Written by Alex Schadenberg

Yesterday, I received a phone call and then an email from Bernard Stephenson, concerning Joshua (Kulendran Mayandi) the pastor of a small christian church in Brampton Ontario. The email outlined several significant concerns for the Euthanasia Prevention Coalition.

First: Joshua (48), who is not otherwise dying, is being dehydrated to death (euthanasia by omission). This is not a case when hydration and nutrition need to be withdrawn because he is actually dying and nearing death, but rather the decision appears to have been made to intentionally cause his death by withdrawing IV hydration and nutrition probably because he is unlikely to recover from his disability. 

Joshua has otherwise stabilized and would likely live for many years in this condition. Society cannot condone intentionally dehydrating a person to death because of their disability or the potential cost of long-term care. Article 25 (f) of the Convention on the Rights of Persons with Disabilities states: Prevent discriminatory denial of health care or health services or food and fluids on the basis of disability. (http://www.un.org/disabilities/convention/conventionfull.shtml)

Second: It is deplorable that the Consent and Capacity Board in Ontario, the hospital and the lawyer for the hospital, who are all paid by the government and have nearly unlimited resources to pressure people to consent to their will, appeared to appoint a Substitute Decision Maker (SDM) to make decisions on behalf of Joshua, based on that persons willingness to agree to a non-treatment plan, even though there is no proof that the plan of non-treatment represented the values of the person.

The Consent and Capacity Board was established to ensure that consent to treatment is based on the prior wishes or values of a person, before that person became incapacitated to make decisions for themselves. The fact that Joshua did not write down his personal wishes or assign a person to make legal and health care decisions on his behalf in these circumstances, does not negate the fact based on his religious convictions it is unlikely that he would have agreed to death by dehydration.

To pressure a person to agree to intentionally dehydrate a person to death, (euthanasia by omission) based on the cost of continuing the legal battle to defend the values of a person, is unconstitutional and inconsistent with Ontario law.

Everyone needs to strongly respond by sending letters and emails to:
Brampton Civic Hospital - email: This email address is being protected from spambots. You need JavaScript enabled to view it. or call the Communications Hotline at: 905-494-2120, ext. 22505. 

Consent and Capacity Board of Ontario - email: This email address is being protected from spambots. You need JavaScript enabled to view it., Phone: 416-327-4142, Fax: 416-924-8873

The letter should state:
I am disgusted with the decision by the Brampton Civic Hospital, its lawyer, and the physician for (Joshua) Kulendran Mayandi, to intentionally cause his death by removing his IV hydration and nutrition even though he is not otherwise dying (euthanasia by omission). If this decision is not reversed, it will create fear among the citizens of Brampton that if they experience a disability that they too would be killed by dehydration and starvation.

For the sake of justice and equality, I demand that you change your policy and once again continue feeding.


The following is the email from Bernard Stephenson:

Joshua is a 48 year old pastor of a small Brampton Church. He was admitted to the Brampton Civic Hospital (William Osler Health Centre), after collapsing in front of the ER on May 29, 2010.

He was revived but not before sustaining a significant cognitive disability.

He remained in the ICU, but after regaining the ability to breathe on his own, he was transferred to the respirology ward, where he remains.

He has regained some ability to communicate despite the fact that he has a significant cognitive disability.

He has progressed from being in a deep coma with signs of decerebration and decortication to almost full movement of his arms and legs and coherent use of mostly one-word answers and occasionally multi-word sentences with his sister over the phone.

He recognizes the family he was living with for the past 10 years, who have been at his bedside from morning to evening, 7 days a week.

From the beginning of his stay in the ICU until now, the doctors have repeatedly asserted that there is no hope of recovery, from a medical point of view, and they have strongly suggested that all life-sustaining treatment be removed.

His family, who live in Sri Lanka, and his supporters here have rejected these suggestions.

Nevertheless, the fact is that he had assigned no Substitute Decision Maker (SDM), and he has no immediate family living in Canada.

His first physician in the ward, removed his feeding tube, without consent, leaving him only IV fluids.

He was in this situation for over three weeks until his supporters appealed to the Ethics Committee adn the Consent and Capacity Board through a lawyer and forced the hospital to restart feeding through a nasogastric (NG) tube. Even though he was entitled to a long term gastric (G) tube the physicians refused the latter option, even though they had initially suggested it, citing that it is 'artificial' and possibly 'harmful'.

Currently, the only option the hospital and his current physician is offering is to withhold all life-sustaining treatment and care including IV fluids, food and medication.

The court first rejected Joshua's sister, Mallika Arumugan, as his (SDM) because they did not consider her capable of making medical decisions for Joshua, but she also did not agree to the demands of the hospital.

