project and the Commission’s Foetus Status working group. Nev-
ertheless, the prohibition suggested by the Law Reform Commission of Canada does not go as far as
do the proposals of some North American writers. Some writers believe that criminal liability
should extend to harm caused intentionally and/or negligently and should encompass the failure to
receive prenatal care, not complying with doctor’s orders, and using drugs, alcohol or tobacco dur-
ing pregnancy (see e.g. “Procreative Liberty”, supra note 18 at 443). For a discussion and critique,
see M. McNulty, “The Pregnancy Police: The Health Policy and Legal Implications of Punishing
Pregnant Women for Harm to their Fetuses” (1987-88) 16 Rev. L. & Soc. Change 277 at 278. The
author argues against criminalization because it would create legal inequities to low income and mi-
nority women, laws which are ineffective to improve prenatal care or deter drug use and that are un-
constitutional violations of due process, liberty, and equal protection guarantees. Like many others,
she argues that legislation should concentrate on improving prenatal health care rather than crimi-
nalizing women’s conduct.
108 For a critique, see National Association of Women and the Law, A Response to Crimes Against
the Fetus, the Law Reform Commission of Canada’s Working Paper (Ottawa: National Association
of Women and the Law, 1989); M.L. McConnell, “Capricious, Whimsical, and Aborting Women:
Abortion as a Medical Criminal Issue (Again)” (1989-90) 3 C.J.W.L. 661; S. Noonan, “Protection
of the Foetus: Denial of the Woman” (1989-90) 3 CJ.W.L. 667. For an analysis of the criminal neg-
ligence standard of mens rea, seeR. v. Creighton, [1993] 3 S.C.R. 3, 23 C.R. (4th) 189. See also R.
v. Naglik, [1993] 3 S.C.R. 122, 23 C.R. (4th) 335, in which R. v. Creighton was applied to the
charge of failing to provide necessaries of life.
109The Law Reform Commissioners explained their decision not to criminalize the woman’s
“negligent” conduct:
unfairly in our view –
In the first place, because of the unique relationship between mother and foetus, use
here of criminal law would –
impose special burdens on her
over and above those falling on all other parties. Second, criminal law enforcement
would involve intolerable restrictions on the mother’s own autonomy, e.g., monitoring
the way she eats, drinks, smokes and so on. Third, such monitoring and restrictions
could well cause marital and familial disruption. Finally, at a time when pregnant
women’s civil liability for foetal injuries is far from resolved, it would be premature to
impose on them the still more onerous burden of criminal liability (Crimes Against the
Foetus, supra note 105 at 52).
But note that the Commissioners do not reject the idea of criminalizing negligent conduct out-
right. They merely suggest that it should not be done “at this point”.
1995]
S. MARTIN & M. COLEMAN- JUDICIAL INTERVENTION
The true breadth of the prohibition concerning maternal conduct depends on how
the term “purposely” is to be interpreted. While it requires more than negligence or
inadvertence, it is not clear what level of intent is required or whether the requisite pur-
pose must attach to the impugned act or to the resultant harm.”‘
The Royal Commission on New Reproductive Technologies rejected this proposal
because, while the Law Reform Commission of Canada may have acknowledged the
Charter rights of women in a perfunctory manner, the focus of the Law Reform
Commission was on a myopic concept of fetal “rights”, which did not yet exist.”2 The
Royal Commission on New Reproductive Technologies was not convinced that crimi-
nal liability would deter or rehabilitate pregnant women whose behaviour contravened
the proposed law.”‘ The Royal Commission also rejected attempts to indirectly crimi-
nalize women’s conduct by reading existing criminal prohibitions as covering the rela-
tionship between a woman and her fetus. Therefore, the Commission followed the
conclusion of most courts which have held that general Criminal Code prohibitions
against the intentional or negligent infliction of physical harm or death do not extend to
a fetus.”
4
B. Judicial Interpretation of Criminal Prohibitions
The courts have taken a different approach to the interpretation of criminal prohi-
bitions than they have for child welfare provisions. Under long established legal prin-
ciples, criminal sanctions receive a strict interpretation and the Criminal Code ex-
pressly defines a “human being” as someone who has completely proceeded, in a liv-
II0An example of the possible interpretation of “purposely” is found in Kenora, supra note 37,
where Bradley J. reasoned that the mother wilfully continued to drink alcohol and failed to ac-
knowledge her addiction.
IIIn fact, the level of anti-woman feeling engendered by this debate has led some people to call
for the mandatory sterilization of women addicted to drugs (see S. Boyer, ‘Time to Sterilize Ad-
dicted Mothers” Blue Bell, Pa. Observer (6 September 1989) 1 as cited in K. Moss, “Substance
Abuse During Pregnancy” (1990) 13 Harv. Women’s L.J. 278 at note 53, p. 286 [hereinafter
“Substance Abuse”]). For an example of arguments made in favour of criminalization, see B. Shel-
ley, “Maternal Substance Abuse: The Next Step in the Protection of Fetal Rights?” (1988) 92 Dick-
inson L. Rev. 691. But see C.R. Burton, “Fetal Drug or Alcohol Addiction Syndrome: A Case of
Prenatal Child Abuse?” (1989) 25 Willamette L. Rev. 223. For further critiques of the criminaliza-
tion of substance abuse by pregnant women, see Note, “Rethinking (M)otherhood: Feminist Theory
and State Regulation of Pregnancy” (1990) 103 Harv. L. Rev. 1325 [hereinafter “Rethinking
(M)otherhood”]; “A Feminist Response”, supra note 64.
112 On the practical level, the Law Reform Commission’s recommendations have been ignored
and indeed the failed legislation in Bill C-43 signalled an explication of recommendations and ori-
entation (see Bill C-43, An Act Respecting Abortion, 2nd Sess., 34th Par]., 1989).
“13 Report, supra note 1 at 958.
114 See especially Criminal Code, supra note 104, Part VIII – Offences Against the Person and
Reputation.
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ing state, from the body of its mother – whether or not it has breathed, has independ-
ent circulation, or the navel string is severed.”5
In addition, in R. v. Sullivan, a strongly worded and well reasoned decision of the
Supreme Court of Canada, the Court held that a fetus in the process of being born is
not a “person” for the purposes of a prohibition against criminal negligence causing the
death of a person.”‘6 This case involved a home birth assisted by two midwives who
were unable to complete the delivery. The delivery was effected by a physician after
the woman had been transported to a hospital, but by that time the child had asphyxi-
ated in the birth canal. The Crown alleged that the midwives’ actions amounted to
criminal negligence because their incompetence showed a wanton and reckless disre-
gard for the lives or safety of other “persons”.” 7 Two separate charges were laid against
the midwives: criminal negligence causing the death of the fetus”‘ and criminal negli-
gence causing bodily harm to the mother.”9 Both charges required that the prohibited
criminal negligence be inflicted on a “person”f. Thus, the primary issue was whether
the fetus was a “person” for the purposes of the relevant section in the Criminal Code.
The midwives argued that the terms “human being” and “person” were equivalent, that
both were defined by and premised upon live birth, and that both should therefore be
read the same way. In their view, a baby which was born dead could not be a “human
being” as defined in the Criminal Code and could not, therefore, be a “person” either.
The Court of Appeal held that the term “person” was to be interpreted by reference
to the Code’s definition of a “human being”. In doing so it expressly rejected one case
to the contrary as “in error” and reaffirmed the widespread acceptance of the “bom
alive mle”.2 The Court concluded that even a fetus in the process of being born lacked
the necessary individuality to qualify as an independent legal “person” and held that, as
a matter of law, a child in the birth canal remains part of the mother.’2’ The Court relied
upon numerous sources to support its conclusion: common law and statutory provi-
115 Ibid., s. 223(l). According to this statutory definition, before a fetus can be a human being, it
must be born alive. However, the relationship between this definition of “human being” and the use
of the term “person” or “child” in other prohibitions in the Criminal Code is problematic. The legal
obligations a woman owes to the fetus she carries will in part depend upon the interrelationship
between these provisions because if a fetus is a “person”, the woman may also be criminally liable
for conduct which is not expressly prohibited in the specific birth-related offences.
