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PBP100H: The Pre-Born Child and Canadian Law
These notes from the first half of André Schouten's 2013 NCLN Symposium talk, A Legal Wasteland: The Pre-Born Child and Canadian Law
History
more details here
- pre-confederation “quick with child” (first time a mother feels her child move, around 16 weeks child was protected by law)
- 1869 (first criminal code): abortion a crime at any time, punished by next stiffest penalty after death penalty
- 1969: Trudeau's omnibus bill, therapeutic abortion committee
- 1988: R. v. Morgentaler: unconstitutional on procedural grounds, because it unequally applied to Canadian women (in terms of abortion availability)
- 1991: Bill C-43 fails; died in a tie vote
- pro-life and pro-choice citizens were united against this bill, it wasn't a great bill
The Present
What does the criminal law say about the pre-born child?
WNAL website
- Section 223(1), (2):
- “child becomes a human being within the meaning of this Act when it has completely proceeded, in a living state, from the body of its mother whether or not (a) it has breathed, (b) it has independent circulation, or © the navel string is severed. (2) A person commits homicide when he causes injury to a child before or during its birth as a result of which the child dies after becoming a human being”
- Does our criminal code refer to children using “it” elsewhere?
- Section 238.(1)
- (1) Everyone who causes the death, in the act of birth, of any child that has not become a human being, in such a manner that, if the child were a human being he would be guilty of murder, is guilty of an indictable offence and liable to imprisonment for life
- R. v. Drummond, 1996, Ont. Ct. J.
- 7 months pregnant, shotgun into cervix, pulled the trigger
- charged with… attempted murder
- the charge didn't stick; the thing she was attempting to murder wasn't a human being
- charged and found guilty of: failure to provide the necessities of life
- not because she shot her child in the head, but because she didn't tell the doctors
- R. v. Levkovic:
- Canadian law is more concerned about dead babies than living pre-born babies
- Other Relevant Laws
- Section 223: Homicide
- Section 242-243: Neglect in Child-birth and Concealing Dead Body
- Section 215: Duties Tending to Preservation of Life
Re-emerging Issues
Just an introduction to these topics, they'll be dealt with in more depth in 200/300-level topics.
- gendercide
- eugenics (pre-born screening)
- pro-life clubs / campus free speech
- access to information
- infanticide: the 491 from Stats Canada
- AHRA: Assisted Human Reproduction Act (after 15 years to created the law, gutted by Supreme Court)
- four principles
- human dignity
- protection of health and safety
- non-commodification
- non-commercialization
- Quebec wasn't happy that the federal government passed a law dealing with health issues
- 4 said completely provincial, 4 said completely federal; last one said some sections are provincial, others federal
- consequences
- no strong, consistent, national standard (Alberta can go nuts, Quebec has their own law which is actually pretty good)
- some provinces have no intention of regulating
- no controls on human embryo experimentation
- human-animal hybrid experimentation is now allowed
- no health regulations in place
- McLachin's Dissent
- “Parliament has a strong interest in ensuring that basic moral standards govern the creation and destruction of life, as well as their impact on persons like donors and mothers.”
- Section 11 recognizes…
- Section 13: The production of human life in clandestine…
- creating life outside the womb could “transform society and redefine the lives of generations to come” and raise “serious questions about social ethical, legal and health issues”