Fetal Rights Issue Raised
When Venus Carter realized she was pregnant with her fourth child, she knew it was time to confront her 15-year addiction to crack cocaine. Her three other children, although physically unharmed by her habit, had already been removed from her Toronto home by children's aid officials. And she was fully aware that the child she was carrying could be irreparably damaged by her drug use while still in the womb. But the power of the high was overwhelming. "This is where the word addiction comes in," Carter, 33, says. "You care, but you just smoke more to block it out." Finally, in her fifth month, she voluntarily entered a drug-treatment program. Her son, Jamai, was born five weeks early and weighed only three pounds, but luckily, the child, now almost one year old, appears to have suffered no other ill effects. "Jamai wouldn't be here if I hadn't stopped when I did," Carter says.
She is firmly opposed, however, to forcing pregnant, addicted women into drug treatment to protect their fetuses. "A person really, really has to be ready," she says. "To be forced into it, I don't think it's a good idea." Many Canadians disagree. Last week, a Manitoba judge drew wide praise for ordering that a pregnant woman addicted to sniffing solvents be confined in a residential drug-treatment facility until the birth of her child, expected in December. The order was stayed a few days later pending an Aug. 20 appeal, but the case - along with a raft of others in Canada and the United Kingdom - left many with the conviction that there are far too many unanswered questions about the haunting issue of fetal rights. In June, for instance, a mother from Carleton Place, a small community west of Ottawa, was charged with attempted murder after a lead pellet was found in the brain of her newborn son. The wound was inflicted just prior to the boy's birth in May. Her lawyer has argued that the case should not proceed to trial, because the rights of fetuses, if there are any at all, must take second place to the rights of their mothers.
What, many people are asking, is going on? How is it possible to permit abortion - and yet curtail the freedom of women who choose to carry their fetuses to term? "It's very complicated why we are acting this way," says Margaret Somerville, director of McGill University's Centre for Medicine, Ethics and Law. "There are deep psychological roots to these situations because we're all ex-embryos and fetuses - there's a personal identification."
Deep emotion - and a sense of tragedy - certainly marked the appalling circumstances of the case faced by Manitoba Justice Perry Schulman last week. He was asked by Winnipeg's Child and Family Services to order that a pregnant addict be confined to a drug-treatment centre until the birth of her child. The 22-year-old woman, who cannot be identified because her three children are wards of Child and Family Services, has been sniffing paint thinner, glue and other solvents for eight years. Two of her children suffered neurological damage as a result of her addiction. Last week, observers outside the Winnipeg courthouse described the woman's own physical state as poor: she walked with an unbalanced gait, was shaking and incoherent and appeared devastatingly thin, especially for someone in the fifth month of pregnancy. Members of her family said that she sometimes does not eat for days on end. A close-knit group of 12 brothers and sisters, they strongly supported the application, filing two petitions with the court. "It's destroying her, everybody can see that, and it's destroying her baby, too," an older sister told reporters.
Elizabeth Sellick, a lawyer and spokeswoman for Child and Family Services, says the agency has tried for years to help the woman with her addiction, but without success. "Finally, we had to ask, how many badly damaged children does a person have the right to bring into the world," Sellick mused. "It seemed to us that this was such an extreme case that we had to do something." Schulman of the Manitoba Court of Queen's Bench appeared to concur. He faced a major hurdle, however, because of a 1991 Supreme Court of Canada decision that held that a fetus has no legal rights. As a result, Schulman tried to protect the mother - instead of attempting to protect the fetus. The court was entitled to use its general powers to order her into treatment, he ruled orally, because she was not capable of adequately caring for herself. Full written reasons are expected this week.
Her lawyer, Winnipeg counsel David Phillips, countered that there is no basis for such a ruling unless the person is found to be mentally incompetent. And in this case, a psychiatrist's report clearly concluded that the woman is in touch with reality and fully capable of making her own decisions. "It is dangerous to use very, very general powers of the court to make this kind of order," Phillips told Maclean's. He acknowledged that courts sometimes bend the law in order to reach an ethical conclusion, especially in the face of extreme public pressure. The problem with that approach, he said, is that society ends up with flawed laws that are difficult to apply with fairness in subsequent cases. And there is little doubt, Phillips says, that if the decision is upheld, it could lead to many more such applications. (Late last week, the Manitoba Court of Appeal granted the woman leave to appeal and stayed the order against her until the appeal can be heard; such stays are routinely granted.)
Much better than a case-by-case approach to the problem would be a new, carefully considered statute, Phillips suggested, so that any duty to protect a fetus is carefully balanced against the rights of the mother. Apparently sensitive to such criticisms, the Manitoba government announced at the end of last week that it is looking at other ways to guard against maternal neglect, including amending the provincial Child and Family Services Act.
But whatever Manitoba decides to do, it is likely that there will be growing public pressure across the country to provide at least some protection for the fetuses of addicted women. At the very least, some say, the state is entitled to step in when the alternative is a disabled child who is likely to require enormous social support in areas such as special education and health care. "It is also important to remember that, without intervention, these children may be doomed to a life of misery," noted Jacques LeCavalier, head of the Canadian Centre on Substance Abuse. Distressingly, the number of such children - while still not high - is clearly on the increase. A report published this year by the Metro Toronto Research Group on Drug Use found that the number of newborns damaged by drug abuse in the Toronto area had increased almost seven times to 74 between 1986 and 1994.
