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Canada’s High Court: Fetus Is Not a Legal Person

March 22, 1991

OTTAWA (AP) _ Canada’s Supreme Court ruled Thursday that a fetus is not legally a person and has no guarantee of life under the nation’s Criminal Code.

By unanimous vote, the nine judges decided that two Vancouver midwives cannot be convicted of negligence for allegedly causing the death of a stillborn infant during a 1985 home birth.

The decision has implications far beyond the issue of medical negligence, touching on the legal debate over abortion as well as the growing practice of midwifery. It was the latest in a series of rulings in which the high court has rejected or refused to consider assertions of fetal rights.

In Thursday’s ruling, 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.

However, Thursday’s judgment 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 is absurd to suggest that 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.

She called on the federal government to rewrite the law on both abortion and medical negligence. ″Parliament has to act. Something must be done,″ she said.

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 the Commons last year, but the Senate killed it in January.

Thursday’s ruling, though stating that the fetus is not a legal person, left the door open for negligent midwives to be prosecuted in the future for harming the pregnant mother, rather than the child.

But the court ruled that the British Columbia Court of Appeal had no power to impose any finding of negligence in this specific case. Sullivan and Lemay were acquitted of all charges.

Sullivan and 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.

In a 1989 case, in the landmark case of Chantal Daigle, the high court said a fetus had no rights that could be enforced under civil law. Ms. Daigle’s boyfriend had sought to block her abortion.

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