Foetal Rights and the Regulation of Abortion
Martha Shaffer*
In.this article, the author discusses the legal
status of the foetus in the wake of the Supreme
Court of Canada decision in Tremblay v. Dai-
gle. She examines the Court’s finding that the
foetus has no rights in the civil or common law
and exposes the resulting difficulties with the
assertion of foetal rights under the Charter. By
drawing upon factums submitted by the parties
and by anti-abortion intervenors in Daigle and
Borowski v. Canada (A.G.), the author ana-
lyzes the scientific and moral claims pro-
pounded by opponents of abortion in support
of foetal rights but finds them insufficient to
establish a normative argument for the recog-
nition of such rights under the Charter.
The determination of foetal rights under the
Charter would require the courts to answer the
preliminary question of to whom Charter
rights apply. The author examines the intent-
based and purposive approaches to Charter
interpretation to ascertain which approach
would be better suited to a determination of
the foetus’ status under the Charter. She
doubts that either approach would lead the
courts to find that the foetus has rights under
the Charter because there is no evidence of
such an intention on the part of the legislature
at the time of enactment of the Charter, and
because a finding of foetal rights would sub-
stantially restrict the rights of women.
L’auteure dtudie le statut juridique du foetus
A la lumi~re de l’affaire Tremblay c. Daigle.
Elle analyse d’abord un des aspects de la ddci-
sion de ]a Cour supreme du Canada selon
lequel le fetus n’a aucun droit autant en droit
civil qu’en common law. Elle fait ensuite res-
sortir les difficult~s que pr6sente le fait de sou-
tenir que ]a Charte confire des droits au foetus.
En faisant appel aux m~moires que les parties
et les intervenants opposds i l’avortement ont
soumis lors des affaires Daigle et Borowski c.
Canada (P.G.), ‘auteure dfmontre que leurs
arguments moraux et scientifiques ne suffisent
pas i 6tablir une norme selon laquelle on pour-
rait baser la reconnaissance des droits en
faveur du fetus en vertu de ]a Charte.
Ddterminer les droits du fous sous l’em-
pire de la Charte exige que les tribunaux
d6cident d’abord A qui la Charte s’applique.
L’auteure 6tudie done les thdories d’interprdta-
tion de ]a Charte fond6es sur l’intention du
l6gislateur et sur les fins qu’il poursuit pour
determiner laquelle est la plus apte At faire
d6couvrir le statut du fcetus selon la Charte.
L’auteure doute que l’une ou
‘autre de ces
thories permette aux tribunaux de reconnaitre
des droits au fcetus en vertu de ]a Charte, car
rien ne semble indiquer que telle 6tait l’inten-
tion du 1dgislateur A ‘poque de ]a promulga-
tion de la Charte et que, de toute fagon, une
telle interpr6tation porterait significativement
atteinte aux droits des femmes.
* Assistant Professor of Law, University of Toronto. I am extremely grateful to Donna Gresch-
ner, Alan Mewett, Janet Mosher, Shaun Nakatsuru, Jennifer Nedelsky, Denise Reaume and Craig
Scott for their helpful comments and support. I would also like to thank Sarah Gagan and Jodi
Lackman of the McGill Law Journal for their editorial assistance. I also wish to acknowledge the
generous financial assistance of the Bolton Foundation which allowed me to begin thinking about
this piece.
McGill Law Journal 1994
Revue de droit de McGill
To be cited as: (1994) 39 McGill L.J. 58
Mode de r6f6rence: (1994) 39 R.D. McGill 58
19941
FOETAL RIGHTS
Introduction
Synopsis
I.
The Status of the Foetus after Daigle
A. An Overview of Tremblay v. Daigle
B. The Decision of the Supreme Court of Canada
1. Foetal Rights under the Civil and Common Law
2.
The Status of the Foetus under the Quebec Charter
II. Anti-Abortion Arguments in Favour of Foetal Rights
A. The Scientific Claims
B. The Moral Claims
111. Assessing the Arguments after Daigle
A. Anti-Abortion Arguments and Legal Understandings of
Personhood
B. Answering the Question: The Possible Approaches
1. An Intent-Based Approach to Foetal Personhood
2. A Purposive Approach to Foetal Rights
Conclusion
Introduction
In the summer of 1989, three Canadian men sought injunctions to prevent
their pregnant former girlfriends from obtaining abortions. In Murphy v. Dodd,’
the Ontario Supreme Court granted an injunction restraining twenty-two year
old Barbara Dodd from seeking an abortion, and enjoining all hospitals and doc-
tors within the province of Ontario from performing the abortion. The injunc-
tion was vacated a week later on procedural grounds,2 and Ms Dodd obtained
an abortion later that day Two days after the injunction in Murphy v. Dodd was
–
1(4 July 1989), (Ont. S.C.) [unreported).
2Mr. Justice Gibson Gray found two bases for setting aside the injunction. First, Ms Dodd had
received insufficient notice to allow her to respond to the proceedings. Second, Mr. Justice Gray
found that the injunction had been granted on the basis of fraud on the court. In a sworn affidavit
Mr. Murphy had intimated that he was clearly the “father” and therefore “entitled” to bring the
application, even though he knew that Ms Dodd had been having sexual relations with another
man. Mr. Murphy also swore that he had conferred with Ms Dodd’s gynecologist who was of the
opinion that a “third abortion’could represent a serious risk to [Ms Dodd’s] life” while “a preg-
nancy did not constitute such a risk to her” (Motion Record, Affidavit of Gregory Murphy at 4).
Ms Dodd produced an affidavit from her doctor who swore that the alleged conversation never took
place.3Ms Dodd later regretted her decision and became active in the anti-abortion movement. See K.
REVUE DE DROIT DE McGILL
[Vol. 39
granted, a Winnipeg man, Steven Diamond, brought a similar application The
Manitoba court dismissed his application.’ A month later, in the most notorious
of the three proceedings, Jean-Guy Tremblay successfully obtained an injunc-
tion preventing twenty-one year old Chantal Daigle, who was then eighteen
weeks pregnant, from obtaining an abortion.’ The injunction was sustained by
the Quebec Court of Appeal.7 The Supreme Court of Canada, on summer recess,
held an emergency sitting and unanimously vacated the injunction.’ By the time
the Supreme Court of Canada heard the case, the injunction restraining Ms Dai-
gle had been valid for four and a half weeks.
In support of the applications, counsel for the applicants argued that an
abortion would violate the rights of the foetus. Although the arguments varied
in the three cases, counsel for the men tried to prevent the abortions by persuad-
ing the court that a foetus is a person who has rights under the Canadian Char-
ter of Rights and Freedoms,9 at common law and under provisions of the civil
law of Quebec. Central to all three applications was the premise that a foetus
is a legal person whose rights outweigh those of the pregnant woman.
In vacating the injunction against Ms Daigle, the Supreme Court of Canada
rejected two of the arguments that figured prominently in the applications: the
notion that a foetus has rights at common law and that foetal rights exist within
the civil law of Quebec. The Court declined, however, to consider the third
argument made in the applications, that the foetus has rights under the Charter.
The Court held that the status of the foetus under the Charter was not in issue
because the case was between two private parties and did not involve govern-
ment action.
In this paper, I explore the issue of foetal rights under the Charter. The sta-
tus of the foetus under the Charter remains an important legal and political
issue, one that has profound implications for women. The significance of this
issue stems in part from the link between foetal rights and the abortion debate.
If the courts accept the view that the foetus has rights under the Charter, any
Makin, “Woman’s About-Face Causes Cheers, Shock but Perplexes Public” The [Toronto] Globe
and Mail (20 July 1989) A14.
4Diamond v. Hirsch (6 July 1989), (Man. Q.B.) [unreported].
5Judge Hirschfield rejected the applicant’s argument that an eight-week old foetus is a human
being. He held that the “overwhelming consideration” was that Ms Hirsch had an absolute right,
subject to criminal sanctions, to control her body; a right which she was exercising in deciding to
terminate her pregnancy (ibid.).
6Tremblay v. Daigle (7 July 1989), (Que. Sup. Ct.) [unreported]. When the injunction expired
ten days later, Jean-Guy Tremblay obtained an interlocutory injunction effective for the duration
of Ms Daigle’s pregnancy ([1989] R.J.Q. 1980 (Sup. Ct.)).
7[1989] R.J.Q. 1735, 59 D.L.R. (4th) 609 (C.A.).
t The case was heard on August 8, 1989 and the Court rendered its decision to reverse the Court
of Appeal that day, with written reasons to follow. The reasons were released on November 16,
1989 ([1989] 2 S.C.R. 530, 62 D.L.R, (4th) 634 [hereinafter Daigle cited to S.C.R.]). Ms Daigle
would have been almost twenty-three weeks pregnant at the time the Supreme Court of Canada
rendered its decision had she not obtained an abortion in the United States a week earlier. By under-
going the procedure, Ms Daigle risked being held in contempt of court.
9Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982,
c. 11 [hereinafter Charter].
1994]
FOETAL RIGHTS
law permitting abortion would be open to challenge on the ground that it
infringed the foetus’ “right to life” guaranteed by section 7 of the Charter.
While one cannot be certain that the recognition of foetal rights would render
abortion unconstitutional in all circumstances, constitutional rights for the foe-
tus would give those who oppose abortion a powerful tool with which to chal-
lenge any abortion law Parliament may decide to enact.
Foetal rights are in fact closely tied to the anti-abortion movement. Oppo-
nents of abortion have fastened on the idea that the foetus has legal rights and,
in particular, on the belief that the foetus has a right to life. According to the
argument advanced by the anti-abortion movement, when there is a conflict
between the foetus’ right to life and a woman’s desire to end her pregnancy, the
foetus’ rights trump any claim the woman may have to seek an abortion except,
perhaps, when the woman’s own life is threatened by continuing the preg-
nancy. Because judicial recognition of foetal rights could potentially prohibit
legal abortion, the attempt to secure such recognition has, until recently, dom-
inated the anti-abortion movement’s legal agenda. Foetal rights under the Char-
ter have been perceived as especially useful in this regard, as they offer the
potential of prohibiting abortion on a nation-wide scale.”
The significance of foetal rights is not, however, limited to the abortion
arena. The acceptance of foetal rights under the Charter will also influence how
we conceptualize pregnancy, how we perceive pregnant women, and how we
perceive the role of the State in regulating pregnancy. Pregnancy will become
a contest of competing rights, the rights of the woman in actual or potential con-
flict with those of the foetus. A pregnant woman will cease to be an autonomous
whole, but instead will be regarded as two legal persons. Recognizing foetal
rights under the Charter will also have implications for the-status of the foetus
under other statutes. Once the foetus is a person for Charter purposes, it
becomes easy to argue that other legislation which uses the term “person” or
“child” must apply to the foetus to conform to the Charter. For example, child
protection legislation which authorizes the State to take charge of children
deemed in need of protection has generally been interpreted to apply once a
child has been born. If a foetus is deemed to be a person under the Charter, it
0Many anti-abortion groups resist the claim that abortion may be necessary to preserve a
woman’s life or health on the basis that pregnancy itself can never threaten a woman’s life or health
and thus that abortion is never medically necessary. For example, in Borowski v. Canada (A.G.),
[1989] 1 S.C.R. 342, 57 D.L.R. (4th) 231 [hereinafter Borowski cited to S.C.R.], Realistic Equal
and Active for Life Women (“R.E.A.L. Women”) made the following submission:
There is NO MEDICAL REQUIREMENT for an abortion. In cases of ectopic preg-
nancy and cancer of the cervix medical procedures required to preserve the life of the
woman may result in the death of the child. The lack of intent to destroy the child
excludes these procedures from the term abortion [emphasis in original] (Factum of the
Intervenor R.E.A.L. Women of Canada in Borowski at 13 [hereinafter Factum of
R.E.A.L. Women in Borowskil).
“In what may be the most notorious anti-abortion case in Canada, anti-abortion crusader Joe
Borowski attempted to have the portions of the former abortion law which permitted therapeutic
abortions struck down as infringing the Charter rights of the foetus. Borowski’s challenge was
unsuccessful as the Supreme Court of Canada dismissed his case on the grounds of mootness. See
Borowski, ibid.
McGILL LAW JOURNAL
[Vol. 39
will be possible to argue that child protection legislation must apply to a foetus
and must allow the State to apprehend a foetus if its “mother’s” conduct puts
its well-being at risk. 2 Foetal rights could also lay the groundwork for criminal
prosecution of women whose conduct during pregnancy endangered the foetus
and for forcing women to undergo caesarean sections and other forms of med-
ical treatment in the interests of the foetus. The potential impact of foetal rights
under the Charter for the abortion debate, and for the regulation of pregnancy
more broadly, renders the issue an important one for consideration.
This paper is divided into three parts. In Part I, I provide a brief overview
of the decision of the Supreme Court of Canada in Daigle, and of its implica-
tions for the claim that a foetus has Charter rights. In Part II, I examine the
arguments that opponents of abortion have made in support of foetal rights in
Borowski and Daigle, the two foetal rights cases which have reached the
Supreme Court of Canada. 3 Drawing upon the factums submitted by the parties
and anti-abortion intervenors, I argue that opponents of abortion have relied on
three arguments: that science establishes an objective, non-normative definition
of humari personhood which includes the foetus; that it is morally wrong to
deny the legal status of personhood to anyone who is biologically human; and
that the foetus has already been recognized as a person in both the common and
civil law. In Part III, I assess these arguments in light of Daigle. I conclude by
urging the courts to look to feminist scholarship which is beginning to generate
new ways of thinking about pregnancy that focus on the woman who is in the
process of creating life. Two caveats are in order. I will be using the terms “foe-
tal rights” and “foetal personhood” interchangeably to refer to the claim that a
foetus has legal rights. In the abortion context, the argument that a foetus is a
“person” or a “human being” has become virtually synonymous with the claim
that a foetus has rights. Since rights under the Charter apply to legal persons
and all natural persons within Canada have Charter rights, anti-abortion argu-
ments in support of foetal rights have proceeded on the basis that if the foetus
is a person, it must have Charter rights. The concept of foetal personhood, how-
ever, encompasses more than the claim that a foetus has rights under the Char-
12This argument has already been attempted in Re Baby R (1987), 9 R.F.L. (3d) 415 (B.C. Prov.
Ct. (Fam. Div.)), rev’d (1988), 15 R.F.L. (3d) 225, 55 D.L.R. (4th) 69 (B.C.S.C.). In that case, a
woman in labour refused to consent to a caesarean section. The medical evidence indicated that
unless ;a caesarean were performed, the baby would die or would be seriously or permanently
injured. The hospital contacted a social worker who apprehended the child and informed the
attending physician he “was to do what was required medically for the child” but that the social
worker was not consenting to any medical procedure to be performed on the woman. In the interim,
the woman consented to the caesarean section and the procedure was performed. After the birth,
the Superintendent of the Family and Child Service brought an application for permanent guard-
ianship of the child based on the prenatal apprehension. The British Columbia Provincial Court
granted the application and held that the apprehension was entirely proper. On appeal, the British
Columbia Supreme Court reversed the decision, holding that a foetus is not a “child” under the
Family and Child Service Act, S.B.C. 1980, c. 11, and thus cannot be apprehended as a child in
need of protection.
13The Supreme Court also considered the status of the foetus in R. v. Sullivan, [1991] 1 S.C.R.
489, 3 C.R. (4th) 277 [hereinafter Sullivan]. This case differs from Borpwski and Daigle because
it was not brought in the context of abortion. A decision that the foetus was a person for the pur-
poses of the Criminal Code would have had implications for the abortion debate.
