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Abortion Debate Heightened After High Court Rules Fetus is Not a Legal Person

March 22, 1991

OTTAWA (AP) _ In a decision that could have bearing on the abortion debate, Canada’s Supreme Court has ruled in a medical negligence case that a fetus is not a person and has no guarantee of life.

The decision Thursday, which also had implications for the growing practice of midwifery, was the latest of several rulings in which the high court has rejected or refused to consider assertions of fetal rights.

Abortion has been legal since the law against it was struck down by the court three years ago, but pro-life groups have been trying to restore the law.

The nine-judge panel unanimously ruled Thursday that two Vancouver midwives could not be convicted of negligence for allegedly causing the death of a stillborn infant during a 1985 home birth.

Chief Justice Antonio Lamer, writing for the court, said a fetus cannot be considered a distinct person for purposes of a negligence prosecution.

The case was a victory for Mary Sullivan and Gloria Lemay, the midwives accused of mishandling the home birth.

″Sullivan and Lemay cannot be convicted of criminal negligence causing death to another person,″ Lamer concluded.

Thursday’s judgment, however, is confined to criminal law and does not end the wider legal controversy over abortion, said Helena Orton of the Women’s Legal Education and Action Fund, a feminist lobby group.

″The court hasn’t decided the status of the fetus for purposes of the Constitution,″ she said in an interview. ″But it gives us some good indications about how the court would approach the issue.″

Gwen Landolt, vice president of Real Women of Canada, a conservative group that opposes abortion, said it was absurd to suggest a fetus in the process of birth is not a human being.

″To say that baby was not a person in law defies reality, logic and common sense,″ said Landolt.

There has been no national abortion law since the Supreme Court struck down the previous law in 1988 as a violation of women’s rights. A replacement law narrowly passed in the House of Commons last year, but the Senate killed it in January.

Ms. Sullivan and Ms. Lemay were with Jewel Voth when she tried to deliver her first child at home in May 1985.

After 15 hours of labor a head emerged, but the exhausted Voth could not continue the delivery. She was taken to a hospital, where an intern completed the delivery, but the child suffocated for lack of oxygen.

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