By Don Hutchinson
Let’s not debate abortion just now. I won’t deny that both the EFC and I are unabashedly pro-life. Such a denial would be foolish because that position is both well stated and well documented. But let’s not debate abortion or euthanasia or assisted suicide or any of those other pro-life issues just now. Let’s consider Motion M-312 as introduced by Kitchener Centre MP Stephen Woodworth:
That a special committee of the House be appointed and directed to review the declaration in Subsection 223(1) of the Criminal Code of Canada which states that a child becomes a human being only at the moment of complete birth and to answer the questions hereinafter set forth;
that the membership of the special committee consist of twelve members which shall include seven members from the government party, four members from the Official Opposition and one member from the Liberal Party, provided that the Chair shall be from the government party; that the members to serve on the said committee be appointed by the Standing Committee on Procedure and House Affairs and the membership report of the special committee be presented to the House no later than 20 sitting days after the adoption of this motion;
that substitutions to the membership of the special committee be allowed, if required, in the manner provided by Standing Order 114(2);
that the special committee have all the powers of a Standing Committee as provided in the Standing Orders;
and that the special committee present its final report to the House of Commons within 10 months after the adoption of this motion with answers to the following questions,
(i) what medical evidence exists to demonstrate that a child is or is not a human being before the moment of complete birth?,
(ii) is the preponderance of medical evidence consistent with the declaration in Subsection 223(1) that a child is only a human being at the moment of complete birth?,
(iii) what are the legal impact and consequences of Subsection 223(1) on the fundamental human rights of a child before the moment of complete birth?,
(iv) what are the options available to Parliament in the exercise of its legislative authority in accordance with the Constitution and decisions of the Supreme Court of Canada to affirm, amend, or replace Subsection 223(1)?
Mr. Woodworth is also a pro-lifer. He’s made no secret of that. However, his motion is not about abortion (some call it the “a-word” because they seem to fear even uttering it under their breath) but about a bigger question, “How does Canadian law define ‘human being’ and how does that definition impact Canadian life beyond a sub-paragraph in the Criminal Code?” Not only is a big question being asked, but it’s being asked in the House of Commons where the Canadian legal definition of ‘human being’ resides, according to the Supreme Court of Canada’s interpretation of our constitution.
Mr. Woodworth hasn’t proposed a change in the law, but a study of the law by a committee of MPs composed and functioning in the usual manner and structure of Parliamentary committees (plenty of opportunity for pro-lifers and pro-choicers to be appointed members and/or alternates) – with the committee to report back to Parliament, also in the usual manner of Parliamentary committees.
For those who have expressed concern that this is a backdoor to reopening the debate on the a-word, it is simple enough to observe that the debate on abortion has not stopped in Parliament (with well over a dozen related private members actions by either motion or bill over the last two decades) – where the Supreme Court of Canada said in R v Morgentaler (1988) the debate belongs; the Supreme Court of Canada has continued to hear cases dealing directly with maternal rights issues, the (non-existent) rights of the pre-born child and the interest of the state in the life of a pre-born child; and, the debate has continued in public through voices on both sides of the issue with strong commentary in the traditional and non-traditional media on an ongoing basis. I fully expect that there will be those who would wish to make submission to the committee who will address the issue of abortion. But the questions posed are bigger than abortion and the mandate is more fundamental to Canadian law.
The motion proposes a study of a key matter for bioethics. I was on the elevator in our building with an obviously pregnant woman and the following brief conversation took place:
Me: Congratulations. I see you’re pregnant. Are you hoping to have a human being?
Woman: What?
Me: As the law currently stands in Canada, your baby isn’t considered a human being until he or she fully emerges from your body. I’m a lawyer studying this issue and am interested in your reaction to finding out your child isn’t a human being yet.
She looked quizzical as she left the elevator. I elected not to follow, discretion perhaps being the better part of valour.
As a matter of simple bioethics, the status of the child in the womb is important to medical considerations and scientific experimentation (including eugenics, sex selection, assisted reproduction and legal debates over stored genetic materials). That brings me to the C in this list of the simple ABCs.
On August 15, 2012, the Canadian Medical Association (CMA) passed a resolution that states:
The Canadian Medical Association favours maintaining subsection 223 (1) of the Criminal Code, which states that a child “becomes a human being within the meaning of this Act when it has completely proceeded, in a living state, from the body of its mother […].”
This resolution could easily have been drafted and proposed by the Canadian Medical Protective Association (CMPA) – the insurance and legal defense side of medical practice in Canada. Who else would have come up with such a self-serving idea? The CMPA has been representing doctors in the courts for over a century – including arguing that there is no entitlement to damages for medical actions that result in the death of a child that does not survive to become a human being as defined in subsection 223 (1) of the Criminal Code. For those doctors engaged in surgery on the child in the womb, abortion procedures (where care is taken to make sure the child will not breath outside the mother’s body and become a human being lest it be entitled to protection under the law) and other pre-birth foetal engagement, the measure of legal protection is seemingly absolute as long as the child does not completely proceed in a living state from the body of its mother.
Doctors and scientists are dealing with genetic material, embryos and pre-born children as human, in the context of a law that says “not human beings.” The CMA’s own guidelines note that at 20 weeks gestation the child is capable of becoming a legal “human being,” i.e. it can survive outside the mother’s body, and as such it is ethically wrong to perform an abortion after that point. (It’s kind of bizarre that we Canadians are living with a law that describes a child as a “child” while in the womb but not a “human being” until it has emerged from its mother’s body as subsection 223 (1) does.)
Mr. Woodworth’s motion raises the question, “Are we living with an arbitrary legal fiction about what is and is not human?” As such, the proposed committee would have the opportunity to examine when being human begins, including recent efforts to advocate that “human being” should begin at some point after birth; as in Holland for infanticide of children born with evident “defects” or as suggested in this article from the Journal of Medical Ethics, perhaps as late as 3 years after birth.
I agree with Margaret Somerville, director of the McGill University Centre for Medicine, Ethics and Law, “that we need to recover our sense of amazement, wonder and awe at the creation of new human life” and, as she suggests, we need to have this in-depth discussion. The place for the discussion as proposed by Mr. Woodworth – and as recommended by the Supreme Court of Canada – would be Parliament, using the usual means of Parliamentary study to engage with the public in examination of Parliament’s own law that is founded in the medical science of 400 years past. No backdoors, only an open front door for all to see and have opportunity to participate in a routine legislative review that is apparently centuries overdue.