Chapter 4: Ethical Issues at the Beginning of Life

 

INTRODUCTION

This chapter will delve into the many bioethical issues that arise at the beginning of life. It is an unwieldy topic to be sure, but a chronological approach may bring some order to it; chronological in the sense of historical exposition, and in the sense of the temporal development of the issues from preconception, through the prenatal course, to birth and infancy. A history of reproductive rights in Canada will be discussed with a nod to the way technology and cultural norms have expanded reproductive rights to include a consideration of same sex couples and atypical families. Discussion will then turn to that most contentious of beginning of life issues, abortion. The history of abortion and the Canadian laws that do, and do not apply, to the issue will be examined. Opinions are objectively discussed, and the stance of the medical professional bodies will be noted.

Abortion and beginning of life issues are contentious principally because of the difficulty in establishing the status of the fetus.1 This subject remains slippery in the philosophical discourse, but has, for better or for worse, been very well established and precisely located in Canadian law. An illumination of this will enlighten other pertinent bioethical considerations at the beginning of life in Canada. Maternal-fetal conflict is considered after a discussion of prenatal screening. This conflict can be seen to stem from both intentional or unintentional behaviours and circumstances. Situations which breed conflict, both in or out of the control of women, will be discussed in the context of Canadian law and policy.

Moving on to birth and infancy, an examination of the rights of impaired newborns and their families will be discussed; specifically, which persons (family members and infants alike) have legitimate claims when an infant is born impaired. Reproductive rights and fetal rights present tremendous bioethical difficulties at the threshold of fetal viability. An exploration of these issues at this ever shifting boundary will be considered from a comparative viewpoint, and discussed in relation to the evidence based formulation of policy that exists in Canada. Beginning of life is also, often, the time at which adoptions occur, and a very brief examination of bioethical concerns in the changing realm of Canadian adoption will be made.

REPRODUCTIVE RIGHTS

The late 18th Century saw the dawn of a new social organization. Throughout Europe and North America, revolutions and restructuring redefined maps and governance. Governments “by the people” became the accepted norm and words like liberty, and equality were on the lips of every citizen. The 20th century, at last, got around to attempts at sorting out women’s rights, arguably a process which is far from complete, but nonetheless, the notion of reproductive rights was conceived and born of these noble sentiments. The rights of a woman to have jurisdiction and autonomy over her body has become nothing less than sacred, and women, shouldered with the responsibility (endowed with the privilege) of carrying and delivering the offspring of the species, have begun to receive recognition that their autonomy justly extends to this function as well. It is not the intent of this chapter to discuss the plights, the victories, the frustrations, and the elations of this hard fought battle; but recognition of the past, and the evolution of the process, brings clarity to the Canadian state of affairs and where it is situated in the global village.

The United Nations (UN) is not the first or final word on such things, but is a good place to start in taking the pulse of global sentiments on pertinent issues. The UN created the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW)2 in 1979 as the bill of international rights concerning women, and the only international treaty recognizing the reproductive rights of women. Signing countries were required to report to the Committee on the Elimination of all forms of Discrimination Against Women, and Canada was counted among them. In 1994 the International Conference on Population and Development created a Conference Platform3 adopted by 182 nations that recognized the importance of human rights in protecting and promoting women’s health. The following year a conference held in Beijing, the Fourth World Conference on Women, went further in developing a Platform of Action4 that 187 nations signed and which went further than the Cairo platform in explicitly recognizing the rights of women to extend to the expression of their sexuality and reproductive health.5

Canada has always endeavoured to meet or exceed the guidelines put forth in these international efforts, but it has been a turbulent affair establishing precisely how to best recognize the rights and meet the needs of women. “Reproductive Rights” is a broad topic that extends beyond this section, but a few salient features will be discussed presently, and this topic will serve as a point of embarkation for several other related topics. The provision of health care is elaborated in the Canada Health Act of 19846 and the right to that care is established in the Canadian Charter of Rights and Freedoms.7 Women, under the Charter, are protected against abuse and discrimination, and this serves as a foundation for any understanding of reproductive rights. But it has been interpretation of the Charter, common law, elaborated health care policy, the codified ethics of health care providers, etc., that have enhanced the understanding of reproductive rights, that careful mix and balance of autonomy, beneficence, and non-maleficence and justice. While Canadian women have negative reproductive rights—the rights to be left alone and immunity from state intervention over their reproductive choices—they also have positive rights to receive certain benefits. The full extent of this right to health care is a fluid and sometimes prickly topic (see Chapter 1), that will not herein be discussed, but suffice it to say that health care and reproductive health care is a basic right enjoyed by Canadians and a part of the universal health care system.

In its most basic iteration, reproductive rights would seem to encompass the rights of women to have or not have children. In this realm, no medical advance had as great an impact as the Birth Control Pill (“the pill”), which became available in Canada 1960. It was, however, marketed initially as a medication to control menses, and not to provide reproductive choice to millions of women. It was not until 1969 that the pill was legally sanctioned as a contraceptive, truly empowering women with choice over the options and timing of their pregnancies. Emergency contraception (the so-called “morning after pill”), has also been thrust into the bioethical debate on reproductive rights. In Canada emergency contraception was made available without a prescription in 2005, expanding pharmacist’s roles in providing the medication and the advice that goes with it, but also imposing on them a role to provide something that may not square with their own personal beliefs and ethics. Physicians have been able to conscientiously object to the administration of certain medications (including oral contraceptives) and procedures (including abortions), and now pharmacists have the same privilege. Hospitals have exercised similar rights; in Canada 12% of hospitals are Catholic, and abortions and oral contraceptives are not allowed. But these rights must also be made to reconcile with the reproductive rights of women, hence, there are limits to conscientious objection claims in all provinces and territories (and, incidentally, many states in the US) that ensure that women can get safe treatment, appropriate information, and counselling on such matters.8

In 1969 the laws prohibiting abortion were struck down, and the topic of abortion will be discussed in detail below. Before leaving the topic, however recognition must be made of a significant case in Canadian history from 1989 that forwarded the reproductive rights of Canadian women; that case was the dispute between Chantal Daigle and Jean Guy Tremblay. Mr. Tremblay, Ms. Daigle’s abusive partner and father of her unborn child, succeeded in obtaining an injunction from the Quebec Superior Court against Ms. Daigle’s wish to obtain an abortion. He made this claim in the name of the fetus’ best interest. This was struck down by the Supreme Court of Canada. The Supreme Court of Canada ruled only after Ms. Daigle had fled to the US to receive her abortion, but it was a landmark case establishing the rights of women in choice over their reproduction, and establishing that these rights could not be assailed by the competing rights of the fetus or her partner.9

Reproductive rights also encompass not only the right not to reproduce, but more and more women and men are endowed with more procreative options, and the rights that accompany them. Reproductive rights also means access to Assisted Reproductive Technologies (ART). This is discussed in great detail in the next chapter, but is briefly outlined below to provide context in this discussion. The Assisted Human Reproduction Act of 2004, lays out, in careful detail, all that is allowed and not allowed in the implementation of ART.10 While ART is the right of any Canadian, it is not a positive right which could compel the government to provide ART on demand, and while there is a right to access universal health care in Canada, the Charter does not stipulate the right to access reproductive technological advances. Only Ontario and Quebec provide public funded access to ART (albeit in limited amounts).11

The rights of women often centers on the notion of equality, when we enter the arena of reproductive rights there is a whole new world of equality considerations. First, in keeping with the theme of reproductive technologies, ART has opened doors to reproduction for many non-conventional couples. ART is available to women no matter what kind of relationship they are (or are not) in; IVF is extended to lesbian couples or single mothers.12 Furthermore, the Charter and common law precedents have firmly established the equal treatment of women in the workplace irrespective of their intent to become pregnant, and with special provisions to ensure their safety while pregnant.