161″1991] 1 S.C.R. 489, 3 C.R. (4th) 277 [hereinafter Sullivan cited to S.C.R.]. For a comment see
S.N. Frost, Case Comment on R. v. Sullivan (1989-90) 3 CJ.W.L. 563; L. Smith, “An Equality ap-
proach to Reproductive Choice: R. v. Sullivan” (1991) 4 Yale J. L. & Feminism 93; M. Shaffer, “R.
v. Sullivan andLemay: A Case Comment” (1991) 36 McGill L.J. 1369.
117 Criminal negligence is defined in the Criminal Code, supra note 104, s. 219.
118 Ibid., s. 220.
9 biL, s. 221.
120 The case was R. v. Marsh (1979), 31 C.R. (3d) 363, 2 C.C.C. (3d) 1 (B.C. Co. Ct.) [hereinafter
Marsh]. It involved a charge of criminal negligence causing death to a “person” where a fetus in the
process of being born suffered a cerebral hemorrhage and was born dead.
12tR. v. Sullivan (1988), 31 B.C.L.R. (2d) 145, 65 C.R. (3d) 256 at 271 (B.C.C.A.) [hereinafter
Sullivan (C.A.) cited to C.R.].
S. MARTIN & M. COLEMAN – JUDICIAL INTERVENTION
19951
sions in Canada and England which require complete live birth as the test for the law of
homicide; the holding of the United States Supreme Court in Roe v. Wade that the un-
bom fetus was not a person for the purposes of the fourteenth amendment of their
constitution; and civil cases which tie legal personhood to live birth . The Supreme
Court of Canada held that a fetus is not a person for the purposes of sections 220 and
221 of the Criminal Code and strongly affirmed the “born alive rule”‘2′ and acquitted
the midwives of criminal negligence causing death to the fetus. This holding foreshad-
owed, albeit in the criminal context, the Court’s conclusion in Tremblay v. DaigleU4
that an unborn fetus had no separate legal rights under the Quebec Charter of Human
Rights and Freedoms, 25 the civil law, or the common law.
R. v. Sullivan merely reaffirms the traditional position that legal personhood vests
at birth. Although the case deals with the relationship between a fetus, a “human be-
ing”, and a “person” under criminal law, its reasoning and result can be invoked to pre-
vent the creation of new legal obligations for pregnant women in similar cases. For ex-
ample, subsection 215(1) of the Criminal Code makes it a crime for a parent to fail to
provide the necessaries of life to a “child” under the age of sixteen years. The term
“child” is not expressly defined in a manner that excludes the fetus. 126 This raises the
question as to whether certain conduct on the part of the pregnant woman may be
criminal if it falls below the legally imposed norm. The holding in R. v. Sullivan sug-
gests that general criminal provisions will not and cannot be extended to indirectly
criminalize the conduct of pregnant women which impacts upon their fetuses.
While the “born alive rule” prevents most attempts to indirectly criminalize the
conduct of pregnant women, it does not totally preclude criminal charges against preg-
nant women. If the fetus is born alive and subsequently dies, a “person” and “human
being” has come into existence. In R. v. Prince,127 a case in which a third party stabbed
a woman who was six months pregnant, the accused was convicted of attempted mur-
der of the woman and manslaughter of the child, under subsection 223(2) of the Crimi-
nal Code, because the fetus had been born alive but died a few minutes later. Although
there are no reported cases in which section 223(2) has been used against the pregnant
woman herself, the provision appears to be sufficiently wide to include activities dur-
ing pregnancy which result in the death of a born alive child.” A distinction may de-
velop, however, based upon who caused the harm, such that third parties would be in-
Sullivan, supra note 116 at 505-506.
122 Ibid. at 260-67.
124 [1989] 2 S.C.R. 530,62 D.L.R. (4th) 634.
125 R.S.Q. c. C-12.
126 In different sections, “child” is used in different ways (see Criminal Code, supra note 104, ss.
223(2), 218).
127 [1986] 2 S.C.R. 480, 33 D.L.R. (4th) 724 [hereinafter Prince].
128 A search of reported cases reveals that only third parties, and not the pregnant woman, have
been charged under this section (see Marsh, supra note 120, involving a physician; Sullivan, supra
note 116, involving midwives; Prince, ibid., involving a third party). See also M. Curriden,
“Holding Mom Accountable” (1990) 76 A.B.A.J. 50 at 53.
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cluded or held to a more exacting standard.’2 9
Sentencing is also a means by which a woman’s conduct during pregnancy has
been indirectly criminalized. In her study and report to the Royal Commission,’3″
Sanda Rodgers explains the case of R. v. MacKenzie:?3
In the only case in which the sentence imposed on a woman was specifically
varied on account of her pregnancy, Judge Hogg of the Ontario Provintial
Court sentenced a young woman to 60 days in prison on a charge of communi-
cating for the purposes of prostitution and of failing to appear. She had pleaded
guilty to the charge. The sentence that was imposed was well outside that nor-
mally imposed in such matters, and Judge Hogg denied counsel’s request that
she be allowed to serve her sentence on weekends. The young woman, preg-
nant, also had a four-year-old child at home. She had primary responsibility for
the care of the child and informed the court that she was seeking employment.
In the view of the judge, Ms. MacKenzie deserved incarceration, and in-
carceration provided a more appropriate environment within which to give
birth. No apparent attention was paid to the four-year-old child at home.’
Other types of general criminal prohibitions, mostly drug-related offences, have
been invoked against pregnant women in the United States. “‘ For example, a Florida
129See R. v. Severight (1993), 154 A.R. 51, 31 C.R. (4th) 45 (Prov. Ct.).
130 S. Rodgers, “Juridical Interference with Gestation and Birth” in Research Studies of the Royal
Commission on New Reproductive Technologies, Legal and Ethical Issues in New Reproductive
Technologies: Pregnadcy and Parenthood, vol. 4 (Ottawa: Minister of Supply and Services Canada,
1993) 457.
131 R. v. MacKenzie (3 August 1988), file number and district unavailable (Ont. Prov. Ct.), dis-
cussed in Dawson, supra note 57 at 269-71.
132Rodgers, supra note 130 at 45-46.
,3See PA. Sexton, “Imposing Criminal Sanctions on Pregnant Drug Users: Throwing the Baby
Out With the Bath Water” (1993) 32 Washburn L.J. 410 at 410-11. It is undeniable that drug abuse
during pregnancy is a problem, but these stories and prosecutions have reinforced the view of bad
and abusive mothers and the existence of mother-fetal conflict. See Cracking Down (60 Minutes,
CBS television broadcast, 27 November 1994) which told the story of how one city and hospital are
dealing with this problem. The hospital implemented a policy whereby it administered drug tests to
pregnant women and turned the women over to police if they tested positive. The women, when
they checked in, had to sign consent forms which said that they would stop using cocaine and that,
if they continued, they could be prosecuted. This issue was looked into by Lynn Paltrow, an attorney
who works for the Center for Reproductive Law and Policy in New York. She intervened and the
hospital has since terminated this policy upon threat of losing federal funding. She noted how this
was the only hospital in the area where this policy was in place and its clientele were 90 per cent
African-American. Ms. Paltrow has since filed suit against the hospital for six plaintiffs, five of
whom are African-Americans. Days or hours after delivery of their babies, these women were taken
from their hospital beds, handcuffed, and sent to jail (J. Furio, “Women Fight Civil Rights Abuse in
South Carolina” (1994) 5:3 Ms. 93).
