Course:Law3020/2014WT1/Group Q/Natural Law

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Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.), [1997] 3 SCR 925 Facts In August 1996, the respondent was five months pregnant with her fourth child. During her pregnancy, she was addicted to sniffing glue, which may cause damage to the nervous system to the developing fetus. As a result of the respondent’s addiction, two of her previous children were born permanently disabled and regarded as permanent wards of the estate. A motion was made by the appellant, and a superior court judge ordered that the respondent be placed in custody of Director of Child and Family Services and remain in health center for treatment until the birth of the child. One ground for the order was as per the parens patriae jurisdiction. The superior court judge acknowledged that they have never exercised parens patriae on behalf of an unborn child, however, did not see any reason why it should not be extended. The order was later stayed and further set aside on appeal. The Court of Appeal held that the existing law of tort and of parens patriae did not support the order and, given the difficulty and complexity entailed in extending the law to permit such an order, the task was more appropriate for the legislature than the courts.

Issue: Whether the power of a court to make orders for the protection of children (its parens patriae jurisdiction), as it exists or may properly be extended by the Court, to permit an order detaining a pregnant woman against her will in order to protect her unborn child from conduct that may harm the child?

Parens Patriae Jurisdiction Parens patriae jurisdiction refers to the power of the court to act in for the protection of a child. At common law parens patriae, is only exercisable after a child is born. However, tort law recognizes that an action brought by or on behalf of a child once born may vest prior to birth, but it does not recognize an unborn child as a legal person

Majority Canada does not recognize unborn children as legal persons possessing rights, which is a general proposition applicable to all areas of the law. However, once a child is born, alive and viable, the law may recognize that its existence began before birth for certain limited purposes. Courts will not extend common law where revision is major and ramifications are complex, as it would require major changes, involving moral choices and conflicts between fundamental interests and rights of mothers. Changes in law of tort that would be required to support the order would exceed lawmaking powers of court and should be left to legislature. A pregnant woman and her unborn child are one and to make orders protecting fetuses would impinge on the fundamental liberties of the mother, both as to lifestyle choices and how and as to where she chooses to live and be. This would have the potential to affect a much broader range of liberty interests since the court cannot make decisions for the unborn child without inevitably making decisions for the mother. Nevertheless, this would seriously intrude on the rights of women.

Dissent The dissent hold the view that the superior court judge was within his jurisdiction under parens patriae to order the respondent to refrain from the consumption of intoxicating substances, and to compel the respondent to live at a place of safety until the birth of child. The parens patriae jurisdiction is to act in the best interest of child which should include the power to act in the best interest of fetus. It exists to protect interests of those unable to protect themselves. A fetus suffering from mother’s abusive behaviour is within class and deserves protection. The dissent holds the view that the born alive rule should be set aside due to medical developments and advancements. The dissent holds the view that a woman had the choice to carry the fetus to term; therefore, she should accept responsibility of its well-being. The state has interest in ensuring a child’s health when he or she is born.

The dissent refers to a test for state intervention, which has a high threshold to meet. In order to protect the fetus, the exercise of parens patriae jurisdiction will necessarily involve an overriding of some rights possessed by the mother. It is said that confinement must be for purposes of treatment not punishment, and to justify a state intervention the following thresholds have to be met: (1) the woman must have decided to carry the child to term (2) prof must be presented to the 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

On the facts of this case, the dissent believes that the test for state intervention was met, and the governmental agency has standing to apply for an order.

Natural Law Theory Law is derived from a higher, non-human source. That source could be god or “nature.” Law has a divine origin. Our laws have been put in their respective positions by god or by nature and they can identify the common good and identify the reasonable steps that need to be taken in order to achieve the common good. We need the law to force us on the path to the common good. The purpose of a valid law is to get us to take reasonable steps to take us to the common good. Threats, force, and punishment may be needed to keep us on this road. If a law doesn’t set out reasonable steps that will allow us to reach a common good, it is not a valid law and we are under no obligation to follow it. Laws flow from morality. Law is seeking absolute values, justice, and truth. Since natural law is morally right, human law that embodies or is consistent with natural law must also aim at “morally right aims.” The problem with this is that in a diverse society people have different ideas about what constitutes morally right aims. For example, religious conservatives may not consider same sex marriage to be consistent with natural law. What is the source of Thomas Aquinas’ natural law? For Aquinas, natural law is not simply a man-made artifact. Man’s nature, as crafted by god, inclines him to the common good. Man’s reason, as crafted by god, allows him to devise laws that will lead us to the common good. Four elements of a valid law:

1. It must be directed towards the common good The common good is the good of community, as opposed to good for a specific individual or even what most individuals want. Some goods are essential to all humans (e.g. self-preservation, procreation, living in society and exercising spiritual and intellectual capacities). 2. It must follow practical reason (reasonable steps leading to the common good) The law directs us to what we must do and the steps we must take to reach the common good. Laws are practical because they direct us to the common good. 3. It must be made by a valid lawmaker (e.g. a ruler within the community who holds this position by reason of the natural order) For Aquinas, the lawmaker does not carry out the will and the wishes of the community. A ruler is selected naturally; some people are naturally meant to rule, and some are naturally meant to be ruled. It is not a form of democracy. The natural rulers know what is in the common good, and what will achieve universal happiness, and they can threaten, coerce and punish the people being ruled to pursue the goal. 4. It must be promulgated.

