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Fetal Rights

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Protecting Foetal Rights

Angela Kim

LWSO 335

Linda McKay-Panos

Spring 2006

I. Introduction

“Prenatal Substance Abuse and Judicial Intervention” by Richard D. Bell.

Many dissenting views on judicial intervention in pregnancy and birth exist. In his article, Bell demonstrates his disagreement with the decision put forward by Shulman J. in the Winnipeg Child and Family Services case against G. (D. F.) to intervene and impose treatment on a pregnant, substance abusing woman. For Bell, judicial intervention usurps the rights and bodily integrity of a woman and upsets the balance existing between foetal and maternal rights. He believes judicial intervention poses complicated moral questions that should be answered solely by the Parliament.

I will look more closely at the issues surrounding this case and others similar to it by finding fault in Bell’s reasoning and by putting forth the idea that foetuses need protection as much as Bell enforces the a pregnant woman’s rights need to be protected.

II. Background

What is a foetus? The foetus is the developed mammal after the embryonic stage and before birth. The foetus develops from the ninth week of gestation, when primary structures and organ systems have formed, until birth. Factors affecting foetal growth include maternal, placental, and foetal. Maternal factors affecting foetal growth include size, weight, nutritional state, cigarette smoking, substance abuse, uterine blood flow, anaemia, and environmental noise exposure. Deficient growth can result in low birth weight and increased risk for perinatal mortality and other health dangers.

Does a foetus have legal rights? The law does not recognize the unborn child as a legal person; therefore it has no rights under the law.

What is substance abuse? Substance abuse is an overindulgence and reliance on a stimulant, depressant, chemical substance, herb, or fungus causing effects that are destructive to an individual’s physical and mental health, or well being of others. Continual pathological use of a medication, non-medically indicated drug, or toxin that results in repeated adverse social consequences related to drug use is a pattern characteristic of substance abuse. Substance abuse may lead to substance dependence or addiction. Central nervous system malfunction, developmental hindrances, attention deficit disorder, and microcephaly may be exhibited by children exposed to substances in utero. Repeated exposure to solvents can lead to retardation of foetal growth and development and to foetal death. The crucial period for the development of the central nervous system in humans is in the first sixteen weeks after conception, however it is susceptible to a range of toxic exposures up to birth.

III. Summary

Bell asserts that Shulman J.’s order that D. G. could be forced into the supervisory care of the Winnipeg Child and Family Services Agency and undergo drug treatment program is not easily warranted under the law. This forced submission to custody alters the existing balance between foetal and maternal rights. Bell argues that invoking the doctrine of parens patriae is erroneous as legally the foetus is not entitled to any rights. Third, Bell says the order infringes on a pregnant woman’s rights under s. 7 of the Charter. Finally, Bell claims that forcing treatment may be ineffective and counterproductive. Bell concludes that legislation must ensure the welfare of the foetus.

IV. Analysis

The Balance Between Foetal and Maternal Rights

Bell claims that Shulman J.’s order is most problematic as it unsettles the balance of rights, which exists between the pregnant mother as a woman with full legal rights and her foetus. Granting rights to legal personhood to the foetus undermines the woman’s rights to make independent decisions. The law does not recognize an unborn child as a legal person. The foetus cannot claim any rights as a person under the common law. How then, can Bell argue that if the foetus is granted rights, then the balance between foetal and maternal rights will be upset? Under the law, the foetus has no rights; therefore there is no balance to begin with. Many cases are briefly described to enforce the idea the foetus is legally without rights. However, Bell at one point contradicts himself by stating that “the fetus’s lack of legal personhood does not mean that it is without rights of any kind” (Bell 325). He explains that the foetus, once born, is able to bring civil action against the mother (the “born-alive” rule) even for damages sustained while in utero. This is a problematic argument for me as the foetus is now born and is legally a person. A civil action is brought about by a person and not a foetus—this is a person exercising legal rights and not the foetus. As well, whatever injury has already been received by the foetus. Bell also argues that allowing rights to the foetus in utero brings about difficult legal and social questions. He raises some very complex issues regarding abortion, but fails to bring to light other questions dealing with the fetus’ immediate well-being. He mentions inheritance law and tax law, but these issues are by no means as pressing and relevant to the safety of the foetus in utero.

According rights of legal personhood to the foetus potentially infringes on a woman’s rights to autonomy and physical integrity. Under this argument Bell proclaims that Shulman J.’s order was a violation of the common law principle that medical treatment cannot be imposed upon an individual. Actually, D. G. sought treatment, but this fact is ignored by Bell. Compelling someone to do something they wanted to do can hardly be deemed a breach of autonomy and physical integrity.

Bell fails to define key terms like “personhood” and “born-alive” rule. Understanding these terms is important in understanding the arguments put forward. Although these terms do not vary much in meaning, presenting relevant background information would strengthen his arguments and allow the reader to follow Bell’s line of argument in a more effective manner.

