Thursday, November 01, 2007

Is there a way to protect the fetus without declaring it a 'person'?

National Post letter writer Thomas Mueller of Rothesay, N.B. brings up an interesting point in the debate over fetal protection - especially in cases of the mother's murder that results in the death of the baby as well.


Mueller proposes the following (links added for your ease of reference):
The arguments from Michael Coren, Father de Souza and Thomas Armstrong concerning the rights of fetuses are emotionally stirring, but specious; in all the cases cited, the pregnant woman was attacked resulting in her murder or attempted murder. So whether or not the fetus dies, our criminal endures no greater or lesser sentence with or without any change to the law governing a fetus's status.

According to the Supreme Court of Canada, no one can infringe upon a mother's rights, even to protect a fetus. Yet the law frequently infringes on individual rights to prevent society from paying some bigger bills down the road--i.e., the requirement to wear a seat belt.

Without raising the question of "fetal personhood" setting new legal precedents, it appears obvious that society can and should intervene by legislating against behaviour deemed contrary to society's best interests. Perhaps another kick at this legal can of worms is required-- but from a different angle.


Armstrong's letter has been generating a lot of debate over the last few days in the Post. (Armstrong himself was allowed a rebuttal today, which is normally against the Post's policy. They usually only print letters from the same person once every two weeks.)


Back to Mueller's letter - There is a school of thought that suggests that pregnant women may be more vulnerable to physical attack because an irrational partner may be even more likely to act aggressively if her pregnancy is an issue between them. This was certainly the case in the tragic end of Roxanne Fernando, who was murdered by her boyfriend specifically because she refused an abortion.

So how was her 'right to choose' upheld here? Clearly it wasn't.

Now Mr. Mueller makes the valid point that in our law system as it stands now, an additional murder charge would likely not result in any extra time served, so why bother?

Well, I would respond that perhaps in the case where the woman survived a murder attempt but her wanted baby did not, then an actual charge of murder could be relevant.


The main stumbling block appears to revolve around this issue of 'personhood'. How can we declare that the fetus requires some kind of protection in a civilized country, without compromising the 'rights' of the woman to do anything with her body that she so wishes? (Except to not use a seatbelt to? Oh, and in some areas a bike helmet. Oh, and to not cross the street against a red light.)

In Armstrong's rebuttal letter, he at least admits that the fetus is "alive"; just not a person.

So, can we start there? We have this mass of tissue that is "alive" - presumably different in some way from the co-habiting body organs that are also contained in the mother-carrier, e.g. different DNA.

This mass of alive tissue can, in some cases, pose a physiological threat to the man who started this life along with the mother. Can we call it a 'person-in-the-making' or something a bit less cumbersome?

Could we possibly enact some kind of legislation that would serve as a greater deterrent to protect the mother from someone willfully deciding to abort the child or person-in-the-making against her wishes?

Could we please do something to protect the right of all women to choose, and not just those who choose abortion?

* * * *

Friday Update: Excellent discussion going on here via Suzanne.

Lots of great letters in today's Post. Here is my favourite by Dr. Paul Ranalli of Toronto (emphasis mine, as always):

Letter-writer Thomas Armstrong is right that the fetus has no rights. It is his contentment with this that is the problem. The unscientific and anti-intellectual state of Canadian law in this matter leaves us to consider the following conundrum: A premature baby born at 26 weeks gestation is backed by the full power of Canadian law, yet an unborn baby at 40 weeks gestation -- more than three months older -- has no rights, and can be aborted or declared a non-person if stillborn from a birth misadventure (Sullivan-Lemay midwife decision).

Pro-life advocates are often accused, wrongly, of wishing to "turn back the clock." In fact, Canada's legal position on the fetus derives from the "born-alive" element of English common law, and dates from the '80s. That is, the 1480s.

Our Canadian disregard for human life is breathtakingly barbaric.


More noteworthy articles:

British doctors gave skewed evidence to keep 24 week abortion limit.

Previous abortions linked with pre-term birth and cerebral palsy.

Forgetting what it is to be human - Melanie Philips.