19941
FOETAL RIGHTS
ter. Claims that a foetus is a person have arisen outside of the abortion context,
including determining whether a foetus can be apprehended under child welfare
legislation as a child in need of protection,14 and whether a foetus that dies dur-
ing birth is viewed by the criminal law as a human being. 5 Although these
assertions of foetal personhood are related to arguments made in the abortion
context, I will not be addressing them in any depth here. Second, throughout this
paper I will be describing pregnancy in the terms used in the factums, which is
to say that I will be referring to the foetus as if it can be discussed, and its status
analyzed, separately from the pregnant woman. I have used this language
because it is in these terms that the arguments I seek to explore are made. I do
not wish to be read as adopting this language nor the underlying vision of preg-
nancy the language reflects.
I. The Status of the Foetus after Daigle
A. An Overview of Tremblay v. Daigle
The facts in Tremblay v. Daigle are by now notorious and therefore can be
canvassed briefly. Chantal Daigle became pregnant during a brief relationship
with Jean-Guy Tremblay. The relationship between the two quickly deterio-
rated. According to Ms Daigle, Mr. Tremblay became dominant, jealous, pos-
sessive and physically abusive. 6 There were frequent quarrels. On July 3rd,
after a particularly abusive episode in which the police were called, Ms Daigle
left Mr. Tremblay. The next day, Ms Daigle, who was eighteen Weeks pregnant,
began making arrangements for an abortion. When Mr. Tremblay learned of Ms
Daigle’s intention to terminate her pregnancy, he brought an ex parte applica-
tion for an injunction. The application was successful and Ms Daigle was
informed of the injunction against her on July 8th, 1989.
Tremblay’s claim for an injunction was based on an assertion of foetal
rights and on Tremblay’s own right as “father” of the foetus to prevent the
destruction of his “child”.17 Tremblay claimed that the foetus had a right to life
which outweighed any interest Chantal Daigle had in obtaining an abortion. He
argued that the right to life arose from three different areas of law: the Civil
Code of Lower Canada, Quebec’s Charter of Human Rights and Freedoms”8
and the Canadian Charter of Rights and Freedoms. Each of these arguments
merits closer examination. Tremblay’s contention that the civil law of Quebec
14Re Baby R, supra note 12. See also Re Superintendent of Family & Child Services for British
Columbia v. M.(B.), [1982] 4 W.W.R. 272, 135 D.L.R. (3d) 330 (B.C.S.C.); Re Children’sAidSoci-
ety of Belleville (City of) v. T.(L.) (No. 2) (1987), 59 O.R. (2d) 204, 7 R.F.L. (3d) 191 (Prov. Ct.
(Fam. Div.)); Re Children’s Aid Society of Kenora (District of) v. L.(J.) (1981), 134 D.L.R. (3d)
249 (Ont. Prov. Ct. (Fam. Div.)). While these claims can arise independent of a declaration of foetal
rights under the Charter, Charter rights for the foetus give them a greater likelihood of success.
15Sullivan, supra note 13.
16Daigle, supra note 8 at 536.
17The Supreme Court of Canada forcefully rejected the idea of “father’s” rights, holding that
there was nothing in Quebec law that could support the existence of a man’s right to veto a
woman’s decision to have an abortion (Daigle, ibid. at 572).
‘8R.S.Q. c. C-12 [hereinafter Quebec Charter].
REVUE DE DROIT DE McGILL
[Vol. 39
regards the foetus as a full legal person rested on his interpretation of several
articles in the Civil Code which explicitly refer to the foetus 9 and on the case
of Montreal Tramways v. LiveillM,2 decided under article 1053 of the Code.2
Tremblay relied specifically on several articles of the Code22 which set out rules
concerning the transmission of inheritances and gifts. These articles provide that
a foetus is capable of inheriting property and of receiving gifts so long as the
foetus is subsequently born alive and viable. These provisions parallel the com-
mon law property rules which also allow a foetus to inherit and to receive gifts,
subject to the condition that the foetus be born viable.23 Tremblay also relied on
articles 338 and 345 which have no explicit counterpart in the common law.
Article 338 provides for the appointment of a person known as a “curator”’24 to
act on behalf of judicially emancipated minors and of “children conceived but
not yet born.” According to article 345, the role of a curator to a foetus is to act
on behalf of the foetus
whenever [its] interests require it; [the curator] has until its birth the administration
of the property which is to belong to it, and afterwards he is bound to render an
account of such administration.
The effect of articles 338 and 345 is to ensure that any property a foetus may
receive by way of inheritance or gift is protected until the foetus is born. Trem-
blay interpreted these provisions as demonstrating that the civil law recognized
the foetus to be a person. He reached this conclusion based on the argument that
the civil law would not have protected the property interests of the foetus if the
foetus were not a person. Based on the above, Tremblay asserted that the foetus,
like all other persons, had a right to life recognized by the civil law.
Tremblay alleged that the 1933 decision in Montreal Tramways provided
judicial support for his argument that the civil law viewed the foetus as a person.
In that case, the Supreme Court of Canada held that a child could sue under arti-
cle 1053 of the Civil Code for damages resulting from prenatal injuries. The
plaintiff had been born with clubfeet which her parents claimed had been caused
by injuries the mother had sustained in a tramway accident when she was six
months pregnant. The parents sued the tramway company, which countered that
the claim disclosed no cause of action since the injuries had occurred when the
child was a foetus. A foetus, the company argued, had no legal existence at civil
law and therefore had no standing to sue under article 1053. The Supreme Court
rejected this argument, holding that once a child has been born alive and in a
viable state, the child will be deemed to have had a legal existence at the time
l9This article was written, and the cases discussed were decided, prior to the enactment of the
Civil Code of Quebec, which replaced the Civil Code of Lower Canada.
20[1933] S.C.R. 456, [1933] 4 D.L.R. 337 [hereinafter Montreal Tramways].
21Art. 1053 C.C.L.C. provides:
Every person capable of discerning right from wrong is responsible for the damage
caused by his fault to another, whether by positive act, imprudence, neglect or want of
skill.
22Arts. 608, 771, 838, 945 C.C.L.C.
23See infra note 32 and accompanying text.
24Within the common law, the concept that comes closest to a curator is the notion of guardi-
anship.
1994]
FOETAL RIGHTS
of a prenatal accident so as to be able to assert a claim for damages. Tremblay
contended that this decision constituted clear evidence of the recognition of foe-
tal personhood within the civil law since the Supreme Court would not have
allowed a foetus to sue under article 1053 had it not viewed the foetus as a per-
son.
Similar to his argument based on the Civil Code, Tremblay’s assertion of
foetal rights under the Quebec Charter revolved around the interpretation of
specific statutory provisions. Tremblay argued that the Quebec Charter
regarded the foetus as a human being and that the first two provisions protected
the foetus’ right to life. Section 1 of the Quebec Charter provides that “[e]very
human being has a right to life, and to personal security, inviolability and free-
dom.” Section 2 grants a right of assistance to “every human being whose life
is in peril.” It also imposes on all persons a duty to rescue any human being
whose life is in peril.’ Using a simple linguistic approach to interpretation,
Tremblay argued that the term “human being” included the foetus since the foe-
tus is a “being” which is “human” in a biological sense.26 Tremblay drew sup-
port for this interpretation from the language used in other sections of the Que-
bec Charter. Aside from the preamble and the first two provisions, all of the
provisions under the heading “Fundamental Freedoms and Rights” referred to
rights-holders as “persons”. The difference in terminology was significant,
Tremblay argued, indicating that “human being” was intended to connote more
than “person”. Thus, Tremblay argued that in enadting the Quebec Charter, the
legislature intended to protect the life of the foetus, and intended to impose upon
Quebecers a duty to rescue the foetus, a duty which he was fulfilling in seeking
an injunction against Chantal Daigle.
Finally, Tremblay claimed that a foetus is protected by the right to life, lib-
erty and security of the person in section 7 of the Canadian Charter of Rights
and Freedoms. Tremblay devoted few submissions to this argument, contending
simply that a large and liberal interpretation of the term “everyone” in section
7 would include the foetus. Tremblay acknowledged that pregnant women also
have rights under section 7 of the Charter and seemed to contemplate the pos-
sibility that the right to life of the foetus might conflict with a woman’s right
to security of the person and to liberty when the woman wished to have an abor-
tion. However, he argued that in most pregnancies no conflict would arise
because women’s rights would not come into play. According to Tremblay,
denying a woman access to an abortion would only infringe her rights under
section 7 if continued pregnancy threatened her life or health. Absent such a
25Section 2 states:
Every person must come to the aid of anyone whose life is in peril, either personally
or calling for aid, by giving him the necessary and immediate physical assistance,
unless it involves danger to himself or a third person, or he has another valid reason.
26Tremblay’s exact submission is as follows:
Sans recourir aux dictionnaires, il est ais6 de dire que
n’existait pas, nous ne serions pas devant cette honorable Cour.
de I’homme, de la race de 1’homo sapiens. Quel autre qualificatif pourrions-nous don-
ner a l’Etre qui est dans le sein de sa mre ? (Factum of the Respondent in Daigle at
8).
McGILL LAW JOURNAL
[Vol. 39
threat, forcing a woman to continue a pregnancy would not violate her rights
and thus no conflict with the foetus’ right to life would occur. No conflict arose
in Chantal Daigle’s case as Ms Daigle’s reasons for seeking an abortion were
unrelated to preserving her life or physical health.
B. The Decision of the Supreme Court of Canada
In a judgment which has tremendous implications for the existence of foe-
tal rights in Canadian law, the Supreme Court of Canada unanimously rejected
Tremblay’s arguments for foetal rights under the Civil Code and the Quebec
Charter. In addition, the Supreme Court declared that the common law does not
recognize foetal rights even though an analysis of the common law was not nec-
essary to resolve the appeal since the case was argued on the basis of Quebec
law and the Canadian Charter?7 The Court declined, however, to consider
Tremblay’s arguments for foetal rights under the Canadian Charter based on its
decision in RWDSU v. Dolphin Delivery,28 which held that the Charter does not
apply to disputes between private persons. 9
From the vantage point of assessing future foetal rights claims, Daigle is
significant in two respects. First, the decision that a foetus does not have rights
in the common and the civil law is a clear pronouncement on the status of the
foetus and constitutes an unequivocal rejection of what, as I will discuss in the
following section, has been a central argument in support of foetal rights under
that the common-and civil law recognize foetal rights. Second,
the Charter –
in disposing of the argument that a foetus has rights under the Quebec Charter,
the Supreme Court sketched out an interpretive approach which has ramifica-
tions for any future claim that a foetus has rights under a particular statute or
under the Canadian Charter. Since, for my purposes, the decision pertaining to
the common law and civil law is significant more for its result than its reason-
ing, I will deal with this aspect only briefly. I will devote more attention to the
court’s reasoning with respect to the Quebec Charter.
1.
Foetal Rights under the Civil and Common Law
The Court’s rejection of foetal rights in the civil law was based on its
observation that the rule in Montreal Tramways and all of the foetal interests
within the Civil Code are contingent on the foetus being born alive and viable.
According to the Court, this requirement negated any claim that a foetus has
rights qua foetus but rather supported the view that the interests contemplated
by the Code are for the benefit of living children. This interpretation, the Court
27The Court stated it had decided to examine the common law position to prevent women in
common law provinces from being subjected to the same ordeal as Ms Daigle (Daigle, supra note
8 at 565).
28[19861 2 S.C.R. 573, 33 D.L.R. (4th) 174.
29The Court explained its decision to avoid the Charter question in the following terms:
As we have indicated, the Court decided in its discretion to continue the hearing of this
appeal although it was moot, in order to resolve the important legal issue raised so that
the situation of women in the position of Ms Daigle could be clarified. It would, how-
ever, be quite a different matter to explore further legal issues which need not be exam-
ined in order to achieve that objective (Daigle, supra note 8 at 571).
1994]
FOETAL RIGHTS
67
noted, was consistent with the well established “fiction of the civil law” that a
foetus, which is not a legal person, will be deemed to have legal status when
necessary to protect the interests of a living child.
The Court noted that all of the property rights provisions (articles 608,771,
838 and 2543) explicitly provide that the foetus’ ability to receive property is
subject to the condition that it bz born alive and viable. Under all of these pro-
visions, if the condition of live birth is not satisfied, the foetus’ property inter-
ests disappear as if the foetus had never existed. 0 This rule constitutes a clear
difference between the civil law’s treatment of the foetus and of legal persons.
When a person dies, his or her property is dealt with according to the terms of
that person’s will, or if there is no will, according to statutorily dictated rules
of succession. In contrast, a foetus which has received property is unable to
transmit property to its heirs in the event it is not born alive and viable. The
Court held that the articles dealing with the appointment of a curator also fail
to establish the existence of foetal rights in the civil law since they merely pro-
vide a mechanism through which the property interests of the foetus can be
protected but do not create additional rights or interests. The Court arrived at
this interpretation of articles 338 and 345 in spite of the fact that the wording
of article 345 of the Code suggests that the curator’s responsibility may encom-
pass more than the administration of property gifted to the foetus. The Court
noted that even though article 345 states that the curator is to “act whenever [the
foetus’] interests require it,” there did not appear to be any cases in which courts
have permitted a curator to assert non-economic interests on behalf of the foe-
tus.
3 1
The Court used the same reasoning to conclude that the common law does
not recognize foetal rights. Like the civil law, the common law permits recovery
in tort for prenatal injuries and enables a foetus to inherit property, provided in
both cases that the foetus is born alive and viable.32 In rare instances the foetus
has also been the subject of awards of custody33 and of child support.’ also on
the condition that these awards take effect upon the birth of a viable child. As
it had under the civil law, the requirement of live birth proved fatal to the claim
that the foetus has rights at common law since it refuted any argument that the
law grants unconditional recognition to the foetus. This conclusion, the Court
noted, was consistent with most common law decisions in Canada, as well as
decisions from other common law jurisdictions. 5
30Daigle, ibid. at 560-61.
31Daigle, ibid. at 557.
32The common law has allowed testators to bequeath property to “persons conceived and not yet
born”. In the event that the testator died before the birth of a beneficiary, the property would be
held for the beneficiary until the beneficiary was born alive and viable. If the beneficiary was not
born alive, or was born alive but died shortly after birth, the property reverted to the testator’s
estate. See Earl of Bedford’s Case (1587), 7 Co. Rep. 7b, 77 E.R. 421 (K.B.); Thellusson v. Wood-
ford (1805), 11 Ves. Jun. 112, 32 E.R. 1030 (Ch.); Elliot v. Lord Joicey, [1935] A.C. 209 (H.L.).
33K. v. K. (1933), 41 Man. R. 504, [1933] 3 W.W.R. 351 (K.B.).
34The Alberta Supreme Court held in Solowan v. Solowan, [1953] 8 W.W.R. 288 that when a
woman is pregnant at the time of divorce or separation, the courts may make an order for child
support to take effect upon birth.
35See Dehler v. Ottawa Civic Hospital (1979), 25 O.R. (2d) 748, 101 D.L.R. (3d) 686 (H.C.J.),
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2.