Parens Patriae and Prenatal Judicial Intervention

Bell’s argument against parens patriae being upheld in D. G.’s case is confusing. According to the generally accepted definition of parens patriae used by Bell, parens patriae jurisdiction can only be exercised after the foetus is born. However, Bell states that parens patriae

“may be used only to protect the dependent individual (in this case the

fetus) in need of protection who may be harmed by the action of others.

Only if the pregnant woman herself is in need of protection can parens

patriae be used to commit her…” (333).

There are two problems with this statement. First, Bell labels the foetus as the dependent individual. Those who deny foetal personhood and proponents of the “born-alive” rule claim that the foetus is not an individual, dependent or not. Accordingly then, parens patriae cannot be invoked. However, Bell puts forward the argument that the fetus is a dependent individual. Therefore, it would be imperative to exercise the parens patriae jurisdiction as the foetus is in dire need of protection from the solvent abusing mother. On this point though, Bell again contradicts himself as he states: “[…] parens patriae provides no authority to assert jurisdiction over an unborn child” (333). Second, Bell states that if protection needs to be extended to the pregnant mother, parens patriae can be exerted. In this line of argument, judicial intervention would be essential.

Prenatal Judicial Intervention as Ineffective and Counter-Productive

Bell argues that pregnant women will significantly delay the declaration of their intent to carry their foetus to term or not if they know declaring their intent will make them vulnerable to confinement, judicial surveillance, mental health evaluations, or unpremeditated medical treatment. Also, Bell states that continued intervention could keep a pregnant mother from asking for medical attention completely. While one may logically draw these conclusions, Bell fails to provide any substantial evidence, significantly weakening his argument to mere assumptions.

V. Evaluate

Bell’s thesis states that judicial intervention to control substance abuse: i) shifts the existing legal balance between maternal and foetal rights; ii) extends common law doctrine of parens patriae; iii) infringes the Charter, and iv) finds efforts to sanction treatment counterproductive. He believes that any intervention can only come from carefully limited legislation. Bell doesn’t delve into this area and leaves me wondering what kind of legislation can intervene in cases like D. G.’s.

Many arguments against foetal personhood adhere to the “born-alive” rule. Bell also calls upon this rule although he does not define it as so. I believe that the “born-alive” rule is now much outdated. Technology in medicine has changed and progressed so much of late. What with ultrasound, foetal heart monitors, and fetoscopy we can carefully monitor the development of the foetus. We have the ability to know without a doubt if the foetus is alive and well or is injured. The need for the “born-alive” rule has diminished with today’s advances in technology.

While Bell’s argument that judicial intervention in pregnancy compromises the woman’s rights and bodily integrity is not without reason, I also wonder about the welfare of the foetus. The foetus depends entirely on the body of the woman to sustain its life. The woman must necessarily bear the responsibility for the well being of her foetus once she has decided to carry it to term. Responsibility includes keeping from substances that are recognized as damaging to the foetus. The utmost must be done to ensure the safe delivery of the foetus. It is stupefying that a foetus, once born, can sue for damages acquired while in utero, however has no means of preventing the damage from developing at all. What is the good of suing for damages? Irrevocable harm has already been done to the foetus. The foetus should be given a fair chance at life. It has no control over who its mother is and cannot demand her to act with the health and well being of the foetus in mind. If harm to the foetus can be deterred, preventative measures must be taken to protect the endangered foetus. A monetary remedy after the foetus is born with damages is insignificant; the damage has already been done and cannot be reversed.

VI. Conclusions

Prenatal judicial intervention is a complex area of law. Protecting the well being of the foetus is an important matter, but the basic rights of the pregnant mother must also be observed. A foetus in danger of receiving significant damages cannot be ignored and let alone because the current law says nothing can be done until it is born alive. Legislation must mediate for the health of the future child while infringing the least possible on the woman’s independence and autonomy. Balancing the rights of the two is definitely not simple. Each case will have different factors to take into consideration and ruling of related cases cannot be relied upon. In D. G.’s case, it appears more than reasonable for Shulman J. to order her into treatment. This was not the first instance of substance abusing while pregnant. Two of her three children were born with considerable damages to the brain and have subsequently come under the care of the crown. Most importantly, D. G. sought treatment for her addiction before Shulman’s ruling (although she was turned away due to lack of space in the program). Shulman and the Winnipeg Child and Family Services were merely taking proactive action to remedy an almost guaranteed damage before it could happen. A voice was being spoken for those who could not speak for themselves. All foetuses in similar situations need to be spoken for to determine a bright and happy future.

Works Cited

Anderson, Kenneth. Mosby's Medical, Nursing, & Allied Health Dictionary. 5th ed. St.

Louis: Mosby, 1998.

Bell, Richard D. “Prenatal Substance Abuse and Judicial Intervention in Pregnancy:

Winnipeg Child and Family Services v. G.(D.F.).” University of Toronto Faculty of

Law Review 55.2 (1997): 321-340.

Encyclopaedia Britannica. 25 May. 2006.

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