Saturday Post - Great letter by Susan Greig, who works with pregnant women:

...Can we not be honest and once and for all admit that if you want your pregnancy you are having a baby and if you do not want your pregnancy, you are hosting a bunch of cells/mass of tissues? That they are in fact one and the same, and that it is the perception of the mother that differs, nothing else...

As in art, the concept of 'baby' is in the womb of the 'holder.

40 comments:

Anonymous said...

Joanne,

Should we call it a "forced abortion" where a third party has taken it upon themselves to defy the express wishes of the mother in wanting to carry a child to full term?

Much like the fact that the media were wagged by gay extremists in the marriage debate, this debate is boing orchestrated and framed by imbedded media activists.

CTV's legal discussion on the Verdict was a group attack on the one voice that suggested there had to be a value placed on the wanted fetus.

CTV's legal 'expert' Steven Skurka moaned that it is hard enought to defend a client over one murder charge and that a jury would surely take the death of the fetus into consideration.

However, he negated to state what the consequence would be if the mother survived and only the pregnancy was ended.

Martha McCarthy took the fashionable feminazi line. Any recognition of fetal rights is a reveral of the law. Strangely she argued that the debate would be clouded by emotion.

She never seemed to let that little emotional hiccup spoil her gay marriage pursuits. In fact she juiced it to the bitter end.

Paula Todd let Skurka and McCarthy make ridiculous suggestions like giving a fetus rights would end in pregnant mothers being charged at cocktail parties for drinking.

The debate is boing framed by an activist media.

Kudos to CTV for airing the debate. Shame for airing it in such prototypical CBC rigged and biased fashion.

Joanne (True Blue) said...

"Forced abortion". Yes, that certainly is something to consider. It is being done against the woman's will. It should be a separate issue from the physical trauma that the woman undergoes to achieve that end.

Paula Todd let Skurka and McCarthy make ridiculous suggestions like giving a fetus rights would end in pregnant mothers being charged at cocktail parties for drinking..

Yeah, that was a totally ridiculous comparison. What a bunch of baseless fear-mongering.

Kudos to CTV for airing the debate. Shame for airing it in such prototypical CBC rigged and biased fashion.

I totally agree. Paula Todd's show can be interesting, but she sure does tend to be a left-wing bigmouth.

Anonymous said...

Two questions Andrew Sullivan asked that are very illustrative.

1. If you could go back in time and abort Saddam Hussein, or Hitler, would you do it?

2. If you could prevent a terrorist attack by sleeping with a member of the same sex, would you do it?

Kingston said...

Ok, this may be a bit simplistic or even dumb and I will abide by the room decision concerning my comment, but can we not let basically the mother decide as they know do, if a mother is carrying a fetus to term and it is killed thru and assault of whatever, this mother has obviously decided that the fetus is a living being. If a mother has decided to exercise her right to abortion then she has decided to the contrary. Therefore if a mother who is carrying a fetus to term loses that fetus do to criminal activity thrust upon her or that she takes part in, then the charges should be adjusted accordingly. I am not sure I am expression my thoughts that well right now but it makes sense in my grey matter, it just isn't making it to the keyboard. P.S. Disclosure, I support the females right to decide concerning abortion.

Anonymous said...

Joanne, off topic, but I thought you'd like to know that the 92 year old woman from Cobourg now has a doctor.

I responded here some time ago that we had a wonderful Walk-In Clinic in my town, next to Cobourg (Port Hope). She used this clinic, had an allergic reaction to medication, went back and the doctor said no woman his mother's age should be without a doctor and took her on.

John Tory's blustering (he didn't do what he said he was going to) did get it done.

I can't help but wonder if it's my doctor who took her on - I wouldn't be surprised.

Anyway, you can rest now - she has a doctor.

Anonymous said...

Whoops - meant to say John Tory didn't get the doctor for her like he claimed he was going to - sorry for error.

Joanne (True Blue) said...

Joanne, off topic, but I thought you'd like to know that the 92 year old woman from Cobourg now has a doctor.

Hey, that's awesome, Anon! Thanks for letting me know. Funny how some of the things John Tory did have turned out for the best.

In case anyone is wondering what this is all about, we are referring to Etta Young.


