I wish to respond to Joshua Van Benthem’s Motion 312 Comment article. I found the title “For those who are concerned” to be particularly apt, though likely not in the way that the author intended. I’m concerned, alright. I’m concerned about the human rights of women, and those who seek to limit them.
The author argues, because some fetuses might be capable of surviving independently outside of the womb prior to the moment of complete birth, that “there should be a line” at some undetermined point in fetal development at which the fetus would be deemed a person and, thus, aborting it would become a criminal offence. The Parliamentary Committee that would have been created by Motion 312, had it passed, would supposedly have looked at where this “line” ought to be drawn.
I noted that conspicuously absent from the items that would have been addressed by the Committee (as listed by the author) was, “What are the legal impacts and consequences of altering Subsection 223(1) on the fundamental human rights of the mother?” Clearly, the reason this query was omitted is that the answer to it will, in all cases, be that the impact on her rights would be unconscionable, and would render the committee’s other queries moot. While the “viability” of a fetus outside of the womb at any given point of its prenatal development will inevitably vary from case to case, the rights of each individual pregnant woman are necessarily invariable at all times during her pregnancy.
Turning our minds for a moment to the practical implications of what the author proposes, the notion that pre-natal “viability” can somehow be definitively determined and codified in law borders on absurdity. For example, is this “viability” with or without medical intervention? A baby can be born several months premature and survive with the help of incubators, intravenous nourishment, and other intensive therapies; would this be sufficient to be considered viable? What about the fact that a fetus with a chromosomal or other abnormality would very likely achieve “viability” much later in its development than would a “normal” fetus; were the author’s proposal to take effect, would this not create an untenable difference in legal treatment based on disability? Further, making this determination would necessarily be based on speculation; presumably the fetus would not be excised from the mother and left lying out in the open to see if it lived without her. Any information as to the physical state of the fetus to bolster the speculation would, of course, have to be gained via an invasion of the mother’s physical person. This only serves to highlight, yet again, the inseparability of a woman and her fetus at all moments until complete birth takes place, regardless of its stage of development.
Any attempt to ascribe independent personhood to the contents of a woman’s womb is a clear abuse of that woman’s physical autonomy and human rights. Canada’s highest court decided this in 1988, and no “medical evidence” can justifiably vary it.
Co-Chair, Feminist Legal Forum
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