The Status of the Foetus under the Quebec Charter
The Court began its consideration of the status of the foetus under the Que-
bec Charter with a discussion of the nature of the question it was being asked
to resolve. In the Court’s view, determining whether the term “human being” in
the Quebec Charter included a foetus was a legal matter involving the interpre-
tation of specific legislative provisions. As a legal matter, the Court was being
called upon to consider whether, in enacting the Charter, Quebec’s National
Assembly intended to grant rights to the foetus. It was not being asked to deter-
mine whether the foetus is a human being in the biological or metaphysical
sense, nor was it required to do so. This understanding emerges clearly from the
following passage:
In examining this argument [that the term “human being” includes a foetus] it
should be emphasized at the outset that the argument must be viewed in the con-
text of the legislation in question. The Court is not required to enter the philosoph-
ical and theological debates about whether or not afoetus is a person, but, rather
to answer the legal question of whether the Quebec legislature has accorded the
foetus personhood. Metaphysical arguments may be relevant but they are not the
primary focus of inquiry. Nor are scientific arguments about the biological status
of a foetus determinative in our inquiry. The task of properly classifying a foetus
in law and science are different pursuits. Ascribing personhood to a foetus in law
is a fundamentally normative task. It results in the recognition of rights and duties
a matter which falls outside the concerns of scientific classification. In short,
–
this Court’s task is a legal one. Decisions based upon broad social, political, moral
and economic choices are more appropriately left to the legislature. 36
Having defined the nature of its task, the Court indicated that a legal
approach to resolving the status of the foetus would “begin with an examination
of the text of the Quebec Charter before turning to a consideration of other
sources which may be relevant in interpreting the Quebec Charter.’ 37 The text
of the Charter, the Court noted, contained no suggestion of an intention to view
the foetus as a human being:
In our view, the Quebec Charter, considered as a whole, does not display any clear
intention on the part of its framers to consider the status of the foetus. This is most
evident in the fact that the Charter lacks any definition of “human being” or “per-
son,,.38
In the Court’s view, the absence of any intention to deal with the foetus was
itself a reason for holding that a foetus does not have Charter rights. 9 With
aff’d (1980), 29 O.R. (2d) 677, 117 D.L.R. (3d) 512 (C.A.); Medhurst v. Medhurst (1984), 46 O.R.
(2d) 263, 9 D.L.R. (4th) 252 (H.C.J.); Borowski v. Canada (A.G.) (1983), 4 D.L.R. (4th) 112,
[1984] 1 W.W.R. 15 (Sask. Q.B.), aff’d (1987), 39 D.L.R. (4th) 731, [1987] 4 W.W.R. 385 (Sask.
C.A.) [hereinafter Borowski cited to D.L.R.]; Paton v. British Pregnancy Advisory Service Trust-
ees, [1979] Q.B. 276; Paton v. United Kingdom (1980), 3 E.H.R.R. 408 (Eur. Comm. H.R.);
Queensland (A.G.) v. T. (1983), 46 A.L.R. 275 (H.C.J.); Roe v. Wade, 410 U.S. 113 (1973) [here-
inafter Roe].
36Daigle, supra note 8 at 552-53 [emphasis added].
371bid. at 553.
381Ibid. at 555.
39The Court stated:
For her part, [Ms Daigle] argues that this lack of an intention to deal with a foetus’ sta-
tus is, in itself, a strong reason for not finding foetal rights under the Charter. There
19941
FOETAL RIGHTS
respect to other interpretive sources, the Court held that the most important
background source for interpreting the Quebec Charter is the civil law of Que-
bec as set out in its Civil Code.’ The Court proceeded on the assumption that
in the absence of evidence to the contrary, it would be reasonable to presume
that the foetus had the same status within the Charter as it had within the civil
law. In light of its conclusion that the civil law did not regard the foetus as hav-
ing independent legal status and its conclusion that the Quebec Charter revealed
no intention to consider the foetus, the Court held that “it would be wrong to
interpret the vague provisions of the Quebec Charter as conferring legal person-
hood upon the foetus.” ‘
In the course of outlining this.approach, the Court dealt with Tremblay’s
arguments that a foetus is a human being, both of which stemmed from a textual
analysis of the Charter. Considering first Tremblay’s submission that the term
“human being”, by definition, includes a foetus, since the foetus is a “being”
which is “human”, the Court held that the meaning of the term “human being”
in the Quebec Charter could not be resolved using a linguistic interpretation:
A linguistic analysis cannot settle the difficult and controversial question of
whether a foetus was intended by the National Assembly of Quebec to be a person
under s. 1 [of the Quebec Charter]. What is required are substantive legal reasons
which support a conclusion that the term “human being” has such and such a
meaning. If the answer were as simple as the respondent contends, the question
would not be before the Court nor would it be the subject of such intense debate
in our society generally. The meaning of the term “human being” is a highly’ con-
troversial issue to say the least, and it cannot be settled by linguistic fiat.
In addition, the Court held that linguistic arguments, like arguments based on
science or metaphysics, could not resolve the legal status of the foetus because
they were incapable of generating a legal response:
A purely linguistic argument suffers from the same flaw as a purely scientific
argument:, it attempts to settle a legal debate by non-legal means; in this case by
resorting to the purported “dictionary” meaning of the term “human being” 4 3
Second, the Court rejected Tremblay’s textual claim based on the differing
use of the terms “human being” and “person”, holding that it could discern no
clear logic to the differing use of the two terms. Were any distinction between
the two to be drawn, the Court held that the most plausible interpretation was
that the term “human being” was intended to exclude corporations, recognized
in law as artificial persons, from asserting rights under the first two provisions
of the Charter. Thus, neither of Tremblay’s arguments persuaded the Court that
in enacting the Charter, the Quebec legislature had intended to depart from the
ordinary legal understanding of the term “human being”.
The Court’s approach to the Quebec Charter is salient in two respects. The
first is the insight that determining the status of the foetus under the Charter was
is force in. this argument. One can ask why the Quebec legislature, if it had intended
to accord a foetus the right to life, would have left the protection of this right in such
an uncertain state (ibid.).
40Ibid. at 556.
41Ibid. at 570.
421bid. at 553 [emphasis added].
431bid. at 553-54.
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a legal task which is normatively different from classifying the foetus in other
disciplines. Although the Court did not expound at length on the nature of this
difference, some indication of the Court’s thinking can be gleaned from its dis-
cussion of the inadequacy of science, philosophy or linguistics as sources for
resolving the status of the foetus within the Quebec Charter. In the Court’s view,
biological classifications of the foetus could not settle the foetus’ legal status
since personhood has a different meaning in law and in science. Normative con-
siderations relating to the assignment of rights and responsibilities are central to
the legal meaning of personhood, but these concerns do not enter into a science-
based approach which classifies the foetus according to its internal norms. Anal-
yses rooted in linguistics are deficient for similar reasons: they do not entail
consideration of the normative aspects of the legal designation of personhood.
The Court’s reasons for rejecting philosophical discourses on the moral sta-
tus of the foetus are less clear. However, building upon the Court’s analysis of
the deficiencies of scientific understandings of personhood, it is possible to
speculate as to the reasons. There are two obvious possibilities. First, legal obli-
gations frequently diverge from moral obligations. We may, for example, have
a moral duty to rescue a person in distress, but the common law imposes no gen-
eral duty to rescue.’ Even if the foetus were to have the moral status of a per-
son, it does not necessarily follow that the foetus should be viewed as a person
for legal purposes. The second reason stems from the Court’s understanding of
the nature of the question it was being asked to address. The question of foetal
status under the Quebec Charter is not whether the foetus could be considered
to be a human being in a philosophical or moral sense, but rather whether the
legislature intended the foetus to be the beneficiary of rights contained in the
Quebec Charter. This is not a question to which philosophy can provide an
answer, but instead is one which must be answered by the more mundane
approach of determining whether the Quebec National Assembly had in fact
conferred rights on the foetus.
Also salient is the Court’s description of what a legal approach would
entail. The Court was clearly of the view that a legal analysis of foetal status
must be firmly rooted in the context of the specific legislation alleged to grant
foetal rights. The first step in any such analysis is to scrutinize the text of the
legislation in question to determine whether a foetus is included within the
terms used in the statute. However, use of the generic terms “human being” or
“person” will not establish that the legislation applies to the foetus since,
according to their accepted meaning within the common law and civil law, these
terms do not encompass the foetus. There must, instead, be some clear indica-
tion that a foetus is to be considered a person, such as a definitional section that
specifies that the word “person” is to include a foetus or that a foetus is to be
included within the statute’s provisions.
The Court contemplated a further step in the analysis: an examination of
other sources which may assist in interpreting the statute in question. In Daigle,
‘Common
law does impose a duty to rescue in certain situations. See Crocker v. Sundance
Northwest Resorts, [1988] 1 S.C.R. 1186, 51 D.L.R. (4th) 321.
1994]
FOETAL RIGHTS
the Court turned to the civil law on the principle that the status of the foetus in
the legal system which had spawned the legislation should inform the interpre-
tation of the words used in the statute. However, now that the Court has ruled
that the foetus is neither a person nor a human being within the common or civil
law, recourse to these background understandings will no longer be necessary.
While the Court did not discuss what other sources, if any, it might inspect,
another potentially relevant source is the debates occurring in the legislature at
the time the statute was enacted. On traditional principles of statutory interpre-
tation, these debates may be seen to yield evidence of the legislature’s intent in
enacting the legislation. However, the presence within these debates of an inten-
tion to include the foetus will not be determinative if the legislation itself fails
to exhibit any explicit intention to protect the foetus.45 The absence of any such
intention, however, may be taken as additional evidence that the legislature did
not intend to protect the foetus. In Sullivan,46 a case involving the foetus’ status
in the Criminal Code heard shortly after Daigle was decided, the Supreme Court
did in fact use legislative debates in this way.
In Sullivan, two midwives were charged with criminal negligence causing
the death of a person and criminal negligence causing bodily harm, following
the death of a foetus during a birth they were assisting. The Court was asked
to decide whether a foetus in the process of birth could be considered a person
under the Criminal Code. Unlike most other statutes, the Criminal Code con-
tains a provision defining the point at which a foetus becomes a human being.
Section 223 provides that a foetus becomes a human being “when it has com-
pletely proceeded, in a living state, from the body of its mother” whether or not
it has breathed, has an independent circulation or the navel string is attached.
The inclusion of a definition of human being within the Code did not, however,
entirely resolve the issue in Sullivan because the offence of criminal negligence
causing death in section 220 refers to causing death of a “person”, rather than
of a “human being”. The Court, therefore, had to determine whether the mean-
ing of the term “person” within the Criminal Code was the same as the meaning
of “human being”.
To answer this question, the Court turned to the discussion in the House of
Commons committee when the criminal negligence provisions were first being
introduced into the Criminal Code. The proceedings revealed that the commit-
tee did not address the fact that the criminal negligence provisions used the term
“person” rather than the term “human being”. The Court also noted that prior
to the revision of the Code in 1954, the homicide provisions had used “human
being” and “person” interchangeably and surmised from this that the Code saw
no difference between the terms. Based on these considerations, the Court held
that the introduction of the criminal negligence provisions in 1954 was not
intended to alter the definition of the term “person”, and that “person” was to
be interpreted as being synonymous with “human being” as defined in section
4 5Since Daigle has made it clear that terms such as “person”, “human being” and “child” do not
include the foetus, an intention in debates to include the foetus will not be sufficient to override
the settled meaning of these terms.
4 6Supra note 13.
REVUE DE DROIT DE McGILL
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223. 4′ This analysis suggests that, considered in concert with the absence of an
explicit reference within legislation that the foetus is to be covered by its pro-
visions, the absence of an intention to include the foetus in the legislative
debates will be significant. A legal analysis will focus on interpreting a piece
of legislation in light of the words used in the statute, the legislative intent, and
the background knowledge that the terms “person” and “human being” do not
include a foetus under the common or civil law. Unless the statute clearly
includes the foetus within its terms, there will be no basis to conclude that a foe-
tus has rights.
There are compelling reasons to support this approach when dealing with
claims that a foetus is a person within a particular statute. Even before Daigle
clarified the status of the foetus within the common law and the civil law, it was
generally understood within both legal systems that a foetus was not a legal per-
son. All existing legislation has been enacted on the basis of this understanding.
For a court to hold that a general term such as “person”, “human being”, “child”
or “everyone” is to include a foetus when this result was never contemplated by
the legislature would be in many cases to alter fundamentally the substance of
the legislation. For example, the nature of child protection legislation changes
dramatically if one accepts that a foetus can be deemed a child in need of pro-
tection and can therefore be apprehended by the State. It is one thing to say that
a child can be taken into state care when this involves removing a child from
his or her home for a few days. It is, however, quite another thing to say that
a foetus can be apprehended by the State when this requires either the forced
removal of the foetus from the body of the pregnant woman, or the forcible tak-
ing of the woman into custody for the purpose of protecting the foetus. What-
ever one thinks of the merits of allowing the State to restrain a pregnant woman
in the interests of the foetus, it can hardly be said that such measures were con-
templated by the legislature in enacting existing child protection legislation,
much less endorsed. Arguably, if a change of such magnitude is to occur, it is
the legislature rather than the courts which should make it, since the legislative
process is better equipped to hear submissions from women and other groups
who will be affected. It would, of course, remain for the courts to decide
whether any such legislative change violated women’s rights under the Charter.
There is little doubt that the Daigle approach will be used in subsequent
cases asserting foetal personhood under a statute. The Supreme Court of Canada
has already utilized the approach in Sullivan. However, the impact of Daigle on
the claim that a foetus has rights under the Canadian Charter of Rights and
Freedoms is not quite as clear. Charter interpretation differs from the interpre-
tation of statutes in several respects, particularly in the Court’s willingness
under the Charter to adopt a large and liberal approach and to minimize the
value of parliamentary intent as a source of authority.48 However, the differences
47The Saskatchewan Court of Appeal also considered legislative intent in Borowski, supra note
35 at 752-53, in the context of determining whether the Canadian Charter accorded rights to the
foetus. After noting that legislative history carries little weight in Charter ifiterpretation, Madame
Justice Gerwing examined the debates in the Senate and House of Commons which indicated that
there was no intention to change the status of the foetus.
48Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357, 9 D.L.R. (4th) 161; R. v. Big
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FOETAL RIGHTS
between the Charter and statutes notwithstanding, there is no reason to suspect
that the framework laid out in Daigle and reiterated in Sullivan will be aban-
doned completely. Just as the existence of foetal fights within a piece of legis-
lation is a legal issue, the question of whether a foetus has fights under the
Charter is also a legal issue. The Court will be required to use legal methods
of reasoning to resolve the question. What remains to be seen is whether there
is greater scope for s~ientific evidence of foetal development or for philosoph-
ical arguments on the foetus’ moral standing to inform the status of the foetus
in the Charter context. This question will be discussed at greater length in Part
III.
I. Anti-Abortion Arguments in Favour of Foetal Rights
To gain firsthand knowledge of the arguments anti-abortion groups raise in
support of the claim that a foetus has rights under the Charter, I examined fac-
turns submitted to the Supreme Court of Canada in Borowski and in Daigle, the
two most significant foetal rights cases to date. Anti-abortion groups intervened
in each of these cases to buttress the foetal rights arguments advanced by
Borowski and Tremblay. Realistic Equal and Active for Life Women (“R.E.A.L.
Women”), a group well-known for its anti-abortion views and for its promotion
of the traditional family, intervened in both appeals. The Interfaith Coalition on
the Rights and Wellbeing of Women and Children, a non-partisan, inter-
denominational organization representing a cross-section of Canada’s religions,
also intervened to support Borowski. Canadian Physicians for Life, L’associa-
tion des mrdecins du Quebec pour le respect de la vie, and Campaign Life Coa-
lition intervened in Daigle to support Tremblay. Canadian Physicians for Life
described itself as a non-profit charitable corporation with a membership of
approximately one thousand physicians. L’association des mrdecins du Qudbec
pour le respect de la. vie characterized itself as a charitable organization of
roughly three thousand physicians practising in Quebec. Campaign Life Coali-
tion did not include a description in its factum. In addition to the factums in
these two cases, I also examined most of the one hundred amicus curiae briefs
filed at the United States Supreme Court in Webster v. Reproductive Health Ser-
vices,49 a case involving the constitutional validity of restrictions on abortion
heard at about the same time as Daigle. These briefs proved insightful as a way
of comparing foetal rights arguments made north and south of the border. They
also revealed that the medical evidence anti-abortion groups in both Canada and
the United States tout as determinative of the status of the foetus has been gen-
erated by a small number of anti-abortion experts who routinely testify in sup-
port of foetal rights.
An analysis of the factums reveals that opponents of abortion appeal to
three sources of authority to support their claim of full legal personhood of the
foetus. First, opponents of abortion have relied heavily on the argument that the
M Drug Mart, [1985] 1 S.C.R. 295, 18 D.L.R. (4th) 321 [hereinafter Big M cited to S.C.R.]; Ref-
erence Re Section 94(2) of the Motor Vehicle Act, R.S.B.C. 1979, [1985] 2 S.C.R. 486, 24 D.L.R.
