Opinion

Last week I appeared on CBC TV’s Power & Politics with Evan Solomon. Joyce Arthur of the Abortion Rights Coalition of Canada was the other guest for a conversation about Canada’s lack of legal recognition for the child in the womb as a human being. In fact, Canada’s Criminal Code states:

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s.223 (1) 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

(a) it has breathed;
(b) it has an independent circulation; or
(c) the navel string is severed.

During the course of our discussion I mistakenly identified The Netherlands as the only developed democratic nation in the world, other than Canada, that offered no protection to the child in the womb for the full 9 months of pregnancy. A friend challenged that assertion. I had put my trust in someone else’s research on that point, so conducted the research I normally would have done before making such an assertion and found that The Netherlands allows abortion on demand only until the end of the 21st week of pregnancy; and then for an additional 3 weeks in urgent care situations. I apologize for the incorrect statement.

My statement must have surprised Ms. Arthur, the other participant on the show, as during my research I also came across an article written by Ms. Arthur in 2007 in which she opens with the words, “Canada is the only democratic country in the world that has no abortion law or restrictions of any kind…”

Canada stands alone among democracies, although as stated on the show our nation is in the company of communist nations such as China, Vietnam and North Korea.

So how did we get to this point?

The Government of Canada has, over several decades, committed itself to adhere to a number of international agreements; generated initially through the League of Nations (predecessor to the UN) and then through the United Nations.

In the 1924 Geneva Declaration on the Rights of the Child (League of Nations) the context for international considerations in regard to children was established as “mankind owes to the Child the best that it has to give.” The subsequent Universal Declaration of Human Rights (the “Declaration”), established at the United Nations in 1948 – notably with significant input from Canada through the work and leadership of John Peters Humphrey –  declares in Article 2 that :

Everyone is entitled to all rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. … [emphasis added by me]

“Everyone,” under the Declaration, is not limited by birth in its “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family” (from the preamble of the Declaration, again emphasis added). Article 25 (2) of the Declaration declares:

Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

We see this recognition of the rights of the child, both before and after birth, expressed more explicitly in the 1959 UN Declaration on the Rights of the Child, which begins its international agreement history with the 1924 Geneva Declaration as a guide:

… the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth … [from the preamble, emphasis added]

Article 1. The child shall enjoy all the rights set forth in this Declaration. Every child, without any exception whatsoever, shall be entitled to these rights, without distinction or discrimination on account of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, whether of himself or of his family. [emphasis added]

Article 4. The child shall enjoy the benefits of social security. He shall be entitled to grow and develop in health; to this end, special care and protection shall be provided both to him and to his mother, including adequate pre-natal and post-natal care. The child shall have the right to adequate nutrition, housing, recreation and medical services. [emphasis added]

This is the context in which amendments were made to Canada’s Criminal Code (the “Code”) in 1969 through Bill C-150 introduced by the government of Prime Minister Pierre Trudeau. Prior to those amendments, the section that is now section 223 of the Code read as follows:

When Child becomes a Human Being:

s.195 (1) 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: (a) It has breathed. (b) It has independent circulation. (c) The navel string is severed

(2) A person commits homicide when he causes injuries to a child before or during its birth as a result of which the child dies.

Its companion section was:

Causing Death of Child Not a Human Being

s.209 (1) Everyone who causes the death of a child that has not become a human being, in such a manner that, if the child were a human being, he would be guilty of murder, is guilty of an indictable offense and is liable to imprisonment for life.

(2) This section does not apply to a person who, by means that, in good faith he considers necessary to preserve the life of the mother of a child that has not become a human being, causes the death of the child.

In 1969, s.195 (2) was amended to add the five key words “after becoming a human being” at the end of the sentence so that it now reads:

(2) A person commits homicide when he causes injuries to a child before or during its birth as a result of which the child dies after becoming a human being.

Also in 1969, the then new s.251 was added to the Code. Section 251 set up protections against the procuring of a “miscarriage” except in accredited hospital after following an approval process to determine that the abortion was therapeutically necessary.  Although a more liberal law, there was still recognition of the child in the womb and protections were outlined. The law evidenced recognition of Canada’s international obligations in a manner similar to other democratic nations and complied with Canada’s Constitution as it existed at the time.

In 1982, the Constitution of Canada was amended to include the Charter of Rights and Freedoms (the “Charter”). Section 251 of the Criminal Code (which had withstood a court challenge prior to the Charter) was challenged by three medical practitioners who were performing abortions at a private clinic and was struck down by the Supreme Court of Canada in 1988 in R. v. Morgentaler. In the Morgentaler decision, the court noted that the law was in violation of s.7 of the Charter as it had elements of vagueness and unequal application depending on geographic location within the country and thus endangered the life and health of women in violation of their “right to life, liberty and security of the person.” The court also made it clear that Parliament had the constitutional jurisdiction to enact laws to recognize and protect the child in the womb.

In 1989 Canada committed to the UN Convention on the Rights of the Child, which affirmed the 1924 and 1959 Declarations mentioned above and included these words in its preamble:

… Bearing in mind that, as indicated in the Declaration of the Rights of the Child, “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth” … [emphasis added]

In the same year, the government of Prime Minister Brian Mulroney introduced Bill C-43 in an effort to patch the hole in Canada’s Criminal Code. The bill passed the House of Commons by a large majority in May 1990 but was defeated, in accordance with Senate procedural rules, as the result of a tie vote (43-43) on third reading on January 31, 1991.

Since then, although there have been several efforts by Members of Parliament in their capacity as private members – efforts that have ensured the debate which has continued in Canadian society and media has at least been periodically before Parliament – no Canadian government has introduced or supported legislation to offer a measure of protection to the child in the womb.

Canada remains the only democratic nation in the world that lacks any legal recognition of the rights of the child prior to birth, even though it has committed to that recognition in a series of international human rights agreements. Canada’s place on the international stage in regard to keeping its human rights commitments is tarnished and congratulating ourselves on Canada’s human rights record is self-contradictory, at least in regard to the child in the womb.

Don Hutchinson is the Vice President and General Legal Counsel for the Evangelical Fellowship of Canada.  This column is reprinted with permission from the EFC’s ActivateCFPL blog.

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