Course:Law3020/2014WT1/Group Q

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.

Course:Law3020/2014WT1/Group_Q/Natural_Law

Course:Law3020/2014WT1/Group_Q/Positivism

Course:Law3020/2014WT1/Group_Q/Separation_Thesis

Course:Law3020/2014WT1/Group_Q/System_Of_Rights

Course:Law3020/2014WT1/Group_Q/Liberty-Paternalism

Course:Law3020/2014WT1/Group_Q/Law_As_Efficiency

Course:Law3020/2014WT1/Group_Q/Feminist_Jurisprudence

Course:Law3020/2014WT1/Group_Q/Critical_Legal_Studies_Critical_Race_Theory