(4th) 536.
49109 S. Ct. 3040 (1989) [hereinafter Webster].
McGILL LAW JOURNAL
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common law and the civil law have implicitly recognized foetal rights. Anti-
abortionists viewed this as a powerful argument because of the principle that the
Charter should be interpreted in light of rights that already exist within Cana-
dian law.50 If opponents of abortion had succeeded in establishing in Daigle that
the common law and civil law did indeed view the foetus as having rights, the
conclusion that a foetus has rights under the Charter would have been virtually
automatic. However, in light of the Supreme Court’s unequivocal rejection of
these arguments in Daigle, I will not review them here.
Second, anti-abortion groups rely heavily on science. They contend that
science establishes the foetus as genetically distinct from the pregnant woman
from the moment of conception. Thus, from that point on, the foetus is a sep-
arate human person. Third, opponents of abortion buttress their scientific
claims with moral or ethical arguments to the effect that anything that is bio-
logically human must be recognized as a person. Anti-abortionists frequently
draw an analogy between the contemporary resistance on the part of courts and
pro-choice activists to view the foetus as a person and the historical refusal of
the courts and society at large to recognize African-Americans and women as
legal persons. The essence of these moral claims is that we should learn from
history the error of failing to accord all human beings personhood. Of these
three arguments, opponents of abortion have focused most of their energies on
scientific descriptions of the foetus and on establishing the existence of foetal
rights within the common and civil law. Using the factums of the anti-abortion
parties and intervenors described above, I will provide a more complete pic-
ture of the two arguments that survive Daigle, the scientific and moral
claims.5′
A. The Scientiflc Claims
Arguments based on science form the cornerstone of the anti-abortion
claim that a foetus is a person entitled to legal rights because they provide what
appears to be an objective basis for arguing that a foetus is a distinct human life
from the moment of conception. 2 Opponents of abortion claim that science is
uniquely situated to determine the status of the foetus since it is the only disci-
50Revised Factum of the Appellant Joseph Borowski in Borowski at 14, para. 40 [hereinafter
Factum of Borowski]. See also Big M, supra note 48.
5IThere are two less important anti-abortion arguments which I have chosen not to review. First,
Borowski claimed that constitutional courts in Germany and Spain have granted the foetus a con-
stitutional right to life. He argued that these decisions should be persuasive since they are consist-
ent with the values that imbue Canadian society (Factum of Borowski, ibid. at 27-3 1, paras. 80-94).
Second, Tremblay claimed that international instruments to which Canada is a signatory recognize
foetal rights, and thus Canada is compelled to recognize foetal rights domestically (Factum of the
Respondent in Daigle at 25-28). I have chosen not to review these arguments as neither appears
to have been pursued forcefully, nor do they provide normative reasons for granting foetal rights.
52Borowski underlined the importance of arguments based upon biology by referring to the fail-
ure of the United States Supreme Court in Roe, supra note 35, to conclude that a foetus was a per-
son under the United States Constitution. Borowski argued that the Court’s decision was based on
faulty scientific evidence and suggested the Court might have come to the opposite conclusion had
it had the benefit of the evidence on foetal development included in his factum (Factum of
Borowski, supra note 50 at 27, para. 78).
1994]
FOETAL RIGHTS
pline capable of defining the beginning of human life. 3 In essence, anti-abortion
arguments amount to a kind of biological reductionism that equates the question
of the legal status of the foetus with the question of whether the foetus may be
classified as a form of human life based on certain scientific variables. If the
foetus is.a form of human life, according to opponents of abortion it must be
a legal person.
Anti-abortionists believe science establishes two irrefutable facts about the
foetus. First and foremost, science provides conclusive proof that human life
begins at conception and that most of what is unique about an individual is fixed
at that point.’ In his factum filed at the Supreme Court of Canada, Borowski
described the significance of conception in the following terms:
Dr. Lejeune testified that upon fertilization, there are determined the nature and the
unique genetic qualities of each of us as an individual human being. At that
moment of fertilization, all things are fixed: the color of the eyes, the hair, the skin,
the form of the nose and ears, the strength of the person and all characteristics. 5
Second, science demonstrates that from conception onwards, the foetus is, in
physiological and genetic terms, a separate entity from the pregnant woman
within whom it exists. Because of this distinctiveness, the foetus cannot be said
to be a part of the pregnant woman, but must instead be recognized as an inde-
pendent human being meriting its own legal protection. Borowski submitted:
That mother and child en ventre sa mere, each is a separate and distinct human
being, appears obvious to us today, assisted as we are by modem science and the
remarkable expansion of our knowledge of the unborn. Mother and child, each has
53R.E.A.L. Women submitted that “[b]iological evidence is the only concrete evidence upon
which we can.conclude an entity is human and therefore worthy of special protection” (Factum of
R.E.A.L. Women in Borowski, supra note 10 at 7, para. 29).
54Some anti-abortionists emphasize the humanity of the foetus with reference to the scientific
taxomony used to classify different life forms. The point of this evidence is to show that the foetus
is biologically human and does not belong to any other species. This argument is illustrated by the
following interchange during Dr. Jerome LeJeune’s testimony before the United States Senate Sub-
committee on Constitutional Amendments of the Committee on the Judiciary, 94th Cong., 1st
Sess.:
From molecular genetics to comparative reproduction, nature has taught us that from
its very beginning the “thing” we started with is a member of our kin. Being its own,
human by nature, never a tumor, never an amoeba, fish or quadruped, it is the same
human being from fecundation to death …
Q: Now from the first time of fertilization or fecundation, Professor LeJeune, is it cor-
rect to say that the child is a human being and remains a human being right until his
birth?
A: As far as I can understand the use of the English word, saying he is a human being
is a correct definition.
Q: So, there is no stage of pregnancy later than fecundation at which he suddenly
becomes a human being?
A: Oh, that is very obvious sir, because if you start with the egg of a chimpanzee, if
you don’t look at the chromosomes, it is very much like, when it divides, the medilla
[sic] of a human being. But everyone knows that a human being will never emerge
from a chimpanzee being. We are at the very beginning either a chimp or a man and
never can a chimp become a man or a man become a chimp (Brief of Paul Marx in
Webster at 24-27).
55Factum of Borowski, supra note 50 at 4, para. 11.
REVUE DE DROIT DE McGILL
[Vol. 39
a different genetic makeup. Often they have different blood types, different sex
and differently coloured skin and eyes. They are separate, distinct and unique
human beings.56
Anti-abortion arguments also make considerable use of scientifically-generated
descriptions of foetal development, recounting when major bodily organs are
formed,57 when the heart begins to beat, when the foetus is able to react to plea-
sure or pain, and when the foetus begins to move within the pregnant woman’s
uterus. These descriptions serve two purposes. The first is to show that from a
very early stage in pregnancy the foetus looks and “acts” like a baby. Borowski
submitted:
At 56 days or 8 weeks (about the earliest time abortions are performed) the child
is a fully functioning human being. All of his or her organs and body systems are
in place. They only require maturation, a process that will continue for 13 or 14
years. At 8 weeks, the child’s features are so clear that one can see even the creases
on the child’s open hand. The fingerprints are visible under a microscope. They
are unique and will never change. The child is drinking his or her amniotic fluid.
By 9 weeks, a child is very active and gracefully rolls around in its small domain.
The child can make a fist and be seen sucking a thumb. All have graphically been
portrayed on ultrasound.58
Not only do these descriptions illustrate that a foetus looks increasingly like a
baby as pregnancy progresses, they also operate on an emotional level to rein-
force the similarities between infants, who are unquestionably legal persons,
and the developing foetus.
Second, the accounts of foetal development allow opponents of abortion to
emphasize that life is a continuum from conception to death, a notion which fig-
ures prominently in anti-abortion arguments.59 Viewing life as a continuum
beginning at conception allows opponents of abortion to emphasize the impor-
tance of prenatal development, and to claim it as the most significant develop-
mental period of human life. Borowski, for example, submitted:
The first seven weeks [after conception] are the most crucial in the life of the child
because it is then that all of the major systems of the body come into place.60
Borowski reinforced the significance of this period of development by describ-
ing its magnitude in scientific terms:
Dr. Liley described the rapid development of the child from the first cell that
comes into being upon fertilizaiion. In a human’s lifetime, there are 45 generations
of cell divisions. These produce the 30,000,000,000 cells that go to make up every
adult. Eight of these divisions will have occurred upon implantation of the fertil-
ized ovum in the wall of the uterus. 30 divisions, or Y3 of the 45 generations of
cell divisions that encompass the total development of an individual’s life will have
taken place within 8 weeks afterfertilization. 41 of the 45 divisions will have been
completed before birth. More than 90 percent of the development of the human
56Ibid. at 9-10, para. 27.
57See e.g. ibid. at 6-9, paras. 16-26.
58Ibid. at 7, paras. 21-22.
59See e.g. ibid. at 5, para. 14; Factum of the Intervenor Campaign Life Coalition in Daigle at
60Factum of Borowski, supra note 50 at 6, para. 16.
9, para. 16 [hereinafter Factum of Campaign Life in Daigle].
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FOETAL RIGHTS
adult is completed by birth. Dr. Liley summarized the significance of this growth
as follows:
In developmental terms we spend ninety per cent of our life in utero and
indeed the die is very far cast as to the type of person we are going to be –
physically, our intellectual capacities, and all manner of body functions … 61
The significance of prenatal development leads anti-abortionists to conclude
that life in this phase of human existence is worthy of protection.
The notion that life is a continual process beginning at conception and
unfolding until death also allows opponents of.abortion to claim that there is no
rational basis for treating life in the womb differently from life after birth.62 The
relevant point at which to begin to protect human life is conception since it is
then that the process begins. Choosing a later point along this continuum as the
time to commence legal protection is insupportable since any line drawn post-
conception is simply an arbitrary demarcation in the developmental process.
This argument allows anti-abortionists to reject other points as the moment
when the foetus becomes a legal person. Two alternative points have frequently
been suggested: viability63 and birth. 4 The rationale for selecting viability is that
once the foetus is capable of survival outside of the body of the pregnant
woman, it should be entitled to independent legal protection. The justification
for choosing birth is that it is the point at which the foetus is physically separate
from the pregnant woman, and therefore the point at which it can be said to be
a separate person in a full sense. Intervening in Daigle, Campaign Life Coali-
tion rejected viability in the following way:
It is further respectfully submitted that any test for determination of “life” short
of the moment of conception, such as the viability test will be an inaccurate and
ambiguous standard which only serves to create artificial boundaries delineating
the point at which an unborn child becomes sufficiently human to warrant the full
protection of the law. As medical science advances the point at which an unborn
child may survive external to the womb viability will closely approximate the
611bid. at 4-5, para. 13.
62Borowski submitted:
Dr. Liley explained life to be a continuum from fertilization until death. In the earliest
stages, life is measured in hours, then weeks, then months, then years and finally, in
decades. At every stage, it is, and remains from beginning to end, the same life, by
whatever name it may be described – whether a zygote, an embryo, a fetus, a baby, a
child, an infant, a toddler, a teenager, an adult or a geriatric (ibid. at 14).
63’M he United States Supreme Court in Roe, supra note 35 at 163-64, endorsed viability as the
point at which the state interest in the foetus outweighs a woman’s right to privacy:
With respect to the State’s important and legitimate interest in potential life, the “com-
pelling” point is at viability. This is so because the fetus then presumably has the capac-
ity of meaningful life outside the mother’s womb … If the State is interested in protect-
ing fetal life after viability, it may go so far as to proscribe abortion during that period,
except when it is necessary to preserve the life or health of the mother.
Wilson J. in R. v. Morgentaler, [1988] 1 S.C.R. 30 at 182-83,44 D.L.R. (4th) 385 [hereinafter Mor-
gentaler] adopted a similar analysis, although she did not explicitly select viability as the point at
which the State’s interest in potential life is compelling. She proposed a developmental approach
in which the State’s interest in the foetus increases as pregnancy progresses and becomes compel-
ling sometime in the second trimester. Foetal viability usually occurs around the end of the second
trimester, sometime between the 24th and 28th weeks of pregnancy.
64See e.g. Mary Anne Warren, “The Moral Significance of Birth” (1989) 4 Hypatia 46.
McGILL LAW JOURNAL
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moment of conception. By so defining “life”, humanity is reduced to a “purely
physiological activity which in turn leads us to question the selection of one activ-
ity rather than another.”65
Birth is also argued to be an unhelpful standard since it fails to denote any true
change in the nature of the foetus. Campaign Life Coalition submitted that
newly born infants are no more independent than the foetus because, like the
foetus, they are “completely and totally dependent on other human beings for
[their] continued existence. 6 6 In addition, anti-abortionists assert that birth does
not truly mark the moment of physical separation between the foetus and the
pregnant woman since, in genetic terns, the two have been separate from con-
ception.
The thrust of these claims is that it is now indisputable that a foetus is a
separate human person from the moment of conception. Given our society’s
moral precepts, this scientific “truth” leads inexorably to the conclusion that the
foetus must also be a legal person.
B. The Moral Claims
The moral claims anti-abortionists advance build on their scientific argu-
ments for granting rights to the foetus. The essence of these claims is that bio-
logical humanity (as they claim science defines it) should be the sole determi-
nant of legal personhood since any attempt to deny certain human beings the
status of personhood is morally repugnant. Failing to equate biological human-
ity with legal personhood will result in grave injustice for groups whose lives
are deemed less worthy, since it becomes possible to argue that some people are
not entitled to the right to life based on an arbitrary understanding of person-
hood. Refusing to accord all human life legal personhood will also undermine
the value of human life generally and weaken the moral and social fabric of
society.67
65Factum of Campaign Life in Daigle, supra note 59 at 8-9, para. 14. Many medical experts dis-
pute the claim that advances in medical technology will push the moment of foetal viability back
to conception. See Brief of 167 Distinguished Scientists and Physicians Including 11 Nobel Lau-
reates in Webster at 8-10 [hereinafter Brief of 167 Scientists in Webster]. These scientists submit-
ted:
Assertions that viability has moved significantly earlier in fetal development are flatly
contrary to the scientific evidence. Although advances in technology have improved
the chances of survival for premature birth within the range of 24 to 28 weeks, the outer
limit of viability at 24 weeks has not significantly changed. Moreover, there is no rea-
son to believe that a change in this outer limit is either imminent or inevitable. … The
reason that viability has not advanced to a point significantly earlier than 24 weeks of
gestation is that critical organs, particularly the lungs and kidneys, do not mature before
that time. While a number of factors, such as immaturity of the immune system, con-
tribute to the mortality rate for premature infants, the most important determinant of
viability is lung development – specifically, the development of the air sacs through
which gases are passed into and out of the blood stream … Air sac development suf-
ficient for gas exchange does not occur until at least 23 weeks after gestation or later.
66Factum of Campaign Life in Daigle, ibid. at 9, par. 15.