Assisted reproductive technology has also made reproduction available to couples that could not previously be able to conceive. For women who lack the ability to carry a pregnancy, either because of a disease that endangers them in pregnancy like diabetes or uterine dysfunction (for example uterine disease or women who have had a hysterectomy), can now opt for a surrogate pregnancy. The Assisted Human Reproduction Act (AHRA) allows for altruistic surrogacy but has banned commercial surrogacy. Women can obtain a surrogate mother to carry their pregnancy and can compensate them for their losses, but cannot coerce them into service nor pay them for the service. This topic is discussed in Chapter 5. There are regulations by the Canadian Medical Association on how to manage these surrogate pregnancies. Whereas the ways and means of forming a surrogacy agreement and carrying the pregnancy are fairly straightforward affairs, the issue of disputes that may arise has not been tested. The US has seen cases such as the Baby M case where the surrogate mother decided after delivery that she did not want to give over the child as per her contract.13 While Canada has eluded such disputes thus far, with more reproductive options available to people it can surely only be a matter of time that such cases will surface and test the conflicting reproductive rights of parties.

Recognition of same sex unions has also forced issues of reproductive rights in new directions. In Canada same sex marriage was legalized in 2005.14 As noted above, procreation is now possible between couples in families that are defined very differently than a few decades earlier. With that possibility for procreation also comes rights of procreation consistent with reproductive rights of women so far discussed.15 A case in Alberta in 2007 gives an example of how, despite the best efforts of ethically preserving reproductive rights, legislation and policy are not always able to keep up with the almost limitless options of today’s family building efforts. In D.W.H. v. D.J.R16, a gay couple and a lesbian couple cooperated to create two children, one for each couple, using the sperm of one of the men and the ova of one of the women for both children. The children were born and raised without any issues until the gay couple dissolved their relationship and the court had to decide on the status of the non-biological father of the child (the biological father and both the women of the lesbian couple wanted to limit access to the child). The court ultimately recognized the interests of the estranged man, but fell short of naming him as a “parent.”16 Besides this case, there are other peculiarities with the AHRA, including the fact that it is illegal for gay men to donate sperm without special government granted permission. Furthermore, it is, in fact, under the specifics of section 10 of the act, illegal for any persons to conspire together to manipulate reproductive material without a “licence” and “in accordance with regulations”, to create an embryo—the “turkey-baster” method of artificial insemination is, oddly, explicitly illegal.17

ABORTION

There is perhaps no issue in bioethics which has galvanized the opinions and incited the passions of so many. There will be none of this here. While this is a topic that is oft referred to, and several scholarly works have been presented to advance arguments on both sides of the debate, this discourse does not set out to resolve this ever contentious issue. This long and complicated topic will receive relatively short and simple treatment because the Canadian position on it is actually quite straightforward. Abortion in Canada is legal, and the decision to obtain one is a decision between the pregnant woman and her health care provider. Abortion, although not a service available in every province and territory, is a service available to every Canadian.18 One could stop the discussion at this point, but a truly complete understanding of just where the Canadian sentiment lies on this topic begs for a more detailed analysis of the history of this thorny subject in Canada.

In the late 19th century abortion was illegal in most countries of the world, and in 1892 Canada, too, made abortion a criminal offence. While several thousand abortions were performed in the intervening years, the Criminal Code was finally amended in 1969 to allow for abortions (but only in accredited hospitals) under the Criminal Law Amendment Act, 1968-69 (commonly known as the 1969 Omnibus Act and introduced to parliament as Bill C-150).19 Efforts of pro-choice advocates continued until the law restricting and criminalizing abortion was struck down in 1988. It must be noted that Canada does not have a law that legislates for the provision of abortions, and that Canada is among the few countries in the world that has neither a law that prohibits abortion, nor a law that expressly legalizes abortion. An analysis of the abortion laws of the world would find Canada’s position consistent with a global trend, one of moving away from patriarchal criminalization of abortion, and toward laws that are based on fundamental human rights that aim to proactively protect women and their health concerns.20, 21 So, while there is no law specifically allowing abortion it is considered unnecessary (jurisprudentially) to have one in the same way it would be superfluous to have a law permitting, for example, appendectomies. Abortion, in the eyes of the law, is like any other medical procedure and is overseen by provincial and territorial governments and the administrations of individual hospitals, and it is performed after consultation by a woman and her physician.

Canadians remain divided on the abortion issue. Figures from Statistics Canada show that in 2005 the number of induced abortions had dropped. From a high in 1997 of 114,848 in 1997 to 96,815 performed in 2005.22 A nationwide Angus Reid poll in 2008 found consistency with opinions through the previous decade with 46% of respondents stating that abortion should be permitted in all circumstances, 49% stating that abortion should be legal in all circumstances, and 43% stating that the cost should be underwritten by the health care system.23 An opinion poll in 2001 revealed that 8% of Canadian women had reported having an abortion, 47% of Canadians were “for” abortion, and 55% of Canadians felt that women should have the right to decide to have an abortion.24 In 2010 a poll found that 52% of respondents were “pro-choice” and only 27% described themselves as “pro-life” (21% were neither or did not know).25 These numbers reveal that the statistics vary according to the wording of the questions and that wording, in turn, depends heavily who commissions the poll (whether pro-life or pro-choice). Politically, partisan politics plays a role and affects the mood of the parliament. The New Democratic Party is staunchly and vocally pro-choice, while the Liberal and Conservative parties are less vocal, and more likely to be opposed to abortion. Abortion remains a contentious issue and divisive issue and is often avoided by political parties at election time.

The abortion issue has a very rich legal history, much of which relates to cases involving Dr. Henry Morgentaler, an abortion activist who began performing abortions in the late 1960’s and suffered many setbacks to his advocacy (including enduring a jail sentence) in his long career.26 He received the esteemed Order of Canada in 2008 but his long road from outlaw to membership in the Order was difficult. It was his cases that punctuated the reforms in the Criminal Code. Perhaps the most significant abortion case in Canada is R v. Morgentaler decided in 1988.27 After numerous court battles, Morgentaler applied to the Supreme Court of Canada to have the sections pertaining to restricting abortion removed, and in January of 1988 the application was successful. The Daigle case, noted above, was significant in establishing that a woman’s autonomy over her health is, for the most part, unconditional. Significant legislation banning prohibition of abortion has been discussed but there have been attempts to replace these prohibitive laws. In 1990 Progressive Conservative Prime Minister Brian Mulroney, introduced Bill C-43, a bill which would sentence doctors to two years in jail for performing abortions where a woman’s health was not at risk. It was very narrowly defeated. In 2007, Conservative MP Ken Epp introduced a bill in the House of Commons that called for consideration of slaying of a fetus (for example, in an assault or attempted robbery) to be considered a separate offence from the slaying of a pregnant woman. The resulting “Unborn Victims of Crime Act” survived a vote in the House of Commons, but ultimately got stalled and never made into law. The rationale behind the introduction of the act was to elevate the moral status of the fetus and provide a foothold for further legislation which may then again prohibit abortion in the name of the fetus.