S. MARTIN & M. COLEMAN – JUDICIAL INTERVENTION
woman was sentenced to fifteen years for unlawfully providing drugs to a minor.I1
The prosecutors argued that the wrongful delivery Was done through the umbilical cord
after the baby had been born alive, but before the cord had been severed (a claim con-
sistent with the “born alive rule”).’35 It is not impossible to imagine similar arguments
being raised in Canada under the general prohibition against trafficking in restricted
substances contained in the Narcotic ControlAct.’36
While convictions for drug trafficking to a fetus have also been overturned, 31 7 and
women who contested their arrest for drug use during pregnancy were not convicted, 38
the threat of criminal sanction and state coercion persists. Furthermore, because the
134 Jennifer Johnson v. State, No. 89-1765 (Fla. Dist. Ct. App. 1989) as cited in “Substance
Abuse”, supra note 111 at 280. D.E. Roberts, “Drug-Addicted Women Who Have Babies” (1990)
26:4 Trial 56, states that about 35 so-called “fetal abuse” cases have been brought nation-wide and
that judges have sentenced pregnant drug addicts charged with unrelated crimes to prison sentences
as in United States v. Vaughn, Crim. No. F 2172-88B (D.C. Sup. Ct. 1988). See P. Marcotle, “Crime
& Pregnancy: Prosecutors, New Drug Laws, Torts Pit Mom against Baby” (1989) 75 A.B.A.J. 14.
“35 “Substance Abuse”, ibid. at 281ff. There are many grounds of appeal. First, the derivative of
cocaine to which the baby was exposed was not within the statutory definition of a controlled sub-
stance. Second, there was no proof the drug passed after birth and not before it. The state conceded
that the woman could not be prosecuted for conduct that affected the fetus in utero. Third, she
lacked the requisite criminal intent. Fourth, “delivery” should not be read to include the transfer of
chemicals through an umbilical cord and imposing liability through this novel construction would
effectively impose an ex post facto liability law. Fifth, the conviction violated her autonomy interest
in relation to reproduction-related decision-making because the Court’s rationale requires a pregnant
addict who is unable to overcome her addiction either to have an abortion or face criminal prosecu-
tion. It is interesting to note that the accused in this case, in an attempt to obtain the best medical
care she could for her fetus, was open with her doctors about her drug use, sought prenatal care and
drug treatment, and was cooperative with medical and legal personnel after the birth of her children.
In Johnson v. State, 578 So.2d 419 (Fla. Dist. Ct. App. 1991), the trial decision was affirmed by a
two to one margin. Sharp J., in dissent, supported her interpretation of the legislation with the fact
that the legislature had considered and rejected specific statutory provisions authorizing criminal
penalties against women who gave birth to drug-affected children. She was impressed by the argu-
ment that criminal charges would drive pregnant women to seek abortions or to avoid medical care.
The Florida Supreme Court, in Johnson v. State, 602 So.2d 1288 (Fla. Sup. Ct. 1992), overturned
the convictions against Ms. Johnson. The Supreme Court adopted the dissent of Sharp J. of the Dis-
trict Court of Appeals, noting that criminal statutes were to be strictly construed, and that where
ambiguous, interpretation should be resolved in favour of the accused (ibid. at 1290). The Court
also noted that no other jurisdictions have upheld convictions of pregnant women for delivery of
narcotics to the fetus through the umbilical cord (ibid. at 1297).
136 R.S.C. 1985, c. N-1, s. 4(1) reads: “No person shall traffic in a narcotic or any substance repre-
sented or held out by the person to be a narcotic.” “Traffic”, in the Narcotic Control Act, s. 2, is de-
fined as meaning:
to manufacture, sell, give, administer, transport, send deliver or distribute, or
(a)
(b) to offer to do anything referred to in paragraph (a).
137 Welch, supra note 63; Gray, supra note 63, as cited in “States Cannot Punish Pregnant Women
for ‘Fetal Abuse’ Courts Say” (1992) 28:5 Trial 11.
138 T. Lewin, “Drug Verdict Over Infants is Voided” The New York 7Thes (24 July 1992) B6, as
cited in “Code of Perfect Pregnancy”, supra note 74 at 1267-68. See also People v. Hardy, 469
N.W.2d 50 (Mich. Ct. App. 1991).
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[Vol. 40
policy objectives behind criminalization are suspect’39 and because such coercive
mechanisms are disproportionately invoked against minority women, 40 the question
arises as to the number of women who actually avoid treatment because they fear po-
tential liability. 14′
Even if the wording of a particular prohibition may allow the assimilation of an
unborn fetus to the position of a born child, the court must consider whether the pur-
pose of the provision was to criminalize the conduct of pregnant women. The absence
of any specific legislative intention to target pregnant women was a key factor in one
well-publicized American case. Pamela Rae Stewart was charged under a section sub-
stantially similar to section 215 of our Criminal Code but which expressly included the
139 “Code of Perfect Pregnancy”, ibid. However, Kary Moss posits that the welfare of these
women and their children is not the “driving force behind the hospital and prosecutorial policy”
(K.L. Moss, “Forced Drug or Alcohol Treatment for Pregnant and Postpartum Women: Part of the
Solution or Part of the Problem?” (1991) 17 New Eng. J. Crim. & Civ. Confinement 1 at 15). She
cites as examples the following:
One woman, … was released four days after having had a caesarean section, although
she had a 104 degree temperature and was still in enormous pain from her surgery.
Several hours after her release, two policemen arrived at her hotel room and told her
she was under arrest for criminal child neglect. They took her to the police precinct
where she was released on bond. Although no one asked specifically if she had used
cocaine, the officers should have offered her drug treatment if they believed she was an
addict. No such offer was made. Police also arrested an African-American woman,
who had experienced false labour, while she was still in the hospital. She was hand-
cuffed and led out of the building in her hospital gown. Authorities placed her in jail
for three weeks, during which time she delivered her baby. Although she received pre-
natal care, no drug treatment was provided (ibid. at 15).
140 American researchers have found in a recent study that a higher percentage of white women
than African-American women test positive for alcohol and illicit drugs during pregnancy, yet Afri-
can-American women are approximately ten times more likely to be reported to state officials (I.J.
Chasnoff, H.J. Landress & M.E. Barrett, “The Prevalence of Illicit Drug or Alcohol Use During
Pregnancy and Discrepancies in Mandatory Reporting in Pinellas County, Florida” (1990) 322 New
Eng. J. Medicine 1202 at 1204, as cited in D.J. Krauss, “Regulating Women’s Bodies: The Adverse
Effect of Fetal Rights Theory on Childbirth Decisions and Women of Color” (1991) 26 Harv Civil
Rights-Civil Liberties L. Rev. 523 at 527). For a full discussion of the effects of intervention in
pregnancy on women of colour, see Krauss, ibid.
141See W. Chavkin, M.H. Allen & M. Oberman, “Drug Abuse and Pregnancy: Some Questions
on Public Policy, Clinical Management, and Maternal and Fetal Rights” (1991) 18 Birth 107 at 111,
as cited in Sexton, supra note 133 at 420, who note that following the filing of criminal charges
against 18 women who allegedly consumed illegal drugs during pregnancy, healthcare providers in
the state reported “a rise in the number of women giving birth at home, in taxis, and in bathrooms.”
In Massachusetts, a judge, in refusing to convict a pregnant woman for distributing cocaine to her
fetus, noted that prosecution will cause more women to terminate their pregnancies (Coninonweallh
v. Pellegrini, Crim. No. 87970 (Plymouth Sup. Ct., 15 October 1990) as cited in Krauss, ibid. at
540). It was reported on Cracking Down, supra at 133, that both the A.M.A. and the A.N.A. have
issued statements agreeing that coercion and prosecution prevents women from seeking prenatal
care. See also J. Berrien, “Pregnancy and Drug Use: the Dangerous and Unequal Use of Punitive
Measures” (1990) 2 Yale J. L. & Feminism 239 at 247.
1995]
S. MARTIN & M. COLEMAN – JUDICIAL INTERVENTION
.142
unbomfetu witin is
unborn fetus within its protection. The mother was charged with failure to summon
medical treatment when she began to hemorrhage on the date of her delivery, taking
illegal drugs during the pregnancy, having sexual intercourse with her husband, and
failing to follow doctor’s orders.14 The Court dismissed the charges because the pro-
hibition was part of a statute which was intended to provide an enforcement mecha-
nism for child support payments. Even though the statute expressly included fetuses
and the wording of the provision was arguably wide enough to bear the interpretation
contended for, the Court held that the provision could not be used in this alternative
and attenuated way.