67See e.g. Factum of Campaign Life in Daigle, ibid. at paras. 29, 33, 34:
It is respectfully submitted that abortion on demand makes a statement about the soci-
ety we want to have and to allow for an abortion, where there is no threat to the
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FOETAL RIGHTS
Opponents of abortion use the historical treatment of African-Americans
and women, both of whom have been denied legal personhood, to illustrate the
moral danger.of separating personhood from biological definitions of human-
ity.” Taking heed of past injustices, anti-abortionists contend that the refusal to
recognize foetal personhood will result in the perpetration of injustice against
society’s vulnerable members, suggesting that it will be the aged and the disa-
bled who will bear the brunt of abuse. R.E.A.L. Women presented these dangers
in the following way:
Biological evidence is the only concrete evidence upon which we can conclude an
entity is human and therefore worthy of special protection. If today the court can
properly ignore the biological evidence when making determinations about the
prebom, tomorrow it can do the same when making determinations about the aged
or the disabled. Although one might enjoy less than perfect biological character-
istics one’s essence is no less human on that account. 69
Campaign Life Coalition made this same point in a more graphic way, arguing
that a society which fails to grant rights to the foetus is one small step away
from killing persons whose lives are viewed as having less merit:
It is respectfully submitted that the sanctioning of abortion suggests that some life
is less deserving of protection than others. If the unborn child’s rights are to be
wholly subordinated to that of the mother, then it is respectfully submitted that other
rights will be jeopardized as it becomes acceptable to take the lives of those that are
less worthy. It is arguable that because it is expensive to sustain the lives of people
about whom the medical opinion is that their lives are worthless, the temptation to
dispose of this burden by killing them will be great. Disposing of such lives will be
dressed up in humanitarian terms as an act of humanity and compassion.70
According to Campaign Life, the failure to protect foetal life will mean
that the drastically handicapped should not be afforded the right to life. Before
long, euthanasia will be legalized like abortion, like Family Planning, because all
of these things are closely related. They are a slippery slope, one leading inexo-
rably to the other.7′
Based on these dire consequences, opponents of abortion assert that a fail-
ure to recognize foetal rights undermines the value of human life and constitutes
a powerful indictment of the moral foundation of our society:
mother’s life, reflects the value that we as Canadians are willing to ascribe to human
life … It is respectfully submitted that the question involved in the case at bar involves
questions relating to the social fabric of our society and the kind of society to which
we aspire … It is respectfully submitted that the unborn child’s right to life is funda-
mental to the preservation of the sanctity of life. Capricious abortion diminishes the
sanctity … of life in the areas of euthanasia and capital punishment.
681n Borowski, R.E.A.L Women submitted: “Civilized man at times has denied personhood and
characterized persons as property. The Dred Scott decision found that Black people were property”
(Factum of R.E.A.L. Women in Borowski, supra note 10 at 7-8, para. 30). Borowski made a similar
submission:
In the past, narrow and technical interpretations of concepts that are universal have
resulted in grave injustices. These may infect a society for generations. Blacks and
women have been the innocent victims of such injustices (Factum of Borowski, supra
note 50 at 14, para. 37).
69Factum of R.E.A.L. Women in Borowski, ibid. at 7, para. 29.
70Factum of Campaign Life in Daigle, supra note 59 at 14, para. 30.
71Ibid. at 14, para. 32.
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[Vol. 39
The treatment accorded the weak, the disabled, the very old and the very young
reflects the compassion and the sense of obligation of a society. A primitive soci-
ety which possesses little knowledge of the nature of prenatal life, cannot be
expected to accord to the unborn the care and concern that are bestowed upon chil-
dren once they are born.
But a highly civilized country, enriched by scientific knowledge that is capa-
ble of seeing and understanding and caring for the unborn as fully as it nurtures
its more mature members, can not [sic] go about the business of killing the unborn
as a matter of convenience or of condoning that practice by claiming some higher
freedom or some greater value that justifies tipping the scales of justice against the
weak, the inarticulate, and the friendless. 72
H. Assessing the Arguments after Daigle
The implications of Daigle for anti-abortion arguments cai be assessed on
two levels. First, the decision strikes out one of the three arguments opponents
of abortion have raised in support of foetal rights, that the foetus already has
rights under the common and civil law. Only two arguments survive Daigle: that
in biological and genetic terms the foetus is a distinct human person, and that
it is morally reprehensible to fail to accord legal personhood to a biological
“person”. Thus, the most obvious effect of Daigle has been to reduce the anti-
abortion argument into one based almost exclusively on the claim that person-
hood in the Charter should be equated with a definition of personhood drawn
from biology. There are serious problems with this claim.
Second, the effect of Daigle is to subtly transform the question being asked
and to render a legal approach to the question less apparent. Had the Court
found that the foetus did have rights under the common or civil law, there would
have been a clear legal foundation for the conclusion that a foetus has rights
under the Charter. However, given the Court’s rejection of foetal rights, the
question of whether a foetus has rights under the Charter becomes one of asking
whether the foetus – which the law has never regarded as a person with inde-
pendent rights –
has been granted that status under the Charter. In other words,
the question becomes whether the Charter expands the legal definition of per-
sonhood to include a foetus. Rephrasing the issue in this way gives rise to a
number of subsequent questions. How should the courts approach the task of
deciding whether something that has never been considered to be a legal person,
is a person under the Charter? What does a “legal” approach to a question of
this sort involve? Although the Court dismissed scientific arguments as irrele-
vant to defining personhood within the Quebec Charter, is there greater scope
for the courts to adopt scientific understandings of personhood’under the Cana-
dian Charter? To what extent can a court turn to scientific definitions of person-
hood or philosophical opinions on the moral status of the foetus yet remain
within a legal framework?
A. Anti-Abortion Arguments and Legal Understandings of Personhood
The rejection in Daigle of the argument that a foetus has rights at common
law and at civil law has reduced the anti-abortion position to the following two
72 Factum of Borowski, supra note 50 at 36, paras. 110-11.
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FOETAL RIGHTS
claims. Science tells us that a foetus is a separate human being from the moment
of conception because it is biologically human and genetically distinct from the
pregnant woman. Based on this scientific classification, the moral precepts of
our society dictate that the foetus be viewed as a person for legal purposes since
depriving human beings of legal personhood is morally objectionable. Reduced
to its essentials, the argument is that the foetus, as developing human life,
should have the same moral and legal status as human life after birth. The reality
that the foetus exists within a woman’s body in a unique relationship that is
entirely unlike any other period of human existence is immaterial.
This argument can be criticized on a number of grounds. First, it is based
on a highly dubious view of science and of the ability of science to define the
meaning of personhood. It incorrectly assumes that science has made significant
contributions to our basic understanding of the nature of the foetus, and that the
scientific method is capable of determining whether the foetus is a person. Sec-
ond, by claiming that science can produce an objective definition of person-
hood, the argument attempts to circumvent the normative questions involved in
determining whether a foetus is a person. Finally, the moral arguments oppo-
nents of abortion advance fall woefully short of providing the moral foundation
required to establish that the foetus should have the same moral and legal status
as life after birth.
The anti-abortion movement’s heavy emphasis on scientific arguments is
based largely on the belief that were it not for the accretions to our understand-
ing of pregnancy science has yielded in recent years, we would not have a con-
clusive basis for asserting that a foetus is developing human life.73 By making
it possible to chart the course of foetal development, science has definitively
established that, from the earliest stages, a foetus is a developing human being.
The claim that science adds significantly to our understanding of the nature of
the foetus is, however, highly questionable. While people may not have known
the exact details of foetal development, they have known for a considerable
period of time that pregnancy involves the creation of a new human being, and
that this process begins with the union of a sperm and an ovum. Recent medical
developments may have made it possible to describe foetal development with
great accuracy, but it is not true to suggest that they have expanded our under-
standing of pregnancy by proving that the foetus, from conception, is develop-
ing human life. Contrary to what anti-abortionists would have us believe, we do
not owe our basic knowledge of pregnancy to modem science. For this reason,
the “scientifically derived” submissions opponents of abortion advance do not
amount to astonishing revelations on the nature of the foetus but are largely
unsurprising. Given the knowledge that pregnancy is the process of creating
new life, it is not surprising that ultrasound technology demonstrates that a foe-
tus looks increasingly like a baby as pregnancy progresses or that it has a dif-
ferent genetic make-up from the woman within whom it exists. Thus, while sci-
ence may play a role in filling in the details of prenatal development, it can
73See e.g. Borowski’s claim that the Canadian Supreme Court should decline to follow the ex-
ample of the United States Supreme Court in Roe, supra note 35, because of the new medical evi-
dence he proffered (Factum of Borowski, ibid. at 27, para. 78).
McGILL LAW JOURNAL
[Vol. 39
hardly be said to add to our long-standing understanding of the foetus as early
life.
Moreover, science is intrinsically incapable of providing guidance on the
core issue raised by foetal rights, the legal status developing life should have.
Advocates of foetal rights believe that science can answer this question because
it provides an uncontestable definition of human personhood. This argument
rests on two closely related assumptions: that there are objective, scientifically
mandated criteria which can determine whether the foetus is a person, and that
personhood is fundamentally a scientific rather than a normative matter. Neither
of these assumptions stands up to critical scrutiny.
The belief in scientifically derived criteria to define personhood is central
to the anti-abortion argument. According to the argument, science has isolated
three verifiable features which define whether something is a human person:
whether it is classified as human in biological terms; whether it possesses its
own genetic makeup; and whether it is, at least in some sense, alive. No other
characteristics of the life form in question are relevant to determining whether
it is a person. Using this test, the foetus qualifies as a person, as does life after
birth. The reality that the foetus is in a unique stage, of human existence in
which it exists entirely within the body of another human being and in which
it undergoes an unparalleled transformation (facts which are also easily verified
by science) are dismissed as scientifically (and hence morally and legally) irre-
levant.
Which biological characteristics establish personhood, however, is hardly
a scientific matter but one on which normative faculties must be brought to bear.
To say that personhood should be defined based on an entity’s biological
humanity and genetic distinctiveness is a normative conclusion that these traits
carry more weight than whether it exists within or outside of the body of a preg-
nant woman. The scientific method is incapable of dictating which particular
traits form the basis of personhood since it cannot take this normative dimen-
sion into account. The limitations of science were expressed extremely elo-
quently by a group of 167 scientists and physicians (including 11 Nobel Laure-
ates) who filed an amicus brief in Webster:
The scientific method depends on two essential things –
a thesis or idea and a
means of testing that idea. Scientists have been able to determine, for instance, that
the Earth is round or that genes are composed of DNA because, and only because,
experiments could be performed to test these ideas. Without experiments’there is
no science, no way to prove or disprove any idea … [C]oncepts such as humanness
are beyond the lurview of science because no idea about them can be tested exper-
imentally.
[S]cience can indeed provide valuable information and can answer concrete ques-
tions regarding prenatal development by identifying, for example, the stages of
fetal brain development. But the question of when a human life truly begins calls
for a conclusion as to which characteristics define the essence of human life.
While science can tell us when certain biological attributes can be detected, sci-
ence cannot tell us which biological attributes establish the existence of a human
being.
7 4
74Brief of 167 Scientists in Webster, supra note 65 at 5-6 [emphasis added]. Although the sci-
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FOETAL RIGHTS
The second assumption, that personhood is a scientific matter, is also highly
problematic. Assuming for the sake of argument that science could generate a
definition of personhood devoid of normative considerations and that the foetus
fell within this definition, it does not follow that the foetus must also be a person
in a legal sense. As the Supreme Court observed in Daigle, personhood in law
is a normative concept. It denotes a particular legal status defined by the exis-
tence of legal rights and responsibilities. Personhood, and the rights which are the
concrete expressions of this status, are the legal articulation of our society’s belief
in the inherent dignity and moral worth of all human persons, regardless of dif-
ferences based on such factors as sex, race, religion, sexual orientation, age and
disability. The notion that all human persons are bom equal reflects a normative
conclusion that differences among born human beings do not affect an indivi-
dual’s moral worth, and therefore, should not affect an individual’s legal status.
Thus, to say that something is a legal person is to say that it has (or should have)
the same legal status as that which our society accords to all human beings after
birth.” There must be compelling normative reasons for this conclusion, just as
there are normative reasons for treating all born human beings as persons.
To the extent that anti-abortionists propose an objective, scientific defini-
tion of personhood, they attempt to avoid the normative issues at the core of the
foetal rights debate. The very essence of an “objective” definition is that it is
free of normative considerations, but is instead based on simple, unbiased fact.
Yet, as the scientists in Webster and the Supreme Court in Daigle clearly rec-
ognize, personhood is inherently a normative, rather than a scientific, concept.
Normative considerations must enter into the debate somewhere, whether it be
at the point of criticizing the ability of science to produce an objective definition
of personhood, or at the point of saying that, even if science could produce a
non-normative concept of personhood, this definition would not suffice for legal
purposes because normative concerns are integral to the legal concept of person-
hood.
The absence of normative reasons represents a crucial weakness in the anti-
abortion argument since there must be some normative foundation for declaring
the existence of foetal rights. The moral arguments anti-abortionists advance are
profoundly deficient as they amount to nothing more than the assertion that
since the foetus is as fully human as born human beings, it would be morally
wrong to deprive the foetus of legal personhood. Nowhere is there any norma-
tive discussion of why the biological traits they identify as defining human life
should be determinative of foetal status, the claim being simply that science
says they are. Furthermore, this is not a case in which the normative arguments
in favour of foetal rights are either so overwhelming or the subject of such wide-
spread acceptance that they can be ignored or given only perfunctory consider-
ation. The status of the foetus is a topic of enormous disagreement throughout
entists spoke in terms of identifying the beginning of human life, their submission can easily be
rephrased in terms of defining whether a foetus is a person. The essence of the submission is that
personhood depends on some normative notion of the essence of human life.
75My argument here refers only to the legal classification of natural persons since the anti-
abortion argument is that a foetus is a natural person. It does not refer to corporations which the
law views as artificial persons but does not accord the same status as to human beings post-birth.
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[Vol. 39
society. A cursory examination of the philosophical literature reveals that phi-
losophers, often portrayed as society’s morality “experts”, in full appreciation
of biological aspects of foetal development, are sharply divided on their moral
significance.76 The strong measure of disagreement demonstrates that the nor-
mative issues underlying the status of the foetus cannot simply be taken for
granted or assumed away but must be candidly and coherently addressed.
Finally, the absence of normative reasoning also exposes the flaws in the
moral arguments made by opponents of abortion. Anti-abortionists insist that
recognizing the personhood of all “human beings” is morally essential in light
of the historical denials of personhood to persons of African descent and to
women, and in light of the spectre of future abuses of disabled persons. This
argument, while powerful on an emotional level, only works if one agrees that
there are no salient moral differences between foetal life and life after birth.
In light of our normative commitment to the moral and legal equality of all
born persons, opponents of abortion are correct in asserting that it would be
morally wrong to deprive born human beings of personhood based on such
arbitrary factors as race, sex or disability. However, it is morally wrong to hold
that a foetus is not a person only if.there are normative reasons for concluding
that the foetus should have the same moral –
status as life after
birth. Without this normative foundation, the moral argument is based on a dis-
ingenuous analogy between the foetus on the one hand, and Black persons,
women and disabled persons on the other.
and legal –
As such, the deep flaws in the anti-abortion movement’s scientific and
moral claims make it virtually certain that the courts will find the anti-abortion
arguments in favour of foetal rights unpersuasive. In the following section, I
examine the kinds of arguments a court would usefully consider in rendering a
legal decision on foetal rights.
B. Answering the Question: The Possible Approaches
Although the courts have considerable expertise in interpreting the Charter
and have established the purposive approach as the correct framework of inter-
pretation, the question of whether a foetus is a person under the Charter differs
from the issues of Charter interpretation the courts routinely confront. Most
Charter cases arise when an individual challenges a piece of legislation or the
conduct of government actors.77 The courts’ task is to interpret the scope of the
76Some argue that, from conception, a foetus is morally indistinguishable from a person, while
others take the view that birth is an act of moral significance and that personhood arises at birth.
For an exposition of the former view, see John Finnis, “The Rights and Wrongs of Abortion: A
Reply to Judith Thomson” (1973) 2 Philosophy and Public Affairs 117; John T. Noonan, “An
Almost Absolute Value in History” in John T. Noonan, ed., The Morality of Abortion: Legal and
Historical Perspectives (Cambridge, Mass.: Harvard University Press, 1970) 1. For a discussion
of the position that personhood arises at birth, see Warren, supra note 64. Others believe that the
foetus acquires the moral status of a person during the course of pregnancy, at the time the foetus
would be viable outside the pregnant woman’s body or at the time it achieves sentience. See e.g.
