Should killing an unborn fetus be murder?
Double tragedy reignites legal, ethical debate
When police responded to a domestic-disturbance call in a quiet bedroom community east of Toronto Friday, they were confronted by a double tragedy.
Not only was Arianna Goberdhan, 27, dead, the victim of “sharp- force trauma,” so was the baby she’d been pregnant with f or nine months.
But the officers who arrested her husband the next day charged him only with murdering Goberdhan, in keeping with Canadian laws that consider fetuses inside the womb not to be human — and therefore not legal victims.
Police say they plan to ask prosecutors whether a further count relating to the baby’s death might still be possible. That seems unlikely, but the case has already reignited an emotional and recurring debate over criminal law and the unborn.
A Conservative leadership contender said Monday he would make it a priority to bring in legislation allowing separate homicide charges when someone causes a fetus’s death. It’s a cause that was championed in vain by four failed private member’s bills in recent years.
“It’s such a grave injustice to tell a mother … ‘ The baby you were carrying does not exist in accordance with the law,’ ” said Pierre Lemieux, a former MP from eastern Ontario. “( Being able to lay charges) is about recognizing a mother who has chosen to carry her unborn child to delivery, and that choice has been taken away from her.”
But defenders of the current law say such a change could be a slippery slope toward re criminalizing abortion or even prosecuting women whose lifestyle choices lead to unintended miscarriages.
A number of expectant mother sin U.S. states like Alabama, Mississippi and Indiana have been charged with manslaughter or murder under “fetal homicide” laws, sometimes after miscarrying in the wake of using drugs or other allegedly harmful behaviour.
“There is a real danger in enshrining those kinds of norms in the law, because ultimately they are used against pregnant women,” said Christopher Kaposy, an ethicist at Newfoundland’s Memorial University and spokesman for the Abortion Rights Coalition of Canada. “It’s unnecessary to create laws for violence against the fetus, because violence against the fetus is really violence against women.”
The Criminal Code is certainly clear now, stating that someone commits homicide against a baby only if the infant dies “after becoming a human being.”
And a child becomes a human being, says the Code, “when it has completely proceeded, in a living state, from the body of its mother.”
That’s in keeping with a landmark 1997 Supreme Court of Canada case — involving a child- welfare agency’s attempt to protect the unborn baby of a gluesniffing mother — that said a child has the legal rights of a person only after being born.
Goberdhan died at a home reportedly owned by her in- laws in Pickering, a suburban city east of Toronto best known for its nuclear generating station. Based on details released so far by police, the baby was dead by the time her own body was discovered.
If so, that would preclude prosecuting the alleged attacker over the infant’s demise, says Daniel Brown, a spokesman for Ontario’s Criminal Lawyers Association.
But Const. George Tudos, a spokesman for Durham Region Police, said officers are meeting with Crown prosecutors later this week, and will discuss whether more charges could be laid against husband Nicholas Tyler Baig, 25.
For advocates of changing the law, the line between prosecution and doing nothing is absurdly arbitrary.
In one 2007 case, a fetus still had a pulse when the mother was taken into the emergency room after being stabbed repeatedly in the abdomen. But the baby was stillborn, and the assailant charged only with the woman’s murder.
In another, similar stabbing case, the child was born prematurely and lived for 19 minutes. The attacker was eventually convicted of the baby’s manslaughter.
“Our current criminal law defies common sense and scientific fact,” anti-abortion advocates André Schutten and Mike Schouoten argued in a 2014 op-ed article in the National Post.
The most recent private member’s bill was introduced last year by a Conservative MP, and later defeated.
Among those weighing in against it was Bill Blair, the Liberal MP and former Toronto police chief. He argued that two homicide convictions stemming out of the same crime would likely result in concurrent sentences, and no increase in penalty.
On the other hand, the case law shows that judges already consider a female victim being pregnant as an aggravating factor when sentencing her attacker, Blair told the House of Commons last May.
“The focus must be placed upon violence against women and not on the fetus,” he said.