So at least this story had a happy ending. Thanks so much, Anon.

Joanne (True Blue) said...

meant to say John Tory didn't get the doctor for her like he claimed he was going to

Oh, O.K. I see your point now. I don't think John Tory's was expecting to personally find a doctor for her, but he did draw attention to the issue. Hopefully that was of some help.

In any case, she is looked after now.

Joanne (True Blue) said...

Kingston, I don't see the right of woman to choose and her right to carry her child to term as a mutually exclusive concept.

liberal supporter said...

Legally, the fetus is property.

If you kill my property without my permission, you have committed a crime against me. At one time stealing my property was a capital offense (horse stealing), just like killing me was.

I can kill or have someone kill my property, and it is my business. In the case of animals, I cannot be more cruel than necessary, but I can have my animal put down or slaughtered as I see fit.

Paula Todd let Skurka and McCarthy make ridiculous suggestions like giving a fetus rights would end in pregnant mothers being charged at cocktail parties for drinking..

Fetal alcohol syndrome is real, and could be outlawed in the same way as laws that say you can't keep animals under bad conditions.

Giving legal standing to a fetus as a separate legal entity does open the door to charging pregnant mothers with various offenses. The FAS (Fetal Aid Society) would advocate on the fetus' behalf.

And in the extreme case where it is a life or death situation, only one will survive, who lives? The fetus or the mother? Who decides? Whoever has better lawyers. The FAS will likely have better lawyers than the mother, so she dies.

I wish the efforts expended to have extend the long arm of the law into the wombs of the nation were instead geared to removing any economic reason for having an abortion. Why not have a real baby bonus? A sizeable payment, $20,000 on birth would be a good start.

Joanne (True Blue) said...

L.S. - So you're equating an unborn baby with an animal or 'property'?

Joanne (True Blue) said...

BTW, we're not talking about abortion here!!!

liberal supporter said...

L.S. - So you're equating an unborn baby with an animal or 'property'?

Of course not. Your topic is talking about the law. Under the law, for example, a corporation, something that only exists as a bunch of paperwork, is considered a legal "person", even though it is not a person using the everyday meaning of "person".

It is a matter of legal definitions, and when they use commonly understood words to denote specific legal concepts, it is confusing. Another example was in the same sex marriage situation. They used "marriage" and "spouse" for all kinds of laws, so having "civil unions" would mean changing all those laws, instead of changing the legal definition of the word "marriage".

Equating an unborn child to an animal:

Do you consider humans to be animals? Biologists do, since we are not plants. Would not an unborn baby also be an animal then? Saying a human is an animal does not mean it is only an animal. As usual, we end up in word play.

With regard to how an unborn baby should be viewed under the law, the legal meaning of property fits the best. The mother can have it aborted, and at the same time if someone kills the unborn baby against the mother's wishes, it is a criminal case.

Joanne (True Blue) said...

The mother can have it aborted, and at the same time if someone kills the unborn baby against the mother's wishes, it is a criminal case.

Really? With what charge?

Joanne (True Blue) said...

Under the law, for example, a corporation, something that only exists as a bunch of paperwork, is considered a legal "person"

A corporation can be a 'person', but an unborn baby with human DNA can't. What a crazy country we live in.

SUZANNE said...

You can take a woman's rights perspective without addressing the issue of the fetus. A woman has a right to her fetus, whatever the status. When you deprive that woman of her fetus, you should pay.

I know the argument: what about if the woman dies?

We know that people have a right to property. If a property owner dies during a crime, the perpetrator still pays for the crime of destroying property.

A fetal homicide law is definitively a woman's right.

Cool Blue said...

Liberal supporter is correct, under existing law an unborn baby could theoretically be considered property,like animals, however it wouldn't be protected under the Criminal Code like animals would be. Because of this if somebody were to harm the unborn baby, you'd have to take them to civil court. Criminal charges couldn't be laid (except possibly vandalism?).

Another option might be that since the courts have already ruled that the unborn baby is just a mass of tissue that belongs to the mother's body, then theoretically the baby could be protected under existing laws. For example, an offender could be charged with assault and/or possibly practicing medicine without a license.

