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CHANGE MY MIND: When Should a Fetus be Recognized as a Child?

Posted: 04/ 2/2012 2:07 pm

In February, Tory MP Stephen Woodworth (Kitchener Center) filed a motion asking Parliament to form a special Committee to study Canada's 400-year-old definition of human being -- and then report back to the House on the medical evidence it finds and on options to deal with this law.

Woodworth's motion requests a study of a subsection of the Criminal Code which says that in Canada a child does not become a human being until the moment of complete birth. For our new debate series -- "Change My Mind" -- Huffpost Canada asked Joyce Arthur, founder of the Abortion Rights Coalition of Canada, to debate with Woodworth the need for his motion.

Whom do you agree with? Vote below.


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Pre-debate poll:

Tell us your opinion before the debate starts to set the starting line

Currently Canadian law deprives a child of recognition as a human being until the moment of complete birth. Therefore Parliament should study what modern medical information tells us about when a child should be considered a human being.

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Who makes the better argument?

Stephen Woodworth MP, Kitchener-Centre

I appreciate the willingness of Ms. Arthur to debate the policy of my motion (M-312).

I'll begin with what Supreme Court Justice Bertha Wilson said in her ruling in R v Morgentaler in 1988:

"The precise point in the development of the fetus at which the state's interest in its protection becomes "compelling" I leave to the informed judgment of the legislature which is in a position to receive guidance on the subject from all the relevant disciplines. It seems to me, however, that it might fall somewhere in the second trimester."

Clearly this jurist, with impeccable feminist credentials, believed it was wrong to refuse any recognition whatsoever to children before birth. Clearly she felt it is Parliament's duty to remedy that situation, a view shared by other courts subsequently.

Almost 80% of Canadians think that our law already does provide recognition of the rights of children during the third trimester of their development before birth. They are unaware that it does not. When informed of this, over 70% of Canadians tell us they believe our law should provide such recognition during at least the third trimester of the child's development.

Canadians know from their own experience that a child is a human being before the moment of complete birth. In other words, they know that subsection 223(1) is dishonest about children before birth.

Subsection 223(1) is, purely and simply, a law that says that some human beings are not human. And in Canada in the 21st century, we should never accept any law that says some human beings are not human.

That lesson was learned when the U.S. Supreme Court ruled in 1859 that blacks were not persons under U.S. law. Wouldn't you and I have objected if we had been there?

We learned to reject any law that treats some human beings are not human when the Canadian Supreme Court ruled that women were not persons under some Canadian laws. Wouldn't you and I have objected if we had been there?

Now that we have discovered in the 21st century that Canada has a law which says some children are not human beings until the moment of complete birth, why would you and I fail to object?

The law that a child does not become a human being until the moment of complete birth entered Canadian law from British common law, where it was developed over 400 years ago. Perhaps it made medical sense in the days when leeches and bloodletting were standard treatment, but does it make medical sense in the 21st century?

Does this law make sense when parents can watch their child sucking her thumb with ultrasonography before birth? Does this law make sense when doctors can actually operate on a child before birth? Does this law make sense when we can measure a child's brain-waves and count her heartbeats before birth?

Does it make sense to say a child is not a human being when her organs are perfectly formed and she has her own unique blood type before birth?

How can we possibly justify denying that such a child is in fact a human being at some point before the moment of complete birth? This is not merely an academic question.

Canadians, of all people, understand instinctively that any law that denies fundamental rights without cogent evidence and sound principle is not legitimate. Would we want a Canada where any person or lobby group, because of their political power, can arrange a law to declare some human beings as not human simply to suit their purposes or ideology? If we accept one law that says some human beings are not human, who's next?

The question of who's next was answered on March 2, 2012 in the Journal of Medical Ethics online. The authors, Professors Alberto Giubilini and Francesca Minerva, recognize that the status of a fetus is equivalent to an infant. However, they conclude that neither is a "person," and therefore claim "that killing a newborn could be ethically permissible in all the circumstances where abortion would be." Although this idea pushes the envelope, it is being advocated in a respected journal by academics affiliated with respected institutions. Ideas which at first appear unthinkable often become accepted over time.

The logic of the after birth abortion proposal is compelling if you accept that our laws can legitimately say that some human beings are not human. It shows why the study of that idea, as proposed in my motion, is urgently needed.