This case reinforces the conclusion of the Canadian courts and illustrates many of
the problems which would result from the criminalization of a woman’s conduct dur-
ing pregnancy. For example, in the course of the hearing, intimate details of the
woman’s life and pregnancy were revealed and her actions and motives were subjected
to intrusive and rigorous public scrutiny. Such a complete and devastating invasion of a
person’s privacy has equality implications. The case illustrates the extent to which cer-
tain public officials sought to apply available sanctions, including imprisonment, and
stands as a dramatic example of the Royal Commission’s concerns. The Commission
rejected an application of general criminal law statutes outside their original purpose
and beyond their clear intention.'”
The refusal by Canadian courts to find novel crimes in existing provisions affirms
that judicial powers of interpretation, as wide as they may be, cannot replace the legis-
lative function. Furthermore, the Royal Commission on New Reproductive Technolo-
gies stated that even legislated crimes should not be imposed.1 45 There appears to be a
recognition on the part of both courts and the Royal Commission that such crimes can
only be applied to the unique circumstances of a totally dependent and physically con-
nected fetus, at the expense of the fully capacitated women. The imposition of fresh le-
gal obligations, especially when supported by criminal law penalties, is properly a
matter for express regulation, public debate, adequate forewarning, and ultimately
142 People v. Pamela Rae Stewart, No. M 508197 (San Diego Mun. Ct. 1987). For a discussion
see “Substance Abuse”, supra note 111; Kahn, supra note 61. The author argues that granting fetal
rights in tort and criminal law results in unacceptable statism and entails a deprivation of a pregnant
woman’s constitutional rights to privacy, autonomy, and bodily integrity. See also L.A. Schott, “The
Pamela Rae Stewart Case and Fetal Harm: Prosecution or Prevention?” (1988) 11 Harv. Women’s
LJ. 227.
143 See “A New Threat”, supra note 99 at 34.
144 See L. Paltrow, “‘Fetal Abuse’: Should we recognize it as a crime?” (1989) 75 A.B.A.J. 39,
who is counsel for the A.C.L.U. Reproductive Freedom Project and argues that recognizing “fetal
abuse” moves us toward criminalizing pregnancy itself because no woman can provide the perfect
womb. She argues that the threat of criminal liability will constitute a disincentive to providing ac-
curate medical information and, by forcing women away from care, would be counter-productive to
the state interest of protecting women’s health and fetal well-being. See also R.J. Cook, “Anti Pro-
gestin Drugs: Medical and Legal Issues” (1989) 21 Family Planning Perspective 267.
45 Report, supra note 1 at 964.
MCGILL LAW JOURNAL/REVUE DE DROITDE MCGILL
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Charter challenge.
4
1
IV. Civil Liability for Women’s Conduct During Pregnancy
The Royal Commission also concluded that civil liability should not be imposed
on pregnant women for harm done to their fetuses. 47 While established tort principles
allow a bom alive child to recover for injuries sustained in utero,’4′ successful actions
have all been taken against third party defendants. 49 These cases establish that a fetus
Appeal in Sullivan (C.A.), supra note 121 at 271.
146 For example, see the comments in the per curiam judgment of the British Columbia Court of
147 Report, supra note 1 at 964. There are, however, no reported cases in Canada in which a child
has sued its mother for losses allegedly caused by her conduct during pregnancy. In the United
States, there are only two reported cases where a child successfully sued its mother (Grodin v.
Grodin, 301 N.W.2d 869 (Mich. Ct. App. 1981); Bonte v. Bonte, 616 A.2d 464 (N.H. Sup. Ct.
1992), in which the New Hampshire Supreme Court held three to two that because a child born
alive may sue a third party for injuries sustained in utero, and a child may sue his or her parent in
negligence, it follows that a child born alive can maintain a cause of action in tort against his or her
mother for the mother’s tortious conduct causing prenatal injury. Recently, in Stallinan v.
Youngquist, 531 N.E.2d 355 (Ill. Sup. Ct. 1988), the Supreme Court of Illinois “concluded that a
pregnant woman’s interest in privacy and bodily integrity, as well as the difficulty in establishing a
consistent or just standard of “reasonable” prenatal care, militated against recognizing a fetus’ right
to sue its mother for the unintentional infliction of prenatal injuries” (“Recent Cases” (1990) 103
Harv. L. Rev. 823).
148 In the United States, several states allow claims for wrongful death by a viable fetus (see
Dorczak, supra note 102 at 142). Moreover, courts in a handful of states have allowed claims for
preconception torts committed by third parties which result in injuries to subsequently born children
(Walker v. Rinck, 604 N.E.2d 591 (Ind. Sup. Ct. 1992); Renslow v. Mennonite Hospital, 367 N.E.2d
1250 (Il1. Sup. Ct. 1977); Bergstresser v. Mitchell, 577 F.2d 22 (8th Cir. 1978); Monusko v. Postle,
437 N.W.2d 367 (Mich Ct. App. 1989)). For a review of the case law, see Hegyes v. Unjian Enter-
prises Inc., 286 Cal. Rptr. 85 (Cal. App. 1991). In this case, the Court held two to one that a cause of
action for damages sustained by an infant as a result of the defendant’s preconception negligence
will lie only where there is a special relationship between the defendant and the infant’s mother,
giving rise to a duty of care.
149 These third party suits help reinforce a woman’s bodily integrity by providing an additional
deterrent to negligent intrusions on her body. They should not be used as precedent for principles
which would detract from that integrity (see Duval v. Siguin (1972), 2 O.R. 686,26 D.L.R. (3d) 418
(H.CJ.); Montreal Tramways Co. v. Liveilld, [1933] S.C.R. 456, 4 D.L.R. 337; Steeves v. Fitzsin-
mons (1975), 11 O.R. (2d) 387, 66 D.L.R. (3d) 203 (H.C.J.), where the Court stated that the plaintiff
must be born alive to recover; Smith v. Fox (1922), 53 O.L.R. 54, [1923] 3 D.L.R. 785, (Sup. Ct.);
Garland v. Rowsell (1990), 73 O.R. (2d) 280 (Dist. Ct.), in which the Court disallowed a claim on
behalf of a woman’s “child” because it was not yet conceived at the time of the accident; Arndt v.
Smith (1994), 93 B.C.L.R. (2d) 220, [1994] 8 W.W.R. 568 (B.C.S.C.), where Hutchison J. held that
“there is no viable suit in this province for “wrongful life”, i.e. a claim by a person born with dis-
abilities asserting that he or she “should not have been born at all.” For cases determining whether
the fetus qualifies under legislation which confers certain statutory benefits, see Fitzsimnonds v.
Royal Insurance Co. of Canada (1984), 7 D.L.R. (4th) 406, 2 W.W.R. 762 (Alta. C.A.); Giddings v.
Canadian Northern Railway Co. (1920), 53 D.L.R. 3 at 9, 2 W.W.R. 849 (Sask. C.A.); Chapinan v.
Canadian National Railway Co., [1943] 52 O.W.N. ’47, [1943] 2 D.L.R. 98 (H.C.J.), where the
Court held that the term “dependent” in the Ontario Workmen’s Compensation Act, R.S.O. 1970, c.
S. MARTIN & M. COLEMAN – JUDICIAL INTERVENTION
1995]
can be a foreseeable plaintiff and can be the beneficiary of a duty of care in certain cir-
cumstances.5 Following such reasoning, a fetus would also be a foreseeable plaintiff
to the pregnant woman because she ought reasonably to contemplate that her actions
could affect it.
Even if the foreseeability test is met, the next question is whether there are policy
reasons for not imposing a duty of care. 5′ The starting point for the public policy
analysis must be the unique relationship between a woman and the fetus she carries.
However, the complete dependency of the fetus on the pregnant woman has the poten-
tial to either support or contradict the recognition and enforcement of a legal duty of
care.
Proponents of the imposition of tort liability on the mother’52 believe that all
wrongdoers should pay compensation for injuries they cause”‘ and that such a com-
505, included a “child en ventre sa mere” at the time of the injury to the worker; Seed v. Delhey
(1989), 70 O.R. (2d) 692 (H.C.J.); Seede v. Camco Inc. (1985), 50 O.R. (2d) 218, 50 C.P.C. 78
(S.C.), appeal refused (1986), 55 O.R. (2d) 352 m (S.C.C.); Maclssaac v. Smith (1987), 58 O.R.