Any of these options aren't satisfactory though in terms of carrying out justice. The punishment must fit the crime and an assault charge or a court fine just doesn't cut it.

Joanne (True Blue) said...

under existing law an unborn baby could theoretically be considered property,like animals, however it wouldn't be protected under the Criminal Code like animals would be.

Maybe we need a Society for the Prevention of Cruelty to Fetuses (that are wanted).

The punishment must fit the crime and an assault charge or a court fine just doesn't cut it.

That's for sure.


A woman has a right to her fetus, whatever the status. When you deprive that woman of her fetus, you should pay.

Suzanne, I agree. Do you have any idea what a person could be charged with if the unborn baby is deliberately murdered, but the mother somehow survives?

SUZANNE said...

Do you have any idea what a person could be charged with if the unborn baby is deliberately murdered, but the mother somehow survives?

Right now they'd be charged with assault. We'd have to make up a charge because I don't know of any law that covers this. Maybe a "forced abortion" law.

SUZANNE said...

Another option might be that since the courts have already ruled that the unborn baby is just a mass of tissue that belongs to the mother's body, then theoretically the baby could be protected under existing laws.

I think the courts see the fetus as a separate entity. In fact, they allowed for the possibility of the state legislation for the protection of fetal life.

OMMAG said...

Bring back capitol punishment.
In a case of murder of pregnant woman... one application serves both victims!

Cool Blue said...

"Maybe we need a Society for the Prevention of Cruelty to Fetuses (that are wanted)."

Exactly. I've been saying for a while that we need a new approach, a "third way" when it comes to the anti-abortion side of things.

The reason why we haven't gotten anywhere in the last 15 years is because the pro-life side is only interested in banning all abortions instead of approaching the issue in a piece-meal incrementalist way.

All or nothing just alienates those who agree with us 90% of the time and hurts the cause.

SUZANNE said...

The reason why we haven't gotten anywhere in the last 15 years is because the pro-life side is only interested in banning all abortions instead of approaching the issue in a piece-meal incrementalist way.

Absolutely untrue. I know for a fact that the pro-life lobby is very supportive of an incrementalist approach.

Are you limiting your activism to save babies because others are wrong? There's a mass killing in our country that goes on a daily basis, we shouldn't complacent and inactive. Lives truly are at stake.

Joanne (True Blue) said...

I think the courts see the fetus as a separate entity. In fact, they allowed for the possibility of the state legislation for the protection of fetal life.

What do you mean, Suzanne? In Canada? Please explain. Thanks.

SUZANNE said...

This is from the R. V. Morgentaler:

Once the fetus is viable, in the sense that it is capable of survival outside the uterus with artificial aid, the state interest in preserving the fetus becomes compelling, and the state may thus proscribe its premature removal (i.e., its abortion) except to preserve the mother's life or health.

http://www.canlii.org/en/ca/scc/doc/1988/1988canlii90/1988canlii90.html

Regarding an abortion law:

However, it is possible that a future enactment by Parliament that would require a higher degree of danger to health in the latter months of pregnancy, as opposed to the early months, for an abortion to be lawful, could achieve a proportionality which would be acceptable under s. 1 of the Charter.

Another quote:

The value to be placed on the foetus as potential life is directly related to the stage of its development during gestation. The undeveloped foetus starts out as a newly fertilized ovum; the fully developed foetus emerges ultimately as an infant. A developmental progression takes place between these two extremes and it has a direct bearing on the value of the foetus as potential life. Accordingly, the foetus should be viewed in differential and developmental terms. This view of the foetus supports a permissive approach to abortion in the early stages where the woman's autonomy would be absolute and a restrictive approach in the later stages where the states's interest in protecting the foetus would justify its prescribing conditions. The precise point in the development of the foetus at which the state's interest in its protection becomes "compelling" should be left to the informed judgment of the legislature which is in a position to receive submissions on the subject from all the relevant disciplines.

Joanne (True Blue) said...

Suzanne, thanks. So it appears that the courts are saying that it is up to Parliament to legislate any changes in law regarding viability vs. abortion? Is that right?

SUZANNE said...

