Greg Brodsky, who represents Andrea Giesbrecht, said if the bodies were under 20 weeks gestation, they would not be considered people under the law.
"Then they are not children," Brodsky said Wednesday, declining to say whether the charges would then be dropped. "You'd have to ask the Crown about that."
Although Brodsky said Giesbrecht was initially arrested on homicide charges, she is facing six charges of concealing a body and one charge of breaching probation.
The age of the infants is expected to be determined during autopsies, which are already 90 per cent complete. Brodsky is arguing the remaining examination should be observed by an independent pathologist of his choosing and videotaped.
Judge Brian Corrin ruled Wednesday the medical examiner's office won't have standing at a hearing on the request. Although the medical examiner's office wanted to argue it has the right to conduct autopsies without interference, Corrin ruled such concerns could be represented by the Crown.
Corrin's ruling paves the way for a hearing Friday on the substance of Brodsky's request, which has been called extremely rare. Giesbrecht, who is 40, sat in court but showed no emotion as the judge read out his ruling.
Brodsky, who described his client as "bewildered" when the charges were first laid, said Giesbrecht is still baffled.
"She doesn't know why it's taking so long," he said, adding she wants the matter dealt with soon.
Giesbrecht, who is scheduled to apply for bail Nov. 12, has been in custody since the remains were discovered Oct. 20 by employees at a U-Haul storage locker. They had gone to do inventory since the bill hadn't been paid.
The state of the remains was such that police have said it could take months of forensic examination before it might be known who the parents were, how the infants died and whether they were even full term.
According to documents filed with the court, Brodsky met with Manitoba's chief medical examiner, Thambirajah Balachandra, in mid-October to discuss the request.
In notes of the meeting, Balachandra said if the babies were less than 20 weeks old, they would not fall under the jurisdiction of the medical examiner's office. If they were older than that, pathologists must determine if they were alive or stillborn, Balachandra noted.
But Balachandra said having an outside observer present could "taint the investigation" and told Brodsky to get a court order.
"The Crown, who has fought me all along, will continue to fight me all along. I'm not sure why," Brodsky said. "I'm not sure why. If there's nothing to hide, let's get on with the case."
Court records indicate that Giesbrecht, who has also gone by the name Andrea Naworynski, is a gambling addict with a low-paying job at a fast-food restaurant.
She was given a suspended sentence and two years probation after pleading guilty to fraud for borrowing money from a 73-year-old neighbour and repaying her with bounced cheques.