The professional bodies of health care providers in Canada endorse access to abortion. The Canadian Medical Association published its policy on abortion in December 1988 after the amendments to the Criminal Code. It is clear and unequivocal in its advocacy for abortion to be accessible to all women at any time prior to viability of the fetus.28 It goes on to acknowledge the conscientious objection of physicians and makes no stipulation that a physician shall be compelled to perform an abortion against his or her will. Very explicit guidelines are produced and regularly updated by the Society of Obstetricians and Gynaecologists of Canada. The latest guidelines (published in 2006) are consistent with the above positions.29

Currently, the legal status of abortion is clear, even though the moral issues and the arguments on either side are likely to remain insoluble. From a practical bioethical perspective, there are a number of other issues concerning abortion in Canada that remain unresolved. One involves pinning down and defining the notion of “viability,” and this will be taken up later in the chapter. The other issue involves access. While abortions are legal in Canada, access to them is not always easy or timely. Unfortunately it is the most marginalized women who are affected (those in rural areas, the Aboriginal population, and the poor), for clinics and hospitals that perform abortions are often in larger urban centers, and abortions are not always provided free in clinics outside hospitals.30 One of the abortion techniques that could be exploited to remedy this access problem is the “medication abortion” in which an oral medication is taken which induces an abortion (in a physiological process much akin to a miscarriage). This technique constitutes only 1-2% of abortions performed in Canada but it is argued that with proper endorsement by the government and responsible implementation by the medical community could remedy access problems.31 Another medication is used in a different manner: Mifepristone (RU-486, frequently given the misnomer the “abortion pill”), is a progesterone blocking abortifacient widely available in Europe and the US but has never been approved in Canada.32

A further possible infringement on reproductive rights concerns adolescents. As was discussed in Chapter 2, there are no specific laws concerning age at which one is considered capable to consent to a medical procedure. Abortion is, in the eyes of the law, considered equivalent to any other medical procedure and is supposed to be available to teens as other procedures would be. But owing to their compromised empowerment, teens do not always have access to this procedure.33

In sum, abortion is legal in Canada inasmuch as there are no laws prohibiting it, and the procedure is available to any woman who consults with a physician and decides on this course for her pregnancy. But irrespective of the law, in practice there remain several impediments to accessing this procedure—and for pro-choice advocates this means that this reproductive right has not been wholly recognized.

THE STATUS OF THE EMBYO AND FETUS

Much of the debate about the right or wrong of abortion turns on the issue of defining the moral status of the embryo and fetus. Where thousands of years of input from physicians, philosophers, theologians, lawyers, judges, politicians and concerned citizens, from Hippocrates to Morgentaler, have not provided an unequivocal answer, an answer here too will not be found. But while the moral status of the embryo and fetus remains a question at large, the legal status is much easier to locate, and that will be discussed here as a foundation for, and a point of embarkation toward related fetal and maternal issues in Canada.

The moral status of the embryo and fetus, and the answer to the question, “when does life begin?” are immune to empirical analysis. Yet stem cell research and reproductive research have afforded the public a deeper understanding of the science at the beginning of life. This understanding, in turn, informs public opinion, and it is, perhaps, for this reason that efforts to elevate the embryo to full moral status have largely failed, with religious and political agendas having a more tenuous grasp on the public opinion in recent years.34 Recently, scientific advances have instructed policy and legislation in Canada and have brought enhanced clarity to the issues. For example, in vivo embryos (those inside a woman’s body) are, for all intents and purposes, unknowable until a woman’s pregnancy becomes known to her. In vitro embryos (those outside a woman’s body) are now commonly known and studied, but their exact status is not explicitly stated in law or policy. The Assisted Human Reproduction Act(AHRA), in laying out explicit rules of conduct for embryo creation implantation and research, engenders a respect for embryos that surpasses the respect afforded other tissues and cells, but falls short of identifying the exact legal and moral status of the embryo. For example the AHRA allows research on excess embryos created for IVF purposes (embryos that would have been destroyed anyway), but does not permit creating embryos just for research.

Significant gaps still exist in the translation and transition from hard science to normative ethics, and it is legislation that is often asked to fill these gaps. As a guide to the legal status of embryos, Canadians look to jurisprudence surrounding the status of the fetus.35 The Criminal Code protects women and newborns inasmuch as there are stipulations that a woman must seek aid during childbirth (s.242) and there is a responsibility for caring for the newborn. A fetus does not have rights until it is born alive, that is to say, until it is a newborn infant. In Borowski v. Canada (Attorney General) a pro-life activist, Joseph Borowski attempted to challenge the Criminal Code on the basis that it did not provide for the right to life of the fetus. The Saskatchewan Court of Appeal concluded the fetus is not a person and enjoyed no rights.36 The Supreme Court of Canada refused to hear the case on the grounds that it was moot in light of the newly lifted restrictions on abortion. A victory for Borowski would possibly have meant rewriting legislation reflecting the personhood of the fetus. Section 233 of the Criminal Code clearly states that a child becomes a human being only once it has completely proceeded from the body of its mother. 37

Canada has adopted a position that is consistent with an understanding prevalent in many places in the world: that the fetus has special interests but not rights.38 It is at this point that the spectrum of bioethical issues at the beginning of life proceeds in the competing interests of mother and unborn child discussed presently.

MATERNAL FETAL CONFLICT

A divergence into the topic of prenatal screening is necessary. As has become clear in the preceding discourse, women have gained significant autonomy over their bodies and their reproductive rights. This autonomy extends to an enhanced knowledge about their pregnancy and their unborn child. The rights over whether to become pregnant—or remain pregnant—are indisputable in Canada, but a related ethical concern crops up at the point of making informed decisions regarding such issues. The first step in reproductive rights is the decision to have children. A woman has the right to decide whether to have sexual relations and whether to leave herself open to becoming pregnant. For sub-fertile couples, an added step in this process has been provided by assisted reproductive technology; where once women could not conceive, now they often can. While pre-implantation diagnosis will be discussed more fully in the next chapter, it must be noted here that this is the first step at which a couple can screen their potential offspring and make a decision on whether to proceed with the implantation based on those findings.

The screening process continues, with screening offered at a number of stages during pregnancy, and ongoing fetal monitoring being the norm. It is beyond the scope of this discussion to outline the full extent of screening and diagnostic procedures that are available, and the science that enables them, but it must be noted that such tests and procedures are becoming more common and with wider availability. With a broader array of diagnostic and screening investigations, the number of women opting for such testing is also growing as many countries (for example Australia, New Zealand, the UK and the US) adopt policies that are more inclusive than ever before.39 The Society of Obstetricians and Gynaecologists of Canada (SOGC) has recommended much broader access to screening; in 2007 they began recommending all pregnant women be offered prenatal screening, not just those over 35 years of age as previously recommended.40 Based on screening results a woman can opt for further investigations and diagnostic tests, and may opt at that point to terminate her pregnancy if the results confirm a chromosome abnormality, birth defect or genetic condition in the foetus. (Similarly she may make the now informed decision to carry the pregnancy or consider giving up her baby to adoption.)