Once the committee delivers its report, Parliament can choose to act on it or to take no action. Whatever course it chooses, Canadians will at least have the benefit of being informed by the relevant disciplines, as recommended so many years ago by Justice Bertha Wilson. It is Parliament's duty to do at least that much.

Joyce Arthur responds to Stephen Woodworth

Woodworth's debate contributions exemplify what is wrong with his motion and why it will fail. Throughout, he uses the word "women" only once, ironically to note that women were previously not considered persons under Canadian law. My opening statement focused on the potential harms his motion would pose to the lives, health, and personhood of all pregnant women, but Woodworth could only offer a few weak and random criticisms that ignore women and fail to address my key points.

Woodworth accuses me of "conjuring up a host of concepts which are not found in the question being debated." But the fact that women cannot be found anywhere in his motion is precisely the problem -- the main "logical fallacy," as it were. He can't just erase women from the discussion as if they are mere containers for fetuses with no rights of their own. After all, a fetus cannot exist or thrive without a woman to sustain it.

When Canadian law treats a pregnant woman and her fetus as one person, it protects not just women's rights, but the welfare of fetuses. When a pregnant woman is safe and healthy, so is her fetus. It's that simple. Fetuses do not need their own legal protection because helping pregnant women helps fetuses. We need to ensure women have access to adequate nutrition, quality healthcare, family planning to help space pregnancies, assistance to escape poverty or domestic abuse (conditions that contribute to high-risk pregnancies), and basic human rights and equality. UNICEF notes that "educating and empowering women has direct benefits for the survival, health and development of their children."

In contrast, the typical results of fetal protection laws are higher rates of maternal mortality and morbidity, and child mortality. For example, when abortion is illegal, women will resort to unsafe abortion or suffer poor health due to repeated unwanted childbearing. Each year, 220,000 children worldwide are orphaned when their mothers die from unsafe abortion. When a pregnant woman dies from any cause, her existing children are 10 times more likely to die within the next two years. So if Canadians really want to protect fetuses, the only just and effective way is to safeguard women's rights and invest in their health and welfare.

Opinion polls might suggest that Canadians want laws on abortion, but polls on abortion are biased and unreliable, especially if they ask when fetuses should have protection under the law. Laws have no place in medicine, which is governed by policy, ethics codes, and medical discretion. Regardless, abortions after about 20 weeks are rare in Canada (less than 0.4% a year) and only available to women with serious fetal abnormalities, so it would be cruel to criminalize them.

Woodworth quotes Justice Bertha Wilson in the 1988 R. v Morgentaler ruling, who wanted Parliament to decide when the state's interest in protecting the fetus becomes compelling, but gave her own opinion "that it might fall somewhere in the second trimester."

Wilson was simply explaining that it's the role of Parliament to legislate, not the Supreme Court's. While it's true that Parliament could enact an abortion law, no government has wanted to touch the issue since 1990, when a Mulroney government bill failed to pass. Today, it's highly unlikely that any law restricting abortion or granting rights to fetuses would withstand constitutional scrutiny because Charter rights and case law have evolved to the point where the inherent conflict with women's rights is now very clear. In any case, Parliament has no "duty" to act on the issue.

As a cautionary tale, Woodworth quotes some academics who argue that it would be ethical to kill newborns because late-term fetuses and infants are equivalent and neither are "persons." But that position fails to recognize the fundamental difference between the two. A fetus is totally dependent on one particular woman for its survival, unlike a newborn that can be placed in the care of another. A pregnant woman has no such option with her fetus, which is why her rights must prevail. The primacy of women's rights fills the blind spot in Woodworth's question: "How can we possibly justify denying that such a child is in fact a human being at some point before the moment of complete birth?"

Woodworth asserts that: "...any law that denies fundamental rights without cogent evidence and sound principle is not legitimate." If he actually believes that legal precedents, women's human rights, and the proven danger of fetal protection laws to the health and lives of women and children, don't count as evidence or sound principles, he's prioritizing ideology over common sense.

Or perhaps he's hoping to have such things declared out of bounds for his Parliamentary committee, so it can focus solely on the biological development of the fetus. In that case, the committee just needs to read a few pages from an embryology textbook and we'll be done with this exercise in futility. Such evidence is simply not germane to the issue of fetal rights, since the rights of pregnant women must always take precedence.

