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The Courts Are Blind To The Humanity Of The Pre-Born Child

Thanks to the Supreme Court of Canada, which has ruled that a child in the womb has no legal rights, such children continue to be treated as a disposable commodity, victims of the mother's questionable discretion.

Unfortunately, lower courts have no alternative but to follow the Supreme Court's precedents. This occurred again, in February, when Madame Justice Pat Rowbothan, of the Alberta Court of Queen's Bench, held that a child killed by the negligence of a doctor during the course of delivery was not a loss for which the parents could be awarded damages.

The baby girl in that case died of asphyxiation in the Banff Hospital during the course of her mother's 24-hour labour. Even after the child had died, it took a further 11 hours of labour for the child to be delivered stillborn.

The attending physician, Dr. Lynn Marriott, admitted her negligence in the case. The parents sought damages, not only for the mother's nervous shock, which had led to a major depressive disorder, but also for the loss of the child.

The Court awarded damages for the mother's post-traumatic stress disorder and compensation for her physical injuries, pain and suffering resulting from the harrowing labour. The judge, however, pointed out that there is a discrepancy in the law because, while it permits a parent to recover damages for the death of a child which has been born alive, it does not allow damages if a child is stillborn.

This discrepancy makes no sense at all. Whether a child dies just before birth or immediately after makes no difference to the parents. It is a loss of the same child and they have suffered a terrible tragedy regardless of the timing of their child's death.

The bizarre decisions on abortion handed down by the Supreme Court of Canada over the past ten years have come about because the court has uncritically accepted the ideology argued before it by the legal arm of the feminist movement, LEAF (Women's Legal Education Action Fund). According to its arguments, only the mother's rights were to be relevant, while those of the unborn child were considered irrelevant. For example, in Daigle and Tremblay (1989), the court held that the decision to abort a child was the sole decision of the mother. In LeMay and Sullivan (1990), the court held that even a child whose head had emerged from the birth canal during the process of birth was not a legal person entitled to legal protection, but was to be regarded merely an extension of the mother's body.

Interestingly, Madame Justice Pat Rowbothan refused to accept the logical conclusion to the argument that the unborn child is merely a part of the women's body, which would have then allowed the mother to receive the same kind of compensation for the loss of the foetus as she would receive for the loss, for example, of a limb. Instead, the judge stated that she found such a conclusion "unappealing and lacking in principle". Obviously, Judge Rowbothan was not about to permit logic to clutter up her decision. The bottom line is that, according to Canadian law, a child in the womb is non-existent, and its reality and worth are not recognized until after birth.

In order to support LEAF's position that the unborn child should have no legal protection until birth, the Supreme Court was forced to create a legal fiction in defiance of medical and biological fact ? that there is, apparently, nothing in the mother's womb until, miraculously, a baby emerges at birth and obtains legal rights. This preposterous legal fiction was established for the sole purpose of providing a rationale for the feminist position. Such dissembling is not sustainable by either logic or fact and therefore, must inevitably collapse. Such a reversal by the courts, however, will require intellectual integrity on the part of judges. We await that day with growing impatience.

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