Drug addicts could be barred from having children

July 13, 2006

With reference to the facts of the SCC decision I have been talking about, my basic proposition is this...

1. Sniffing glue while pregnant is harmful to the unborn child;

2. There is nothing even remotely objectionable about using our legal system to prevent pregnant women from sniffing glue in order to protect the child;

3. We can outlaw pregnant women from sniffing glue
without outlawing them from any other activity or behaviour whatsoever;

4. We ought not allow pregnant women to sniff glue simply because some interest group might then later ask us to outlaw pregnant women from eating french fries. (etc.)

If your only objective is to deal with sniffing glue then I withdraw my objections re laws that would prevent pregnant women from smoking, drinking or eating non-nutritious foods. My concern all along has been with the government getting into areas where clearly the decision as to consumption has to be left up to the woman. A woman addicted to sniffing glue has a medical problem. A woman drinking a beer doesn't.

FTA Lawyer · July 13, 2006

In response to the last couple of posts, here is another excerpt from the minority decision of the SCC case I cited which demonstrate why I prefer these judges reasoning over that of the majority:

D. Standard for Exercising Jurisdiction

121 In my opinion, it is a modest expansion on La Forest J.’s statements in Eve, supra, to include a foetus within the class of persons who can be protected by the exercise of the parens patriae jurisdiction. However, clearly, the only person by law able to choose between an abortion or carrying to term is the mother. She too has the right to decide her lifestyle whether pregnant or not.
The court’s ability to intervene must therefore be limited. It will only be in extreme cases, where the conduct of the mother has a reasonable probability of causing serious irreparable harm to the unborn child, that a court should assume jurisdiction to intervene.

122 In the Court of Appeal, Twaddle J.A. grounded his decision denying jurisdiction in part upon a type of “slippery slope” argument (at p. 260 D.L.R.):

The mother’s right to sniff solvents may not seem of much importance, but I do not see how a court can select which conduct harmful to an unborn child should be restrained and which not.

This concern was expressed in a variety of ways at the appeal.
Serious substance abuse that has a reasonable probability of causing serious and irreparable harm to the foetus should be restrained. Simply because there may be hard cases on other facts not before the Court does not mean we should ignore what is obvious from the evidence in this case. The damage caused to children by serious substance abuse is well documented. It seems derelict to suggest that we should not restrain this abuse because we can imagine some other cases that may not be as clear.

123 Taking Twaddle J.A.’s argument to its logical extreme, we would be faced with some strange results. It is interesting speculation to wonder what the result of this appeal might have been, had the state been trying to restrain a pregnant mother from taking thalidomide to deal with her morning sickness.

124 Opposition to this intervention has been strenuously argued by the respondent and her supporting interveners. Exercise of the parens patriae jurisdiction will necessarily involve an overriding of some rights possessed by the mother in order to protect her foetus.
It is acknowledged that these are serious impositions, accordingly, the test is set at such a very high threshold. We are not simply denying the mother her “right” to sniff solvents but also possibly her liberty. That is why a remedy of confinement should be the final option. Before a court takes the severe step of ordering confinement, a condition precedent should be that it is certain on a balance of probabilities that no other solution is workable or effective. The least rights-diminishing option should always be sought.

125 In cases such as this any remedy of confinement must be for purposes of treatment, and not punishment. It follows that the situs of the confinement should be a residential treatment facility or hospital which can offer a treatment program. The mother remains free to reject all suggested medical treatment. The confinement serves only to prevent her using toxins strong enough to cause serious and permanent damage to the foetus.

126
The right of a child to sue its mother for prenatal injuries was recognized in Dobson (Litigation Guardian of) v. Dobson (1997), 148 D.L.R. (4th) 332 (N.B.C.A.). The extension of the parens patriae doctrine in the case on appeal should not be viewed as an implicit sanctioning of a child’s right to sue its mother for “lifestyle choices” made during pregnancy. A child initiating any action against its mother would have to prove, in this type of action as in others, all the necessary elements of a negligence claim, including causation and damages to the standard required in all tortious actions.

127
The threshold for state intervention is high. In this case the difficult test is met but each case will have to be decided on its facts. The failure of a pregnant woman to quit smoking or act in some way that is optimum for fetal health would not meet the test for state intervention.
The familiar “slippery slope” argument has some points of value, however, it cannot be raised as a principled bar to granting an injunction in this case.
The “slippery slope” argument if not carefully assessed can easily become a in terrorem argument and lose whatever value it may legitimately possess.

