ETHICS * ETHIQUE
Fetal rights: Supreme Court tosses ball back in Parliament's court Eike-Henner Kluge, PhD down the substituted conviction. The case is of interest to doctors, but not because it deals with midwifery and its legality in Canada - the Supreme Court decision is silent on that point. At issue was the status of the human fetus: Is a full-term human fetus that is partially born a person in the eyes of the criminal law? The court decided it is not. The Supreme Court could have taken several courses. If it had upheld the initial conviction, it would have meant that in the court's view a full-term human fetus in the process of being born is a person. It would have reached the opposite decision if it had upheld the substituted conviction and decided the mother was harmed by the death of the fetus. This would have been possible only if the court decided that a human fetus is part of the mother until it has "completely proceeded, in a living state, from the body of its mother whether or not it has breathed, it has independent circulation, or the navel string is severed."2 The court also could have found the midwives guilty of criminal negligence causing bodily harm if it had decided that the fetus had been harmed during birth. This would have meant that it considered a fetus a person. Finally, it could have left the question unanswered by deciding that Sullivan and Lemay were Eike Kluge is the CMA's director of medi- guilty because of the contusions cal ethics and legal affairs. the mother had suffered as the
O n Mar. 21, 1991, the Supreme Court of Canada handed down its longawaited decision in R. v. Sullivan and Lemay.I The case involved Mary Sullivan and Gloria Lemay, two British Columbia midwives who had been charged under sections 203 (now 220) and 204 (now 221) of the Criminal Code after a child they were attempting to deliver during a home birth died "while still in the birth canal." Section 220 deals with criminal negligence causing death of a person, Section 221 with criminal negligence causing bodily harm of a person. Sullivan and Lemay were convicted of criminal negligence causing death but were acquitted of causing bodily harm to the mother. They appealed and the Court of Appeal threw out the conviction. However, it substituted one of criminal negligence causing bodily harm, even though the Crown had not appealed the trial court's dismissal of that charge. The situation then became complicated. Sullivan and Lemay appealed the substituted conviction to the Supreme Court and the Crown in turn appealed the decision to overturn the initial criminal-negligence conviction. In March the Supreme Court not only upheld Sullivan's and Lemay's appeal, but also struck
1154
CAN MED ASSOC J 1991; 144 (9)
midwives physically manipulated her as they tried to bring about the birth. The Supreme Court did none of these things. It upheld the decision to overturn the criminal negligence causing death conviction, but emphasized that this followed only from the law as it now stands. According to the criminal statutes, a fetus is not a person until it has proceeded completely and in a living state from the body of its mother.3 Therefore, Sullivan and Lemay could not be convicted of causing a person's death. The court overturned the substitution of the bodily-harm conviction because an appeal court has no jurisdiction to overturn an acquittal unless it has been appealed by the Crown, and this was not the case. It is interesting to see the steps the court took to avoid making a decision on the status of the fetus. The Kienapple rule does allow a higher court to substitute one conviction for another. However, it applies only when there is a direct causal connection between the charge for which the defendant is acquitted and the charge for which the conviction is substituted. The Court of Appeal used this rule. If the Supreme Court had agreed with the decision it would have meant that in the court's eyes there is a direct causal connection between the death of the fetus and harm to the mother. However, the Supreme Court said: "The acquittal entered LE ler MAI 1991
