01/03/2012 01:49 EST | Updated 03/03/2012 05:12 EST

When is a Baby not a Baby? When Our Abortion Law Says it Isn't


Many believe Canada has no abortion law. On the other hand, a recent poll disclosed that 79 per cent of Canadians believe that Canadian law protects the fundamental human rights of children before birth in the later stages of gestation.

In fact, the opposite is true on both counts. You'll be surprised when you see what Canada's abortion law actually says. You'll be even more surprised when you hear the century in which Canada's abortion law originated.

What do people really want when it comes to abortion? Most Canadians want a just law. Most Canadians want the facts. What obstacles stand in the way of justice? Of facts?

The biggest obstacle is an unhealthy reluctance by many Canadians to even talk about abortion. Past discussions have been characterized by confrontation, insensitivity, and rhetorical heat. We need to change that and to show Canadians can have a dialogue about abortion with truth, justice, and compassion. In short, we need wise speech.

While it is true that Canada has no law that limits abortion, Canada does have a law that permits abortion by denying any human rights whatsoever to a child before the moment of complete birth. It is Section 223 of our Criminal Code: "A child becomes a human being within the meaning of this Act when it has completely proceeded, in a living state, from the body of its mother whether or not it has breathed, etc."

Many will find it odd to read a definition of human being in black-and-white print on a page.

It is even odder to realize that this law bears no relationship to the medical evidence about when a child actually does become a human being. Instead our law proposes a "magical" moment of transformation when the child's last toe pops out of the birth canal.

Even more amazing is the fact that this "born alive" definition of human being was formulated at least as early as Coke's Institutes of Law in the 17th century. Indeed, there are hints it was part of the Laws of Henry I as early as 1115 -- the 12th century. Even in the 17th century, medical science was very primitive compared to what is now known about the development of a child before birth.

At that time this definition was one part of a two-part law dealing with abortion. Along with that part -- namely, that a child was not a human being until birth -- the second part of the law went on to say that it was still a serious offence to take a child's life before birth.

Unfortunately, in 1988 the Supreme Court of Canada deleted that second part, but left the other about our law on abortion. Standing alone it denies the protection of fundamental human rights to children before birth (since they are arbitrarily defined as sub-human by our 400-year-old law).

Is this a just law? Is it informed by accurate modern medical evidence? Does it reflect compassion?

There can be no doubt that the rights of mothers are totally engaged when it comes to pregnancy, childbirth, and abortion. But can any one person's rights be validly secured by totally denying the rights of another person? In fact, rights sometimes do conflict, and modern legal principles have evolved to mediate justly between conflicting human rights. Canadians are quite capable of engaging in a national dialogue about the 21st-century medical evidence and modern legal principles which should be used to review our existing 17th century (or earlier) law on abortion.

It should be everybody's priority to ensure that a law which involves fundamental human rights is based on modern medically accurate evidence rather than a 400-year-old arbitrary legal definition.

Parliament has a responsibility and duty to ensure that laws with important human rights implications, such as our definition of who is a human being, are informed by modern, medically-accurate evidence, not out-dated 17th century medical and legal principles.

I'm simply asking the question "Does it make medical sense in the 21st century to say that a child is not a human being until the moment of complete birth?" Let's at least examine the evidence. If you agree that respectful dialogue about this is a good thing, please add your voice to mine.