The Legal Status of the Fetus

THIS PUBLICATION WAS PUBLISHED IN OCTOBER 2005 AND HAS BEEN REPRINTED WITH PERMISSION FROM THE CANADIAN NURSE. THIS PUBLICATION IS FOR INFORMATION PURPOSES ONLY. NOTHING IN THIS PUBLICATION SHOULD BE CONSTRUED AS LEGAL ADVICE FROM ANY LAWYER, CONTRIBUTOR OR THE CNPS. READERS SHOULD CONSULT LEGAL COUNSEL FOR SPECIFIC ADVICE.

A young pregnant woman asked a community health nurse how long it takes for cocaine to be cleared from the bloodstream. When the nurse responded by asking a question, the woman left the clinic and has not returned. The nurse is haunted by the feeling she has a professional duty to protect the baby but is aware of the duty of confidentiality she owes the woman.

What do we do when the person who seems to be placing an unborn child in jeopardy is its own mother? The starting point has to be the unique relationship between a pregnant woman and her fetus that is unlike any other human relationship. When society tries to recognize the rights of either of them as having priority over the other, conflict inevitably arises.

Canadian law recognizes that a baby can benefit from certain rights granted to it during its gestation if, in due course, it is born alive. An example is the right to inherit property if the testator died before the baby was born. Such rights only crystallize if the baby is born alive.

But in the opening scenario, the baby is not yet born and the nurse fears the irreversible harm it may suffer during gestation.

The highest Canadian court, the Supreme Court of Canada, was asked to decide upon giving priority to fetal rights over those of its mother.¹ A woman addicted to glue-sniffing was five months pregnant with her fourth child. Two of her previous children had been born permanently disabled as a result of her addiction and were made permanent wards of the state. There was concern that her continuing addiction would permanently damage the nervous system of her fetus. A court ordered that she be placed in the custody of the director of Child and Family Services and detained in a health centre for addiction treatment until the child was born. The court acknowledged that its inherent right to protect children had never been exercised on behalf of an unborn child but decided to do so in this case. This ruling was contrary to a long-standing legal principle that the fetus has no legal status until it is born alive and viable, which means its purported rights cannot take precedence over those of its pregnant mother. The Supreme Court of Canada overturned the lower court ruling on the basis of that legal principle. The fetus had not been born at the time of the first hearing, so the pregnant woman could not be detained by the state to protect purported fetal rights.

Soon afterwards, the Supreme Court of Canada was again asked to rule on fetal rights.² A woman in the sixth month of pregnancy was driving in a snowstorm. She lost control of her vehicle on a patch of slush and struck an oncoming vehicle. Her son had to be delivered by C-section later that day. He suffers from permanent mental and physical impairment. A lawsuit was commenced on the child’s behalf alleging that his prenatal injuries were caused by his mother’s negligent driving. The Supreme Court of Canada overturned lower court decisions when it ruled that while a child can sue a third party in negligence for injuries sustained in utero, it cannot sue its own mother. The court reasoned it would be impossible for judges to determine the standard of behaviour or lifestyle pregnant women should engage in to be within the law. Extensive and unacceptable intrusions into the bodily integrity, privacy and autonomy rights of women would have to take place, given the unique relationship that exists between a pregnant woman and the fetus she carries. The court held that permitting this type of lawsuit would involve severe psychological consequences for the relationship between mother and child, as well as the family unit as a whole.

Against this legal backdrop, health professionals provide care despite the emotional responses these delicate issues generate. Nurses who have concerns about a fetus because of the pregnant woman’s behaviour should educate themselves about any applicable policy or practice approved by their employer or licensing body. Provincial /territorial legislation or local initiatives may provide a way to involve a social worker or work with the woman’s pre-existing case worker. A concerned nurse, acting in good faith, may contact the local child welfare authority (for example, the Children’s Aid Society), which may have a system to keep track of pregnant women at risk, with a view to protecting the child at birth if necessary. Consultation with fellow health team members, practice advisors, or Canadian Nurses Protective Society may be helpful.

Elaine Borg, BNSc, RN, LLB, Canadian Nurses Protective Society, 2005

CNPS beneficiaries can contact CNPS at 1-800-267-3390 to speak with a member of CNPS legal counsel. All calls are confidential.

1. Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.), [1997] 3 S.C.R. 925 aff’g (1996), 138 D.L.R. (4th) 254 (C.A.) rev’g (1996), 138 D.L.R. (4th) 238 (Man. Q.B.).
2. Dobson (Litigation Guardian of) v. Dobson, [1999] 2 S.C.R. 753 rev’g (1997), 148 D.L.R. (4th) 332 (C.A.), aff’g (1997), 143 D.L.R. (4th) 189 (N.B.Q.B.).

Reviewed June 2018

THIS PUBLICATION IS FOR INFORMATION PURPOSES ONLY. NOTHING IN THIS PUBLICATION SHOULD BE CONSTRUED AS LEGAL ADVICE FROM ANY LAWYER, CONTRIBUTOR OR THE CNPS. READERS SHOULD CONSULT LEGAL COUNSEL FOR SPECIFIC ADVICE.