by the trial judge on count 2 [criminal negligence causing bodily harm] was an acquittal on the merits and was not entered pursuant to a finding of guilt on the first count [criminal negligence causing death]."4 With this the court signalled that it was not prepared to interpret that a charge of criminal negligence causing bodily harm had been established because the fetus had been harmed. That would have meant that the court considered the fetus part of the mother, and by doing so it would have departed from its stand that it is Parliament's job to determine the status of the fetus. The Supreme Court therefore agreed with the trial judge that for a charge of criminal negligence causing bodily harm to be proved, it must be shown that the mother's body had been harmed by the treatment she received during the failed birth. And this, as the court said, was shown to be false at trial. The Supreme Court has decided this case on very narrow legal grounds and it has carefully avoided coming to grips with the issue of whether a fetus is a person in the eyes of the law. This is THE 8 HOUR NITROGLYCERIN
MITRQNG® SR
THE 24 HOUR ADVANTAGE iconlvnlielnt t.i.d. dosage)
Prescribing Information Nitroglycerin sustained rele ti anginal agent Therapeutic clas SR tablet Indications: d for the prev ofattai;Wbfng os J ed wit onic angin of efr in atents R tablets are contrn Nitro c r with ere anemia, inea n. incr ed intracra pre r od Nitr SR is also contraindicatd in paients with kno 'diosyncrasy to organic ntrates. W1arsin: Data he safe se of Nitmrog duringthe earX ly phas myocardial inrfato (the period during whic cal and labotory findings are ient to establish sft The unstable) are in congestive heart use of Nitrong SR failure requires careful clinicala monitoring. Nitrate dependence may occur in patients with chronic use. To avoid possible withdrawal effects, the administration of Nitrong SR should gradually be reduced over 4-6 weeks. In MAY 1, 1991
not surprising. On several occasions, such as cases involving Morgentaler5 and Daigle,6 the Supreme Court has made clear that the status of the fetus should not be resolved in court - the court is not prepared to do Parliament's work. What is the legal upshot of this latest decision? Remarkably little. The status of the fetus stays as it was before - in the eyes of the criminal law, a human fetus is not a person until it is alive and completely outside the mother's body. Clearly, the ruling does nothing to help physicians or other health care workers who are concerned with the lack of recognition of the fetus in the current Criminal Code. On the other hand, reaffirmation of the legal status quo may be interpreted as a victory for those who see the fetus as a biologic appendage until it has been born. The controversy is not settled with this judgement because the court has clearly stated that it will not settle the question. This, of course, places more pressure on Ottawa's Royal Commission on New Reproductive Technologies, which will be expected to address the issue squareindustry workers continuously exposed to nitrates, chest pain, acute myocardial infarction and even ra sudden or
symkes
be due to overdosage. e should be reduced or e Nrly ern is a potent sodilator ad e at slght decrease in 10-15 mm Hg) mean blo p in ape doages. in some p ts w Caution h d bi using the drug in rwho might be affectpatients who ed itrong SR tablets are not inim a rel ot acute attaks of angina pectoris. Sublingual nitroglycerin prepara-
a recumbent position, When thy# occur, h use of tirg SR dc
tions should be used for this purpose. Tolerance to this dg and cross tolerance to other nitrates or nitrites may occur. Adver Effects: Headache
ly. It also puts pressure on Parliament to draft appropriate legislation that deals directly with the issue. The case leaves some unanswered questions. Why, for instance, did the Crown not proceed under Section 238, which deals with causing the death of a fetus that is in the process of being born? My guess is that the Crown was also interested in getting the courts to clarify the legal status of the fetus. The CMA's Committee on Ethics is currently working on a policy proposal on this question. It is hoped that the federal government and its royal commission will consult with the CMA before it undertakes any legislative action.
References 1. R. v. Sullivan [ 1991], SCJ no. 20, (SCC), Mar 21, 1991 2. Criminal Code, RSC 1985, c C-46, s 224 3. Ibid: s 223 4. Sullivan, supra, note 1, at 40 5. R. v. Morgentaler [1988] 1 SCR 30, 60 OR (2d) 281, 26 OA 1, 144 DLR (4th) 385, 82 NR 1, 3 CCC 449, 62 CR (3rd) 1, 31 CRR 6. Tremblay v. Daigle [1989] 2 SCR 530, 62 DLR (4th) 634, 102 NR 81, 27 QAC 81
reduced or the use of the product discontinued. Less frequently, postural hypotension, an increase in heart rate, faintness, flushing, dizziness, nausea and vomiting have been reported. Symptoms and treatment of overdosage: Symptoms of overdosage relaed to vasodilation, including cutaneous ffus a.che, nausea, dizziness and hypotension. Methem rnia is also possible. No specific anidote is ava Treatment should primarly be symptomatic and portive.