Researchers are also continuing to uncover a frightening range of potential disabilities and health problems in such infants. Among them: mental retardation caused by sniffing solvents; deformities and neurological damage resulting from fetal alcohol syndrome; and the low birthweight, premature birth and stillbirth common among children of cocaine users. Even smoking can cause serious, long-term impairment. "The children of heavy smokers can be physiologically compromised," says Anne Pastuszak, assistant director of the Motherisk program at the Hospital for Sick Children in Toronto, a counselling service for pregnant women. "They have to stay in hospital longer and are more apt to develop respiratory infections. They're sicker kids - that's the basic bottom line."
The obvious question, of course, is how to reconcile this growing awareness of the complexities of life before birth - and society's increasing willingness to intervene on behalf of a fetus - with the unfettered right to abortion. Ever since 1988, when the Supreme Court of Canada ruled that Canada's abortion law was unconstitutional, abortion has been available without any major restrictions. In 1991, the Senate defeated a bill that would have criminalized abortion unless a doctor concluded that a pregnancy would threaten a woman's physical or psychological health. That same year, the Supreme Court ruled that two midwives could not be found criminally responsible in the death of an unborn child because a fetus has no rights.
Abortion-rights activists say that is exactly the way things should remain and they are adamantly opposed to the implication - raised by the Manitoba case - that a fetus has legal rights or that its interests should ever outweigh those of the mother. "One of the greatest concerns is the notion that the fetus and the woman are separate and have conflicting priorities," says Amanda LeRougetel, Winnipeg-based president of the national Canadian Abortion Rights Action League. "If this case opens the door to a general discussion of fetal rights, it will have done something that the original players never intended."
Anti-abortion groups believe that is exactly what it does, and they welcomed Schulman's decision as long overdue. "This case is an educational opportunity - the average person in the street now understands that this is a baby that is being damaged," said Winnipeg's Ann Desilets, executive director of the national anti-abortion group Alliance for Life. But she questioned how fetal rights could exist alongside the right to abortion. "Why is it that, if a child is wanted, it is a patient, and if not, it's OK to get rid of it? Why do we have that dichotomy?"
McGill's Somerville agrees that on the surface, at least, that does create a deep inconsistency. The only way to resolve it, she says, is to appreciate the history behind abortion: the law was originally liberalized, she points out, to redress the inequitable treatment of women. "In the past, women were just vehicles to have babies," she says, "with no right to control their body or their fate." But if the pregnancy is to be carried to term, she says, then attention shifts from the woman to her developing fetus. At that point, she says, it is entirely understandable to feel concern for its welfare. Looked at from that point of view, she concludes, Schulman arrived at the right decision, even if it lacks a sound basis in law. "I think we need to allow more discretionary decision-making by judges," she added. "I worry that we have reduced everything to the tight hand of the law."
Not so fast, say legal experts at the other end of the philosophical spectrum. Kathleen Mahoney, professor of law at the University of Calgary and a specialist in human rights, believes that the Manitoba decision is a profoundly disturbing one that, if upheld, could erode the hard-won rights of women. It is crucial, she says, to preserve the full rights of the mother throughout the pregnancy. Otherwise, she warns, society could find itself on a slippery slope where a wide variety of women, from those who follow a poor diet during pregnancy to others who live in dangerous environments, could be subject to control. "And that is not an extravagant argument," she says. "All of those things have happened throughout history."
Still, it seems that there will always be cases where the heart demands to be heard, even at the expense of principle. In May, 28-year-old Brenda Drummond gave birth to her third child, Jonathan, in the bathroom of her Carleton Place townhouse. The baby was taken to hospital, where his condition deteriorated rapidly: three days later, doctors conducted a brain scan and found a pellet from an air gun lodged in his brain. There were no signs of an entry wound. Drummond was subsequently accused of shooting the baby shortly before his birth and has been charged with attempted murder. In June, she began a month-long series of psychiatric tests. In the meantime, her husband, Paul, who works at an Ottawa car dealership, is caring for the couple's two other young children. The Drummonds are also trying to regain custody of Jonathan, who is in the care of the local children's aid society.
Drummond has been charged under an obscure section of the Criminal Code that allows for murder charges to be laid if a child is injured before or after its birth and dies after being born alive. That principle has its roots in civil law, which has long permitted anyone harmed while still in the womb to sue for damages. But according to Lanark County Crown attorney John Waugh, the Drummond case also falls on new, still developing legal ground. He will argue, he says, that a fetus does indeed have rights and that if one is injured, an offence has been committed. "And if there is no such protection," he added, "there will be a hue and cry that some new law should be put in place."
But defence counsel Lawrence Greenspon is equally adamant that the case must not be allowed to become a moral slugging match. Under Canadian law, Greenspon says, the rights of the mother always take precedence over those of the fetus. Ethical discussions, he adds, are inappropriate. "We are not in a debating society, we are in a court of law." Such is the world of lawyers. But it is equally obvious that the entire question of life before birth and how it should be treated will require urgent public discussion - well into the next century.
Maclean's August 19, 1996