That's right. But people have this idea that abortion is an absolute right. It's not. It's true that the court basically said early fetal human beings are worthless, but it allowed for viable ones to be protected.

Joanne (True Blue) said...

but it allowed for viable ones to be protected.

So it's our cowardly legislators who are to blame. I think we could get somewhere if people didn't use the A-word.

SUZANNE said...

I think so, too. Harper could not lose on a fetal homicide law, especially if they phrased it in terms of women's rights: a woman has a right to her fetus, and if someone deprives her of her fetus, he should pay.

Another winner would be a ban on some of the abortion methods. I have a feeling that a PBA ban would not go far in Canada because it's not done that often, or at least I haven't seen any evidence of it. However, I think we could ban fetal heart injections for singleton (non-twin) babies past a certain age. What happens during a late-term prostaglandin abortion in Canada is that often the baby is injected with potassium chloride in his heart, causing a very painful heart attack (it takes about 2 minutes for the baby to die). Then, we can make it obligatory for all babies past 24 weeks to be resuscitated if they survive the abortion. This is the medical guideline for late-term abortion in Alberta: if the baby survives the abortion and is older than 24 weeks, he gets resuscitated regardless of the wishes of the mother. That could be the law of the land, as it's already a medical guideline in Alberta. We could also mandate palliative care, which is another trend I'm seeing: very sick preemies are given palliative care. In France, women can be convinced to bring the baby to term if they know that there is palliative care waiting for their baby (this is in a few centres-- but it seems to be catching).

Joanne (True Blue) said...

Suzanne - Interesting ideas, and I agree with you on everything except mentioning Harper.

I really don't think he will go anywhere near this issue no matter how it's framed.

I truly believe we need a principled member from the opposition to bring forward a private member's bill on fetal homicide and possibly mandating resuscitation efforts regarding an unsuccessful abortion over a certain term (my head's still shaking on that one!)

The grass roots really needs to lobby their own opposition MP's, IMHO.

Anonymous said...

I am flattered to find my letter appear on your blog...

Your argument "Could we please do something to protect the right of all women to choose, and not just those who choose abortion?" is very compelling!

With or without any change to the law - your criminal suffers no more nor no less punishment for any attack on a pregnant woman given the attack constitutes at the very least "attempted murder" of the pregnant woman with a judicial system that routinely takes aggravating circumstances into account.

During a trial by jury – any prosecutor could generate shock and horror among jurors no less than the National Post’s champions of the so-called un-born.

As wont to say in legal circles – the point is moot! Our criminal endures no greater or lesser sentence with or without any change to the law.

best regards,
thomas mueller

Joanne (True Blue) said...

Thanks for commenting here, Thomas! That was a great letter.

I raise this topic from time to time, so I hope you'll continue to join in the discussion.

thomas mueller said...

joanne aka (true blue)

to repeat myself...

Having said all that; my detractors do have a point. The Supreme Court of Canada that a mother’s rights can not be infringed to protect a fetus.

Unfortunately, the rest of us including our Social Services, our Education System, our Medical System our Justice System etc have to pay the cost of a mother's irresponsible and reckless behavior (such as substance abuse during pregnancy).

Yet the Law frequently infringes on individual rights to prevent Society from paying some bigger bill down the road. That is why we all are individually required to wear seat-belts.

Without begging the question of "fetal personhood" setting new legal precedents, it appears obvious that the State can and should intervene by legislating against behavior deemed contrary to society's best interests.

Problem solved ! ... without revisiting the abortion question and fetal personhood!

IMHO - this would be the best approach to a very difficult question.

n'est-ce pas?

best regards,
Thomas Mueller

Joanne (True Blue) said...

Thomas, I think your idea makes great sense. I may copy your comments here in a new post sometime soon.

I have a few 'irons in the fire' at the moment, but I'll keep this in mind.

Thanks again.

thomas mueller said...

coincidental timing...

I thought you would find this interesting; a legal precedent permitting the state to restrict the rights of the individual:

http://news.google.ca/news?hl=en&ned=ca&ie=UTF-8&ncl=1123676713

thomas mueller said...

final comment regarding status of a fetus...