While these options for screening and testing are within the purview of the reproductive rights established in Canada, it has been argued that there is a problem with fully realizing these benefits inasmuch as there is a gap in the information dissemination and the knowledge translation. Many women remain unaware of their options. Many care providers remain ignorant of screening protocols, or do a poor job of discussing and describing for their patients all that is available to them. This culminates in impeding truly informed decisions and autonomous action of the potential mothers (and fathers).41 The Canadian medical system has the capacity to provide credible and useful information, but women’s autonomy counts for naught unless women can access and process this information. One resource that remedies this knowledge gap and eases knowledge translation is that of genetic counsellors (GCs). In families with known or suspected genetic diseases, GCs provide necessary information about risks and options in family planning. This valued resource is scarce, however, with fewer than 250 GCs available throughout the country.42 So, while the SOGC has suggested offering every pregnant woman prenatal screening, ethical delivery of such an offer also requires of its health care system that its practitioners: display sensitivity to the impact of such testing, permit truly informed decision making, effectively translating the results, and have an understanding of available options.

Expanded access to prenatal screening, and the growing number of tests, opens up a number of problems not presently seen in Canada. While it is currently possible to screen for some genetic diseases and chromosomal abnormalities, will the screening for individual traits like hair color or height or intelligence have an impact on women and whether they decide to continue with their pregnancy? The question of limits, and who should impose them, must be confronted, not just from a fetal rights perspective but from the perspective of distributive justice in a universal health care system of finite resources. There are several prenatal tests that are considered routine, but none are strictly “mandatory.” At present, it would be considered negligent for a physician not to screen for antibodies resulting in hemolytic anemia of a newborn; will an expanded number of tests mean an increase in litigation for “damaged” newborns?43 There are also questions that concern the right for a woman to know, and whether there is then an obligation for a woman to know the status of her fetus that attaches to that right. These are issues that will be ushered in with the march of progress and technological innovation, but are issues that the current legislation and policy are ill equipped to manage, and this state of affairs highlights the need for proactive rational ethical discourse.

Women come into conflict with their unborn children in a number of ways and for a number of reasons. Addiction to noxious substances, medical treatment of a maternal illness that requires medication of potential danger to the fetus (for example epilepsy), ignorance surrounding proper health care, religious convictions, dangerous activities, and choice of occupation are but a few examples of ways a woman can “injure” her fetus. The issue raised in these situations is the extent to which the autonomy of the woman must be respected and how this is to be reconciled with the rights or interests of the fetus. In Canada there is an understanding, through legal precedent and policy, that the autonomy of a woman is not to be tampered with.44 There is no legal obligation of care imposed on the mother toward her fetus. Nevertheless, while there are no rights of the fetus per se, there are obligations to the interests of the fetus that are recognized.

The extent of the obligations to the interests of the fetus has been tested in the legal arena. Maternal addiction brings many of these issues into sharp focus. A classic and oft cited Canadian case from 1996 makes clear the Canadian position on these matters, Winnipeg Child and Family Services (Northwest Area) v. G.(D.F.).45 Ms. G was addicted to sniffing solvents and was 5 months pregnant. Child and Family Services of Manitoba had removed three of her previous children from her home, two of whom had suffered disability from her previous solvent abuse. She was ordered by the court to be detained by a treatment facility, and to begin a treatment program for the remaining months of her pregnancy. Ultimately, she stayed willingly, and delivered a healthy infant, but the case did go through the Manitoba court system and ultimately to the Supreme Court of Canada on the question of the legality of the original detention against her will. The court found that there is no basis for this breach of autonomy, largely on the principle that the fetus was not a person and its interests could not be separated from the mother’s. Addiction is a grave problem in Canada, and pregnant mothers with substance abuse problems represent a growing concern. While the SCC has upheld the primacy of autonomy in this regard, it has been argued that “legislating the problem away” will hold no enduring solution, and that remedy will likely only be found in appropriately addressing the issue of addiction by enhancing access to addiction treatment. Adopting a broader conception of autonomy that incorporates a feminist ethic approach recognizes that these problems stem from a position of compromise and that the solution lies in informed choice, empowerment, and access to appropriate treatment.46, 47

The foregoing case concerned substance abuse, a condition arguably beyond the immediate control of a woman. But even where harm done to a fetus is intentional the autonomy of a woman would seem to be paramount. In 1996 a woman tried to “abort” her unborn child at nine months gestation by inserting a pellet gun into her vagina and shooting it in the head. She subsequently gave birth at home and only later presented to hospital. The child lived and had the pellet surgically removed. The mother was charged with attempted murder but the crime could not be established because the fetus was not, at the time, a person. Similarly, two midwives were not convicted of negligence causing death in a 1991 case which resulted in the death of the fetus during childbirth, again, because the fetus was not considered a person.48 Neither of these cases precludes other charges, but the point that remains is that there is no way to establish a crime against a person until that child is live-born and truly deemed a person in the eyes of the law.

The peripartum period presents further maternal fetal conflict challenges. There have been cases in the 80’s and 90’s in the US of Caesarean Sections being performed against the will of a patient. The distress this creates for physicians is enormous, and there appears to be no established means to resolving this rare event.49 The Canadian perspective derives from the foregoing discussion, the autonomy of a woman must be respected, and until the live birth of the child, there is no right of the fetus that lays claim to the mother, or any obligation by the mother to act on its behalf, including accepting peripartum medical care. This does not mean that the care of the patient comes to rest after she refuses a specific treatment; physicians are still required to care for their patients and can still continue to advocate for the best treatment or secure another opinion, but ultimately it is the patient that decides what treatment is accepted.

Assisted reproduction has brought with it enhanced fertility to many sub-fertile woman but has also brought new ethical considerations that involve multifetal pregnancies. Multiple pregnancies are an accepted part of IVF, but despite guidelines on the number of embryos to implant,50 implantation rates are somewhat difficult to predict, and even more so with fertility enhancing drugs. There are no guidelines in Canada regarding these issues, but selective abortion and reduction of the number of embryos is currently offered to women carrying multiples who want to bear less children.51 Canadians will soon need to confront the issue of the jurisdiction that a woman’s reproductive rights has in a desire to carry multiple pregnancies, an issue that the US has had to confront with the controversial birth of octuplets in January 2009.52 Maternal health is only part of the equation, the wellbeing of the often severely premature infants, and the increased risk for lifelong disability is also at issue. While the fetus has no recognized rights in Canada the newborn does.

IMPAIRED NEWBORNS

The above discussion elaborated on the expanded role of prenatal screening in the care of a pregnant woman from the perspective of her autonomy and decision making regarding her pregnancy. But technology is a powerful tool, and the contemplation of the implications of its use is a two sided affair. The SOGC (and the Canadian College of Medical Geneticists), along with medical societies in many parts of the world, have not only recommended expanded access to these prenatal screening techniques, but they have now become the standard of care.39 This carries with it not an option of offering this care to pregnant women, but the duty to offer this care to women. It is from neglect of this duty that the notion of the “wrongful birth” case erupts. While the very legitimacy of these cases had been largely rejected in the US (and elsewhere), they are growing in frequency as screening technology becomes more refined and commonplace.43 It is furthermore felt that Canadians will soon share this experience with its US neighbours, and that the number of wrongful birth cases will rise.39

A “wrongful birth” action is brought against a health care provider when there is a failure to offer the standard of care and this leads to an impaired newborn birth; a pregnancy that would have been terminated had the mother known of the impairment, or allowed the family sufficient time to emotionally and psychologically prepare for the birth. This, in Canada, has implications for physicians, nurses, midwives, hospitals, labs, and genetic counsellors. Informed consent and a sensitive interpretation of the results of screening tests are necessary, as was discussed above, but in the context of this discussion surrounding newborns with impairments, it must be noted that sensitivity toward the infant and a nondirective approach in presenting the options to the parents are of paramount importance. There are tensions in the emerging normative ethics surrounding this issue. Autonomy of the pregnant woman is of paramount importance in Canada, but in Canada, there is also a respect for persons with disabilities and every effort made to accommodate and enable them. It will be increasingly hard for health care providers to give sound, objective advice in these value-laden and emotionally charged matters as the scope of screening and testing broadens. Decisions made to carry the pregnancy of an impaired fetus will have profound and enduring implications. But the implications of aborting a fetus in a more advanced pregnancy may not square with a family’s religious or moral convictions, even in a pluralistic society such as Canada.

