Providing Legal Protection to Unborn Islanders

The following article appeared in the Guardian, January 7, 2017.

It’s time our Federal and PEI governments honoured the 1990 UN Convention on the Rights of the Child – to which Canada is a signatory – which requires that unborn children be afforded legal protection. The preamble clearly states: “Bearing in mind that, as indicated in the Declaration of the Rights of the Child, the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth.”

Because unborn children are not explicitly mentioned in the Constitution, many lawyers and judges claim unborn children have no legal status. During my PEI Supreme Court hearing last July, for example, Robert MacNevin, the lawyer representing the province, stated exactly that: “We’re not dealing with children. We’re dealing with unborn fetuses. Unborn fetuses don’t have legal standing in this country.” Not true! This legal myth has been erroneously perpetuated ever since the 1988 Morgentaler decision struck down the abortion provision of the Criminal Code. In fact, that Supreme Court ruling affirmed legal protection of the unborn under s. 1 of the Charter by saying, “The primary objective of s. 251 of the Criminal Code is the protection of the foetus….the primary objective does relate to concerns which are pressing and substantial in a free and democratic society and which, pursuant to s. 1 of the Charter, justify reasonable limits to be put on a woman’s right [to abortion].”

The abortion law was struck down because it unfairly required women to obtain approval from Therapeutic Abortion Committees to which many women didn’t have geographical access. The Supreme Court fully expected parliament would draft a new law addressing this short-coming; however, such a law has unfortunately never been enacted. As a result, Canadian courts have, for the most part, failed to provide legal protection to unborn children…but not entirely.

The Immigration Appeal Division (IAD) recently denied a refugee’s Appeal of a Deportation Order (which argued that deportation would not be in the best interest of his unborn child) saying “…. until there is a live birth there are per se no best interests to take into consideration.” In April, 2016, the Federal Court of Canada subsequently rejected that argument and overturned the IAD’s Deportation Order stating, “The clear and reasonable best interests of the child analysis above applies equally to any unborn child. There are no distinguishing factors that would make the case of an unborn or newborn child any different.”

Perhaps the legal bias against the rights of unborn children, which has been so entrenched in North America for decades, is beginning to wane. Just a few days ago, the Alabama Supreme Court rendered a landmark decision declaring that: “Unborn children, whether they have reached the ability to survive outside their mother’s womb or not, are human beings and thus persons entitled to the protections of the law – both civil and criminal.”

Sadly, Premier MacLaughlan – although not legally obligated to do so, and with no formal mandate from Islanders – has completely denied unborn Islanders their right to protection under the law by unilaterally offering Island women fully-reimbursed and unrestricted access to medically-unnecessary abortions.