The Case Against a "Fetal Homicide" Law
by Joyce Arthur
member's bill called The "Unborn
Victims of Crime Act" (Bill C-484),
introduced by Conservative MP Ken Epp (Edmonton Sherwood Park), passed
in Parliament on March 5. The bill would amend
the Criminal Code to allow separate homicide
charges to be
laid in the death of a fetus when a pregnant woman is attacked.
(updated March 6, 2008)
Several recent murder cases in Canada
have involved a pregnant woman being murdered by a male partner or
victims and families of these horrific
our deepest sympathy, and they deserve justice. However, passing a
law to allow murder charges for the death
the fetus is not the way to go. Such a law
would be an unconstitutional infringement on
women’s rights. It is a
towards re-criminalizing abortion, but it could also criminalize
for behaviours perceived to harm their fetuses.
An issue of domestic violence
Pregnant women being assaulted or killed is
domestic violence issue, and the rights of fetuses should not take
over the rights of the woman. When media coverage focuses on the
fetus, and whether it should have rights or not, the pregnant woman is
overlooked, and so is the problem that killed her – domestic violence.
Homicide is a leading killer of pregnant
women, and it’s
well-known that violence against women increases during pregnancy. But
bill does not make it a crime to attack pregnant women, and applies
only to the fetuses of pregnant women. Further, Mr. Epp’s stated intent
bill is to protect only wanted
fetuses. (He said: “This is all about protecting the choice of a woman
birth to her child.” However, women who have
recently given birth, or have had abortions or
planning to have abortions, are also at increased risk of domestic
This bill completely fails them.
There is no evidence
that Bill C-484 will have any deterrent or beneficial effect. So-called
homicide” laws in
the U.S. have done nothing to reduce domestic violence against
pregnant women or fetuses. Instead, the best
way by far to protect fetuses
protect pregnant women, their sole caretakers. We need to give pregnant
the supports and resources they need for good pregnancy outcomes,
protection from domestic violence.
Legal rights conflict
women have guaranteed rights and equality under our Charter of
Freedoms. Persons do not gain legal status and rights in our
they have completely exited from the birth canal, alive (as per the
223). This means that Epp's bill conflicts
the Criminal Code, because it assumes
the legal personhood of non-persons under the law. Further, the bill
Part VIII of the Criminal Code, “Offences Against the Person and
but since the fetus is not a legal person it cannot rightly fall under
The Supreme Court has ruled that a woman and
her fetus are
considered "physically one” person under the law (Dobson vs. Dobson), and that
all rights accrue to the woman. If we give
rights to a fetus, we must automatically remove some rights from women,
it’s impossible for two beings occupying the same body to enjoy full
we try to “balance” rights, it means the rights of one or both parties
compromised, resulting in a loss of rights. Legally speaking, it would
difficult to justify compromising women’s established rights in favour
theoretical rights of fetuses.
Separating a woman from her fetus under the law
harmful, adversarial relationship between a woman and her fetus. For
if pregnant women are threatened with arrest for abusing drugs, they
are less likely to seek pre-natal care.
reality, the best way to protect fetuses is to protect pregnant women –
giving them the supports and resources they need for a good pregnancy
outcome, and by protecting their safety during
reducing domestic violence in general.
Who’s promoting the "Unborn Victims of Crime Act"?
Some of the victims' families support Bill C-484.
While we deeply sympathize with them and understand
wish, it must be recognized that victims of violence are not those who
be making decisions about justice in a democratic society. Appropriate
penalties must be determined by impartial parties who do not allow
personal bias to colour their decisions. This is done to fairly protect
everyone's democratic rights, such as the rights of the accused.
Other than the victims’ families, those promoting
Bill C-484 are anti-abortion groups and anti-abortion MPs,
anti-abortion individuals such as McGill University
ethicist Margaret Somerville. This shows
that the bill has little to do with protecting pregnant women.
some intend to use the law as a route to criminalizing abortion.
the personhood of fetuses opens the door to abortion bans because
could be deemed as murder. In the United
anti-abortion groups and legislators have actually stated they want to
these laws to restrict abortion. Also, when
law Unborn Victims of Violence Act passed in 2004 in the U.S.,
its anti-abortion sponsors rejected proposals to protect
herself under the law.
A recent poll in Canada,
commissioned by anti-abortion group LifeCanada, found that 72% of
support legislation that would make it a separate crime to
kill a fetus during an attack on a pregnant woman. Although such a law
reasonable on the surface, most people don’t realize there’s a hidden
against abortion behind the promotion of these laws. The public would
be much less willing to support Bill C-484 law if they
real effects. Here, we can look to the United
Negative impact of “fetal homicide” laws
In the United
states have enacted so-called “fetal homicide” laws (or "fetal
protection" laws), which make it a
cause harm to a fetus. 24 of these state laws define a fetus as a
person and a
separate homicide victim. This gives the fetus legal rights distinct
woman who was attacked. In practice, these laws punish pregnant women,
compromise women’s rights in general, and do nothing to address
violence. Not only do these laws imperil abortion rights by giving
and rights to fetuses, but they target all pregnant women,
including those trying to have a baby.