The claims do not begin or end with prenatal screening. A multitude of “wrongs” have been described in Canadian tort law, the jurisprudence and ethical analysis of which are well beyond the scope of this discussion, but some are germane to an analysis of bioethics in Canada. “Wrongful conception” or “wrongful pregnancy” arises out of the improperly performed sterilization procedure (for example a tubal ligation that fails). There are certainly precedents set in Canada for malpractice suits along these lines and the ethics and jurisprudence, are for the most part, non-controversial today.53 The issues discussed immediately above are claims of “wrongful birth” whereby the parents initiate a legal action for compensation for the birth of an infant that was damaged through medical negligence in childbirth, or that the parents were denied the opportunity to terminate through informed prenatal diagnosis, or through proper warning about the consequences of prenatal illness or exposure to teratogenic substances. That is, parents can sue for negligent acts during childbirth that cause injury to the newborn; they can sue for the impairment of a newborn that would have been detected but were not because appropriate prenatal diagnostic procedures had not been offered; and they can sue if the health care providers do not inform them of illnesses or exposures that have a likelihood of damaging the fetus (prenatal infections, or exposure to medications etc.). There are some precedents, and a growing number of claims in this regard.39 The awards are, ostensibly, for the emotional damages to parents, as well as for the costs of raising the child, but the latter are offset in Canada owing to the fact that the socialized medical system largely underwrites such costs.54

A much more contentious tort is that of “wrongful life,” and Canada is among the majority of nations in not recognizing such an action. A wrongful life action is brought by the child (or the child’s proxy) to sue for damages for having to live an impaired life. There are very few places in the world where such an action is recognized; a few states in the US are counted among them.53, 54 Courts have, by and large, been reluctant to enter a debate in which the issue boils down to whether it could ever be the case that non-existence is better than existence, to hear claims from children along those lines, is something the Canadian courts have consistently rejected.53 A case in Ontario that resulted in premature twins with severe disabilities after a physician prescribed a fertility drug to the under-fertile mother, was the source of an action brought on the twins behalf. In 2008 the Ontario Court of Appeal agreed to awards for damages to the mother stemming from malpractice, but it refused to award damages to the twin girls on the very grounds that Canada does not recognize “wrongful life” claims.55 The Supreme Court of Canada further refused to review the case, maintaining consistency with previous rulings.

It was mentioned above that while the fetus has no rights, per se, the newborn does have rights. And, as was noted immediately above, the child cannot sue for a “wrongful life,” but this does not mean that the child (or its proxy) cannot initiate an action to sue for damages that occurred in-utero. There are a growing number of cases in the US that stem from actions along these lines, furthermore with the adoption in the US of the Unborn Victims of Violence Act (2004),56 the US does come very close to separating the rights of fetus and mother into two separate entities.57 If this were taken up in Canada it would threaten to reignite the abortion debate, and for this reason the courts have been very careful in awarding damages to newborns that are the victims of crime or negligence. The Manitoba case noted above established that the mother and fetus are essentially one legal person and the relationship that exists between them is unique. It was on the grounds of this unique relationship that the mother of an infant boy was found to be immune to actions stemming from a motor vehicle accident she caused. The New Brunswick mother was felt to be driving recklessly, and when her son was born with disabilities, the suit was launched by family members, on the child’s behalf. The Supreme Court of Canada rejected the claims, arguing that to accept them may be a launch down a slippery slope toward an unfair imposition of duties on a mother such as stringent dietary restrictions, inordinate caution in her activities of daily living and so on.58

All this being said, there are precedents for awards for damages to newborns with disabilities that result from the negligence of third parties. For while a fetus has no rights, it does accrue rights that, if born alive, it can use to initiate actions. The foundations of this stance stem from a 1933 case in which an injury to a fetus that occurred while its mother was riding a tram car, resulted in awards for damages to the infant.59 Furthermore, there is an obligation by medical practitioners to respect and care for the unborn child, and the child can sue for negligence causing harm once born.47

It can be seen that all of the foregoing issues are steeped in legal points and they are recounted, not to lead the reader astray, nor to digress from the thrust of this bioethical exposition, but instead to make it clear that while the ethics of these issues are, and will continue to be, debated in the bioethics texts and papers, the practical ethical climate does sometimes evolve along lines of jurisprudence more so than the lines of normative ethics. In Canada, as elsewhere, an understanding of fetal rights and maternal autonomy has been established predominantly in the courts (sometimes in hard fought legal battles) and in legislation, rather than through reasoned philosophical discourse and the diligent study of societal and collective values. The law has established the rules and largely shaped policy on these matters, and in these matters, where passionate personal and political convictions frequently threaten upheaval, it is the law that continues to enforce policy.

THE THRESHOLD OF VIABILITY

The calamity that ensues when the birth of a severely premature infant becomes imminent is enormous. Panic grips the health care team as its members steel themselves to prepare for an event of critical importance. But the extraordinary efforts of the health care team are overshadowed by the fear and uncertainty of the mother, her partner and her family. The delivery of a child at the threshold of viability is a time of unparalleled emotion, when hopes are dashed and replaced with grief, and decisions of far reaching effect are made under nearly impossible circumstances. It is a time, also, of great ethical significance, and a time of fluid and ever changing ethical consideration. As has been stated throughout this text, Canadians are ever thankful for their advanced and accessible medical system. It is this system coupled with advances in medical technology, that have made the threshold of viability an ever shifting place. Medical advances have pushed back the threshold to almost 23 weeks gestation. Furthermore these technological advances have been responsible for an evidence-based set of tools to make decisions, and treat premature infants. What follows is neither a discussion of the medical advances, nor a discussion of the complicated ethical arguments surrounding treatment at this time, but rather, will be an illumination of Canadian perspectives and the practical aspects that impinge on the bioethics at this important time.

The beginning of life proves to be a very difficult time to weigh the principles of autonomy (difficulties with sorting parents’ and child’s best interests), beneficence (is living with a lifelong profound impairment a benefit?), non-maleficence (is such a life a “harm”?), and distributive justice (does each child get a fair chance?, can the extraordinary efforts be allowed to erode the health care budget so that less ill patients might suffer for want of resources?). Perhaps the variable that makes this most vexing is the extent of the unknown, the unpredictability of the outcome of aggressive treatment. And yet, it is a field that has a vast and ambitiously growing corpus of empirical data collected over many years. Interventional experience, outcome statistics, and other factors, all contribute as health care professionals strive toward sound robust and ethical policies and protocols. Despite pitfalls in data collection and the caprice of so many unknowns, evidentiary rigour has paid off in producing, perhaps, the clearest example of “evidence-based ethics”.60

While this evidence is compelling in one sense, it does not make the task of distilling it down into concrete universal normative principles any easier, and there is significant variation between countries. In the US there is a tendency to aggressively treat newborns at the threshold of viability, whereas in the Netherlands and some other European countries there is a greater tendency toward withholding care.61 But it must be noted that these discrepancies come down to discrepancies in a crucial few weeks at the true threshold of viability and, in fact, the neonatal policy around the industrialized world agrees more than it disagrees. In the US it is not advised to attempt resuscitation on premature infants less than 400g or of 22 weeks gestation or less. And almost all countries would endorse aggressive treatment of premature infants of 25 weeks.