L. Wayne Sumner, Abortion and Moral Theory (Princeton, N.J.: Princeton University Press, 1981).
7″Because the Charter applies only to government actors (supra note 9, s. 32) the courts have
sometimes had to decide whether an organization may be said to be an arm of the State, or whether
1994]
FOETAL RIGHTS
Charter rights asserted, and to determine whether the rights have been
infringed. These cases proceed on the basis that the individual who has brought
the claim is a holder of Charter rights, since all born human beings who are
“physically present in Canada and by virtue of such presence amenable to Cana-
dian law”‘ are persons for legal (and Charter) purposes. There is therefore no
question in the vast majority of cases whether the “person” who has brought the
challenge is entitled to assert Charter rights.79 The issue of foetal status under
the Charter requires the courts to address a question of a different sort, namely,
to whom Charter rights are to apply. This might be viewed as a preliminary
question to the Charter issues the courts ordinarily confront, and one with
which the courts have considerably less expertise.
It is not entirely obvious that the purposive approach should apply to ques-
tions of this sort. As it has been articulated, the purposive approach requires the
courts to interpret a right or freedom in light of the underlying values the Char-
ter guarantee is meant to serve, having reference to the objects of the Charter,
the language chosen to articulate the right, the historical origins of the concepts
enshrined in the right, and to the purpose of other Charter protections with
which it is associated.80 Because the purposive approach has been framed as a
way of interpreting specific Charter rights, how it will be transposed to solve
preliminary questions of application is unclear. The uncertainties may be illus-
trated by considering how the approach would be applied to deciding the status
of the foetus. The first question that arises is how widely or narrowly the
approach should be drawn. In addressing the fairly broad claim made by foetal
rights advocates that the foetus is a person for Charter purposes generally,
should the courts consider the values and purposes underlying the Charter as a
whole, or should the court select one or more rights and consider the purposes
underlying only those rights? If the courts adopt the first approach, how should
the purposes and values of the Charter as a whole be determined? Are the pur-
poses of the Charter to be found within the document itself, or must the courts
look also at the purpose a constitutionally entrenched charter of rights serves
within our legal and political system? If the courts choose to concentrate on the
purposes behind a few rights, how are those rights to be selected? Should the
courts limit their focus to the rights most likely to pertain to the foetus, such as
the right to life and to security of the person in section 7 and the right to equality
in section 15,81 leaving other possible foetal rights claims to be decided as they
an individual is acting as a state agent. See e.g. McKinney v. University of Guelph, [1990] 3 S.C.R.
229, (1991), 2 O.R. (3d) 319n; Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483, 76
D.L.R. (4th) 700; DouglaslKwantlen Faculty Ass’n. v. Douglas College, [1990] 3 S.C.R. 570, 77
D.L.R. (4th) 94; Lavigne v. O.P.S.E.U., [1992] 2 S.C.R. 211, 126 N.R. 161.
78Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R.. 177 at 202, 17 D.L.R. (4th)
422.79Challenges brought by corporations are an exception. Corporations have been recognized as
legal persons since the late 1800s. However, the courts have held that not all of the rights in the
Charter apply to corporations. See infra note 83 and accompanying text.
8OBig M, supra note 48.
81Opponents of abortion claim that laws permitting abortion violate the foetus’ equality rights
since they permit the taking of life on the basis of age. See e.g. Factum of Borowski, supra note
50 at 39, paras. 117-19.
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arise? 2 Does it make sense to say that the broad question of whether a foetus
is a person under the Charter can be addressed on a “right-by-ight” basis?
While there are no clear answers to these questions, there is reason to
believe that the courts will adopt some form of purposive approach to resolve
these background questions. Although the courts have not had to determine
whether something that the law has never regarded as a person is a person under
the Charter, the courts have considered a similar issue in cases involving the
ability of corporations to assert Charter rights.83 In the few cases in which this
issue has been raised, the courts have tended to apply a purposive analysis,.
assessing whether the right asserted could meaningfully apply to a corporation
based on “the language of the right in combination with the nature of the spe-
cific interests embodied therein.” 4 The courts have adopted a purposive
approach with no discussion of its applicability, and in some cases without any
reference to using a purposive approach at all.8
In part, the courts’ uncritical
application of the purposive approach can be explained by the fact that corpo-
rations are legal persons, and thus may be seen to have a prima facie claim to
be able to assert Charter rights meant to apply to “persons”. Given the corpo-
ration’s legal personhood, the court must determine whether the corporation is
the kind of person to which the right in question is meant to apply,, based on the
interests the right was meant to protect. The use of the purposive approach in
this context may suggest that the courts will use the approach to resolve other
questions concerning who can claim the benefit of Charter rights.
The approach used for corporations may not, however, be entirely akin to
the method the courts adopt for determining whether a foetus has rights under
the Charter. The fact that a corporation is recognized as a legal person under the
Charter makes the scope of corporate rights significantly different from the
issue posed by foetal rights. The general acceptance of corporate personhood
makes the question of the corporation’s status under the Charter amenable to a
“right-by-right” analysis which asks whether each specific right should apply to
the corporation. In contrast, since the foetus has not been recognized as a legal
8 2Anti-abortionists have also asserted other claims on behalf of the foetus. For example, at trial,
Borowski argued that abortion violated the right to be free of cruel and unusual punishment in s.
12 of the Charter, and the right to the assistance of an interpreter in s. 14 (Borowski, supra note
35).83See Irwin Toy v. Quebec (A.G.), [1989] 1 S.C.R. 927, 58 D.L.R. (4th) 577 [hereinafter Irwin
Toy]: Corporations cannot invoke the protections of s. 7 since a plain, common sense reading of
the phrase “everyone has the right to life, liberty and security of the person” indicates that s. 7 was
intended to protect human persons and not corporations; R. v. Amway Corp. of Canada, [1989] 1
S.C.R. 21, 56 D.L.R. (4th) 309: A corporation cannot claim the protection of s. 11 (c) of the Charter
since it cannot be a -witness and therefore does not fall within the right of any person charged with
a criminal offence not to be compelled to be a witness in proceedings against that person; R. v. CIP,
[1992] 1 S.C.R. 843, 71 C.C.C. (3d) 129 [hereinafter CIP cited to S.C.R.]: A corporation can rely
on the guarantee in s. 11(b) of the Charter providing that any person charged with an offence has
the right to be tried within a reasonable time.
The analysis emerging from these cases is that courts will decide whether a corporation can
invoke Charter rights on a “right-by-right” basis.
4CIP, ibid. at 852.
85See e.g. Irwin Toy, supra note 83.
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FOETAL RIGHTS
person, the courts cannot avoid examining the background question of whether
the foetus is the kind of entity which should be regarded as having rights. This
requires more than simply analyzing the purposes underlying a particular Char-
ter right, but instead demands a normative conclusion that the foetus is the type
of being to whom Charter rights should attach.
I would argue that a purposive approach to foetal rights would require the
courts to identify the purposes or values underlying the Charter as a whole and
then to determine whether granting the foetus the status of personhood is con-
sistent with those values. This would involve a consideration not only of the
values expressed within the Charter, but also of the broader reasons for having
a declaration of rights embedded in the Constitution. To determine whether
something that has not been viewed as a rights-holder should receive Charter
protection, a purposive approach would arguably require the courts to examine
the role of rights within our legal system and what it is that rights are meant to
protect, and to consider whether there are compelling normative reasons for
granting the entity in question rights against the State. In other words, the courts
would decide to whom the Charter applies by looking at the meaning or pur-
poses of the Charter in light of the philosophical, legal and political underpin-
nings of a constitutionally entrenched declaration of rights. Such an approach is
consistent with the Supreme Court’s ruling in R. v. Big MDrug Mart that courts
should interpret the Charter in light of its linguistic, philosophical and historical
contexts, or run the risk of “overshoot[ing] the actual purpose of the right or
freedom in question.” 6
This analysis suggests that the entities which are recognized as having
rights under the Charter must be determined in light of our linguistic, historical,
ctiltural and philosophical understandings of the kinds of beings the Charter is
meant to protect. Accordingly, entities which have not been viewed as legal per-
sons should not be given personhood under the Charter unless the courts are
convinced there is a strong normative foundation on which to base this status.
The courts must assess the normative arguments for and against foetal person-
hood, and determine whether the values underlying the treatment of all born
human beings as persons also apply to the foetus.
While I believe the courts would adopt a purposive approach along these
lines to address the question of foetal personhood, itis also possible that the
courts might adopt a somewhat more cautious approach akin to that which the
Supreme Court used in Daigle when deciding the status of the foetus under
the Quebec Charter. The courts may be less comfortable expanding the
accepted category of persons who can assert Charter rights than they are
defining the content of Charter rights. Thus, they may insist on the need for
some evidence in the Charter itself or in parliamentary debates at the time the
Charter was drafted, of an intention to grant rights to the foetus. Using either
an intent-based approach or the purposive approach, the foetal rights argu-
ments that survive Daigle fail to establish the existence of foetal rights under
the Charter.
86Supra note 48 at 344.
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.1.
An Intent-Based Approach to Foetal Personhood
Following the approach the Supreme Court adopted in Daigle to determin-
ing the status of the foetus under the Quebec Charter, the courts could hold that
a legal approach to deciding whether a foetus is a person under the Canadian
Charter must be based on a finding that Parliament intended to grant the foetus
Charter rights. Since Parliament can be deemed to have intended to grant rights
only to those recognized as legal persons at the time the Charter was drafted, and
since neither the common law nor the civil law regarded the foetus as a person,
evidence of an intention to view the foetus as a person would be essential for a
finding of foetal personhood. Using this approach, the arguments anti-abortion
groups muster in support of foetal rights are irrelevant since they are not directed
to establishing the existence of an intention for the Charter to apply to a foetus.
There are strong justifications for limiting the courts’ role to a determination
of Parliament’s intent in answering, the question of whether something that has
never been viewed as a legal person is a person under the Charter. Determining
whether the category of rights-holders should be expanded beyond its current
ambit is a highly contentious exercise, one that is arguably better suited to Par-
liament than to the courts. In the case of the foetus, this exercise is likely to result
in profound consequences for women since foetal rights will have to be balanced
with the autonomy of women to control their pregnancies. Parliament may be
better placed than the courts to make a change of such magnitude since it has the
institutional capacity to consider the wide-ranging implications of foetal rights
and to hear representations from all of the people who will be affected. Of course,
any parliamentary recognition of foetal rights would be subject to judicial scru-
tiny to ensure that women’s rights were not unreasonably infringed.
Were the court to adopt an intent-based approach, the conclusion that the
foetus is not a person for the purposes of the Charter would be inevitable. The
text of the Charter displays no evidence of an intention to broaden the ordinary
legal definition of personhood to include a foetus. The Charter does not define
the word “person”, nor does it define the various words it uses to refer to holders
of rights such as: anyone, everyone, any person and every individual. If Parlia-
ment intended to depart from the common law and civil law definition of per-
son, then the absence of any reference to an expanded notion of personhood is
puzzling at best. In light of the background understanding that a foetus is not
a bearer of rights, one can ask the same question of the Canadian Charter that
the Supreme Court in Daigle asked of the Quebec Charter: If Parliament
intended to accord Charter rights to the foetus, why would it leave these rights
in such an uncertain state?
The conclusion that Parliament did not intend to make the foetus a rights-
bearer derives support from the absence of any evidence of an intention to grant
the foetus Charter rights within the debates of the Special Joint Committee on
the Constitution of Canada when the Charter was drafted. On two occasions, the
Special Joint Committee discussed the ramifications of the terms proposed to
refer to rights-holders under the Charter on the issue of abortion. 7 The Govern-
87Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the
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FOETAL RIGHTS
ment’s position through6ut these discussions was that there was no difference
between the terms “everyone”, “every person” or “every individual” and that all
of these terms left the legality of abortion within Parliament’s control. The Gov-
ernment insisted that all of these terms were neutral on the question of abortion
and that none of them would give the courts the power to determine the status
of abortion.”8 While this discussion was not framed in terms of deciding whether
the foetus has Charter rights, it is reasonable to conclude from the Committee’s
decision that the legality of abortion should remain within Parliament’s control,
that the Committee did not intend to grant rights to the foetus. To ensure that
the permissibility of abortion was not decided by the courts, the Committee
would have had to take the position that a foetus could not invoke Charter
rights. Foetal rights under the Charter would run counter to the Committee’s
clearly expressed intention of retaining Parliament’s control over the abortion
question, since they would place the question of defining the scope of the foe-
tus’ right to life, liberty and security of the person squarely in the hands of the
courts. Parliament could not have intended the Charter to apply to the foetus if
it also intended to remain the final arbiter of the abortion debate.
However, the central weakness of an intent-based approach, and the rea-
son that courts will probably be reluctant to adopt it, is that it may too narrow-
ly circumscribe the ability of the Charter to grow and respond to changing
social, legal and political conditions. If the Charter is to survive in a meaning-
ful way for future generations, it must be able to grow beyond the confines of
the imagination of its drafters. It may be that at some future point our notions
of who or what should be protected by the Charter may encompass things that
we do not now view as legal persons. An intent-based approach might unduly
tie the courts’ hands in the event of changing definitions of personhood in the
future.
2.
A Purposive Approach to Foetal Rights
A purposive approach would base an acceptance of foetal rights under the
Charter on the existence of a persuasive normative foundation for viewing the
foetus as a legal person. This approach overcomes the pitfalls of an approach
rooted in parliamentary intention because it does not freeze the conception of
personhood within the Charter to that shared by Parliamentarians in 1982. It
recognizes that the understanding of legal personhood can. change over time,
such that things that would not be viewed as persons under the Charter today
may in the future be recognized as having Charter rights. Using this approach,
it would be possible to recognize the foetus as a person under the Charter even
if the Charter’s drafters did not, provided that there were strong normative rea-
sons for giving the foetus the legal status of personhood. The presence of a
strong normative foundation would allow the courts to conclude that foetal per-
sonhood is consistent with Canada’s linguistic, historical and philosophical tra-
House of Commons on the Constitution of Canada, No. 43 (22 January 1981) at 39-54, No. 46 (27
January 1981) at 70-71.
88See especially the comments of Robert Kaplan, ibid., No. 43 at 44, 46, and those of Jean Chr6-
tien, ibid., No. 46 at 70-71.
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ditions. A number of the intervenors in Borowski and in Daigle advocated an
approach of this sort. 9
Using this approach, anti-abortion arguments are largely unhelpful. Two
normative claims underlie the anti-abortion argument for foetal rights: that the
foetus is as fully human in all relevant senses as human beings who have been
born, and that recognizing foetal rights fosters respect for human life and guards
against the abuse of vulnerable or marginalized persons. Neither of these claims
is developed to any meaningful extent. As I have argued in the previous section,
opponents of abortion attempt to deny the normative character of the first claim
on the ground that there exists an objective (and thus non-normative), scientif-
ically generated definition of personhood. As a result, they fail to provide any
normative arguments for viewing the foetus as a fully human’ person. While
opponents of abortion address the second normative claim directly, their argu-
ments amount to assertions that treating the foetus as a legal person will instill
respect for all human beings since the foetus, like Black persons, women and
the disabled, is a human person in all relevant senses. The success of this claim
depends to a considerable degree upon the success of the first as it is premised
on the belief that there are no salient normative differences between prenatal life
and life after birth which might lead to a different moral or legal status for the
foetus. Since the anti-abortion arguments as they now stand do not provide the
normative foundation necessary to establish foetal rights, it would be extremely
unlikely for the courts to hold that foetal rights exist under the Canadian Char-
ter. I wish to dispute the anti-abortion movement’s central claim that the foetus
is like born persons in all morally salient ways. One way to examine this claim
is to consider the moral significance of the fact that the foetus exists in a unique
and complexly interconnected way within the pregnant woman. If there is a
single factor which differentiates foetal life from life after birth, it is that the
foetus exists within the body of the woman who is creating it. Although the anti-
abortion argument denies that any moral significance attaches to the unique
nature of foetal existence, in my view the salience of this fact is inescapable.