(2d) 289, 35 D.L.R. (4th) 451 (H.C.J.), where an application to include a grandchild within the term
“dependant” of the Family Law Reform Act, R.S.O. 1980, c. 152, who was not conceived or born at
the time of the accident was dismissed. Contra: McCartney v. Andrews, [1987] O.J. No. 1092
(H.C.J.) (QL).
1.o For articles on the topic, see A. Samuels, “Injuries to Unborn Children” (1974) 12 Alta. L. Rev.
266; D.A. Gordon, “The Unborn Plaintiff” (1965) 63 Michigan L. Rev. 579; P.A. Lovell & R.H.
Griffith-Jones, “‘The Sins of the Father’ – Tort Liability for Pre-Natal Injuries” (1974) 90 L.Q.
Rev. 531; P.H. Winfield, “The Unborn Child” (1942) 4 U.T.L.J. 278.
1 Foreseeability and proximity are not a sufficient basis on which to impose a legal duty of care.
See Home Office v. Dorset Yacht Co., [1970] A.C. 1004, [1970] 2 All E.R. 294 (H.L.) [hereinafter
cited to A.C.], for the proposition that there may be public policy reasons why a duty of care should
not be imposed in a given case. On the other hand, a “special relationship” may warrant imposition
of a duty of care (ibid, at 1037-39).
152 See The Unborn Child’s Right, supra note 11; “Procreative Liberty”, supra note 18; H.B. Rob-
ertson, “Toward Rational Boundaries of Tort Liability for Injury to the Unborn: Prenatal Injuries,
Preconception Injuries Wrongful Life” (1978) Duke L.J. 1401; “Abuse and Neglect”, supra note 21.
For an endorsement of such a tort under American jurisprudence, see R. Beal, “‘Can I Sue
Mommy?’ An Analysis of a Woman’s Tort Liability for Prenatal Injuries to her Child Born Alive”
(1984) 21 San Diego L. Rev. 325. See also M. Shaw, “The Potential Plaintiff: Preconception and
Prenatal Torts” in A. Milunsky & G. Annas, eds., Genetics and the Law 1I (New York: Plenum,
1980) 225; M. Shaw, “Conditional Prospective Rights of the Fetus” (1984) 5 J. Legal Medicine 63,
who argues that parents may be liable for wrongful life claims by their children if they fail to moni-
tor and abort fetuses which might suffer from environmentally or genetically produced abnormali-
ties. For a review of these issues, see B. Dickens, “Wrongful Birth and Life, Wrongful Death Before
Birth and Wrongful Law” in S. McLean, ed., Legal Issues in Human Reproduction (Aldershot:
Gowe, 1989) 80. See also S.R. Weinberg, “A Matemal Duty to Protect Fetal Health?” (1983) 58
Indiana L.J. 531; Dorczak, supra note 102 at 142-45; Glazebrook, supra note 102.
153 See “Procreative Liberty”, ibid. at 439-42. See also C.A. Simon, “Parental Liability for Prena-
tal Injury” (1978) 14 Columbia J. L. & Soc. Probs. 47. These authors cite the erosion of the parental
immunity doctrine as support for the woman’s liability without acknowledging that the woman-fetus
relationship is different from the mother-child one because of the fetus’ complete physical depend-
ence.
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pensatory obligation would encourage women to abide by the “legal duties” they owe
their fetuses. Some argue that this tort liability would catch any harm caused to fetuses,
whether they are born alive or as a result of a claim for wrongful death.’54
Others, however, suggest that pregnant women should not be stigmatized as
wrongdoers and treated as tortfeasors for their conduct during pregnancy.’ The ma-
jority of the Royal Commissioners could not justify restricting the liberty of pregnant
women which would follow from the imposition of a duty of care. They agreed with
those who claimed that any such duty would be so intrusive, complete, and limiting as
to be oppressive.”‘ Although civil liability may initially appear less extreme than
criminal liability, its potential scope is much broader and the behaviour it encompasses
much wider.5 7 The invasiveness of tort-based responsibilities is demonstrated by the
extent of the liability proposed and the behaviour which has been suggested as negli-
gent, such as: 5 taking non-prescription or illegal drugs; using alcohol or tobacco; not
following doctor’s orders; taking prescription drugs where the benefit to the woman
does not clearly outweigh the potential detriment to the fetus; contracting a disease
which may harm the fetus; failing to eat properly; and exposure to workplace haz-
ards.
59
Establishing when a tort duty arises also underscores the invasiveness of such a
duty. If the goal is to prevent avoidable in utero injury, existing medical knowledge
suggests that the greatest danger of inducing genital malformations to the fetus is dur-
ing the first trimester –
a time when many women will not even be aware they are
pregnant. If one accepts the stereotype that all women desire to have a child at some
point in their lives, is it reasonably foreseeable that the way in which a woman treats
her body anytime after puberty could ultimately injure a future child? Even if a duty of
care only commences after conception, must she actually know she is pregnant, or will
the duty start from the time the pregnancy should have been diagnosed by a reasonable
154 Such an action would give the father the ability to sue the pregnant woman for loss of compan-
ionship because the fetus never became his child. An action on behalf of the fetus itself is less likely
considering the current state of jurisprudence on wrongful death in Canada (see T.A. Borowski Jr.,
“No Liability for the Wrongful Death of Unborn Children – The Florida Legislature Refuses to
Protect the Unborn” (1988) 16 Florida State L. Rev. 835, who argues for the creation of a statutory
wrongful death action in the United States).
155 See “Rethinking (M)otherhood”, supra note 111; Hanigsberg, supra note 64.
156 “A New Threat”, supra note 99.
M A tort action would require only that there is a failure to conform to the civil standard of care
which ought to have been exercised by a reasonable person. The criminal standard of negligence re-
quires more and often calls for wilfulness. In addition, the burden of proof is different in each case.
158 According to the Royal Commission, the potential for curtailing women’s behaviour is ” stag-
gering” (Report, supra note 1 at 958).
159A great deal has been written recently on the topic of workplace toxicity and pregnant women
(see e.g. K. Swinton, “Accommodating Women in the Workplace: Reproductive Hazards and Sen-
iority Systems” (1992) 1 Can. Lab. L.J. 217; C. Peters, “Excluding Women from the Toxic Work-
place: Genuine Fetal Protection or Impermissible Discrimination?” (1991) 49 U.T. Fac. L. Rev. 68).
For the situation in the United States, see International Union v. Johnson Controls Inc., 499 U.S.
187, 111 S.Ct. 1196, (1991).
1995]
S. MARTIN & M. COLEMAN- JUDICIAL INTERVENTION
woman? As with other determinations involving a duty of care and the standard of rea-
sonable conduct, the focus is on generally accepted norms, rather than on the individ-
ual woman. The knowledge a reasonable woman would be deemed to have and the ef-
fects of her conduct on the fetus she carries would then become highly relevant inquir-
ies. Accordingly, the woman loses the benefit of a truly individual standard, which
would incorporate her personal situation and acknowledge her autonomy.
V. The One Dissenting Opinion
As the foregoing discussion illustrates, the majority of Royal Commissioners re-
jected many types of intrusive, short-term attempts at regulation which disregard the
rights and interests of women; they favoured a comprehensive policy which places fe-
tal health in its larger social context. This approach also allows the complexity of the
problems to be addressed, including consideration of discrimination, poverty, sub-
stance abuse, and violence. However, not all members of the Commission endorsed
these conclusions. While Commissioner Suzanne Rozell Scorsone accepted the need
for increased education and service, ‘6 she argued that judicial intervention may serve
the best interests of women.16! Nevertheless, she failed to address the issue of discrimi-
nation towards women in the Canadian court system 62 and to explain why pregnant
women subjected to judicial intervention are often among the most disadvantaged
members of society. 13
She also argued that women should not be given what she calls “special treatment”
for fear of “calling into question the equality of men and women before the law.”‘ 64 Her
dissent suggested that the majority view endorsed a form of special treatment of
women, rather than merely establishing women’s equal right to refuse medical treat-
ment.’ 65 Her argument suggests that she has not fully grasped the approach the Su-
160 Report, supra note 1 at 1064.
161 Ibid.
162 Ibid. at 1064. The findings outlined in the Report on Gender Equality in the Legal Profession,
Touchstones for Change: Equality, Diversity and Accountability (Ottawa: Canadian Bar Associa-
tion, 1993) at 261-62, are instructive. The Report states: “These reports emphasize the diversity of
women’s experience in the justice system and the ways in which women of colour, aboriginal
women, lesbians and women with disabilities face multiple discrimination in the law.”
