ID. Number : 97107692
October 10, 1997
Prof. N. Brett
In 1988, the Supreme Court of Canada ruled in the case of Dr. Henry
Morgentaler vs. Her Majesty the Queen, that section 251 of the Criminal Code of
Canada, the law regarding abortion, was in fact contrary to several sections of the
Canadian Charter of Rights and Freedoms. The most notable of these was section 7,
which states "Everyone has the right to life, liberty and security of the person. . . . "
This was one of the key elements in Madam Justice Wilson's decision to overturn the
abortion law, as it infringed on the right of the woman to decide whether or not she
wished to continue the pregnancy.
Effective as of the date of this decision, there has not been one single piece of
Parliamentary legislation regarding abortion. It is now permitted in Canada for a
woman to have an abortion for any reason which she so desires. It is also no longer
necessary for her to have to go through the lengthy process of appearing before a
committee who would decide if the woman meets the criteria to have an abortion,
those criteria being whether or not the continuation of the pregnancy would prove to
be detrimental to the health or life of the woman. It was this aspect of the committee,
which Madam Justice Wilson found to be wrong. It prevented the woman from
deciding for herself what she wanted to do with her own body. Many argue this is
rightly so, as no single government agency should have the right to remove the right of
autonomy from anyone and dictate what may or may not be done with their bodies.
Those in the pro-life movement feel that this decision effectively dismissed the
fetus as a human being with any of the rights as guaranteed under the Charter. They
feel that even though the fetus has yet to be born, it should still be protected by the
Charter and be regarded as a potential person, as in, a being with some degree of
sentience (i.e., conscience of itself and its surroundings, etc. . . . ), not unlike you or
me. It is believed by the right to life movement that because this fetus would, if left to
completely develop, eventually turn into a fully developed human being that abortion
infringes on the section 7 right of the fetus, as guaranteed under the Charter. The fact
that the fetus is human is not the issue. It is whether or not a person is being murdered
which is the central argument behind this debate.
At the time which the fetus is aborted, it is not a being with personality. Anyone
would agree to the fact that it is alive and human, however, it is also true that it is no
more a person than a tree would be. Though the fetus may be a large grouping of
human cells, with the potential to become more than that, at the state of development
which the fetus has reached at the time of abortion, it is not a person and therefore
should not be looked at as such.
Enter the problem of a "sorties' fallacy"; when does the fetus become a person?
Though the legal moment at which the fetus is looked at for the first time as a human
being is deemed to be at the instant that it is born, the difference between an eight-
week premature infant and a 24-week-old fetus is virtually nonexistent. So should the
fetus be regarded as a person, or should the premature baby still be regarded as a
fetus? Thus arises the statement by the pro-life side of the argument that should not
the fact that we are unable to pinpoint with absolute certainty the precise moment
when a fetus suddenly develops a personality mean that we ought to do away with the
process until such a time that we are able to ascertain that persons are not being
murdered? This argument will go on for quite some time, and is but one in a list of
reasons why the pro-life supporters take the standpoint that they do.
The principle that every human being has the right to life is another key issue in
this heated debate. The pro-life movement also firmly holds to the belief that
regardless of whether or not the fetus is a person, as already defined in this paper, the
simple fact that it is a human being is reason enough to allow it to keep living. They
argue that the severely mentally handicapped do not meet the aforementioned
definition of a person in extreme cases, and yet we would not see them exterminated as
they become a burden to society. This argument is a truly difficult one to combat.
Though the fetus may be a member of the human species, is it always better to bring a
child into the world, even if it is unwanted, unloved, etc. . . . ? What if the birth of the
child would result in the death of the mother, or would severely endanger her health?
Is it still more important that the child be born? What if the child was the product of a
sexual assault? Should the mother who, through no fault of her own, is now carrying
this child be forced to give birth to it? The simple fact that the fetus is alive does not,
and should not, give it precedence over the mother. The mother will be the person who
must carry it for nine months, and who must give birth to it. She is also the one who
will have to care for it after it is born, so should her desires not take priority over a
being that is not much more than a mass of cells, which more closely resembles a
tadpole than a human?
The right of the woman to choose whether or not she wishes to continue the
pregnancy should be precisely that, the choice of the woman. If she deems it necessary
to abort the fetus because of her economic standing, then so be it. If, contrary to the
warnings of her obstetrician, she wishes to carry the child to term, then that is her
decision. It should not be tested by pressures from any other outside influences or
factors, aside from the medical advice of her physician. It should not be the place of
government or society to impose and enforce individual moral decision. It should be
left up to those who are directly involved and responsible, and not to those who have
the option of walking away at any given point.
The Supreme Court made the correct decision in concluding that section 251
infringed on the rights of women to life, liberty, and security of the person. The fact
that women were unable to decide for themselves whether or not they wished to have
an abortion for reasons aside from issues regarding their health is truly unfair, and
unjust. Individuals should be able to decide for themselves what they want to do with
their bodies, and it is not the place of government to interfere in such decisions.