Patrick Craine


Supreme Court justices baffled about what to call baby who may have died before birth

Patrick Craine

Funny how when you start denying reality you end up getting yourself all twisted up on logic and language.

If you deny that the unborn child is a person, you call the child a fetus. But at what point does a fetus become a baby? Can you justify calling a child at 8-months gestation a fetus while you call one born a month premature a baby?

And if you hold, as Canada’s Criminal Code does, that the child only becomes a baby once it has proceeded from its mother’s womb in a living state, what do you call a dead child when you’re not sure if the child died before or after birth?

As Maclean’s Charlie Gillis reported today, Canada’s Supreme Court got itself tangled up around this question last month when it took up the case Regina v. Ivana Levkovic.

Levkovic, who allegedly left her newborn daughter’s body to decompose on her balcony, was charged under section 243 of the Criminal Code, which forbids concealing a child’s body “whether the child died before, during or after birth.” Evidence left it unclear whether her daughter had died before or after birth.

Gillis describes the Supreme Court’s dilemma:

By using words like “child,” “baby” or “girl,” therefore, the judges could be implying humanity on the part of the deceased. They’d also be undermining Levkovic’s defence: if an unborn child has no right to legal protection, her lawyers had reasoned, how could the law stand?

Thus began a kind of linguistic minuet, as the judges reached for acceptable nomenclature for a hypothetical baby that the law might not regard as a person. [Chief Justice Beverley] McLachlin tried “object” and “being” and, at one cringeworthy point, referred to it as “this, um, dead, um, whatever.” Her colleagues didn’t fare much better. During a discussion of the applicability of mens rea, Justice Michael Moldaver, a former criminal lawyer who joined the court one year ago, referred to the infant in such cases as “the thing.”

I find it interesting that the justices struggled so much given that the Criminal Code itself has no difficulty calling the unborn a “child” while at the same time denying his right to live.

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