Under state “fetal homicide” laws, it’s been shown that pregnant
more likely to be punished for behaviours and conditions that are not
criminalized for other people, such as drug or alcohol abuse and mental
illness. Women have also been charged or jailed for murder for
stillbirth after refusing a caesarean section, or just from suffering a
stillbirth. Some states have proposed punishing pregnant women in
relationships who are unable to leave their batterers. The
offender is South Carolina, where dozens of
women with drug abuse problems have been arrested under fetal
even though they had virtually no access to drug treatment programs.
Epp’s bill specifically
exempts pregnant women from prosecution, as well as abortion.
However, these exemptions may not work. In the U.S., arrests of
women have occurred even under state fetal protection laws that make
for the pregnant woman herself. Courts have so far struck down these
prosecutions, but arrests continue based on a growing body of law
that fetuses have rights separate from those of pregnant women.
Even where pregnant women themselves are not
under “fetal homicide” laws, others may suffer grave injustice. In
teenager Gerardo Flores was found guilty
counts of murder and sentenced to life in prison for helping his
her five-month pregnancy of twins. At the time, anti-abortion
lamented that Texas’
law would not allow prosecution of his girlfriend, too. The desperate
had decided to self-induce an abortion because they couldn’t get one
legally – Texas
had recently banned abortions after 16 weeks. This example also shows
homicide laws can seriously impact abortion rights.
law exists that recognizes fetal rights, it creates a legal
Because if a fetus has the right not to be "murdered" in the womb by
a third party, why doesn't it have the right not to be "murdered" by
its own mother? This is why fetal protection laws are being used in the
pregnant women, including those who have sought illegal self-induced
Even when narrowly drawn to exclude the pregnant woman from
laws create contradiction and confusion, resulting in the
dehumanization of women, and a dangerous
slippery slope towards criminalizing pregnant women for their
How can we achieve justice in these cases?
the judicial system routinely takes aggravating circumstances into
the case of an assault or murder of a pregnant woman, even though
party cannot be charged separately with harm to the fetus, prosecutors
recommend more serious charges (such as first degree murder or
assault), judges may impose harsher penalties, and parole boards may
parole to convicted perpetrators.
states have laws that simply apply stiffer punishments for murdering a
woman, but do not make the death of the fetus a separate crime. Perhaps
we want a similar law. However, serious penalties are already mandated
under the Criminal Code's hate crime law, which would cover attacks
against women because they are pregnant.
Any of these solutions
would avoid the controversy about giving rights to fetuses or
abortion rights, and would ensure that women do not lose their rights
they are pregnant.
Five Murder Cases
Here are synopses of five recent cases where
pregnant women have been murdered by their partners:
Liana White of Edmonton,
29, was four months pregnant when she was stabbed to death by her
Michael White on July 12, 2004. Her body was found in a ditch by her
search party after an intensive police search. He was convicted of
degree murder in December 2006. Anti-choice groups and individuals
double murder charges to encompass the fetus as well, including the
investigating detective, Campaign Life Coalition, Western Standard
and Conservative MP Maurice Velacott, who vowed to draft a law that
murder charges to be laid in the death of a fetus.
Olivia Talbot of Edmonton,
19, was seven months pregnant when she was shot to death by a male
friend, on November 23, 2005. Jared Baker was convicted of first-degree
(on Oct 22-07), after his defense failed to convince the jury that he
criminally responsible for the death due to drug problems and mental
issues. (Baker allegedly believed Talbot’s fetus was “the son of
month after her murder, Olivia Talbot’s family launched a petition to
law to protect "unborn victims of violence," in association with
Manjit Panghali of Surrey BC,
was four months pregnant with her second child when she disappeared on
18, 2006. Her charred remains were found eight days later along a shore
South Delta. Her husband, Mukhtiar Panghali, has been charged with
second-degree murder in connection with her death.
Roxanne Fernando of Winnipeg,
24, was in the early stages of pregnancy on February 15, 2007 when she
beaten and killed by a youth she had been dating, apparently because
refused to have an abortion. The man is 17 and can’t be named, but has
guilty to first-degree murder as part of a deal not to be raised to
Aysun Sesen of Toronto,
25, was seven months pregnant with her first child when she was
multiple stab wounds to the abdomen on October 2, 2007. Her husband,
Cocelli, has been charged with her murder, but the family is calling
homicide charges to be laid. Sesen's fetus was still alive when she was
to hospital, but when doctors performed a Caesarean section, the fetus
As a result of the two Edmonton
cases, Conservative MP Leon Benoit introduced a bill in Parliament in
to amend the Criminal Code to recognize “Unborn Victims of Violence”
was deemed non-votable and unconstitutional by a parliamentary
dominated by Conservatives, and advised by the Attorney General of
Conservative Vic Toews. It was later reported that Toews had been sent
briefing note from higher-ups that said: "Any change to the definition
a 'human being' in the Criminal Code could have the effect of
abortion," which would violate a Tory vow to avoid the abortion issue.