The Canadian approach takes a tack that is somewhere in the middle of extreme approaches. It has been largely agreed that the outcome of infants less than 400g or less than 22 weeks is uniformly grim, and resuscitation futile, and it can be agreed that aggressive treatment (given that there are no other confounding factors) is relatively good in infants more than 25 weeks with 50-80% survival and 10-25% disability, depending on the birthing center.61, 62 The time between is the most problematic and there are a multitude of variables that play into decision making. Modern conceptions of viability place the threshold in well-appointed Canadian hospitals somewhere between 23-24 weeks gestation. The Canadian Paediatric Society (CPS) and the Society of Obstetricians and Gynaecologists of Canada (SOGC), as of 2009, revised their joint statement on recommendations for management of low gestational age births. Recommendations are to not offer aggressive care or Caesarean section delivery of an infant less than 22 weeks gestation, and for aggressive resuscitation for those 25 or 26 weeks. Between these dates, transparent and honest discourse with the family must aid decision making and careful examination of all pertinent medical facts.63 Of particular importance is the respect for the wishes of the family at this time. The wish to forego treatment, or to pursue aggressive therapy in light of possible lifelong disability is the right of a family to decide upon, and the decision made with reference to family values and the family’s definition of life and personhood. There are considerable differences between institutions in ability to resuscitate newborns (partly owing to Canada’s vast geography), and differences in recognized levels of resuscitation.64 Opinions vary among neonatologists in the grey zone between 22 and 25 weeks,62 and more significantly, neonatologists’ opinions differ from families, the latter often choosing more aggressive care.65 But here again, the wishes of the family are often given deference, and Canadian neonatologists and families feel that the decision should be made among them rather than in the courts and by external agents.65 The autonomy of the family wishes in the question of whether to aggressively resuscitate newborns is also a normative ethical principle that has evidence based connections. It has been shown that Canadian families adjust and adapt quite well to infants of very low birth with acquired disabilities, suggesting restraint of the paternalistic tendencies of the medical team is, perhaps, in order.66

It is of note that in this critical period of enormous potential for such intense ethical turmoil, that court cases have been relatively absent in Canada. Even after ignoring the vast number of malpractice suits that spring up at the birth of an impaired or premature infant, the Americans still have a comparatively large number of cases that revolve solely around ethical decision making and futility at the threshold of viability. These considerations gave rise to the Baby Doe laws which stipulate the mandatory provision of resuscitative care of newborns in cases that are not overtly futile.67 Some argue that this legislative effort constrains the autonomy of concerned families, and interferes with neonatologists’ advice, while others argue that there is plenty of latitude in deciding what is in the best interest of the child.68,69 While this legislation is instructive to Canadians, there remain no specific legal stipulations outlining or demanding specific care at the beginning of life, the exception being the Criminal Code’s prohibition of abandoning infants and newborns (section 218). One has to look at the case law involving the unilateral decisions to withhold and withdraw care (or unilateral DNR) cases of older infants, children and adults to find any common law precedent for guidance.70 In Canada, decisions at the threshold of viability remain decisions made by health care teams and families and with the best interests of the infant in mind. Furthermore, this ethic is carried forward through the child’s infancy and childhood until he or she develops a sufficiently autonomous self to begin making independent decisions.

 

ADOPTION

Decisions at the beginning of life, once the infant has escaped the critical and delicate period of birth and neonatal life, are not confined to medical decisions about care. Once the infant is born alive, he or she becomes a person in the eyes of the law. The incapacitated infant and small child necessarily has decisions made for it by its parents (this is discussed in Chapter 2). But the parents also have the option of giving the child up for adoption. And any discussion of “beginning of life issues” must at least briefly digress to confront the evolving ethics surrounding these decisions. This digression will be brief as its issues are largely superfluous to the intent of this book.

Much of the controversy regarding adoption comes not with the decision to adopt but the identity of the parties concerned. The ethics and interests of three parties is in tension, the adoptee, the adopting family, and the birth (biological) parents. The rights to know one’s identity, and one’s heritage, are put at odds with the right of privacy of the parents who gave up a child. Similarly, the adopting parents have a right to develop a family along the structure and direction they desire, without the threat of competing interests undermining that system. The sanctity of the family is paramount in Canada, but these mores have been challenged by the competing autonomy of the adoptee and his or her right to know.

Canada has had a long history of adoption legislation and protocol. Starting with the latter part of the 19th century, Canada underwent changes that saw, at first rather open adoptions and transparency until the pendulum swung to the almost total secrecy of the 1970’s. The pendulum continues to swing, now back again, to a more open adoption process.71 Canada is one of the last countries to assume an open record policy. Adoption law is overseen by provincial adoption acts and the nuances are different in every province, but generally consistent nationwide. Adoptions among First Nations people have traditionally been family oriented (as opposed to adoptions outside the family or community) and have been traditionally open, defying the complicated legislative meshwork through the ages. The success of these “Customary Adoptions,” has been recognized, and was an impetus behind the trend to open the so called “legislative adoptions”. 72

In the 70’s, the norm was for adoptees to know nothing, and the adopting family to know little, about the birth parents. But these adoptees became adults and, furthermore, grew up in an age of enlightened ethical thought; an age that taught them the primacy of autonomy. Many adopted individuals want to know their biological heritage, indeed, want to know their family medical history, and their cultural history. Most provinces allow for some investigation into the previously “sealed” adoption records and services exist to aid reuniting adoptees and birth families.71 This would seem a triumph for autonomy, but for the recognition that there will always be tension between one party and another (for example an adoptee who wants to know, and birth mother who would like to remain anonymous), and, generally, consent is required of both parties to proceed to disclosure.

SUMMARY

This has been a discussion of the many and varied issues that arise at the beginning of life. To make sense of a very unwieldy topic, a chronological approach was taken starting with an examination of reproductive rights. An awareness of human rights and women’s rights came into being and evolved through the 19th and 20th centuries, and the notion of reproductive rights was an extension of this evolution. An enumeration of these rights has been shaped and moulded in various international conferences, and Canada has endeavoured to meet and exceed these ideals. These reproductive rights include the negative right to be left alone, and the positive right to direct reproductive choices as a woman sees fit. Access to contraception played a big role, but so too did the abolition of restrictive abortion laws. In this age of enhanced reproductive technology, reproductive rights have also been bestowed upon men, and have been made to include redefined and non-traditional family arrangements.

A discussion of abortion, arguably the most contentious beginning of life issue, revealed that Canada has arrived at a fairly unique stance on the matter of abortion: since 1988 there is no law either permitting or denying women abortions. It is, rather, a medical procedure whose deployment is a decision between a woman and her physician regardless of prevailing opinions and political attitudes. The law does stipulate that abortions must be available to women. This arrangement has a long legal history, and throughout that history Canadians have remained somewhat divided. Related to the abortion issue is the issue of fetal rights. Many beginning of life issues turn on the status of the fetus. In Canada, the fetus has special interests, but does not have rights, and only becomes a “person” once born alive.

