Winnipeg Child, et al. v. D.F.G.

[1997] 3 R.C.S.
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The respondent was five months pregnant with her fourth child and addicted to glue sniffing, which is known to be potentially damaging to the nervous system of a developing fetus. Two of her previous children were born permanently disabled as a result of her addiction and were permanent wards of the state. A judge of the Manitoba Court of Queen’s Bench ordered her to be placed in the custody of the Director of Child and Family Services and detained at a health center for treatment until the birth of her child on the grounds that the court had parens patriae jurisdiction to protect a child prior to birth. The order was stayed two days later and ultimately set aside by the Manitoba Court of Appeal. The respondent voluntarily remained at the health center until discharged, stopped sniffing glue, and subsequently gave birth to an apparently normal child.

The appellant agency appealed to the Supreme Court in order to resolve the legal issues that arose in the case.

[Adapted from INTERIGHTS summary, with permission]

In dismissing the appeal, the Court held that any right or interest the fetus may have remains inchoate and incomplete until the birth of the child. There was, therefore, no legal person in whose interests the appellant agency could act or a court order could be made. Moreover, to permit an unborn child to sue its pregnant mother-to-be would introduce a radically new conception into the law; the unborn child and its mother as separate juristic persons in a mutually separable and antagonistic relation. Such a legal conception is belied by the reality of the physical situation; for practical purposes, the unborn child and its mother-to-be are bonded in a union separable only by birth. Such a dramatic departure from the traditional legal characterisation of the relationship between the unborn child and its future mother involves moral choices with complex ramifications that will create conflicts between fundamental interests and rights. Finally, the extension of tort liability for lifestyle-related fetal damage has the potential to produce considerable uncertainty and affect many peoples’ lives adversely, without any assurance of reducing the problem of damage to unborn children from substance abuse.

The dissent stated that, once a mother decides to bear a child, the state has an interest in trying to ensure the child’s health. It should not stand idly by while a reckless and/or addicted mother inflicts serious and permanent harm on to a child she has decided to bring into the world.

[Adapted from INTERIGHTS summary, with permission]

"The invasion of liberty involved in making court orders affecting the unborn child is far greater than the invasion of liberty involved in court orders relating to born children. In the latter case, the only liberty interest is the parent’s interest in making decisions for his or her child. By contrast, extension of the parens patriae jurisdiction of the court to unborn children has 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 herself. Such a change would not be an  incremental change but a generic change of major susceptible impact and consequence. It would seriously intrude on the rights of women." Page 928.

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