I fully agree with Woodworth that "we should never accept that it is legitimate to ignore cogent evidence, or refuse to acknowledge any human being's fundamental rights, simply to satisfy some policy or ideology, on abortion or anything else." I just wish he would listen to his own advice.

Joyce Arthur Executive Director, Abortion Rights Coalition of Canada (www.arcc-cdac.ca)

Some readers might wonder why I'm debating Stephen Woodworth on the grounds of this misleading and offensive debate statement (which he provided). I saw it as a good representation of Woodworth's entire misguided effort, which is doomed to failure for obvious and common sense reasons.

The main reason is that it completely disregards women's rights; but first I'd like to deal with another glaring weakness that is prominently displayed in the above debate statement, in the motion itself, and in Woodworth's many media statements.

As a stalwart member of the anti-abortion movement, Woodworth is already a true believer in the anti-choice presumption that fetuses are "human beings" who deserve rights. Apparently unable to separate his personal beliefs from the issue at hand, he falls into the logical fallacy known as "begging the question." This occurs when the premise of a position is used as proof for the position. The question he says he wants answered is whether a fetus should be considered a human being -- that is, a child. Yet his premise simply assumes it's a "child" and "human being" from the outset, one whom the law unjustly "deprives" of being recognized as such.

So what is the point of the motion if the answer is already a foregone conclusion to Woodworth and his supporters? More ominously, what is the point of convening a Parliamentary Committee stacked with a majority of anti-choice Conservatives who will simply apply the same foregone conclusion to the proceedings, regardless of any opposing evidence or testimony?

Apparently, the point is to press their advantage in a Conservative majority government so they can win a political victory over the bodies of women. Because underlying the motion is a profound disrespect and lack of trust for women and a total dismissal of their basic human rights and welfare. Hardly a promising launch pad for an initiative in an advanced democratic society that enshrines the rights and equality of women into law.

The real intent of Motion 312 is to bestow legal personhood on fetuses as a way to re-criminalize abortion. But this is essentially impossible in Canada now, as it would violate women's established constitutional rights in Canada under our Charter of Rights and Freedoms, including the right to life, liberty, bodily security, conscience, and equality. These rights are all directly implicated in women's decisions around pregnancy, and have been solidified in a number of Supreme Court cases since the 1988 Morgentaler decision, including Tremblay v Daigle, Dobson v Dobson, and Winnipeg Child & Family Services v Ms.G.(D.F.). The justices have said that a fetus must be born alive to enjoy rights, and that the law has always treated a pregnant woman and her fetus as one person. The intimate connection between the two means the fetus cannot be considered in isolation, and imposing a duty of care on a pregnant woman towards her fetus would result in extensive and unacceptable intrusions into her bodily integrity, privacy, and autonomy.

The Supreme Court also stated in Tremblay v Daigle: "The task of properly classifying a foetus in law and in science are different pursuits." Woodworth, his motion, and the debate statement all suffer from the same fundamental confusion between the medical and biological aspects of "what is a human being" and the legal and social aspects of personhood.

Fetuses are biologically "human" in the sense that they are composed of human tissue and DNA, but they are not "persons." Personhood is a socially and legally constructed concept, and it is bestowed upon birth for very practical and obvious reasons.

Clearly, it is pointless to examine "modern medical information" to see if the fetus is a human being, because even if the committee reaches its foregone conclusion, women's rights cannot be arbitrarily removed or even "balanced" with fetal rights. It is impossible for two beings in the same body to exercise competing rights in any meaningful or just way. The biological or medical status of the fetus is irrelevant anyway, because women need abortions and always have. It's a matter of survival for them and their families, so much so that when abortion is illegal, women will resort to unsafe abortion at risk to their health and lives. That's why abortion was legalized in the first place.

Although the motion's underlying target is legal abortion, it also represents a serious danger to the rights of all pregnant women. I recently read a news article about "pro-life" El Salvador where abortion is completely banned for any reason and fertilized eggs have full rights as persons. In 2010, a mother of two was sentenced to prison for 30 years without a trial for having a miscarriage that was suspected to be an abortion. She died in jail several months later from untreated cancer, which was apparently what caused the miscarriage.

