Supreme Court ruling maintains Canada’s murky, contradictory definitions of when life begins
Files; Thinkstock/Getty ImagesIvana Levkovic, who was acquitted of concealing the body of her miscarried baby, now faces a retrial.
Supreme Court maintains Canada's murky definitions of when life begins.
Supreme Court maintains Canada's murky definitions of when life begins.
Can a child die before it is born?
In Canada it can, and until Friday, this possibility seemed like a strange oxymoron, a legal quirk that emerges from arcane fringes of the Criminal Code, in apparent tension with Canada’s awkwardly permissive pose on abortion.
But on Friday morning, the Supreme Court of Canada decided children can and do die before they are born. Indeed, this might well have happened in the case of Ivana Levkovic, a former stripper who was acquitted of concealing the body of her baby daughter, and will now face retrial.
The unanimous decision to dismiss her appeal upholds a lower court view that a fetus becomes a child when it is theoretically viable, and brushes aside the worries of a trial judge that the notion of an unborn “child” is unconstitutionally vague, given that elsewhere in the Criminal Code, in the section on homicide, the genesis of legal humanity is described as the complete live delivery from one’s mother, regardless whether the baby breathes or has the cord cut.
The law against concealing the body of a child “only captures the disposal of the remains of children that were likely to be born alive,” no matter when they actually died, the Supreme Court ruled.
In other words, not all “children” are “human beings” under the law. Some are unborn legal non-humans. It is a bothersome semantic muddle, which the Supreme Court’s decision in Levkovic does not even try to resolve, preferring to validate the murky status quo.
“It’s strange that a child is not considered a human being in Canadian law,” said Stephen Woodworth, a Conservative MP whose effort to have Parliament revisit the “complete delivery” criterion for humanity in the Criminal Code failed in a vote last fall. “I think most Canadians do very well recognize that an individual is a child and a human being well before the moment of complete birth.”
For Ms. Levkovic, the consequences of the ruling are unclear.
Tried under the law that bans concealing the body of a child with intent to conceal its birth, regardless of whether it died “before, during, or after birth,” she was acquitted because the Crown had no evidence about when the baby girl actually died. A judge struck out the possibility of a child that died “before” birth, leaving the Crown unable to prove Ms. Levvkovic’s died “during or after.” Indeed, forensics could only determine the baby was “at or near full term” in April, 2006, when a building superintendent discovered it, wrapped in towels, in a garbage bag on the balcony of an Mississauga, Ont., newly vacated by someone close to Ms. Levkovic.
The trial judge was especially bothered that “he could not identify the moment on the gestational spectrum when a fetus becomes the body of a child for the purpose of [this law against concealing].”
Now, however, in a retrial, the question of when the baby died is once again moot, and the legal fact that it was a “child” is settled. In that sense, the “concealing” law is comparable to the one against offering an indignity to a body, which is a serious offence “even though neither the body nor its parts are persons in the eyes of the law,” said Eike-Henner Kluge, a bioethical philosopher at the University of Victoria who once directed legal and ethical affairs for the Canadian Medical Association.
Michael A. Moon, Ms. Levkovic’s lawyer, foresees an acquittal on the merits, but the defence just got tougher.
For Canada, however, the consequences are abundantly clear: the Supreme Court, like the Prime Minister, is not going to revive the abortion debate.
This is unfortunate, because the law about who or what is a human being, and when they become such, “looks like it needs a renovation,” said Wayne Sumner, a professor emeritus of philosophy at the University of Toronto who has long engaged with Canada’s abortion debates, an issue that is morally twinned with assisted dying.
“The same thing has happened to death,” he said. “We used to think we understood what it meant for someone to die, but now we have this notion of brain death, we’ve got people in comas hooked up to ventilators who are treated as dead even though their hearts are beating, their lungs are inflating and their blood is circulating. We had to address it there. Undoubtedly we’ll have to do it for birth as well.”
These legal adjustments may be as easy as recognizing a child with two fathers, or three parents, or just one: issues that have been legally refined without much grief or rancour in cases of adoption and surrogacy.
Or they might be as divisive as abortion usually is, pitting fundamentalisms against each other, offering no hope of compromise, just like euthanasia.
In death, the shift in meaning was “smoother than it should have been,” Prof. Sumner said. “Our language is all at odds with itself on this issue as well.”
Regardless of any resolution, these internal contradictions reveal the law’s loose grasp on such foundational human concepts as birth, death, and shared humanity. This is as it should be, said Prof. Sumner, because the law should never be chiseled in stone.
“I think maybe the trial judge shouldn’t have been as fussed about this as he was,” said Prof. Sumner. He called all this a confusion of law, not ethics.
“Those who believe in the restrictions [on abortion] are going to be able to look at the language of this decision, and say, we’re no longer talking just about a fetus. The Supreme Court has said it is a ‘child’ even though it’s in utero. And they’re going to try to then, I would expect, bridge the gap between a child that is in utero and a child which has been expelled from the woman’s body, and conflate the two together.”
Strangely, Canadian case law also suggests that not all “children” are “persons,” given that the Supreme Court ruled in R v. Sullivan, a 1991 case of two midwives charged over the death of a baby during delivery, that the term “person,” as it is used in the law of criminal negligence, is synonymous with the term “human being.”
That baby, the court decided, was not a person, because it was not a human being, because it had not yet been born. An acquittal followed. Ms. Levkovic’s daughter, on the other hand, was a child, insofar as the deliberate concealing of her corpse would have been a crime. Her acquittal was overturned, and she is to be retried.
Now that this moral fuzziness has been further enshrined in law, Canadians must either content themselves with compromise, or take the fight to the legislatures. As this ruling shows, once again, the courts will not offer a final answer.
