A mother (DFG) pregnant with her fourth child was addicted to glue sniffing. Previous two children were born with disabilities. Winnipeg Child and Family Services (CFS) sued for custody of the child, noting that glue sniffing may damage the nervous system of the developing fetus.
CFS wins at superior court: saw no reason why the power of parens patriae (PP) should not be extended to protect unborn children. Addiction is a mental disorder, which is what gives court jurisdiction.
DFG wins at the Manitoba Court of Appeal: held that the existing law of tort and parens patriae did not support the order. Drug abuse is a mental illness, not grounds for PP. Therefore the issue was injusticiable; was deemed more appropriate for legislature.
1. Does a mother have a duty to her unborn child?
2. Does the court have parens patriae jurisdiction over an unborn child?
1. Mother has no duty of care to her unborn child;
2. The state has no duty of care to an unborn child.
1. Law of Canada does not recognized the unborn child as a legal person possessing rights. Therefore, there is no legal person in whose interests the appellant could act or in whose interests a court order could be made.
** In terms of tort: No right to sue until child was born.
2. Courts do not have parens patriae (PP) jurisdiction over unborn children
** Injusticiable? Judicial change to common law principles is confined to incremental changes; no major changes can be made.
*** In this case, extending the law of tort would require major changes and involve moral choices and conflicts between fundamental interests and rights. E.g. If foetal action against the mother for lifestyle choices were permitted, mothers could find themselves incarcerated and treated against their will for conduct alleged to harm foetus -- danger that the proposed order would impede the goal of healthy infants more than it would promote it. Therefore, leave it to the legislature.
** *Extending PP would also entail complexity: Invasion of liberty of mother (where and how she chooses to live). The court cannot make decisions for the unborn child without making decisions for the mother.
Dissent (Sopinka and Major JJ):
** Jurisdiction available under PP should extend to include an unborn child; the purpose of PP is to protect the interests of those who are unable to protect themselves.
** “Born alive” rule should be set aside: The rule is rooted in antiquated medical knowledge and not substantive rule of law -- modern medical knowledge has improved.
** A mother chooses to carry foetus to term, and must accept responsibility for its well being.
** Court should only intervene in extreme cases, where no other solution is workable or effective; confinement is for the purposes of treatment, not punishment; the mother can end PP by choosing to have an abortion.
** No general formula, but minimum would be:
*** 1. Woman must decided to carry the child to term
*** 2. Proof must be presented to a civil standard that the abusive activity will cause serious and irreparable harm to the fetus
*** 3. The remedy must be the least intrusive option
*** 4. The process must be procedurally fair