After the court rejected Joshua's sister as his SDM, a friend for 25 years became the next option. We were told that this friend would only be accepted as the SDM if he agreed to the preconditions – palliative care with the removal of all medications, IV hydration and nutrition. The alternative was a continuation of the costly legal battle before the Consent and Capacity Board or allowing the Public Guardian to take over. Since we were not able to sustain the costly legal battle and the family did not want Joshua to fall into the hands of the Public Guardian, this friend decided to accept the terms. He was subsequently granted SDM status with those limiting conditions. 

Personally, I disagreed with the decision as it was immoral, unethical, inappropriate and wrong besides being totally useless.

Brampton Civic hospital on August 17 withdrew all life-sustaining treatment and care, including fluids and food, based on the forced agreement between the hospital and the SDM.

I deplore what the hospital and doctors are doing. They have a duty to inform people about quality of life and treatment options in a given situation, such as Joshua's, but they do not have the right to impose their preference for death or to assume that Joshua would not want to live the rest of his life in this condition. The Hospital and doctor's actions are both unethical and inappropriate.

Bernard Stephenson, M.D., M.Div.
Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

To contact Alex Schadenberg at the Euthanasia Prevention Coalition call: 519-851-1434 (cell phone)

To order the Life-Protecting Power of Attorney for Personal Care:http://www.euthanasiaprevention.on.ca/lifeprotectingpowerattorney/index.htm

The case of Kulendran Mayandy

SEPTEMBER 9, 2010  |  by DEREK MIEDEMA, Researcher, Institute of Marriage and Family Canada

You may not have heard the name of Mr. Kulendran (Joshua) Mayandy. Mr. Mayandy passed away on September 6, 2010. However, the hospital care he received was the subject of public discussion and debate for more than two weeks leading up to his death. The hospital maintains that it followed appropriate procedures in Mr. Mayandy’s care. His friends and colleagues disagree.

Kulendran Mayandy, 48, was the pastor of a small church in Brampton, Ontario. Originally from Sri Lanka, where his family still lives, he lived with friends from his church for the past 10 years.

On May 29, 2010, he had a heart attack. He stopped breathing for a few minutes before he was revived and therefore experienced severe brain damage, resulting in a stay in intensive care at William Osler Health Centre in Brampton, Ontario.

When he was able to breathe on his own, Mr. Mayandy was transferred to another unit in the hospital. For the next two months, he was treated and made significant progress, according to his friend, Rev. Bernard Stephenson. [1]

In late June, the William Osler Health Centre stopped providing nutrition to Mr. Mayandy. This means that he received water, but no food. On July 16, friends and family appealed this decision to the Consent and Capacity Board of Ontario. [2] The family won this case, meaning that the hospital would be required to continue supplying him with nutrition through a tube.

Because Mr. Mayandy was not able to speak for himself, a member of his family from Sri Lanka applied to the hospital’s Consent and Capacity Board to be his Substitute Decision Maker (SDM). The family member was rejected by the Board. (When a person is judged incapable of making legal decisions with regards to desires for care a Substitute Decision Maker is appointed.)

The Board appointed another friend of Mr. Mayandy as his SDM on August 13. However, they placed a difficult condition on his appointment; he would need to accept the removal of nutrition tubes:

Mr. __ now consents to PK’s treatment, commencing August 17, 2010, palliative only, including safe removal of NG and IV tubes… [3]

According to the Health Care Consent Act, this condition is within the powers of the Consent and Capacity Board. [4]

Their decision also describes Mr. Mayandy this way:

We were also satisfied, based on the evidence we heard and the agreement of all parties, that the patient remains treatment incapable with respect to all treatments. [5]

Yet his friends insist Mr. Mayandy had regained the ability to speak single words, that he recognized members of his family and the church and was even able to take some small amounts of food by mouth. [6] It is not clear why the SDM accepted these terms.

By the beginning of September, Mr. Mayandy was experiencing kidney failure and had a seizure. He died on September 6. [7]

William Osler Health Center would not confirm or refute any of the details of the case, citing patient confidentiality.

Many questions remain.

Firstly, was the hospital’s treatment of Mr. Mayandy palliative care, as the August 13 order of the Consent and Capacity board stated?

Health Canada defines palliative care as follows:

Palliative care is an approach to care for people who are living with a life-threatening illness, no matter how old they are. The focus of care is on achieving comfort and ensuring respect for the person nearing death and maximizing quality of life for the patient, family and loved ones. [8]

Withholding nutrition, (starvation) is not a comfortable death; giving a patient only liquids does not maximize their quality of life. And, by the accounts of eye witnesses Mr. Mayandy was neither near death nor dying. He had suffered brain damage as the result of a heart attack. It appears as though the hospital was citing this as palliative care in contradiction to Health Canada’s definition.