163 A recent American study shows that of the pregnant women subjected to forced obstetrical in-
tervention, 81 per cent were black, Asian, or Hispanic; 44 per cent were unmarried; 24 per cent had
a non-English mother tongue; and all of them were on some form of social assistance (see Grant,
supra note 22 at note 71, pp. 251-52, quoting from Kolder, Gallagher & Parsons, supra note 68 at
1193).
164 Report, supra note 1 at 1064.
165 Intervention in pregnancy is fundamentally different from other forms of medical or social in-
tervention in that it can only be imposed upon women, and the imposition is based on goals and
ideals specifically directed at women. To hold that women are not so different from men in their es-
sence or before the law is also absurd. Laws to protect the fetus and intervention in the name of fetal
protection are specifically directed at women and not at men.
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preme Court has taken in equality matters. In Brooks v. Canada Safeway Ltd.,'” the
Supreme Court established that discrimination on the basis of pregnancy is discrimina-
tion on the basis of sex, even though only women have the capacity to become preg-
nant. Dickson C.J. stated:
That those who bear children and benefit society as a whole thereby should not
be economically or socially disadvantaged seems to bespeak the obvious. It is
only women who bear children; no man can become pregnant. As I argued
earlier, it is unfair to impose all of the costs of pregnancy upon one half of the
population. It is difficult to conceive that distinctions or discriminations based
upon pregnancy could ever be regarded as other than discrimination based
upon sex, or that restrictive statutory conditions applicable only to pregnant
women did not discriminate against them as women.’ 67
Thus, the majority of Commissioners acted upon the Supreme Court’s clear recogni-
tion that, in relation to pregnancy, women are different from men, and that laws aimed
at pregnant women have the potential to be discriminatory.
Commissioner Scorsone argued for an individual assessment of each case and ar-
gued that a particular woman’s situation should not be influenced by an approach to
equality which the woman may not explicitly embrace. Commissioner Scorsone be-
lieves such an approach would transform the woman into a means to an end. For her to
invoke this language is highly ironic because many argue that it is judicial intervention,
not its absence, which forces women into being a means to an end; that is, a woman
being treated as a vessel to produce a healthy child.”” Furthermore, she infers that oth-
ers, perhaps the fetus, the family, the father, or the woman’s partner, should have some
say in the resolution of the situation.
The dissenting Commissioner misapplies equality principles and, by requiring a ra-
tional and “objective assessment” of the woman’s situation, fails to see women as persons
with full constitutional rights. Moreover, the majority does not mandate a predetermined
policy, but would allow individual women a full range of choice in how they manage their
pregnancies. Women are free to defend the rights of their fetus; they are free to undergo a
caesarean by choice; and they are free to choose treatments which will assist the birth of a
healthy child. The majority simply refused to impose these obligations on women, in the
absence of any basis in law or in ethics for one to be forced to undergo medical treatment
for the sake of another. Her reasoning is also disconcerting because it suggests that, in many
situations, the interests of the fetus are paramount to the rights of the woman. Her proposal
therefore undermines the equality and autonomy of women and is inconsistent with the Su-
preme Court’s decision in Tremblay v. Daigle.”9
166[1989] 1 S.C.R. 1219, 59 D.L.R. (4th) 321 [hereinafter cited to S.C.R.].
167 Ibid at 1243-44. See also R. v. Morgentaler, [1988] 1 S.C.R. 30 at 171, 44 D.L.R. (4th) 385
(Wilson J.).
For a thorough discussion, see “Code of Perfect Pregnancy”, supra note 74.
169For a discussion, see D. Greschner, “Abortion and Democracy for Women: A Critique of
Tremblay v. Daigle” (1990) 35 McGill L.J. 633.
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S. MARTIN & M. COLEMAN – JUDICIAL INTERVENTION
VI. Rationalizing Intervention: The Creation of Fetal Rights and Constructing
Maternal-Fetal Conflicts
The different conclusions arrived at by the Commission’s majority and by the dis-
sent can best be explained by whether a rights-conflict model between pregnant
women and the fetuses they carry was rejected (majority) or accepted (dissent).’ 70 His-
torically, the legal systems in Canada, the United States, and Britain have treated the
fetus as part of the pregnant woman and-have afforded it no rights as a separate en-
tity. ‘ Where necessary, a few exceptions to this general principle were created to pro-
tect the rights of a born individual, but they did not threaten the legal status of a preg-
nant woman or jeopardize the full enjoyment of her vested rights. 7
1 Just as the preg-
nant woman was the physical custodian and nurturer of the fetus, she was the legal de-
cision-maker and sole rights-bearer. It was assumed that the mother and fetus consti-
tuted a unit whose legal interests were co-existent.’73
In recent years, in what has been described as a “dangerous conceptual move”,
claims for independent fetal “rights”, including constitutional rights, have been
made.’74 Proponents of fetal rights contend that these rights should vest in utero, gen-
erally at the time of conception, and should no longer be contingent on live birth.’75
170 In her final paragraph, Commissioner Scorsone stated that questions of the existence or
non-existence of independent legal or constitutional rights of the fetus are irrelevant to the issue but
suggested “[t]he state has been declared by the Supreme Court of Canada to have an interest in the
fetus, which means that this interest must have some possibility and venue of exercise” (Report, su-
pra note 1 at 1146), even though the position of the Supreme Court of Canada in R. v. Morgentaler,
supra note 167, is clear. She seemed to be arguing that, in general, women are protected from
non-consensual intervention so that we should not have to worry about such incidents. A short
reading of the case law and analysis in Canada and the United States will show how well this pro-
tection from non-consensual intervention is working. In this paragraph, Commissioner Scorsone
seemed to have missed the point of the Royal Commission’s recommendations.
171 In Canada, see C. Tolton, “Medicolegal Implications of Constitutional Status for the Unborn:
‘Ambulatory Chalices’ or ‘Priorities and Aspirations”‘ (1988) 47 U.T. Fac. L. Rev. 1; Weiler &
Catton, supra note 45. We have purposefully refrained from embarking on a detailed consideration
of so called “fetal rights” because our chief concern is the all too frequently ignored infringement of
the physical integrity and legal rights of the pregnant woman. This is not to deny that the fetus is
human and biologically alive, or that in some cases women may make decisions with tragic and
sometimes avoidable consequences. But we cannot expect women to be infallible. Our claim is only
that, considering all the factors we outline, women are the best decision-makers in the circum-
stances.
172 “Creation of Fetal Rights”, supra note 64.
73McNulty, supra note 107 at 280.
174 “Creation of Fetal Rights”, supra note 64 at 603. See also D.E. Johnsen, “From Driving to
Drugs: Governmental Regulation of Pregnant Women’s Lives After Webster” (1989) 138 U. Pa. L.
Rev. 179.
175 For Canadian examples, see The Unborn Child’s Right, supra note 11; M.C. Schumiatcher, “‘I
Set Before You Life & Death’ (Abortion, Borowski and the Constitution)” (1987) 24 U.W.O. L.
Rev. 1; M.C. Schumiatcher, “Chaff from the Charter’s Threshing Floor” (1983) 13 Man. L.J. 435; T.
Campbell, “Abortion Law in Canada: ANeed for Reform” (1977-78) 42 Sask. L. Rev. 221; E.-H.W.