Dosage and administration: Adult: Rec mended initial dosage is 1 tablet 3 times a day efore 'breakfast, late afternoon before meal and fore reftiing. Dosage may be increased progressi y up to 2 tablets 3 times a day. Availability: Su;tined release tablets of 2.6 mg - Bottles of 0 and 1000. Rdgrege: 1. Winsor T. Berger H AM Heart J 1975; 90(5)611821
Full prescribing information available ®Registered Trademark
otcmon side efe Long5 Islana City NY US A
may be treated with concomitant administration of mild analgesics. If headache is unresponsive to such treatment, the dose of Nitrong SR should be
I tPSABl
iP, RORER PHARMA RHONE-POULENC
RORER
RH6NE POULENC-RORER CANADA INC. MONTREAL, QUEBEC
CAN MED ASSOC J 1991; 144 (9)
1155
Fetal rights: Supreme Court tosses ball back in Parliament's court Eike-Henner Kluge, PhD down the substituted conviction. The case is of interest to doctors, but not because it deals with midwifery and its legality in Canada - the Supreme Court decision is silent on that point. At issue was the status of the human fetus: Is a full-term human fetus that is partially born a person in the eyes of the criminal law? The court decided it is not. The Supreme Court could have taken several courses. If it had upheld the initial conviction, it would have meant that in the court's view a full-term human fetus in the process of being born is a person. It would have reached the opposite decision if it had upheld the substituted conviction and decided the mother was harmed by the death of the fetus. This would have been possible only if the court decided that a human fetus is part of the mother until it has "completely proceeded, in a living state, from the body of its mother whether or not it has breathed, it has independent circulation, or the navel string is severed."2 The court also could have found the midwives guilty of criminal negligence causing bodily harm if it had decided that the fetus had been harmed during birth. This would have meant that it considered a fetus a person. Finally, it could have left the question unanswered by deciding that Sullivan and Lemay were Eike Kluge is the CMA's director of medi- guilty because of the contusions cal ethics and legal affairs. the mother had suffered as the
O n Mar. 21, 1991, the Supreme Court of Canada handed down its longawaited decision in R. v. Sullivan and Lemay.I The case involved Mary Sullivan and Gloria Lemay, two British Columbia midwives who had been charged under sections 203 (now 220) and 204 (now 221) of the Criminal Code after a child they were attempting to deliver during a home birth died "while still in the birth canal." Section 220 deals with criminal negligence causing death of a person, Section 221 with criminal negligence causing bodily harm of a person. Sullivan and Lemay were convicted of criminal negligence causing death but were acquitted of causing bodily harm to the mother. They appealed and the Court of Appeal threw out the conviction. However, it substituted one of criminal negligence causing bodily harm, even though the Crown had not appealed the trial court's dismissal of that charge. The situation then became complicated. Sullivan and Lemay appealed the substituted conviction to the Supreme Court and the Crown in turn appealed the decision to overturn the initial criminal-negligence conviction. In March the Supreme Court not only upheld Sullivan's and Lemay's appeal, but also struck
1154
CAN MED ASSOC J 1991; 144 (9)
midwives physically manipulated her as they tried to bring about the birth. The Supreme Court did none of these things. It upheld the decision to overturn the criminal negligence causing death conviction, but emphasized that this followed only from the law as it now stands. According to the criminal statutes, a fetus is not a person until it has proceeded completely and in a living state from the body of its mother.3 Therefore, Sullivan and Lemay could not be convicted of causing a person's death. The court overturned the substitution of the bodily-harm conviction because an appeal court has no jurisdiction to overturn an acquittal unless it has been appealed by the Crown, and this was not the case. It is interesting to see the steps the court took to avoid making a decision on the status of the fetus. The Kienapple rule does allow a higher court to substitute one conviction for another. However, it applies only when there is a direct causal connection between the charge for which the defendant is acquitted and the charge for which the conviction is substituted. The Court of Appeal used this rule. If the Supreme Court had agreed with the decision it would have meant that in the court's eyes there is a direct causal connection between the death of the fetus and harm to the mother. However, the Supreme Court said: "The acquittal entered LE ler MAI 1991
