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Protecting Foetal Rights

Angela Kim

LWSO 335

Linda McKay-Panos

Spring 2006

I. Introduction

"Prenatal Substance Abuse and Judicial Intervention" by Richard D. Bell.

Many dissenting views on judicial intervention in pregnancy and birth exist. In his article, Bell demonstrates his disagreement with the decision put forward by Shulman J. in the Winnipeg Child and Family Services case against G. (D. F.) to intervene and impose treatment on a pregnant, substance abusing woman. For Bell, judicial intervention usurps the rights and bodily integrity of a woman and upsets the balance existing between foetal and maternal rights. He believes judicial intervention poses complicated moral questions that should be answered solely by the Parliament.

I will look more closely at the issues surrounding this case and others similar to it by finding fault in Bell's reasoning and by putting forth the idea that foetuses need protection as much as Bell enforces the a pregnant woman's rights need to be protected.

II. Background

What is a foetus? The foetus is the developed mammal after the embryonic stage and before birth. The foetus develops from the ninth week of gestation, when primary structures and organ systems have formed, until birth. Factors affecting foetal growth include maternal, placental, and foetal. Maternal factors affecting foetal growth include size, weight, nutritional state, cigarette smoking, substance abuse, uterine blood flow, anaemia, and environmental noise exposure. Deficient growth can result in low birth weight and increased risk for perinatal mortality and other health dangers.

Does a foetus have legal rights? The law does not recognize the unborn child as a legal person; therefore it has no rights under the law.

What is substance abuse? Substance abuse is an overindulgence and reliance on a stimulant, depressant, chemical substance, herb, or fungus causing effects that are destructive to an individual's physical and mental health, or well being of others. Continual pathological use of a medication, non-medically indicated drug, or toxin that results in repeated adverse social consequences related to drug use is a pattern characteristic of substance abuse. Substance abuse may lead to substance dependence or addiction. Central nervous system malfunction, developmental hindrances, attention deficit disorder, and microcephaly may be exhibited by children exposed to substances in utero. Repeated exposure to solvents can lead to retardation of foetal growth and development and to foetal death. The crucial period for the development of the central nervous system in humans is in the first sixteen weeks after conception, however it is susceptible to a range of toxic exposures up to birth.

III. Summary

Bell asserts that Shulman J.'s order that D. G. could be forced into the supervisory care of the Winnipeg Child and Family Services Agency and undergo drug treatment program is not easily warranted under the law. This forced submission to custody alters the existing balance between foetal and maternal rights. Bell argues that invoking the doctrine of parens patriae is erroneous as legally the foetus is not entitled to any rights. Third, Bell says the order infringes on a pregnant woman's rights under s. 7 of the Charter. Finally, Bell claims that forcing treatment may be ineffective and counterproductive. Bell concludes that legislation must ensure the welfare of the foetus.

IV. Analysis

The Balance Between Foetal and Maternal Rights

Bell claims that Shulman J.'s order is most problematic as it unsettles the balance of rights, which exists between the pregnant mother as a woman with full legal rights and her foetus. Granting rights to legal personhood to the foetus undermines the woman's rights to make independent decisions. The law does not recognize an unborn child as a legal person. The foetus cannot claim any rights as a person under the common law. How then, can Bell argue that if the foetus is granted rights, then the balance between foetal and maternal rights will be upset? Under the law, the foetus has no rights; therefore there is no balance to begin with. Many cases are briefly described to enforce the idea the foetus is legally without rights. However, Bell at one point contradicts himself by stating that "the fetus's lack of legal personhood does not mean that it is without rights of any kind" (Bell 325). He explains that the foetus, once born, is able to bring civil action against the mother (the "born-alive" rule) even for damages sustained while in utero. This is a problematic argument for me as the foetus is now born and is legally a person. A civil action is brought about by a person and not a foetus--this is a person exercising legal rights and not the foetus. As well, whatever injury has already been received by the foetus. Bell also argues that allowing rights to the foetus in utero brings about difficult legal and social questions. He raises some very complex issues regarding abortion, but fails to bring to light other questions dealing with the fetus' immediate well-being. He mentions inheritance law and tax law, but these issues are by no means as pressing and relevant to the safety of the foetus in utero.

According rights of legal personhood to the foetus potentially infringes on a woman's rights to autonomy and physical integrity. Under this argument Bell proclaims that Shulman J.'s order was a violation of the common law principle that medical treatment cannot be imposed upon an individual. Actually, D. G. sought treatment, but this fact is ignored by Bell. Compelling someone to do something they wanted to do can hardly be deemed a breach of autonomy and physical integrity.

Bell fails to define key terms like "personhood" and "born-alive" rule. Understanding these terms is important in understanding the arguments put forward. Although these terms do not vary much in meaning, presenting relevant background information would strengthen


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