A condition of justice is that the laws be written and known to the people. People cannot obey unknown laws. Law’s that are unjust do not need to be followed. Teleology holds that that final accounts exist in nature. Law’s end or function is the rational pursuit of the common good. Law’s that do not have this function are not in fact law, and do not need to be followed. Legal and government officials cannot act in a way that is contradictory to natural law. Judges should apply the law in a manner that is just, their interpretation of the law doesn’t entail simple adherence to the letter of the law, it also requires adherence to the principle of law. For Aquinas, a “judgment” is a right decision about what is just. Just judgment requires prudence, the inclination of justice, and authority. If a written law contains anything contrary to the natural law it is unjust and should not be applied. Otherwise, judges must apply the written law.

Parens patriae jurisdiction 1. For procreation, it would make sense to extend it to an unborn child. Either way it applies to the common good, as it protects the best interest of any child, as the first and most important. In this case, it would make sense to extend it because this way we can protect the child earlier from developmental disabilities. This also protects the mother, in the sense that it would stop the mother from sniffing glue. It is directed at a common good because the woman chooses to carry the fetus to term and should accept responsibility for its wellbeing, and state has an interest in ensuring the child’s health. 2. No steps, which is a problem. General principle that is broad as there is no rational reasonable connection of what to do and how to get there. 3. Not made by a valid lawmaker. It is simply a common law principle 4. It is common law, therefore, it is not written in a specific code or piece of legislation. Majority decision Majority does not want to extend parens patriae because they believe that individual liberty and autonomy is important. For example, the woman in this case should have rights to do what they want to with their body. The woman is the best person to know what is best for her child. Her being able to choose not to be confined or have an abortion would promote stability in the society. The woman would not feel like a prisoner. Thomas Aquinas would be against mental retardation because it would not be a common good. The majority views moral choices conflicting between the rights of the mother and the interests of the unborn child. For example, for expectant mothers, conflicts may arise with respect to receiving treatment with the fear of state intervention. Mothers may avoid treatment for the sole purpose of avoiding detection. Mothers may not seek prenatal care when it is needed, and further it would be difficult to enforce the law, as it would be very hard to keep track of women. Partners, parents, friends, and neighbours are among the potential classes of people who might monitor the pregnant woman’s actions to ensure that they remained within the legal parameters. However, this may be proven to be difficult given the personal needs of the mother conflicting with those of the child.

1. Courts may not be in a position to fully appreciate the economic and policy issues with respect to the choice. There are rights and remedies available in other areas of law, once the child is born. This is not a decision for the courts to make, rather it is a change which is required by legislation. It is not every evil that is seen as attracting the courts action; rather some evils remain for the legislator to correct. Overall, this may have an immediate and drastic impact on the lives of women as well as men who might find themselves incarcerated and treated against their will for conduct alleged to harm others. The proposed order might impede the goal of healthy infants more that it would promote it.

2. Further, there is an argument that there are no legal steps and that it should be written in as legislation. Courts should not be able to make broad decisions, as that is not a judicial role. Thomas Aquinas does not want judicial legislating because he believes certain people have that role. Judicial change is confined to incremental change “based largely on mechanism of extending an existing principle to new circumstances.” Courts will not extent the common law “where the revision is major and its ramifications are complex”. Courts may not be in the best position to assess the deficiencies of the existing law, which may be associated with changes that it may make. Nevertheless, it is vague and broad and may not be adequate by the Court to narrowly confine the duty of care.

3. Not made by a valid law maker. Constitutional democracy is the role of the legislature, as the elected branch of government, which should assume the major responsibility for law reform. It is a system of parliamentary democracy, and it is for parliament to decide which controls should be imposed, and as well as the limitations and conditions. 4. Not written, and if it is to be then it should be written by legislators. It is time-honoured, and evident in common law countries such as England and Australia.


1. Common good is for procreation because we have the scientific ability to see what is good for the child, and its well-being. The woman makes the decision to bring the baby to term; therefore, if she feels she cannot take care of the child she can either have an abortion or be confined. They want to extend parens patriae to the child, as the child is unable to protect him or herself during the time that it is a fetus. The dissent believes that there should be custody care and control, protection of the child and its health problems, and protection against harmful associations.

2. They are trying to limit the scope so that it is not broad. Right of the mother should be infringed as less as possible. They should put steps in place to achieve this goal. There can be no general formula and each case must be decided on its own facts. The court should consider an individual as a human with rights. These are not actually steps, however, if you tried to interpret steps this would be the guideline for them. The threshold is very high and difficult to meet for state intervention, however as a minimum, to justify state intervention, the following thresholds have to be met:

1. The woman must have 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

3. Dissent does not want it constrained to a valid lawmaker. This is against natural law, because they are taking a case-by-case analysis, which should not made by a law maker but by a judiciary. The common law has proven adaptive enough over centuries to meet exigent circumstances as they arise. It is clear that here we are dealing purely with the common law, and no enactment of parliament prevents a re-evaluation of the premises of this rule. It may be preferable that the legislature should act, but the failure to do so is not an excuse for the judiciary. The judiciary should not follow the same course of inaction, as it is not in the best interest of the fetus.

4. It is not written down; therefore it is hard for other people to follow. The parens patriae jurisdiction of the superior courts is of undefined and indefinable breadth