by the trial judge on count 2 [criminal negligence causing bodily harm] was an acquittal on the merits and was not entered pursuant to a finding of guilt on the first count [criminal negligence causing death]."4 With this the court signalled that it was not prepared to interpret that a charge of criminal negligence causing bodily harm had been established because the fetus had been harmed. That would have meant that the court considered the fetus part of the mother, and by doing so it would have departed from its stand that it is Parliament's job to determine the status of the fetus. The Supreme Court therefore agreed with the trial judge that for a charge of criminal negligence causing bodily harm to be proved, it must be shown that the mother's body had been harmed by the treatment she received during the failed birth. And this, as the court said, was shown to be false at trial. The Supreme Court has decided this case on very narrow legal grounds and it has carefully avoided coming to grips with the issue of whether a fetus is a person in the eyes of the law. This is THE 8 HOUR NITROGLYCERIN
MITRQNG® SR
THE 24 HOUR ADVANTAGE iconlvnlielnt t.i.d. dosage)
Prescribing Information Nitroglycerin sustained rele ti anginal agent Therapeutic clas SR tablet Indications: d for the prev ofattai;Wbfng os J ed wit onic angin of efr in atents R tablets are contrn Nitro c r with ere anemia, inea n. incr ed intracra pre r od Nitr SR is also contraindicatd in paients with kno 'diosyncrasy to organic ntrates. W1arsin: Data he safe se of Nitmrog duringthe earX ly phas myocardial inrfato (the period during whic cal and labotory findings are ient to establish sft The unstable) are in congestive heart use of Nitrong SR failure requires careful clinicala monitoring. Nitrate dependence may occur in patients with chronic use. To avoid possible withdrawal effects, the administration of Nitrong SR should gradually be reduced over 4-6 weeks. In MAY 1, 1991
not surprising. On several occasions, such as cases involving Morgentaler5 and Daigle,6 the Supreme Court has made clear that the status of the fetus should not be resolved in court - the court is not prepared to do Parliament's work. What is the legal upshot of this latest decision? Remarkably little. The status of the fetus stays as it was before - in the eyes of the criminal law, a human fetus is not a person until it is alive and completely outside the mother's body. Clearly, the ruling does nothing to help physicians or other health care workers who are concerned with the lack of recognition of the fetus in the current Criminal Code. On the other hand, reaffirmation of the legal status quo may be interpreted as a victory for those who see the fetus as a biologic appendage until it has been born. The controversy is not settled with this judgement because the court has clearly stated that it will not settle the question. This, of course, places more pressure on Ottawa's Royal Commission on New Reproductive Technologies, which will be expected to address the issue squareindustry workers continuously exposed to nitrates, chest pain, acute myocardial infarction and even ra sudden or
symkes
be due to overdosage. e should be reduced or e Nrly ern is a potent sodilator ad e at slght decrease in 10-15 mm Hg) mean blo p in ape doages. in some p ts w Caution h d bi using the drug in rwho might be affectpatients who ed itrong SR tablets are not inim a rel ot acute attaks of angina pectoris. Sublingual nitroglycerin prepara-
a recumbent position, When thy# occur, h use of tirg SR dc
tions should be used for this purpose. Tolerance to this dg and cross tolerance to other nitrates or nitrites may occur. Adver Effects: Headache
ly. It also puts pressure on Parliament to draft appropriate legislation that deals directly with the issue. The case leaves some unanswered questions. Why, for instance, did the Crown not proceed under Section 238, which deals with causing the death of a fetus that is in the process of being born? My guess is that the Crown was also interested in getting the courts to clarify the legal status of the fetus. The CMA's Committee on Ethics is currently working on a policy proposal on this question. It is hoped that the federal government and its royal commission will consult with the CMA before it undertakes any legislative action.
References 1. R. v. Sullivan [ 1991], SCJ no. 20, (SCC), Mar 21, 1991 2. Criminal Code, RSC 1985, c C-46, s 224 3. Ibid: s 223 4. Sullivan, supra, note 1, at 40 5. R. v. Morgentaler [1988] 1 SCR 30, 60 OR (2d) 281, 26 OA 1, 144 DLR (4th) 385, 82 NR 1, 3 CCC 449, 62 CR (3rd) 1, 31 CRR 6. Tremblay v. Daigle [1989] 2 SCR 530, 62 DLR (4th) 634, 102 NR 81, 27 QAC 81
reduced or the use of the product discontinued. Less frequently, postural hypotension, an increase in heart rate, faintness, flushing, dizziness, nausea and vomiting have been reported. Symptoms and treatment of overdosage: Symptoms of overdosage relaed to vasodilation, including cutaneous ffus a.che, nausea, dizziness and hypotension. Methem rnia is also possible. No specific anidote is ava Treatment should primarly be symptomatic and portive.
Dosage and administration: Adult: Rec mended initial dosage is 1 tablet 3 times a day efore 'breakfast, late afternoon before meal and fore reftiing. Dosage may be increased progressi y up to 2 tablets 3 times a day. Availability: Su;tined release tablets of 2.6 mg - Bottles of 0 and 1000. Rdgrege: 1. Winsor T. Berger H AM Heart J 1975; 90(5)611821
Full prescribing information available ®Registered Trademark
otcmon side efe Long5 Islana City NY US A
may be treated with concomitant administration of mild analgesics. If headache is unresponsive to such treatment, the dose of Nitrong SR should be
I tPSABl
iP, RORER PHARMA RHONE-POULENC
RORER
RH6NE POULENC-RORER CANADA INC. MONTREAL, QUEBEC
CAN MED ASSOC J 1991; 144 (9)
1155