National Post
jbrean@nationalpost.com
In Canada it can, and until Friday, this possibility seemed like a strange oxymoron, a legal quirk that emerges from arcane fringes of the Criminal Code, in apparent tension with Canada’s awkwardly permissive pose on abortion.
But on Friday morning, the Supreme Court of Canada decided children can and do die before they are born. Indeed, this might well have happened in the case of Ivana Levkovic, a former stripper who was acquitted of concealing the body of her baby daughter, and will now face retrial.
The unanimous decision to dismiss her appeal upholds a lower court view that a fetus becomes a child when it is theoretically viable, and brushes aside the worries of a trial judge that the notion of an unborn “child” is unconstitutionally vague, given that elsewhere in the Criminal Code, in the section on homicide, the genesis of legal humanity is described as the complete live delivery from one’s mother, regardless whether the baby breathes or has the cord cut.
The law against concealing the body of a child “only captures the disposal of the remains of children that were likely to be born alive,” no matter when they actually died, the Supreme Court ruled.
In other words, not all “children” are “human beings” under the law. Some are unborn legal non-humans. It is a bothersome semantic muddle, which the Supreme Court’s decision in Levkovic does not even try to resolve, preferring to validate the murky status quo.
“It’s strange that a child is not considered a human being in Canadian law,” said Stephen Woodworth, a Conservative MP whose effort to have Parliament revisit the “complete delivery” criterion for humanity in the Criminal Code failed in a vote last fall. “I think most Canadians do very well recognize that an individual is a child and a human being well before the moment of complete birth.”
For Ms. Levkovic, the consequences of the ruling are unclear.
Fred Chartrand/CP filesMP Stephen Woodworth: “I think most Canadians do very well recognize that an individual is a child and a human being well before the moment of complete birth.”
The trial judge was especially bothered that “he could not identify the moment on the gestational spectrum when a fetus becomes the body of a child for the purpose of [this law against concealing].”
Now, however, in a retrial, the question of when the baby died is once again moot, and the legal fact that it was a “child” is settled. In that sense, the “concealing” law is comparable to the one against offering an indignity to a body, which is a serious offence “even though neither the body nor its parts are persons in the eyes of the law,” said Eike-Henner Kluge, a bioethical philosopher at the University of Victoria who once directed legal and ethical affairs for the Canadian Medical Association.
Michael A. Moon, Ms. Levkovic’s lawyer, foresees an acquittal on the merits, but the defence just got tougher.
For Canada, however, the consequences are abundantly clear: the Supreme Court, like the Prime Minister, is not going to revive the abortion debate.
This is unfortunate, because the law about who or what is a human being, and when they become such, “looks like it needs a renovation,” said Wayne Sumner, a professor emeritus of philosophy at the University of Toronto who has long engaged with Canada’s abortion debates, an issue that is morally twinned with assisted dying.
“The same thing has happened to death,” he said. “We used to think we understood what it meant for someone to die, but now we have this notion of brain death, we’ve got people in comas hooked up to ventilators who are treated as dead even though their hearts are beating, their lungs are inflating and their blood is circulating. We had to address it there. Undoubtedly we’ll have to do it for birth as well.”
‘I don’t believe that this is going to be the last word’Fetal viability, for example, is a shifting medical standard, and given the expected progress of medical science, the Criminal Code definition of ‘human being’ seems to allow for children who will be born twice (in the case of a fetus removed for surgery), or not at all (in the case of a possible artificial womb), according to Prof. Kluge. He said the Criminal Code definition of human being as one who has been completely delivered of its mother is “woefully inadequate in contemporary times.”
These legal adjustments may be as easy as recognizing a child with two fathers, or three parents, or just one: issues that have been legally refined without much grief or rancour in cases of adoption and surrogacy.
Or they might be as divisive as abortion usually is, pitting fundamentalisms against each other, offering no hope of compromise, just like euthanasia.
In death, the shift in meaning was “smoother than it should have been,” Prof. Sumner said. “Our language is all at odds with itself on this issue as well.”
Regardless of any resolution, these internal contradictions reveal the law’s loose grasp on such foundational human concepts as birth, death, and shared humanity. This is as it should be, said Prof. Sumner, because the law should never be chiseled in stone.
“I think maybe the trial judge shouldn’t have been as fussed about this as he was,” said Prof. Sumner. He called all this a confusion of law, not ethics.
The consequences are abundantly clear: the Supreme Court is not going to revive the abortion debate“I don’t believe that this is going to be the last word,” said Mr. Moon, Ms. Levkovic’s lawyer, who said the top court “studiously avoided the broader issues” and “punted” the issue back to the House of Commons, but still wrote a decision that offers a “toe-hold in the door” for anti-abortion campaigners and those who want it regulated by law.
“Those who believe in the restrictions [on abortion] are going to be able to look at the language of this decision, and say, we’re no longer talking just about a fetus. The Supreme Court has said it is a ‘child’ even though it’s in utero. And they’re going to try to then, I would expect, bridge the gap between a child that is in utero and a child which has been expelled from the woman’s body, and conflate the two together.”
Strangely, Canadian case law also suggests that not all “children” are “persons,” given that the Supreme Court ruled in R v. Sullivan, a 1991 case of two midwives charged over the death of a baby during delivery, that the term “person,” as it is used in the law of criminal negligence, is synonymous with the term “human being.”
That baby, the court decided, was not a person, because it was not a human being, because it had not yet been born. An acquittal followed. Ms. Levkovic’s daughter, on the other hand, was a child, insofar as the deliberate concealing of her corpse would have been a crime. Her acquittal was overturned, and she is to be retried.
Now that this moral fuzziness has been further enshrined in law, Canadians must either content themselves with compromise, or take the fight to the legislatures. As this ruling shows, once again, the courts will not offer a final answer.
National Post
jbrean@nationalpost.com
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