128 In the present case it is clear that D.F.G. has had ample knowledge of the effects of substance abuse on her foetus. She was sadly aware of giving birth to two permanently handicapped children. D.F.G. had been offered counselling and education of various kinds to no apparent avail.

129 On the other hand, it is somewhat enlightening that
once she was confined, her behaviour improved.
She voluntarily remained in the hospital after the order of Schulman J. was stayed by the Court of Appeal. To the date of this hearing, she has apparently stayed free of solvents.
Her child was born healthy
and she is raising him primarily alone, but with the aid of C.F.S. and others.

130 D.F.G.’s case indicates that confinement remedies need not last the entire term of the pregnancy, and would be modified as circumstances change. The treatment necessary will vary with the severity of the abuse and the subsequent conduct of the mother.

131
It is a fundamental precept of our society and justice system that society can restrict an individual’s right to autonomy where the exercise of that right causes harm to others. Conversely, it would be unjust not to restrict one person’s right of autonomy when the exercise of that right causes harm to others.
In her dissenting opinion in the final report of the Royal Commission on New Reproductive Technologies, Proceed with Care (1993), vol. 2, Dr. Suzanne Rozell Scorsone stated, at p. 1131:

Autonomy is a necessary good, but it is not an absolute. All of us have, as the report says, the right to make our own choices, but rights necessarily entail responsibilities; where our choices may or do harm others, our choices are, in fact, limited, and we are held accountable, whatever our gender.
It is the suspension of that accountability with respect to pregnant women which would constitute the setting of a different (and lower) standard of behaviour.

As one American author explained:

[A] state’s compelling interest in potential life outweighs a mother’s privacy right to conduct her life as she chooses when state intervention is hardly intrusive. Moreover, a privacy right protecting the daily conduct of a pregnant woman from interference would necessarily be far weaker than her privacy right to decide whether to have an abortion because, although it might not always be in her interest to have a child, it is never in her interest to have a child with birth defects.

(C. A. Kyres, “A ‘Cracked’ Image of My Mother/Myself? The Need for a Legislative Directive Proscribing Maternal Drug Abuse” (1991), 25 New Eng. L. Rev. 1325, at p. 1350.)

132
When confinement is determined to be the only solution that will work in the circumstances, this type of imposition on the mother is fairly modest when balanced against the devastating harm substance abuse will potentially inflict on her child. The afflicted children may be sentenced to a permanently lower standard of life. To advocate not confining the mother to prevent this harm seems extreme and shortsighted.

133 The mother’s continuing ability to elect an abortion and end her confinement makes the intrusion of her liberty relatively modest when weighed against the child from birth being seriously and permanently impaired.

Seems reasonable to me, and doesn't pose a threat that pregnant women will somehow end up regulated in every behaviour they do.

FTA

FTA Lawyer · July 13, 2006

Sorry, should have had this paragraph in the last post...after all it is the point of my argument in its entirety:

140 It seems fundamentally unfair and inexplicable for this Court to hold that a foetus, upon live birth, can sue for damages to recompense injuries suffered in utero, yet have no ability to obtain a remedy preventing that damage from occurring in the first place. This is the one of the clearest of cases where monetary damages are a singularly insufficient remedy. If our society is to protect the health and well-being of children, there must exist jurisdiction to order a pre-birth remedy preventing a mother from causing serious harm to her foetus. Someone must speak for those who cannot speak for themselves.

FTA

July 13, 2006

In my opinion, it is a modest expansion on La Forest J.’s statements in Eve, supra, to include a foetus within the class of persons who can be protected by the exercise of the parens patriae jurisdiction. However, clearly, the only person by law able to choose between an abortion or carrying to term is the mother. She too has the right to decide her lifestyle whether pregnant or not. The court’s ability to intervene must therefore be limited. It will only be in extreme cases, where the conduct of the mother has a reasonable probability of causing serious irreparable harm to the unborn child, that a court should assume jurisdiction to intervene.

As you said that's the minority opinion so was not the decision of the court. If we are only talking about clear cases of substance abuse, as we seem to be, that narrows the issue considerably. However, in my opinion that is not something that should be left to the judiciary. That should be in the province of the legislator where it can be debated in a broader forum.