1
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The relationship between a woman and her fetus would become adversarial: both
would compete for the control and use of the woman’s body. 76 These two full sets of
rights are also ordered hierarchically and “balanced” to determine which merits legal
ascendency. To use this type of rights-based analysis is to transform what was once
within the woman’s domain into a new and redefined form of matemal-fetal conflict.’ 7″
Claims for fetal rights and arguments in favour of the use of a conflict paradigm
have been heard for many years in the abortion context. However, those who advocate
interventions in pregnancy now want to extend this adversarial approach throughout
the entire course of the woman’s pregnancy and to all aspects of the woman-fetus rela-
tionship. Drawing on the abortion analogy, prenatal controls are presented as restric-
tions imposed upon pregnant women for the purpose of protecting fetal life.’ As such,
proponents of interventions appear to share many of the same goals, arguments, and
strategies as the anti-abortionists. In the constitutional domain, the same governmental
interests in fetal life and public morality asserted in relation to the criminalization of
abortion are often invoked to support state-imposed restrictions on pregnant women. 79
Kluge, “The Right to Life of Potential Persons” (1977) 3 Dalhousie L.J. 837; D. Dehler, “Abortion
and the Law” (1968) 16 Chitty’s L.J. 13; D. O’Leary, ed., The Issue is Life: A Christian Response to
Abortion in Canada (Burlington: Welch, 1988); G.G. Sweet, ed., Pro-Life Fenzinisin: Different
Voices (Toronto: Life Cycle Books, 1985); K.M. McCourt & D.J. Love, “Abortion and Section 7 of
the Charter: Proposing a Constitutionally Valid Fetal Protection Law” (1989) 18 Man. L.J. 365. For
American examples, see PA. King, “The Juridical Status of the Fetus: A Proposal for Legal Protec-
tion of the Unborn” (1979) 77 Michigan L. Rev. 1647; “Procreative Liberty”, supra note 18; “The
Right to Procreate”, supra note 63; Simon, supra note 153; Pamess & Pritchard, supra note 102;
J.E. Rice, “Fetal Rights: Defining ‘Person’ under 42 U.S.C. 1983” (1983) U. Il. L. Rev. 347; Hal-
lisey, supra note 64; E.G. Taylor, “Constitutional Limitations on State Intervention in Prenatal Care”
(1981) 67 Va. L. Rev. 1051.
176 The adversarial model is especially prevalent in the medical literature where the fetus is some-
times seen as a second patient (Hirsh, supra note 91; J.L. Lenow, “The Fetus as a Patient: Emerging
Rights as a Person?” (1983) 9 Am. J. L. & Medicine 1). But see G. Annas, “Protecting the Liberty
of Pregnant Patients” (1987) 316 New England J. Medicine 1213; L.J. Nelson & N. Milliken,
“Compelled Medical Treatment of Pregnant Women: Life, Liberty and Law in Conflict” (1988) 259
J.A.M.A. 1060.
’77 For a critique of the adversarial approach, see S. Rodgers, “Fetal Rights and Maternal Rights:
Is There a Conflict?” (1986) 1 C.J.W.L. 456; Hubbard, supra note 94, where she claims that to pit
the rights of the fetus against those of the mother ignores the organic unity and substitutes a false di-
chotomy fora complex situation; “Rethinking (M)otherhood”, supra note 111.
i78For an analysis of the relationship between abortion and prenatal invasions, see D. Mathieu,
“Respecting Liberty and Preventing Harm: Limits of State Intervention in Prenatal Choice” (1985) 8
Harv. J.L. & Pub. Pol’y 19 at 32ff. This author argues that, by not having an abortion, the woman
assumes more onerous obligations which form the basis of the “special relationship” between
mother and child. At this time, the mother’s responsibilities involve positive duties of aid, as well as
negative duties not to cause harm.
179 Some authors argue that since the state interest in preservation of fetal life authorizes interven-
tion to prevent destructive acts, it should also authorize limited compulsion of action which is nec-
essary to preserve fetal life (“Abuse and Neglect”, supra note 21 at 18).
1995]
S. MARTIN & M. COLEMAN – JUDICIAL INTERVENTION
Despite these similarities, there are, however, significant differences which suggest
that the conflict paradigm used in relation to abortion should not be controlling of, or
perhaps even relevant to, these suggested legal controls on pregnant women.8
In the
abortion context, it may be easier to see an inherent and fundamental incompatibility
between maternal rights and fetal interests such that a conflict paradigm may some-
times be appropriate (but not a conflict between rights, only a conflict between a
woman’s rights and the state interest in the fetus). On the other hand, a woman who is
prepared to give birth is generally deeply concerned with the fetus’ well-being and le-
gal controls on how she manages her pregnancy raise issues which are less inherently
or obviously adversarial. The either/or equation of abortion fails to adequately address
the social and physiological realities of the pregnant woman and her wholly dependent
fetus. Its zero-sum analysis should not be accepted as the intellectual foundation upon
which prenatal judicial interventions are assessed. The majority of the Commissioners
recognized that the unique relationship between the woman and the fetus must be con-
fronted in a more holistic context. Another significant difference between abortion and
prenatal invasions is that, in the abortion context, the fetal interest asserted is the so-
called “right” to life. In relation to legal controls on pregnancy, the interest asserted
most often concerns fetal health and the enhancement of the child’s quality of life, once
born. The targeted behaviour is not the intentional termination of an unwanted preg-
nancy, but all aspects of the conduct of the woman during the entire pregnancy.”‘
In addition to their reliance on the conflict paradigm, proponents of intervention
argue that fetal rights are increased, not diminished, by the continuing nature of the
pregnancy.’
In their views, the woman’s consent to the continued pregnancy translates
any moral obligation she may have towards her fetus into an irrevocable conferral of
legally enforceable fetal rights.'” These legal rights may then be used against the preg-
nant woman to mandate her conduct.’ The woman’s decision not to abort is inter-
preted as a waiver of her rights and an estoppel by conduct. Her legal -obligations are
thereby seen to be augmented and the presence and weight of fetal interests are signifi-
cantly increased.’
180One consequence of the adversarial conflict paradigm is that it encourages individuals to inter-
vene and advocate for the fetus because it is perceived to be helpless and in need of assistance (see
e.g. “There ought to be a law”, supra note 92). But Kahn, supra note 61 at 811, reminds us that so-
ciety should not mistake the needs of the fetus in certain areas of the law for personal “fetal rights”.
181 See McNulty, supra note 107, for the state interests asserted in the United States.
182 Some suggest that the state may have a greater interest in preventing the suffering of those who
will be born, than in ensuring that any particular fetus will be born (“Maternal Rights”, supra note
105 at 997).
183 “Procreative Liberty”, supra note 18 at 450.
194 There is also debate as to the content of the moral obligation of women to their fetuses (see
J.C. Fletcher, “The Fetus as Patient: Ethical Issues” (1981) 246 J.A.M.A. 772; Nelson & Milliken,
supra note 176).
185″Procreative Liberty”, supra note 18.
196This position fails to recognize that women may not truly “agree” to carry a fetus to term.
Many social factors may affect the voluntariness of a woman’s decision to carry a fetus to term,
such that the imputed grant of legal status to the fetus is inappropriate.
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There is, however, disagreement concerning the time in which these newly fash-
ioned legal duties arise and the method by which they are triggered. For example, one
author stated that maternal obligations would arise once the mother decides not to
terminate the pregnancy, but then, in a subsequent footnote, extends these duties to
women who are undecided about whether or not to have an abortion.’ Keyserlingk
suggested that fetal rights should vest before the woman positively decides to continue
the pregnancy.’ Speaking at a time when the Criminal Code allowed only those abor-
tions necessary to promote the life and health of the woman, he asserted that
the unborn’s rights to life, inviolability and prenatal care would arise at the time
the parents (or mother) knows [sic] of the pregnancy and would continue to
have effect from then to viable birth until or unless the mother decides, for the
exceptional reason allowed in s. 251(4) and s. 221(2), to undergo a therapeutic
abortion.’89
In legal terms, the fetal rights would vest immediately, subject to the resolutory
condition of a woman having a lawful abortion, in contrast to the alternative of sus-
pending their vesting and making them contingent on the woman’s decision not to
abort. He criticized making the vesting of fetal rights contingent on the woman’s deci-
sion to continue her pregnancy because he claims that many women are either passive,
fatalistic, or unclear about such a decision.