Could this kind of dystopian nightmare ever happen in Canada? It seems unlikely, but the path that Woodworth wants us to travel ends logically with such consequences. In fact, his motion raises the same issues that mobilized Canada's women's movement in 2008 when the "Unborn Victims of Crime Act" passed second reading. That bill would have treated a fetus as a separate legal entity under the law when a pregnant woman was assaulted.

At the time, the pro-choice movement sought help from the National Advocates for Pregnant Women in the U.S., which has fought for the rights of hundreds of American pregnant women arrested or prosecuted for drug or alcohol abuse, refusing a Caesarean, experiencing a stillbirth, or even attempting suicide. Fetuses have legal personhood rights in at least 38 states and the laws are used primarily to arrest pregnant women under child welfare laws. Thousands more have been subjected to punitive and counterproductive interventions on the basis that women's behavior during pregnancy constitutes child neglect or abuse.

Woodworth should know better than to think that Canadians would ever allow him to take Canada down the same cruel road as the U.S. My hope is that by the end of this insulting farce - which has got women really pissed off - the women's movement in Canada will have united to become a force so strong that no anti-abortion or fetal personhood law will ever have a hope of passing, under this or any future Conservative government.

Stephen Woodworth responds to Joyce Arthur

Thank you for this opportunity to reply to Ms. Arthur's comments.

1) Ms. Arthur suggests that using the word "child" is begging the question since she assumes that a "child" is a "human being."

I recommend reading the statute mentioned in my Motion. It really does say "a child becomes a human being when...". If I did not use the language of the law I would be accused of misrepresenting it. However, the statute is not "begging the question" in using that language, and neither am I.

I conclude that science will show a child is a human being at some point before the moment of complete birth. However, far from "begging the question" on that, I propose to expose that proposition to the evidence and principles which apply to it.

Ms. Arthur's commentary not only begs the question (by assuming that a child is not a human being until complete birth) but is adamantly opposed to exposing that belief to the cold light of scientific evidence and sound principle.

2) Ms. Arthur's comments include unfounded speculation instead of comment on the agreed upon question. Here are just two examples:

a. The claim that the proposed Committee will apply "a forgone conclusion" is incorrect. In fact my Motion instructs the Committee to merely report options. This will encourage fair reporting of all possibilities flowing from the evidence.

b. Ms. Arthur's comments assume that all Conservatives favour recognizing the human rights of children before birth. Sadly, this is not true.

3) Ms. Arthur addresses a supposed logical fallacy. Here are two included in her comments:

a. The Ad Hominem Attack. By attempting to distract the reader with comment about the author of the motion, and his phantom motives, one avoids dealing with the merits of the agreed-upon question.

b. The Straw Man. By conjuring up a host of concepts which are not found in the question being debated, one can avoid dealing with the merits of the agreed-upon question. The agreed-upon question simply proposes a study of the scientific evidence about when a child becomes a human being. If you remove from Ms. Arthur's response all personal imputations and comment on other issues, there is very little left.

4) The courts have not said that Canadians may never recognize that children are human beings before the moment of complete birth. The courts have simply recognized that our existing law does not do so. Many jurists, including Justice Bertha Wilson in her decision rejecting Canada's last abortion law, have invited Parliament to revisit our view of children before birth.

5) One idea about which Ms. Arthur and I clearly disagree is her notion that if a person or group has enough power, they can sweep aside any human being's inalienable rights by having them declared a "non-person." I will concede that the powerful are capable of this, but not that it is ever legitimate.

6) Ms. Arthur really advances only one main basis to oppose a study of the evidence about whether a child is a human being before the moment of complete birth. That idea is that if evidence discloses that a child actually is a human being before the moment of complete birth, it would make all abortion impossible.

First of all, even if children are recognized as human beings before the moment of complete birth, one could still honestly assert that the child's life should be taken in the service of a higher purpose. An honest assertion like that would be preferable to any law which dishonestly misrepresents the facts.

More importantly, we should never accept that it is legitimate to ignore cogent evidence, or refuse to acknowledge any human being's fundamental rights, simply to satisfy some policy or ideology, on abortion or anything else.

Those who believe in the truth will follow the facts courageously wherever they lead. One should always be reluctant to follow those who are afraid to confront the evidence. A definition of human being that is over 400 years old deserves a second look with modern information.

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Currently Canadian law deprives a child of recognition as a human being until the moment of complete birth. Therefore Parliament should study what modern medical information tells us about when a child should be considered a human being.

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