These points were the foundation for an exploration of issues of maternal-fetal conflict, where it was established that in Canada, the autonomy of pregnant women is rarely infringed upon. Prenatal screening involves an ever expanding menu of diseases and conditions that can be probed. These involve fairly straight forward and non-controversial things such as fatal chromosomal anomalies for which women (and parents) can be offered the option of pregnancy termination. (Prenatal screening is not permitted for more controversial practices of “family balancing”, but this will be taken up in the next chapter.) Further along in a pregnancy, other ethical issues arise that call into question the moral and legal obligations that a woman may have to her unborn child. Ultimately, and in numerous instances, the Canadian legal opinion is such that a woman’s autonomy is seen as paramount and a fetus does not have rights per se, until it is born.

The last sections of the chapter dealt with ethical issues at birth and onward. Discussion turned to the newborn who, once born, does have significant rights; rights that accumulate as it is developing. It is for this reason that infants can launch actions against those who injured them in utero, but not the mother who bore them. It was noted that impaired newborns in Canada cannot make “wrongful life” claims, but that families can make “wrongful birth” claims. It was seen that, at the threshold of viability, normative ethics are being informed by evidence based medicine.  It was further noted that Canada has a moderate approach to the issues, robust yet flexible guidelines, a healthy respect for the wishes of the family, and that Canadians enjoy a lack of intrusion by the law into this sensitive realm. Decisions as to the degree of intervention, for newborns delivered at the threshold of viability, are largely given over to families. The chapter concluded with a brief examination of the shift toward more open adoption policy.

 

REFERENCES

1. A note on spelling: This text in general adheres to the British spelling for most words. However in Canada it is common to accept the American version for medical terms. Which is why “fetus” is more commonly used in the lay literature and technical literature than “foetus” (gynecologist not gynaecologist, anemia not anaemia etc.). This text will follow this same hybrid approach for the ease of its intended readers who presumably are already immersed in this manner of spelling.

2. United Nations General Assembly. Convention on the Elimination of all forms of Discrimination Against Women1979.

3. United Nations. Report of the International Conference on Population and Development : Cairo, 5-13 September 1994. New York: United Nations; 1995.

4. United Nations. Dept. of Public Information. The Beijing Declaration and the Platform for Action : Fourth World Conference on Women, Beijing, China, 4-15 September 1995. New York: Dept. of Public Information, United Nations; 1996.

5. Cook RJ, Fathalla M. Advancing Reproductive Rights Beyond Cairo and Beijing International Family Planning Perspectives 1996;22(3):115-121.

6. Canada Health Act R.S.C. 1984, c.C-6.

7. The Charter is part of the Canadian Constitution. It is Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982,c.11., the supreme law of the country, and as such, it sets out rights and freedoms which are fundamental to Canadian society.

8. Wynn LL, Erdman JN, Foster AM, Trussell J. Harm reduction or women’s rights? Debating access to emergency contraceptive pills in Canada and the United States. Stud Fam Plann. Dec 2007;38(4):253-267.

9. Tremblay v. Daigle [1989] 2 S.C.R. 530, (1989).

10. Assisted Human Reproduction Act ( 2004, c. 2 ) (2004).

11. This topic is discussed at length in Chapter 5.

12. Washenfelder C. Regulating a revolution: the extent of reproductive rights in Canada. Health Law Rev. 2003;12(2):44-52.

13. In the Matter of Baby M 217 N.J.Super.Ch. 313 (N.J.Super.Ch. 1987).

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15. Stewart MN. Judicial Redefinition of Marriage. Canadian Journal of Family Law. 2004;21:11-132.

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17. Cameron A. Regulating the queer family: The Assisted Human Reproduction Act. Canadian Journal of Family Law. 2008;24:101-121.

18. Some provinces and territories (for example Prince Edward Island which is very small, and Nunavut which is very remote) cannot support a hospital large enough to provide this service. Nonetheless, the service is provided to citizens of these regions but requires that they travel to a hospital or clinic that performs abortions.

19. Criminal Law Amendment Act, 1968-69 S.C. c. 38, (1969).

20. Cook RJ. Developments in abortion laws. Comparative and international perspectives. Ann N Y Acad Sci. Sep 2000;913:74-87.

21. Cook RJ, Dickens BM. Human rights and abortion laws. Int J Gynaecol Obstet. Apr 1999;65(1):81-87.

22. Statistics Canada. Induced Abortion Statistics 2005: Statistics Canada;2008.

23. Angus Reid Strategies. Canadians Uphold Abortion Policy, Split on Health Care System’s Role. 2008. http://www.angus-reid.com/wp-content/uploads/archived-pdf/2008.06.20_Abortion.pdf. Accessed 28 February 2011.

24. Leger Marketing. The Opinions of Canadians on Abortion. 2001. http://www.legermarketing.com/documents/spclm/011112ENG.pdf. Accessed 28 February 2011.

25. EKOS Research Associates. Canadians Decisively Pro-Choice on Abortion. 2010. http://www.ekospolitics.com/wp-content/uploads/full_report_april_11.pdf. Accessed 28 February 2011.

26. CBC News. Abortion rights: Significant moments in Canadian history. CBCnews.ca. 2009(Tuesday, January 13, 2009). http://www.cbc.ca/canada/story/2009/01/13/f-abortion-timeline.html. Accessed 28 February 2011.

27. R v. Morgentaler (1988) 82 N.R.1 at 125 (S.C.C.).

28. Canadian Medical Association. CMA Policy: Induced Abortion1988.

29. Davis VJ. SOGC Clinical Practice Guidelines: Induced Abortion Guidelines. J Soc Obstet Gynaecol Can. 2006;184(Nov):1014-1027.

30. Rodgers S, Downie J. Abortion: ensuring access. CMAJ. Jul 4 2006;175(1):9, 11.

31. Erdman JN, Grenon A, Harrison-Wilson L. Medication abortion in Canada: a right-to-health perspective. Am J Public Health. Oct 2008;98(10):1764-1769.

32. Murray S, Wooltorton E. Septic shock after medical abortions with mifepristone (Mifeprex, RU 486) and misoprostol. CMAJ. Aug 30 2005;173(5):485.

33. Cook RJ, Erdman JN, Dickens BM. Respecting adolescents’ confidentiality and reproductive and sexual choices. Int J Gynaecol Obstet. Aug 2007;98(2):182-187.

34. Caplan AL, Patrizio P. The beginning of the end of the embryo wars. Lancet. Mar 28 2009;373(9669):1074-1075.

35. Government of Canada. A Brave New World: Where Biotechnology and Human Rights Intersect (Chapter 2: Assisted Human Reproduction)2005: http://dsp-psd.pwgsc.gc.ca/Collection/Iu199-6-2005E_Biotech_Intro.pdf. Accessed 28 February 2011.

36. Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342.

37. Criminal Code of Canada. R.S.C. 1985, c C-46, as ammended; Section 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.

38. Dickens BM, Cook RJ. Ethical and legal approaches to ‘the fetal patient’. Int J Gynaecol Obstet. Oct 2003;83(1):85-91.

39. Pioro M, Mykitiuk R, Nisker J. Wrongful birth litigation and prenatal screening. CMAJ. Nov 4 2008;179(10):1027-1030.

40. Summers AM, Langlois S, Wyatt P, Wilson RD. Prenatal screening for fetal aneuploidy. J Obstet Gynaecol Can. Feb 2007;29(2):146-179.