The moral significance of the foetus’ existence within the pregnant woman
can be explored by considering the impact on women of viewing the foetus as
a holder of rights. If the effect of foetal rights is to deprive women of their
autonomy 9 and personhood, there are strong reasons for concluding that the fact
that the foetus exists within the pregnant woman matters in a morally salient
way and that the foetus should not be viewed as a legal person. In suggesting
that the impact of foetal rights upon women constitutes an important normative
consideration in the debate over foetal rights, I am not proposing that the courts
engage in what is frequently described (and dismissed) as a consequentialist
analysis. I am, however, insisting the courts recognize that the status of the foe-
and Children in Borowski; Factum of Campaign Life in Daigle, supra note 59.
S9See e.g. Factum of the Intervenor Interfaith Coalition on the Rights and Wellbeing of Women
901 use autonomy not in the traditional liberal sense, but in the way proposed by Jennifer
Nedelsky in “Reconceiving Autonomy” (1989) 1 Yale J.. L. & Fern. 1. Nedelsky criticizes the lib-
eral conception of autonomy which is based on the view that isolation from others protects the indi-
vidual. She argues that autonomy is based not on isolation but on relationships which provide the
support and guidance necessary for autonomy.
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FOETAL RIGHTS
tus is inextricably intertwined with women’s legal status and that the effect on
women’s status is not only a legitimate normative consideration, but an essential
one. Though proponents of foetal rights ignore women entirely in their analysis
of whether a foetus should have rights,9′ I maintain that it is not possible to con-
sider the foetus in isolation from the pregnant woman because the foetus does
not exist in isolati6n from her.
Enumerating the consequences of foetal rights for women is a speculative
endeavour. Any foetal rights recognized by the court would have to be balanced
in some way with women’s rights to life, liberty and security of the person, and
to equality.9″ Opponents of abortion clearly believe that, at least where abortion
is concerned, foetal rights will trump women’s rights since the right to life takes
precedence over any less important Charter right or interest women might
invoke. Achieving a prohibition on abortion is, after all, the very reason anti-
abortion activists assert the existence of foetal rights. It is possible, however,
that the balance would not tilt as far in the foetus’ favour as opponents of abor-
tion hope. Nonetheless, in canvassing the possible consequences of foetal rights,
I will accept the anti-abortion assumption that granting rights to the foetus will
have discernible consequences for women and begin with a description of the
most obvious consequences.
Viewing the foetus as a rights-holder transforms pregnancy into a contest
of competing rights in which the rights of the foetus are always in actual or
potential conflict with those of the pregnant woman. The pregnant woman
ceases to be an autonomous whole but comes to be two separate entities for
legal purposes. It is reasonable to assume that this vision of pregnancy will give
rise to two general sorts of consequences for women. First, giving legal rights
to the foetus will have tangible legal ramifications in the form of restrictions on
women’s equality, dignity and autonomy. Second, foetal rights will have effects
of a more symbolic nature, changing the way in which pregnant women, and
women in general, are viewed.
I have already alluded to the probable legal consequences of recognizing
foetal rights. 93 Foetal rights could lead to profound restrictions of women’s
9 1Women do figure prominently in the anti-abortion argument, but only after foetal rights are
established. At that point, women enter the picture to have their rights restricted based on the coun-
tervailing rights of the foetus.
92The balancing of rights would probably occur under s. 1 of the Charter, with women’s rights
cast as a state interest in promoting the rights of women. Alternatively, the principles of fundamen-
tal justice could be interpreted to accommodate the interests of women.
93For other articles cataloguing the effects of foetal rights on women, see Dawn Johnsen, “The
Creation of Fetal Rights: Conflicts with Women’s Constitutional Rights to Liberty, Privacy, and
Equal Protection” (1986) 95 Yale L.J. 599; Janet Gallagher, “Prenatal Invasions & Interventions:
What’s Wrong with Fetal Rights” (1987) 10 Harv. Women’s L.J. 9; Nancy Rhoden, “The Judge
in the Delivery Room: The Emergence of Court-Ordered Caesareans” (1986) 74 Calif. L. Rev.
1951; Molly McNulty, “Pregnancy Police: The Health Policy and Legal Implications of Punishing
Pregnant Women for Harm to Their Fetuses” (1987-88) 16 N.Y.U. Rev. L. & Soc. Change 277;
Lawrence Nelson, Brian Buggy & Carol Weil, “Forced Medical Treatment of Pregnant Women:
‘Compelling Each to Live as Seems Good to the Rest”‘ (1986) 37 Hastings L.J. 703; Note, “Mater-
nal Rights and Fetal Wrongs: The Case against the Criminalization of ‘Fetal Abuse’
(1988) 101
Harv. L. Rev. 994; Martha Field, “Controlling the Woman to Protect the Fetus” (1989) 17 Law,
REVUE DE DRO1T DE McGILL
[Vol. 39
autonomy during pregnancy if the foetus’ rights to life or security of the person
are seen by the courts as outweighing a woman’s right to control her pregnancy.
Foetal rights could, as opponents of abortion hope, severely restrict access to
abortion or result in prohibiting abortion altogether on the theory that the foetus’
right to life trumps any claim a woman might assert to control her body and her
pregnancy. They could also prompt legislatures to pass laws permitting the State
to apprehend a foetus when a woman’s conduct is seen to threaten the foetus’
health or security of the person, even though this may mean confining women
for the duration of pregnancy or permitting doctors to dispense with women’s
consent to caesarean section operations. Foetal rights might provide the justifi-
cation for creating criminal offences to punish women who engage in conduct
that is potentially injurious to the foetus, and for viewing such conduct as pre-
natal child abuse.94 They could also serve as the basis, as some foetal rights
advocates suggest, for placing all pregnant women under legal duties to follow
nutritional guidelines and to submit to medical procedures for the benefit of the
foetus.9′ All of these actions could be justified as ensuring that the foetus’ rights
are protected from the harmful conduct of the pregnant woman.
On a more symbolic level, pregnant women will come to be vfewed as
legitimate objects of greater state regulation, and the focus of pregnancy will
be the foetus, not the woman and the new life she is creating. In its most
extreme form, this will result in viewing the pregnant woman as a passive ves-
sel whose sole purpose is to provide a nurturing environment for the “person”
inside her. The foetus, in contrast, will be viewed as the primary actor in preg-
nancy. Although anti-abortion factums in Canada have not expressly promoted
this vision of pregnancy, many of the anti-abortion factums filed in the United
States Supreme Court clearly endorse this view by describing the foetus as an
agent who consciously manipulates and controls the pregnant woman. For
example, in an amicus brief in Webster, Human Life International quoted
Albert Liley, who described the foetus’ “actions” during pregnancy in the fol-
lowing way:
Med. & Health Care 114; Kary Moss, “Substance Abuse during Pregnancy” (1990) 13 Harv
Women’s L.J. 278; Deborah Krauss, “Regulating Women’s Bodies: The Adverse Effect of Fetal
Rights Theory on Childbirth Decisions and Women of Color” (1991) 26 Harv. C.R.-C.L. L. Rev.
523; Dorothy Roberts “Punishing Drug Addicts Who Have Babies: Women of Color, Equality and
the Right of Privacy” (1991) 104 Harv. L. Rev. 1419.
94In the United States, where legal developments often presage what is to come in Canada, the-
ories of foetal personhood have in fact led several states to prosecute women for drug use during
pregnancy under existing criminal legislation. See e.g. People v. Stewart, No. M508197 ([San
Diego County] Mun. Ct. 26 February 1987); State v. Johnson, No. E89-890-CFA (Fla. Cir. Ct. 13
July 1989). In April 1990, the Reproductive Freedoms Project of the American Civil Liberties
Union estimated that 44 criminal prosections had been brought against women for “prenatal” con-
duct in 17 different states. See Lynn Paltrow, Hilary Fox & Ellen Goetz, “Memorandum Re Case
Update” (Report produced for the Reproductive Freedoms Project of the American Civil Liberties
Union, 20 April 1990). For a concise overview of these prosecutions, see Moss, ibid. For a general
discussion of the issues involved, see Clarice Feinman, ed., The Criminalization of a Woman’s
Body (New York: Haworth Press, 1992).
95See Johi Robertson, “Procreative Liberty and the Control of Conception, Pregnancy and
Childbirth” (1983) 69 Virginia L. Rev. 405; Margery Shaw, “Conditional Prospective Rights of the
Fetus” (1984) 5 J. of Legal Medicine 63. Shaw also advocates imposing preconception duties on
women at high risk of having a child with genetic damage.
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FOETAL RIGHTS
First, [the foetus] is. entirely responsible, not only for his own development, but
also for the organization of pregnancy. He has influences while still no bigger than
a grain of sugar on the mother whose body weight is measured in kilograms.
While this is by no means novel in biochemical or physiological circumstances,
as I have said, it is an astounding feat of power amplification and demonstrates the
importance of his own survival to the baby so that he does in fact take over …
direct control of the pregnancy.96
Later in the same brief, Human Life International quoted Professor Liley as say-
ing:
However, our new human has in hand even greater designs and undertakings than
simply his own internal organization and development. He also develops his own
life-support system, his placenta, and his own confines, for it is the embryo and
the fetus who [develop] membranes, [form] amniotic fluid and [regulate] compo-
sition and volume. Women speak of their waters breaking and their membranes
rupturing, but such expressions are so much nonsense –
these structures belong
to the baby. This simple point is not a play on words, but a practical reality.97
The perceived ingenuity of the foetus in controlling the pregnant woman is per-
haps best illustrated in the following quotation from testimony given by Profes-
sor Lejeune:
Q. Just coming to this question of nurture, Professor, would you describe precisely
how the mother nurtures the child while the child is in the uterus?
A. It’s a very complex system but the first step is not in the hand of the mother.
It is in the hand of the tiny human being. At around five days after fecundation,
this microscopic human being, one millimeter in diameter, sends a chemical mes-
sage which forces the yellow corpus luteum inside the ovary to produce certain
hormones so that the menses of the mother will be suppressed. It is in fact the baby
which suppresses the menses of the mother and who takes over, if I can say, and
it does to her what it likes, and you know it will do it again later. He is really capa-
ble of presiding over his own destiny. Now a little later he will bury himself inside
the mucosa of the uterus and develop a kind of apparatus that I cannot better
describe as a cosmonaut’s suit which would make a little bulb which will have a
little cord which will go to the big machine and the big machine would be able
to take nutrients from the wall of the uterus through a special respiratory system.
And it is the foetus which built this extra thing, this extra surrounding of him, this
capsule, and the mother just provides by her blood all the nutrients which can go
through the membranes so that the baby can be fed, but the whole machinery, I
would say the whole space capsule he has, is built by the foetus.98
96Testimony given 7 May 1974 at the Hearings before the Subcommittee on Constitutional
Amendments of the Committee on the Judiciary, 94th Cong., and before the Abortion Commission,
New Zealand Parliament, 1975, as cited in Brief for Human, Life International as Amicus Curiae
Supporting Appellants in Webster [hereinafter Brief for Human Life International in Webster] at
9-10. Dr. Liley is also the author of an article entitled “The Foetus in Control of His Environment”
in Thomas W. Hilgers & Dennis J. Horan, eds., Abortion and Social Justice (New York: Sheed &
Ward, 1972) at 27.
971bid. at 16-17.
98Brief of Paul Marx in Webster at 30-32, citing testimony given before a United States Con-
gressional committee in 1974. See also the following quotation from Professor Liley:
Another crucial environmental problem which must be dealt with [during pregnancy]
is the homograft situation – the fact that the fetus and his mother, inevitably immuno-
logical foreigners, who could not exchange skin grafts and could not be safely given
a blood transfusion one from the other, yet must tolerate each other’s tissues in para-
biosis for nine months of pregnancy. Again it is the foetus, not the mother, who copes
with these problems. And finally, it is the foetus, not the mother, who determines the
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Although Canadian anti-abortion factums do not openly espouse the vision
of pregnancy articulated above, there are two reasons to believe that it is
implicit within the view of foetal rights promulgated in Canada as well. First,
some of the factums do evoke images of the foetus as controlling the pregnancy,
though in a far less extreme way than the American factums. For example, in
describing the biological distinctiveness of the foetus from the pregnant woman,
Borowski used language suggesting that the foetus is the primary actor in preg-
nancy:
[Mother and child] are separate, distinct, and unique human beings. They are con-
nected only by the placenta which is an external organ of the child and forms a
protective barrier and a means of exchange between mother and child. The pla-
centa is the organ through which the child en ventre sa mere gains nourishment
from the mother.99
Second, the medical experts who in the American anti-abortion briefs describe
pregnancy as within the control of the foetus are-the same medical experts anti-
abortion groups in Canada rely upon to lay down the scientific foundations of
their argument.” Borowski, for example, relied heavily on the testimony of Dr.
Liley and Dr. Lejeune to describe the course of foetal development, and more
importantly, to “establish” that on objective scientific measures, the foetus is a
human person.’0′ That both of these doctors are also strong proponents of the
view that the foetus is the agent who controls pregnancy suggests a clear link
between the two ideas.
Both the legal and symbolic consequences of foetal rights for women con-
stitute strong normative reasons for refusing to view the foetus as a rights-
holder. The stringent curtailment of women’s personhood that foetal rights
would require is testimony to the fact that the foetus differs from life after birth
in morally significant ways and that the nature of these differences is so pro-
found that the foetus should not be regarded as a legal person. As the foregoing
analysis illustrates, to grant rights to the foetus is to seriously undermine the sta-
tus of women, a consideration which, in a society committed to women’s equal-
ity, must weigh heavily against viewing the foetus as a person.
duration of pregnancy, for unquestionably the onset of labour is normally the unilateral
decision by the baby (Brief for Human Life International in Webster, ibid. at 19-20).
The “environmental problem” of the foetus Dr. Liley refers to is, of course, the pregnant woman.
For a feminist critique of accounts of the foetus as an “autonomous, automatized mini-space hero”,
see Rosalind Petchesky, “Fetal Images: The Power of Visual Culture in the Politics of Reproduc-
tion” (1987) 13 Feminist Studies 263.
99Factum of Borowski, supra note 50 at 9-10, para. 27.
‘Having examified anti-abortion legal submissions in both the United States and Canada, it
appears that there is a small cadre of international anti-abortion medical experts which is brought
to testify in judicial and legislative proceedings regarding abortion. Two of the most prolific
experts are Sir William Liley of New Zealand and Dr. Jerfme Lejeune of France. Not only did they
testify at the Borowski trial, they have also testified in the United States and in New Zealand. See
Brief of Paul Marx in Webster at v-vi (describing Dr. Lejeune’s credentials); Brief for Human Life
International in Webster, supra note 96 at iii-iv (describing Dr. Liley’s credentials).
‘0Borowski called nine medical witnesses to testify at trial. Of the nine, he relied most exten-
sively on the work of Drs. Liley and Lejeune whom he described as pioneers in the area of foetal
research. See Factum of Borowski, supra note 50 at 10, para. 28. For the medical evidence on
which Borowski relied, see generally Factum of Borowski, ibid. at 3-10, paras. 8-28.
