What About Legal Personhood for the Unborn Child?

Rivers and animals have made considerable strides toward recognition as legal persons (see following article). Isn’t it time, then, for the unborn human child to be recognized as such?

Ultrasounds show that the unborn child is undeniably a sentient being (having the ability to perceive or feel things) and has all the accoutrements of born human beings, such as fingers, toes, ears, eyes, etc. It definitely looks like a member of the human species. So what is blocking this critical recognition?

Legal Impediments

There are two legal impediments that may explain why the unborn child has not yet been recognized as a human person in Canada.

Canadian Criminal Code

Section 223 of the Criminal Code states that a child becomes a human being, “when it has completely proceeded, in a living state, from the body of its mother, whether or not it has breathed [or]…has an independent circulation, or the navel string is severed.”

This provision first became law in England in 1832, and when the Canadian Criminal Code became law in 1892, this specific provision was included in it.

It is notable that the purpose of this provision had nothing to do with abortion, but was written into the law for the sole purpose of defining when the charge of homicide could be laid for taking the life of a child. The provision, as noted above, required that the child must be wholly born into the world, that is, only after birth could a charge of homicide be brought for the killing of a child. Unfortunately, the provision in the Code on homicide (section 223) has been erroneously used by supporters of abortion to argue that the unborn are not human beings for all purposes, not just homicide.

The 1892 Criminal Code also specifically provided (sections 237 and 238) that all abortions were prohibited, i.e., a criminal offence.

Common Law (Judge-Made Law) Is Opposed to Abortion

Abortion was not only a criminal offence, but was also prohibited by English common law (judge-made law). The common law provision was later affirmed by an English statute in 1803. This statute became a part of Canadian law, since Canada, at that time, was a colony of Britain.

Abortion being prohibited in both criminal and common law continued uninterrupted until 1969, when Prime Minister Pierre Elliott Trudeau decriminalized abortions under certain specific circumstances – when the continuation of the pregnancy would endanger the life or health of the mother, as determined by a hospital abortion committee. Up until that time, Canadian common law had been slowly but steadily providing some recognition for the unborn child, which Trudeau’s amendment to the Criminal Code interrupted.

In 1979, the legal recognition of the unborn child was further undermined when Mr. Justice Sydney Robins of the Ontario High Court, in a legal challenge brought by an Ottawa lawyer, David Dehler (Dehler v. Ottawa Civic Hospital), held that “the law had stated birth as the point at which a fetus becomes a person with full and independent rights”. In his decision, Justice Robins also stated that the unborn child was not a “person” in the full legal sense, as a legal person must be an individual who is the subject of legal rights and duties, and, as the subject of the rights, has corresponding duties and obligations. He also stated, “a person is such, not because he is human, but because rights and duties are ascribed to him.” In short, Justice Robins confirmed that the unborn child cannot be regarded as a legal person before birth because the courts have decided that child does not have rights before birth. It would appear that this was the end of the story. Yet, former Oxford Professor John Finnis, a lawyer and constitution expert on the federal system, stated (First Things, April 2021) that the unborn child shares our humanity because a human “embryo has, right then and there, radical capacities [emphasis ours] to think, talk, and laugh, which a frog embryo simply lacks. And these radical capacities are the rational foundation for human equality”. He further stated that the possession of these capacities by every member of our species, from conception until natural death, justifies communities undertaking the burdens of providing equal protection of the law.

If the court can be permitted to declare rivers and animals as legal persons, why not, then, the unborn child?

In 1997, the issue of the protection of unborn children was raised in Canada at the Supreme Court of Canada in Winnipeg Child and Family Services v. GDF. In that case, a woman who was addicted to glue sniffing, and as a result of this addiction, had given birth to two children with abnormalities, was detained for treatment during the course of another pregnancy. The legal arm of the feminist movement, Women’s Legal Education and Action Fund (LEAF) argued that the child was a part of the woman’s body and had no legal status until it was born alive. As a consequence, the mother could not be detained in the treatment centre without her consent. It is significant that, when her child was born, it had no abnormalities because the mother’s temporary detainment in the treatment centre had prevented her from continuing her addiction.

In that case, two of the Supreme Court judges, Mr. Justices Jack Major and John Sopinka, gave a powerful dissent to LEAF’s argument stating,

“…modern medical technology has rendered the Common Law’s old “born alive” standard…obsolete. The notion that a child has to be born alive in order to obtain legal rights derives from an era when many children failed to survive birth. But modern medical technology has vastly increased the likelihood of live birth, even if the fetus is extremely premature or crippled by change or maternal abuse. Under these new circumstances, if our society is to protect the health and well-being of children, there must exist the jurisdiction to order a pre-birth remedy, preventing a mother from causing serious harm to her fetus. Someone must speak for those who cannot speak for themselves”.

In November 2020, a Victoria, B.C. lawyer, Dr. Charles Lugosi, brought an application before the Supreme Court of Canada in Mary Wagner v. Her Majesty the Queen, in which he raised, among other issues, “who should fit within the legal definition of human being?” The Supreme Court refused to hear his appeal and it is its practice not to provide reasons for its decisions on applications to appeal.

The Blocking of the Legal Recognition of the Unborn Child

The outdated law on the unborn child has been firmly held in place by the feminist lobby and its supporters, including the mainstream media, liberal judges and politicians, such as Prime Minister Justin Trudeau. The latter regards abortion as a “right” and an integral part of feminism. As a result, rejecting abortion, according to Trudeau, is equivalent to “hating” women.

The feminist perspective on abortion is based on the argument that a woman must have an absolute “right” to decide whether the child in her womb should live or die. This is due to the notion that abortion is essential in order to allow women to be equal to men, i.e., they must be allowed to copy men’s lives in a wombless society.

Women, instead, should insist that society adapt to women and the needs of women in all their manifestations, including pregnancy and birth. In truth, abortion is a great convenience for men, since it rids them of any responsibility or obligation should their partner become pregnant. A pregnant woman can quickly rid herself of the inconvenience of the child, in a procedure that is paid for in Canada by Health Canada, and is, therefore, at no cost, either personal or financial, to the man.

Despite the pervasiveness of abortion today, it still carries with it a social stigma. In the last few years, however, some feminists have attempted to remove this stigma by loudly shouting that they are grateful and relieved that they had an abortion, which allowed them to succeed in their careers. Recognition and achievement in their chosen field is the priority for such women. However, public recognition in society is only temporary and provides no lasting satisfaction, as all glory is fleeting. As English poet Thomas Gray wrote, “The paths of glory lead but to the grave”. Glory and recognition are meaningless in the grave.

Also, by obtaining an abortion, a woman destroys one of the most important contributions she can make to society –a new human being– a person to love and to be loved by in return. Future generations will barely remember, if at all, a woman’s “success” in society. Only a child is able to carry the memory of her essence and genetic inheritance into the future. Without a child, both are lost forever.

Archaic Judges and Politicians

The supposedly “progressive” politicians and judges are not using today’s knowledge of science and medicine to break through the outdated laws that no longer stand the test of time. The abortion situation today is incompatible with humanity and justice. The feminist lobby, opposing the removal of the barriers that would protect the unborn child, is also supported by our present culture. The latter demands instantaneous satisfaction, convenience, materialism, and a lack of confidence in the future. These factors contribute to the present status quo.

Regardless, it is only logical and reasonable that Canada moves into the modern world and declares the unborn child a legal person.