Is a conceptus "human"?

Yes - in the sense it does not belong to some other species.

Is a conceptus "alive"?

Again yes - in the sense it is not necrotic!

Conclusion: The fetus is a "human life"! Whoa Nelly! That's a stretch. There is more to being a human life than stimulus-response twitching to some external stimulus.

Define "fetal pain". If the central nervous system of a fetus is no more sophisticated than an annelid; the crime of inflicting fetal pain is no more serious than placing a wriggler on the end of a fishing hook!

I realize them are provocative fighting words for some participants...

By way of attonement may I also add that Morgenthaler's endorsement of third term abortion is clearly abominable.

I submit there is no clear line that defines "human" vs. "not yet human" in fetal developmnet.

I have no argument with the suggestion that third trimester abortions are "unborn baby killings".

I also have no argument with the the suggestion that first term abortions are NOT "unborn baby killings".

I submit - I am not waffling here; but rather following the tradition of the Catholic Church:

The three pillars of Church dogma are supposed to be scripture, tradition and ecclesiastical authority. A careful reading of Exodus 21:22-24 indicates abortion is not equivalent to murder. Prior to the mid-nineteenth century, Catholic Theologians following in the tradition of Aquinas and Augustine maintained the spiritual soul did not exist at conception. Meanwhile, two popes; Pope Innocent III and Pope Gregory IX ruled early abortion did not constitute murder.

The Church's current stand on abortion would appear to miss the prima facie requirements necessary of infallible dogma; even though Pope John Paul II declared in 1995 that the Church's teaching on abortion "is unchanged and unchangeable". This position is clearly untenable.

Participants in this debate must be open to the logical possibility that the church could repeat history by again modifying dogma regarding "early-" as opposed to "late-"term abortion.

My final post on the subject...

best regards,
tm

Joanne (True Blue) said...

My final post on the subject...

I hope not. ;)

Thanks for your thought-provoking comments and tips. Yes, this is definitely separate-post worthy.

I just have my real-life interfering too much. lol!

Hopefully I can pick this up again soon. Thanks, Thomas.

BTW, you can also email me at the addy on my profile.

Joanne (True Blue) said...

Thomas, you give the example of the no-smoking in the car legislation as an example of "a legal precedent permitting the state to restrict the rights of the individual".

So where are you going with that in terms of the unborn? Are you then arguing for a harsher punishment for fetal murder? Are you also arguing for a restriction on abortion?

If so, how exactly do you apply your theory that the "State can and should intervene by legislating against behavior deemed contrary to society's best interests."

i.e. Who decides what those 'best interests' are, and how does that exactly apply to the issues of the unborn?

Not challenging you here; just trying to fully understand your position. Thanks.

thomas mueller said...

to answer your questions:

"So where are you going with that in terms of the unborn? Are you then arguing for a harsher punishment for fetal murder?"

As I already explained - the point is moot - our criminal is sentenced no differently with or withour any change to the law - so no change to the law is necessary.

"Are you also arguing for a restriction on abortion?"

again - the point is moot... Canada does not perform late term abortions unless the mother's life is immediately in peril (an occurance so rare it need no mention. So again - no change to the law is necessary!

"Who decides what those 'best interests' are, and how does that exactly apply to the issues of the unborn?"

I already answered that - when a woman's irresponsible behaviour generates costs to society in general and the taxpayer in particular - then the state can and should intervene! As I already said - our Social Services, when our Education System, our Medical System our Justice System etc have to pay the cost of a mother's irresponsible and reckless behavior (such as substance abuse during pregnancy)then the state can restrict her behaviour with the same logic we can require her to wear seat-belts!

Does this constitute the thin edge of the wedge in restricting individual liberty - such as rounding up drug adics for their own good? A very contentious issue!

I submit - that we are already doing that. When substance abusers are so incapacitated as to represent an immediate threat to themselves, they can and are incarcerated aganst their will for their own good.

Really - the Canadian clock don't need no fixin'

best regards

Joanne (True Blue) said...

Thanks, Thomas.

If you're interested, I did a post on the Wolfville story here.

Feel free to chime in if you like.