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FOETAL RIGHTS
are more important than the rights of other human persons –
It is, of course, possible that my description of the consequences of foetal
rights is overblown and that foetal rights would not have any of the legal or sym-
bolic effects on women I have identified. The court could declare that a foetus
has rights but hold that in situations in which foetal rights and women’s rights
conflict, the rights of “born” human beings take precedence over the rights of
“unborn” life, at least up to a certain stage in pregnancy.” Regarding the foetus
as a person would therefore constitute a largely symbolic statement of our socie-
ty’s respect for human life and would not culminate in severe restrictions on
women’s autonomy. While it is possible that the courts might endorse an
approach of this sort, in my view it is highly unlikely. A symbolic view of foetal
rights would rest on the premise that the rights of some human persons –
those
who are born –
those who have not been born.0 3 This premise gives rise to two difficulties, one
practical and the other theoretical. As a practical matter, the court might be loathe
to adopt an interpretation of rights which assumes that rights may mean different
things for different human persons. While the court is clearly prepared to hold
that the rights of corporations differ from those of natural persons, it is quite
another matter to differentiate among human persons. In terms of theory, a sym-
bolic view of foetal rights would need some justification for treating foetal rights
as less important than the rights of born persons. The most plausible justification
is that life after birth differs in morally salient ways from life before, such that
weighing foetal rights differently from the rights of born persons is warranted.
Yet, recognizing a moral difference between the foetus and born persons begs the
question, Why grant rights to the foetus in the first place? If there is a moral dif-
ference, why should it be taken into account by Interpreting foetal rights differ-
ently from the rights of born persons, rather than at the earlier stage of determin-
ing whether the foetus should have rights at all?
Advocates of a symbolic interpretation of foetal rights might respond that
the value in such an approach lies in acknowledging respect for life. However,
12One could argue that in Morgentaler, supra note 63, the Supreme Court of Canada implicitly
adopted a framework of this sort. Although the Court did not consider the existence of foetal rights
when it found the abortion law violated women’s constitutional rights, it did consider the state
interest in protecting the foetus in its analysis under s. 1 of the Charter. In striking down the leg-
islation, the majority of the Court held that the state interest in foetal life could not justify the abor-
tion law’s infringement of women’s rights. It is possible that even if the Court later declares a foe-
tus to have rights, the balance between foetal rights and women’s rights would not shift from the
balance struck in Morgentaler.
‘0 3This can be illustrated by considering the conflict of rights that arises in abortion. Depending
upon the reasons a woman seeks to terminate her pregnancy, abortion pits a woman’s right to life,
liberty, security of the person, or equality against a foetus’ right to life. If foetal rights were
regarded as equal to women’s rights, the foetus’ right to life would outweigh all of the rights a
woman could assert, except perhaps a woman’s own right to life, since the foetus’ right to life
would trump the “less” important rights of liberty, security of the person or equality. Abortion
would accordingly be justified only where necessary to protect the life of the pregnant woman, and
laws which permitted abortion on a more liberal basis would be struck down for violating foetal
rights. If, however, foetal rights will not result in restrictions on abortion, then women’s rights to
liberty, security of the person, or equality will trump the foetus’ right to life, at least up to a certain
stage of pregnancy. Unless a foetus’ right to life is seen as being of less weight than the life of
born persons, striking the balance in favour of women’s rights cannot be justified.
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this response is also flawed. It is highly dubious whether granting the foetus
symbolic rights would be a meaningful or effective way of underscoring our
society’s commitment to the value and dignity of human life. There is no obvi-
ous connection between deeming a foetus to have rights which are understood
as being different from and less important than those of human beings post-
birth, and promoting respect for the foetus or for human life generally. A sym-
bolic notion of foetal rights does not alter the existing understanding that the
foetus is developing human life. Nor would a symbolic interpretation of foetal
rights have an impact on the respect accorded to vulnerable or disempowered
human persons, since the rights accorded to the foetus would be recognized as
fundamentally different from the rights of people after birth. The arguments
opponents of abortion advance on this point –
that foetal rights will guarantee
the protection of vulnerable persons by ensuring all human life is accorded
equal status –
are of no assistance since they are premised on the assumption
that all biological “persons” have the same rights and thus cannot be used to
support symbolic rights. If, as is the case with symbolic foetal rights, rights are
interpreted differently based on the physical characteristics of the “person” in
question, there is no basis for arguing that vulnerable groups will be assisted by
a recognition of foetal rights. On the other hand, if, as opponents of abortion
would have it, foetal rights are more than symbolic and provide a legal basis for
restricting women’s autonomy, it is difficult to see how they would be inter-
preted as fostering respect for life in light of the serious disregard for women’s
equality they would entail.
Finally, it is worth pointing out that a purely symbolic vision of foetal
rights which did not result in profound restrictions on women would clearly fail
to satisfy opponents of abortion since it would defeat the purpose of claiming
foetal rights in the first place. All of the arguments they advance are directed
to proving that the foetus is like born persons in every material respect and thus
that it should have the same legal protections as born persons. It would be odd
for the courts to recognize the foetus as having rights on the basis of these argu-
ments, and yet to limit these rights to having purely symbolic status.
While there are strong normative reasons against foetal rights which
diminish women’s status, one is hard-pressed to come up with reasons to sup-
port conferring symbolic rights upon the foetus. The view that the foetus has
rights but that its rights are different from those of born persons represents an
uncomfortable compromise between the conviction that the foetus is morally
indistinguishable from born persons and the belief that the foetus, as developing
life, is morally distinguishable from life after birth. It is difficult to support this
compromise on normative grounds. If, as I have argued above, symbolic rights
will not alter the status of the foetus (and, correspondingly, women’s status) and
if they will not promote respect for life, there do not appear to be any reasons
to support a change of this nature. If, on the other hand, symbolic rights are a
prelude to greater rights for the foetus –
and it is certainly possible that the
very fact of viewing the foetus as a rights-holder might spark a gradual evolu-
tion of symbolic rights into rights which impair women’s status –
they are
unacceptable for the normative reasons discussed above.
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Since the arguments advanced by opponents of abortion fail to establish a
normative foundation for foetal rights (whether they are interpreted as limiting
women’s autonomy or as symbolic), and since the normative considerations in
fact militate against viewing the foetus as a rights-holder, a purposive approach
to Charter interpretation would lead to the conclusion that a foetus does not
have rights. However, it is important to point out that this conclusion does not
mean that the foetus should have no legal status or protections or, as opponents
of abortion often suggest, that the foetus should be relegated to the status of
property.” Because it is unique among human experiences, pregnancy repre-
sents a challenge to conventional legal thought. The challenge is to construct
ways of thinking about pregnancy that accurately embody its uniqueness, that
recognize that despite its uniqueness, pregnancy is a normal rather than deviant
state, and that acknowledge that a woman continues to be a whole person during
pregnancy even though she is creating what will one day be a separate person.
Throughout the recent struggles over reproductive rights in Canada and in the
.United States, feminist academics and legal practitioners have been striving to
forge such a vision. In the course of this enterprise, feminists have discovered
that our language lacks words for describing pregnancy, and that a necessary
step in the feminist revisioning is to provide a vocabulary for talking about the
process of creating life. L.E.A.F., for example, intervening in Sullivan,
described the foetus as being “in and of” the pregnant woman in an attempt to
capture the complexities of the intimate interconnection of woman and foetus
and the foetus’ complete dependence on the woman.”5 One purpose of these
104See e.g. R.E.A.L. Women’s inelegant articulation in Daigle:
Depending on the Court’s answers to the questions raised herein women conceive and
bear children whose lives have inherent dignity which is recognized from the moment
of conception or they conceive and bear entities disposable like pieces of property prior
to birth (Factum of the Intervenor R.E.A.L. Women of Canada in Daigle, supra note
10 at 3, para. 8).
Like many opponents of abortion, R.E.A.L. Women sees only two options: either a foetus is a full
legal person or it is a piece of property. This quotation is particularly interesting for its suggestion
that treating the foetus as a “disposable” piece of property denigrates women, the implication being
that women’s dignity demands that a foetus have rights:
It is respectfully submitted that historically Canada has recognized the dignity of pre-
born children. This is a dignity accorded only to human beings who are persons and
is associated with the dignity women themselves have as childbearers. To deny the
humanity and personhood of a woman’s offspring is to diminish the dignity of the
woman herself (ibid. at 3, para. 9).
In fact, the opposite is probably true –
that foetal rights are far more likely to denigrate women
than a decision that a foetus is not a person. However, this conclusion does not mean that a foetus
should be viewed as property. For a compelling pro-choice feminist argument against viewing
reproductive material as property, see Jennifer Nedelsky, “Property in Potential Life? A Relational
Approach to Choosing Legal Categories” (1993) 6 Can. J. Law & Jur. 343.
10 5Factum of the Intervener Women’s Legal Education and Action Fund in Sullivan, in particular
at 22-25, paras. 42-50. L.E.A.F. described the relationship between the woman and the foetus that
is “in and of” her in the following way at paras. 44-47:
While in and of the pregnant woman, the foetus is not just another body part, as the
Appellants characterize the Court of Appeal decision…. The intimate and complex con-
nections between the pregnant woman and her foetus are unique, and feature many ways
in which the foetus is quite unlike a body part. The foetus is ordinarily created through
intercourse, a social relation which has impregnation as a consequence. During preg-
McGILL LAW JOURNAL
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feminist efforts to find ways to conceive of pregnancy that accurately reflect
women’s experiences” 6 and that affirm women’s autonomy and dignity is to
produce an analysis of pregnancy firmly centred on the woman and the life she
is creating. This analysis can then form the basis of legal regulation of preg-
nancy. Nothing in this endeavour is inconsistent with recognizing the value of
the foetus as developing life, or of acknowledging that, as early human life, the
foetus merits some form of legal recognition. The issue for feminist theory is
how to fashion this recognition while asserting women’s role as the creators and
bearers of life and as full human persons.
It is also worth pointing out that feminists share some of the goals of oppo-
nents of abortion, though they would seek to reach them in different ways. Like
anti-abortionists, pro-choice feminists”re hope to minimize the number of
women seeking abortion, but unlike anti-abortionists, they would not attempt to
accomplish this by prohibiting abortion, a measure which experience in Canada
and the United States has ‘shown us only harms women by driving abortion
underground and into unsafe back-alleys.08 Instead of penalizing women by
fiancy, a woman experiences wide-ranging physiological changes that only pregnancy
initiates; without the foetus they will not occur … Yet the foetus is deep within the body
of a pregnant woman, connected to many of her body’s systems. The two are jointly
nourished. There is no access to the foetus except through the pregnant woman; whatever
happens to the foetus happens to the pregnant woman but not always in the same way,
and whatever happens to the pregnant woman happens to the foetus but not always in
the same way. Through her body, the pregnant woman perceives and experiences the foe-
tus in ways no one else can duplicate; she alone can witness the foetus and its develop-
ment through her own senses without the intermediation of technology. Viewing the foe-
tus, either as a person or as a person-like separate entity, or alternatively as just another
body part of the pregnant woman, does not capture the unique reality of pregnancy.
See also Donna Greschner, “Abortion and Democracy for Women: A Critique of Tremblay v. Dai-
gle” (1990) 35 McGill L.J. 633.
IreWomen’s experiences of pregnancy differ along a number of variables, including whether the
pregnancy was desired or not. JeyMifer Nedelsky provides a powerful description of the difference
between a wanted and unwanted pregnancy:
Carrying a baby is perhaps the most intimate physical-emotional relationship there is.
Unless the relationship is desired, it does violence not only to her bodily integrity and
autonomy, but to her capacity for intimacy. Sexual intercourse is a good analogy. When
this relationship is desired, it offers unrivalled pleasure, fulfillment, and connection.
When sexual intercourse is coerced, it is one of the most horrible forms of violation.
No woman should be forced to undergo the nine-month relationship of pregnancy
(supra note 104 at 364).
1071 have used the term “pro-choice feminists” here to recognize that some feminists oppose
abortion and consider themselves anti-choice. See e.g. Brief of Feminists for Life of America in
Webster; Gail Sweet, ed., Pro-Life Feminism: Different Voices (Toronto: Life Cycle Books, 1985).
For a discussion of this position, see Ruth Colker, “Feminist Litigation: An Oxymoron? – A Study
of the Briefs Filed in William L. Webster v. Reproductive Health Services” (1990) 13 Harv.
Women’s L.J. 137. However, many feminists who oppose abortion would disagree with the anti-
abortion movement’s ideology and tactics but would instead favour policies to reduce the incidence
of unwanted pregnancies as well as policies designed to make carrying a pregnancy to term and
raising a child a more feasible option for women.
‘0The legal prohibition on abortion which existed in Canada until 1969 and in various American
states until the 1973 decision in Roe, supra note 35, did not result in the absence of abortion.
Women always sought out the procedure at great risk to their lives and health. R.E.A.L. Women
themselves concede that prohibiting abortion will not bring the abortion rate to zero. In their esti-
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FOETAL RIGHTS
putting their lives at risk, feminists advocate steps to reduce the incidence of
unwanted pregnancy and to make childrearing less onerous for women both in
economic terms and in terms of women’s educational, occupational and per-
sonal aspirations. Measures on the feminist agenda include providing sex edu-
cation courses in school curricula (which would not only address the biology of
human reproduction but would also cover the conditions for informed and
uncoerced sexuality), producing reliable and safe contraception and ensuring it
is readily available, making sure that all women have the financial resources to
be able to keep themselves and their children out of poverty, providing afford-
able, good quality day care, and reforming the workplace to remove barriers to
job security and promotion that women with children continue to face. More
radical restructuring of the workplace to accommodate the demands of raising
a family would be required before women achieve equality in the labour force.
Greater equality would also decrease the number of unwanted pregnancies since
the personal and economic costs of raising children would no longer fall pre-
dominantly on women. Admittedly, these programs will not end abortion alto-
gether as women will still decide to terminate pregnancies for legitimate rea-
sons. However, rendering abortion illegal will also fail to stop abortion, and any
decrease in the abortion rate would come at a tremendous cost to women. The
feminist proposals, in contrast, promise to lessen the abortion rate in a way that
is humane and respectful of women.
Pro-choice feminists are also strongly committed to fostering respect for
human life. However, unlike opponents of abortion, feminists tend to advocate
social and economic measures that would do far more to promote human life
than changing the status of the foetus. Many feminists endorse improving the
quality of life by eradicating the conditions of poverty, unemployment and vio-
lence in which many Canadians live. Ensuring that people within Canada can
meet their basic human needs is a far better way of demonstrating a genuine
commitment to the value of human life than declaring the foetus to be a person,
a gesture that will do nothing to ameliorate the living conditions in which peo-
ple live and into which foetuses will ultimately be born.
Although I am of the view that a purposive approach to foetal rights would
canter on the normative reasons for and against foetal rights, the courts might
also consider the more pragmatic issue of whether recognizing foetal rights will
bring about the benefits opponents of abortion claim. On this score, the courts
might acknowledge the inability of foetal rights either to end abortion com-
pletely or to promote human life. The courts might also weigh the feminist alter-
natives to foetal rights as preferable ways of attaining the stated objectives of
the anti-abortion movement.
Conclusion
In this paper I have argued against recognizing foetal rights under the
Charter. I have attempted to show that establishing the existence of foetal rights
mation, 11 percent of pregnant women will resort to illegal abortion. See Factum of R.E.A.L.
Women in Borowski, supra note 10 at 17, para. 83. This is not much lower than the latest statistics
on the abortion rate which show 17.5 abortions per 100 live births (Canadian Centre for Health
Information, Therapeutic Abortions (Ottawa: Statistics Canada, 1991)).
100
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requires normative reasons justifying treating the foetus as a person, and that the
arguments submitted to the courts to date fail to supply these reasons. I have
also tried to show that the status of the foetus is inextricably bound up with the
status of women, and that recognizing foetal rights can only diminish women’s
status. In urging the courts to refrain from granting foetal rights, I am not sug-
gesting that the legal system should ignore prenatal life, or that conflicts
between women’s autonomy and the birth of a healthy child will never arise. I
am, however, encouraging the courts to think creatively about pregnancy and to
make the pregnant woman and the life she is creating the focus of legal analysis,
rather than to bypass the woman, focusing only on the developing life within
her. Feminist scholarship, although still at a very preliminary stage, offers a
promising avenue for this inquiry.