Once again, a consent-based justification is proffered and once again it is inher-
ently flawed: it misunderstands the concepts of consent and waiver; it misinterprets the
relevance of statutory provisions;’ 90 and most significantly, it ignores the fact that
women do not always control the circumstances in which they become and remain
pregnant. But even accepting its flawed premise, the ideology of consent is often
pushed past any logical point.
Some authors argue that because all of a woman’s actions have possible repercus-
sions on her ability to carry a fetus, her legal duties ought to arise before she knows she
is pregnant or even before she is pregnant.’9′ Consequently, a woman’s consent to sex-
ual intercourse activates the sequence of events which deprive her of her independence
and autonomy. By agreeing to sex, if such is the case, she voluntarily and irrevocably
loses her ability to manage her pregnancy and waives her right to resist invasions such
as coerced medical treatment. Thus, the tentacles of consent are stretched to cover con-
187 “Procreative Liberty”, supra note 18 at note 129, p. 447.
188 “Unborn (Part II)”, supra note 11 at 33.
8 9 Ibid. at 39.
190 There is a crucial distinction between individual rights and instances when the state employs its
plenary jurisdiction to protect an “interest” deemed to be sufficiently worthy of protection. Those
who benefit from awards under statutory provisions do not necessarily have a claim to enforce these
benefits as “rights”. Thus, a fetus may be given the benefit of a statutory provision without having
full blown “rights” or becoming a legal person.
191 See e.g. The Unborn Child’s Right, supra note 11; “Procreative Liberty”, supra note 18.
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S. MARTIN & M. COLEMAN – JUDICIAL INTERVENTION
duct engaged in when the woman was not even aware that she was pregnant and when
she may have thought she had effective birth control.
In addition to the consent rationale, claims for controls on women’s conduct are
often supplemented by an argument based on the increasing gestational age of the un-
aborted fetus.”‘ As the fetus matures, its legal claims are seen to increase, vesting the
fetus with virtually absolute rights once labour commences.193 Such arguments- are
heard more often in the United States because of the trimester framework adopted in
Roe v. Wade. In that case, the United States Supreme Court held that the age and vi-
ability of the fetus helped to determine the extent to which state powers could be used
to restrict abortions and limit women’s constitutional rights. There is no similar juris-
prudential development in Canada, but the differences between a seven-week-old fetus
and a seven-month-old fetus may nevertheless influence decision-making in this area.
In conclusion, most proposals for new legal liabilities for pregnant women focus
predominantly on the fetus, but the woman herself, as well as her vested rights, is not
always a prominent part of the picture.’94 Usually, the constitutional implications of
these sweeping proposals are not even raised.’ 95 Other times, they are raised but not
analyzed with sufficient rigour.19′ Some authors use convoluted reasoning to justify the
disadvantageous legal treatment of pregnant women. For example, the same writer
who postulates a broad right to procreate also proposes some of the most sweeping re-
strictions on women during pregnancy.97 In his view, there is a categorical distinction
between the freedom to’procreate and what he refers to as freedom in procreation. This
latter category includes decisions concerning how a woman conducts her pregnancy
and this freedom is a lesser order interest and bereft of any sort of constitutional pro-
tection: “Recognizing the right to procreate, however, does not require protection of
every activity or decision related to the process of bearing and giving birth.”’98
192 IbicL
193 In R. v. Morgentaler. supra note 167, there are dicta in the judgements of Justices Wilson, ibilL
at 182-83 and Justice Beetz, ibid. at 128, which suggest that the gestational age of the fetus may
have a bearing on the existence and strength of the state’s interest in the fetus.
194 For an analysis of women’s constitutional rights, see “Creation of Fetal Rights”, supra note 64.
In the Canadian context, see Grant, supra note 22; Jackman, supra note 64; Hanigsberg, supra note
64; Report, supra note 1 at 955-57.
195 See e.g. Beal, supra note 152. But see C. Overall, “Mother/Fetus/State Conflicts” (1989) 9:1
Health L. Can. 101.
196 A good example is “Abuse and Neglect”, supra note 21 at 55ff, where Myers comments that
“state interference in a woman’s pregnancy is a frightening proposition” but goes on to say that, be-
cause “two lives are involved,” a balance of competing interests is required. Thus, even the express
recognition of women’s rights does not mean they will be accorded their due weight. See e.g.
“There ought to be a law”, supra note 92 at 52, where Kluge postulates that there should be a law
requiring women to deliver by caesarean section to prevent the woman’s insistence on autonomy
from being a “fist” in the “face” of “this fetal person”. However, his analysis is criticized as hasty, ill
conceived, and a gross oversimplification of a complex moral quandary (see D. Zimmerman, “No
easy answer” (1987) 29 B.C. Medical J. 62).
197 “Procreative Liberty”, supra note 18.
198 Ibid. at 451.
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This movement toward the recognition of “fetal rights” has been most pronounced
in the United States. In Canada, although there is some cause for alarm, the Supreme
Court has recently preserved women’s rights, at least in the abortion context, by reit-
erating that legal rights vest only at birth. 99 The absence of separate fetal tights means
there are no competing rights to “balance” against those of the woman. Therefore, any
assertion that the fetus has a claim over the woman’s body or that a state-appointed
guardian of the fetus can veto her decision-making ability, must be based on the power
of the state to regulate women, and not on the independent tights of the fetus.
Conclusion
Proposals for coerced medical treatment and criminal and civil liability would im-
pose new and unique legal duties on pregnant women. These suggested legal con-
trols would contribute to the systematic regulation of pregnant women.’ State inter-
vention would take many forms including crime, compensation, compulsion, prior re-
straint, restriction, and limitation. It would involve postbirth sanctions and prebirth sei-
zures, span the entire biological process of procreation, and be justified on the basis of
the state’s police power and its parens patriae jurisdiction. These proposals are also
linked conceptually and cumulatively to other forms of legal control on women and re-
production, such as provisions on sexual assault, contraception, and abortion.
A desire to control the conduct of pregnant women is simply the most recent ex-
ample of the role of law in controlling women’s sexual and reproductive lives. These
claims occur at a time when new technologies allow us to view the fetus, detect ab-
normalities, and perhaps even correct them.02 Current medical knowledge has also im-
proved the understanding of the detrimental effects of various substances on the devel-
opment of fetuses. Technological invention and increased knowledge have therefore
helped create an environment in which the fetus can be characterized as a separate pa-
tient.03 This phenomenon has certainly facilitated the redefinition of women’s deci-
sion-making as a potential maternal-fetal conflict, but it certainly does not require it
and, indeed, the majority of Commissioners expressly rejected this redefinition.
Legal prescriptions intended to dictate the conduct of pregnant women exaggerate
the danger to “society” which would result if pregnant women were the legally em-
199 Tremblay v. Daigle, supra note 124.
200 Each proposal forms part of a comprehensive system of regulation. Those in favour of legal
controls on pregnant women usually endorse a vast array of regulation and tend to be anti-choice. It
is rare that merely one form of intervention is thought to be justifiable or desirable.
201 See “Prenatal Invasions”, supra note 18 at 45, where Gallagher explains that liability could
“push ambivalent women toward abortion, frighten pregnant women away from prenatal care, and
deter women from carrying a fetus to term and giving it up at birth for adoption” [references omit-
ted].
2M See Hubbard, supra note 94.
203 Hubbard, ibid at 210, explains that as new technologies make more “choices” available, there
are pressures which rapidly become “compulsions to ‘choose’ the socially endorsed alternative.”
1995]
S. MARTIN & M. COLEMAN – JUDICIAL INTERVENTION
991
powered caretakers of the fetuses they carry. Although women are obliged to be the lit-
eral and legal “keepers” of their fetuses, and are the primary caretakers and nurturers of
children, certain forms of legal controls effectively deny that women remain full legal
persons and morally responsible decision-makers throughout their pregnancies. Many
types of regulation also ignore biological reality and intentionally obfuscate the fetus’
complete dependence on the pregnant woman by presenting the fetus as a distinct and
separate patient vested with and capable of exercising competing rights.
The tendency to defer to science, combined with a history of gender-biased laws
on human reproduction, illustrate that strong statements, like those of the Royal
Commission, are necessary to reorient the discussion away from a conflictual model,
and towards a model which truly seeks the welfare of women and the best interests of
children.