41. Seavilleklein V. Challenging the rhetoric of choice in prenatal screening. Bioethics. Jan 2009;23(1):68-77.

42. Personal communication: Alice Hawkins, MA (Oxon), MS, MPH, PhD candidate University of British Columbia and former genetic counsellor and clinical coordinator at Columbia Presbyterian Hospital in New York.

43. Klein RD, Mahoney MJ. Medical legal issues in prenatal diagnosis. Clin Perinatol. Jun 2007;34(2):287-297, vi.

44. Flagler E, Baylis F, Rodgers S. Bioethics for clinicians: 12. Ethical dilemmas that arise in the care of pregnant women: rethinking “maternal-fetal conflicts”. CMAJ. Jun 15 1997;156(12):1729-1732.

45. Winnipeg Child and Family Services (Northwest Area) v. G.(D.F.), [1997] 3 S.C.R. 925.

46. Marcellus L. Feminist ethics must inform practice: interventions with perinatal substance users. Health Care Women Int. Sep 2004;25(8):730-742.

47. Ordolis E. Maternal substance abuse and the limits of law: A relational challenge. Alberta Law Review. 2008;46:119-139.

48. R. v. Sullivan and Lemay [1991] S.C.R. 489, 63 C.C.C. (3) 97.

49. Cuttini M, Habiba M, Nilstun T, et al. Patient refusal of emergency cesarean delivery: a study of obstetricians’ attitudes in Europe. Obstet Gynecol. Nov 2006;108(5):1121-1129.

50. Guidelines for the number of embryos to transfer following in vitro fertilization No. 182, September 2006. Int J Gynaecol Obstet. Aug 2008;102(2):203-216.

51. Purdy L. Women’s reproductive autonomy: medicalisation and beyond. J Med Ethics. May 2006;32(5):287-291.

52. The very controversial birth of octuplets in January of 2009 to a single mother in California, who conceived by IVF, brought many ethical issues into focus. These include things such as the soundness of implanting so many embryos (because it puts the mother and the babies at risk), and the fiscal responsibility of such a manoeuvre in the face of financial constraints of the mother. There are also considerable distributive justice considerations in cases like these as such multiple births can take up all of the NICU resources for an entire hospital for several weeks or months and impose millions of dollars of health care cost on the health care system.

53. Roth R. Congenital disabilities and the law. Clin Perinatol. Jun 2007;34(2):263-273, v-vi.

54. Stretton D. The birth torts: Damages for wrongful birth and wrongful life. The Deakin Law Review. 2005;10(1). http://www.austlii.edu.au/au/journals/DeakinLRev/2005/16.html. Accessed 28 February 2011.

55. Bovingdon v. Hergott, 2008 ONCA 2, (2008).

56. Unborn Victims of Violence Act: Pub. L. 108-212, 118 Stat. 568 (2004).

57. Fentiman LC. The “Fetal Protection” Wars: Why America Has Made the Wrong Choice in Addressing Maternal Substance Abuse – A Comparative Legal Analysis. Pace Law Facutly Publications. 2008(Paper 479). http://digitalcommons.pace.edu/lawfaculty/479/. Accessed 28 February 2011.

58. Dobson v. Dobson, [1999] 2 S.C.R. 753, (1999).

59. Montreal Tramways Co. v. Leveille [1933] S.C.R. 456., (Supreme Court of Canada 1933).

60. Tyson JE, Stoll BJ. Evidence-based ethics and the care and outcome of extremely premature infants. Clin Perinatol. Jun 2003;30(2):363-387.

61. Rijken M, Veen S, Walther FJ. Ethics of maintaining extremely preterm infants. Paediatrics and Child Health. 2007;17(2):58-63.

62. Lavoie PM, Keidar Y, Albersheim S. Attitudes of Canadian neonatologists in delivery room resuscitation of newborns at threshold of viability. J Obstet Gynaecol Can. Sep 2007;29(9):719-725.

63. Canadian Paediatric Society (CPS) and the Society of Obstetricians and Gynaecologists of Canada (SOGC). Management of the woman with threatened birth of an infant of extremely low gestational age 2009. http://www.cps.ca/English/statements/FN/fn94-01.htm. Accessed 28 February 2011.

64. Lee SK. Position Statement, Canadian Paediatric Society: Levels of neonatal care. Paediatrics and Child Health. 2006;11(5):303-306.

65. Streiner DL, Saigal S, Burrows E, Stoskopf B, Rosenbaum P. Attitudes of parents and health care professionals toward active treatment of extremely premature infants. Pediatrics. Jul 2001;108(1):152-157.

66. Saigal S, Burrows E, Stoskopf BL, Rosenbaum PL, Streiner D. Impact of extreme prematurity on families of adolescent children. J Pediatr. Nov 2000;137(5):701-706.

67. Actually, the Baby Doe rules are much more complicated and the American medical and judicial system have been ensnared in a complicated web of very specific, yet often inconsistent, rules. The Baby Doe rules were enacted in 1983, based on good intentions to treat, and not neglect all infants, disabled or not, except for those in an irreversible coma or where treatment was inhumane or futile.  They were challenged, and eventually rendered into the Child Abuse Prevention and Treatment Act of 1988 (CAPTA) that were of more limited scope and authority, but, nevertheless, empower the Child Protection Service to become involved in cases of neonatal non-resuscitation. Further intrusion into the realm of neonatal resuscitation is seen in the Born Alive Infants Protection Act of 2002 (BAIPA) whereby, any human that is born alive (here defined as having a pulse or breathing movements or muscle activity), must be offered treatment. BAIPA used as its foundation the Emergency Medical Treatment and Labor Act (EMTALA), which requires hospitals to treat all patients that present. BAIPA was intended, essentially, as a response to the non-prohibition of late trimester abortions (so called partial-birth abortions) and was ill fitted to apply to viability controversies. The Department of Health and Human Services (DHHS) tried to clarify the precise nature and extent of BAIPA but, ultimately, it is to be enforced at the discretion of any “prudent” person who feels it should be enforced. And with this ambiguity, several cases have been heard that test the lines and boundaries of these rules and try to pin down exactly when, in the eyes of the law, peri-viable infants should be resuscitated and who should decide. The American Medical Association and the American Academy of Pediatrics are still very much at odds with the very presumption that jurisprudence and legislation should be the guiding light in such delicate matters. The American guidelines on resuscitation, in fact, are quite similar to those adopted by most of the world, and rely on evidence based medicine. This is all by way of pointing out that Canada remains free of such difficulties, perhaps for the very reason that it has a paucity of legislation in this realm.

68. Kopelman LM. Are the 21-year-old Baby Doe rules misunderstood or mistaken? Pediatrics. Mar 2005;115(3):797-802.

69. Morrow J. MSJAMA: Making mortal decisions at the beginning of life: the case of impaired and imperiled infants. JAMA. Sep 6 2000;284(9):1146-1147.

70. Sneiderman B. A do not resuscitate order for an infant against parental wishes: a comment on the case of Child and Family Services of Central Manitoba v. R.L. and S.L.H. Health Law J. 1999;7:205-231.

71. Baldassi C. The Quest to Access Closed Adoption Files in Canada: Understanding Social Context and Legal Resistance to Change. Canadian Journal of Family Law. 2005;21:211-265.

72. Baldassi C. The legal status of Aboriginal customary adoption across Canada: Comparisons, contrasts, and convergences. University of British Columbia Law Review. 2006;39:63-100.

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