How Will We Meet the Challenges of Fetal Rights?

Fetal rights may be necessary, but the concept raises important questions

Today, the Christian Feast of the Annunciation has been declared the International Day of the Unborn Child.

Today, activists the world over are agitating in favour of fetal rights.

In Canada, in particular, the law has yet to recognize unborn children as having any form of rights. Despite the indisputable fact that an unborn child -- or a fetus, as the pro-abortion lobby prefers -- is human life, a fetus has no forms of human rights.

While some individuals in Canada are working to try and change this particular state of affairs, many others are stringently defending the status quo, insisting that, despite the fact that an unborn child is still human, until birth it is only "a clump of cells" and can be aborted at the mother's whim at any stage of development.

In particular, issues regarding late term abortions have raised the importance of addressing fetal rights -- more importantly, questions regarding at what stage of development they should be granted.

Of course, the very concept of fetal rights raises some important questions that simply must be answered. Unfortunately, many of those in favour of fetal rights may or may not want to address them -- just as their opponents don't want to address the questions that reveal why fetal rights are, in fact, so necessary.

First off, one has to ask: what effect will the establishment of fetal rights have on a woman's right to obtain an abortion?

The answer among anti-abortion activists -- who most certainly make up a significant portion of the pro-fetal rights lobby -- is fairly obvious: it will force legislators to ban abortion outright, consequences be damned.

Unfortunately for these individuals, they clearly have not thought the consequences of such an act through -- or, moreover, have thought them through, and have simply chosen to disregard them.

First off, a ban on abortion will not put a stop to it. Women who want (or need, for medical reasons) abortions will still seek them out. The difference is that they'll be recieving these abortions not by qualified medical professionals bound by a hippocratic oath, but by anyone willing to perform them for a lump sum of cash.

The toll of back alley abortions is well known. A return to those days is not anything that social conservatives could possibly want.

We also have to address the issues of pregnancies that pose a health risk to the mother or unborn child. Forcing women to give birth at detriment to their own health clearly does not constitute a just state of affairs. Of course, some women will inevitably choose to give birth despite the risk to themselves. But not all women would make that choice. Using fetal rights to deny them the right to make that choice would frankly be a travesty.

There is also the matter of women who are impregnated in the course of rape. One also has to consider whether or not it would be just to use fetal rights to force a woman to have a child when she did not agree to sex in the first place. Certainly, abortion may not be the best option in this particular case -- that is a matter of individual opinion -- but it should remain an option for these particular reasons.

The debate in Canada over fetal rights currently rages around Bill C-484, which would make those who commit crimes against women who they know or should know to be pregnant also legally responsible for any harm they do to the unborn child.

The argument is that the bill would be used as a back-door attempt to ban abortion (despite the fact that the language of the bill explicitly forbids that).

Bill C-484, itself, however, does raise an important further issue: what would the law have to do about mothers who, knowingly, continue to drink, smoke or do drugs while pregnant, causing harm to their unborn children?

Bill C-484 also forbids charging the mother of the child under the act. However, the precedent set by C-484 -- that unborn children do have rights, would open a new can of worms, perhaps even forcing Canada's parliament to draft legislation to deal with women who, knowingly and willingly, harm their own children by smoking, or consuming alcohol or other drugs. Of course this begs a further question -- why the hell shouldn't they?

Of course they should. But even a bill such as that raises important questions about how to balance the rights of an unborn child with the rights of its mother.

As Claire Andre and Manuel Velasquez note, such a bill could wind up criminalizing women for not following their doctor's recommendations. In cases where fetal alcohol syndrome or other deformities are at stake, this is one thing. But what about matters pertaining to things such as diet? Things such as this pose a serious challenge to how far legislators should go in the definition and defence of fetal rights.

These are the kinds of challenges that fetal rights pose to Canada's legal system. Unfortuantely, one has to wonder whether or not those who support fetal rights are ready to address them.