Barbara Kay: Unborn babies will stay persons in fact, but not in law

The common use and increased accuracy of diagnostic ultrasound means lethal anomalies are more frequently detected, leaving parents with the terrible choice of ending the pregnancy early or going to term with a likely-doomed baby.

In December 2014 Cassandra Kaake of Windsor, Ont., was murdered in her seventh month of pregnancy, and so her already-named unborn baby Molly died as well. To Casandra’s husband and mother, Molly didn’t just “die.” She was a murder victim, in moral terms exactly as if she had been killed while nursing at her mother’s breast.

But the Criminal Code contains no provision to lay such a charge, even when the killer’s actual target is the unborn child, because in law the mother and unborn child are considered one person. Olivia Talbot of Edmonton, for example, was declared the sole victim in 2005 when her unborn son Lane was purposefully killed at 27 weeks’ gestation in a hail of bullets pointed first at Olivia’s abdomen, then her head.

Bill C-225 — “Molly’s law” — aims, in the words of abortion-law activist Mike Schouten, to “provide justice for women and families who have chosen to carry their babies to term.” This is not the first kick at this particular can. In 2008, MP Ken Epps private-member’s bill C-484, known by its nickname, “The Unborn Victims of Crime Act,” called for recognition of the unborn as murder victims in their own right, and passed second reading, but died when an election was called. An Environics poll at that time found 75 per cent support for the bill amongst participants.

The precursor bill and the new one differ only on the margins; they are essentially the same in their intent. Predictably, a minority of women’s rights activists have condemned C-225 as they did C-484. They fear it will open the door to the criminalization of abortion, even though both bills explicitly excluded harms done to unborn babies by their mothers.

Pro-choice argumentation was weak in 2008 and remains weak today. One fallacious gambit is that mother and fetus, even though each has her own unique DNA, should continue to be considered one person because their biological systems operate symbiotically. This implies that conjoined twins, whose systems also operate symbiotically, are one person, when they manifestly are not. However, the mainstay of the opposition is the “legal personhood” canard. That the unborn are not “legal persons” in law is true, but morally and historically irrelevant: women, after all, weren’t “legal persons” until 1929, but were always considered murder victims in their own right before that date.

Hardline ideological feminists, who have a huge influence on politicians and the judiciary (which is why this bill is probably another exercise in political futility), regard the law as their ideology’s handmaiden. And even though all self-styled progressives, including the hard-liners, profess enormous respect for science, they tend, when seeking legal remedies to perceived social injustice, to accord theories the polemical weight that would normally be reserved for objective evidence.

Decades ago, for example, the human fetus was regarded as a mass of tissue, and aborting “it” was perceived as something like liposuction. Then came DNA findings and ultrasounds, and the “tissue” argument dissolved. The term “unborn baby” is therefore now based in biological evidence, not sentimentality. On any other issue, this would be viewed as scientific progress and the entire discussion would have evolved to accommodate the new empirical realities. But when scientific advance conflicts with progressive ideology, we know which will emerge the winner.

To wit: one may be of the female sex in biological terms, but based entirely on any woman’s completely subjective belief that she “is” a man, courts will grant her legal male personhood. Unborn Molly Kaake was biologically — that is, objectively — a fully formed, though not yet independently fully functioning, human being. Her parents and most Canadians “believe” in her full humanity. But the courts are unlikely to grant her human personhood any time soon. Neither reason nor ethics can explain this disparity; only ideology can.

Every home is a castle to ordinary parents, and their children the monarchs of their hearts. And if the law can’t understand that, then — with apologies for a minor change to Dickens’s famous utterance by Mr. Bumble in Oliver Twist — “the law is a ass — a idiot. If that’s the eye of the law, the law has never had a wanted baby; and the worst I wish the law is, that its eye may be opened by experience — by experience.”

National Post