Counter Arguments Against Motion M-312: "Women Can't Be Trusted"

Tuesday, November 30 1999

By Joyce Arthur, Executive Director, Abortion Rights Coalition of Canada

March 19, 2012

Table of Contents

  1. The Supreme Court has already decided the issue
  2. Giving personhood to fetuses invites criminal prosecution of pregnant women for negative outcomes
  3. Abortion cannot be criminalized without violating women’s constitutional rights
  4. The motion is an exercise in misogyny
  5. Woodworth has misinterpreted Criminal Code Section 223(1)
  6. No problem exists for the motion to solve
  7.  Woodworth misuses language
  8. Woodworth commits the logical fallacy of “begging the
  9. question”
  10. Endnotes
  11. Conclusion
  12. Summary  

Motion M-312 is motivated solely by anti-abortion ideology. The intent is to bestow legal personhood on fetuses in order to re-criminalize abortion. M-312 is a waste of time and taxpayer money because the issues it raises have already been answered by Canada’s Supreme Court. Further, there are zero problems with the existing law or current medical practice that need addressing. Fetal personhood would also seriously undermine the constitutional rights of pregnant women under the Charter of Rights and Freedoms, not just for those who need abortions, but for any pregnant woman. It would invite the prosecution of pregnant women for any perceived harm to fetuses by creating confusion around how child welfare laws and policies apply to fetuses as legal persons. (We have named the motion the "Women Can't Be Trusted" motion to convey its real meaning.) Further, the motion itself is unworkable because it rests on misinterpretations of the Criminal Code, misleading use of language, and logical fallacies.


Section 223(1) of the Criminal Code of Canada[1] falls under “Homicide” and reads: “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.”

Conservative MP Stephen Woodworth (Kitchener Centre) began a media campaign in December 2011 to promote his view that the definition of “human being” in Section 223(1) is 400 years old and should therefore be reviewed in light of modern medical knowledge to determine if fetuses should now be legally defined as “human beings.” His motion to that effect, M-312,[2] was accepted on March 12 for consideration by Parliament, with one hour of debate scheduled for April 26, and a vote in late spring or early fall. M-312 calls for the formation of a special Parliamentary committee that would be directed to answer four questions:

(i)        what medical evidence exists to demonstrate that a child is or is not a human being before the moment of complete birth?,

(ii)       is the preponderance of medical evidence consistent with the declaration in Subsection 223(1) that a child is only a human being at the moment of complete birth?,

(iii)      what are the legal impact and consequences of Subsection 223(1) on the fundamental human rights of a child before the moment of complete birth?,

(iv)     what are the options available to Parliament in the exercise of its legislative authority in accordance with the Constitution and decisions of the Supreme Court of Canada to affirm, amend, or replace Subsection 223(1)?

1.     The Supreme Court has already decided the issue

Several legal precedents have already dealt with the questions that Woodworth’s motion raises, in particular, Tremblay vs Daigle,[3] Dobson v. Dobson,[4] Winnipeg Child & Family Services v. Ms.G.(D.F.),[5] Borowski v. Attorney General of Canada,[6] and R. v. Morgentaler.[7] These rulings have concluded or noted that the fetus has never been a person or included in the meaning of "everyone” in the Charter of Rights and Freedoms, that a fetus must be born alive to enjoy rights (the “born alive” rule[8]), and that the law has always treated a pregnant woman and her fetus as one person under the law. This is because the intimate connection between the two means the fetus cannot be considered in isolation, and imposing a duty of care on a pregnant woman towards her fetus would result in extensive and unacceptable intrusions into her bodily integrity, privacy, and autonomy. (See Endnotes for relevant excerpts from the decisions.)

Although Parliament could theoretically revisit the issue and pass laws to restrict abortion or give rights to fetuses, it’s highly unlikely that such laws would withstand a constitutional challenge in the courts – both for the above reasons and because laws that apply only to women and not men are automatically discriminatory. Further, no government since the Mulroney Conservative government in 1990 has dared to try and pass a new abortion law, because it’s sure to be a losing issue for politicians. Canada is largely a pro-choice country. Prime Minister Stephen Harper doesn’t want to re-open the abortion debate because he knows it would mire his government in controversy and probably cost him the next election.

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