Foetal Rights and the Regulation of Abortion Martha Shaffer* In.this article, the author discusses the legal L'auteure dtudie le statut juridique du foetus status of the foetus in the wake of the Supreme A la lumi~re de l'affaire Tremblay c. Daigle. Court of Canada decision in Tremblay v. Dai- Elle analyse d'abord un des aspects de la ddci- gle. She examines the Court's finding that the sion de ]a Cour supreme du Canada selon foetus has no rights in the civil or common law lequel le fetus n'a aucun droit autant en droit and exposes the resulting difficulties with the civil qu'en common law. Elle fait ensuite res- assertion of foetal rights under the Charter.By sortir les difficult~s que pr6sente le fait de sou- drawing upon factums submitted by the parties tenir que ]a Charte confire des droits au foetus. and by anti-abortion intervenors in Daigle and En faisant appel aux m~moires que les parties Borowski v. Canada (A.G.), the author ana- et les intervenants opposds i l'avortement ont lyzes the scientific and moral claims pro- soumis lors des affaires Daigle et Borowski c. pounded by opponents of abortion in support Canada (P.G.), 'auteure dfmontre que leurs of foetal rights but finds them insufficient to arguments moraux et scientifiques ne suffisent establish a normative argument for the recog- pas i 6tablir une norme selon laquelle on pour- nition of such rights under the Charter. rait baser la reconnaissance des droits en The determination of foetal rights under the faveur du fetus en vertu de ]a Charte. Charter would require the courts to answer the Ddterminer les droits du fous sous l'em- preliminary question of to whom Charter pire de la Charte exige que les tribunaux rights apply. The author examines the intent- d6cident d'abord A qui la Charte s'applique. based and purposive approaches to Charter L'auteure 6tudie done les thdories d'interprdta- interpretation to ascertain which approach tion de ]a Charte fond6es sur l'intention du would be better suited to a determination of l6gislateur et sur les fins qu'il poursuit pour the foetus' status under the Charter. She determiner laquelle est la plus apte Atfaire doubts that either approach would lead the d6couvrir le statut du fcetus selon la Charte. courts to find that the foetus has rights under L'auteure doute que l'une ou 'autre de ces the Charter because there is no evidence of thories permette aux tribunaux de reconnaitre such an intention on the part of the legislature des droits au fcetus en vertu de ]a Charte, car at the time of enactment of the Charter, and rien ne semble indiquer que telle 6tait l'inten- because a finding of foetal rights would sub- tion du 1dgislateur A 'poque de ]a promulga- stantially restrict the rights of women. 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 Synopsis Introduction 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). - 2 Mr. 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. 3 Ms 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 CanadianChar- 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.). 6 Tremblay 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 ConstitutionAct, 1982, being Schedule B to the CanadaAct 1982 (U.K.), 1982, c.