Globe and Mail

Hypothetical people

The Globe and Mail
Monday, July 12, 1999

What rights does an unborn child have in Canada? The answer, the Supreme Court has again decided, is none. In the absence of any guidance from Parliament, the Charter of Rights and Freedoms alone rules. In this regard, the courts have long found that a pregnant woman's Charter rights supersede those of her fetus, who is not recognized as a person in law.

As a result, six-year-old Ryan Dobson, a Moncton child who suffers from cerebral palsy and cannot speak because of injuries he sustained during a car crash while he was still in the womb, does not have the right to sue his mother, the driver.

Yesterday's decision treads in the footprints of the court's earlier rulings on fetal rights. But as the court was careful to do when it ruled in 1997 that a pregnant woman addicted to glue-sniffing could not be detained to protect her unborn child, the judges again left the door open for Parliament to step in and define at what point fetuses -- referred to as "hypothetical people" in the written decision -- gain rights.

Currently, a mother's duty-of-care begins only at birth. That, however, can change, and the court is rightly urging this be addressed by our politicians.

As Mr. Justice Peter Cory, who wrote the majority decision, points out, the public policy concerns underlying this case are so large that it should not be left for the courts to decide when to impose additional burdens on a pregnant woman. There is room, he writes, for Parliament and provincial legislatures to act.

The present situation -- which defines the duty of mother to fetus as a moral obligation -- serves us well. Most women understand and respect the responsibilities that come with bearing a child. However, there is a need to prevent the sort of abuse we saw in the case of the glue-sniffing mother.

Canada's legislatures should enshrine in law the duties and obligations of a pregnant woman who has decided to carry her fetus to term. Without infringing on a woman's right to have an abortion, the law should spell out what responsibilities a woman assumes if she decides not to abort.

These are treacherous legal waters, but navigable ones. As Judge Cory wrote: "A carefully tailored solution could benefit both the injured child and his or her family, without unduly restricting the privacy and autonomy rights of women."

Judge Cory was referring specifically to car accidents, and the flexibility provincial governments have to amend their compensation legislation to include unborn children. However, the solution must be a broader-based and Canada-wide definition of what rights an unborn child has once the mother decides to carry to term.

Ryan Dobson's mother was seven months pregnant and intending to carry to term when the accident occurred. Parliament should determine what, if anything, that means to a fetus.

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