If the hospital judged Mr. Mayandy’s treatment to be futile and subsequently withdrew food in order to hasten his death, this would be a case of euthanasia, not palliative care. Such an action is not part of palliative care. Dame Cicely Saunders, who founded St. Christopher’s Hospice in London in 1967 and is seen as the founder of the modern hospice movement, described the vow of palliative care workers as “We will do all we can not only to help you die peacefully, but also to live until you die.” [9]

Secondly, why does the Consent and Capacity Board have the authority to make the withdrawal of nutrition a condition of appointment as SDM? In this case, what good is a Substitute Decision Maker if they can’t make decisions?

How many SDMs have been treated similarly by the Consent and Capacity Board? What was the Board's intent in this case? How many family members have been treated this way by doctors and hospitals? A case before the courts shows that this is not an isolated situation. [10] Certainly, patient confidentiality is important, however, it should not be used as an excuse to avoid tough questions. Mr. Mayandy’s family and friends in Canada deserve these answers; so too do Canadians who may experience similar treatment in the event of a medical emergency.

Recommendations

Recommendations from this difficult case include questioning the regulations and procedures governing the Consent and Capacity Board.

The remaining recommendations are for Canadians at large, who need to understand what palliative care is—and is not. Canadians should also make their end of life expectations very clear, well in advance.

Download the full report below

ENDNOTES: 
  1. Personal communication with Bernard Stephenson, September 7, 2010.
  2. The Consent and Capacity Board is an independent body created by the Ontario government to conduct hearings and make rulings into cases like this one under the Health Care Consent Act. 
    Consent and Capacity Board of Ontario. Retrieved September 8, 2010 fromhttp://www.ccboard.on.ca/scripts/english/aboutus/index.asp
  3. Consent and Capacity Board of Ontario. (2010, August 13). In the matter of Health Care Consent Act S.O. 1996 c. 2, Sch. A as amended and in the matter of KM, a patient of William Osler Health Centre-Brampton Campus.  Docket Num. 1186, File Num. HA-10-1483, HA-10-1497.
  4. Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A. Section 33(7). Retrieved September 8, 2010 fromhttp://www.canlii.org/en/on/laws/stat/so-1996-c-2-sch-a/latest/so-1996-c-2-sch-a.html#BK41
  5. Ibid.
  6. Personal communication with Bernard Stephenson, September 7, 2010.
    Personal communication with Alex Schadenberg, September 7, 2010.
  7. Health Canada. (2009). Palliative and End of Life Care. Retrieved September 7, 2010 from 
    http://www.hc-sc.gc.ca/hcs-sss/palliat/index-eng.php
  8. Picard, A. (2010, July 21.) There are a lot better places to die than Canada. The Globe and Mail, p. L1.
  9. Cribb, R. (2010, September 4). Lawsuit could set precedent about end-of-life decisions. The Toronto Star. Retrieved September 8, 2010 at http://www.thestar.com/news/gta/article/856741--lawsuit-could-set-precedent-about-end-of-life-decisions

 

Article reprinted with permission of the Institute of Marriage and Family Canada.

Say “No” to Euthanasia and Assisted Suicide:
No Special Circumstance Can Justify Them

Abridged version of a brief presented to the Collège des Médecins du Québec, August 30 2009, by Joseph Ayoub, m.d., André Bourque, m.d., Catherine Ferrier, m.d., François Lehmann, m.d. and José Maurais, m.d.. The brief has also been endorsed by a significant number of physicians in the province of Québec.

The issue of decriminalizing euthanasia and assisted suicide has reared its head over and over again in Canada and Quebec for the past 20 years. The proponents of euthanasia justify their position on the need to respect the autonomy and “dignity” of the individual. In recent years some cases have gone before the courts, and the Supreme Court of Canada has reaffirmed the intrinsic value of human life and the limits governing an individual’s freedom to decide to end his or her own life. So the pro‐euthanasia lobby has turned to its only possible legal recourse: an amendment of the Criminal Code by the Parliament of Canada. Bill C‐384, introduced by Bloc Québécois MP Francine Lalonde, is the latest attempt.

It is incredible that as we enter the 21st century, the child in the womb still does not have the status of human being and is denied personhood. In spite of all the technological and scientific advances such as ultrasound and intrauterine photography giving a clear picture of life before birth, our legal system holds fast to the absurdity that the baby in the womb is not a human being. Section 223 of the Criminal code of Canada entitled 'When child becomes a human being" states: 

(1) A child becomes a human being within the meaning of this Act when it has completely proceeded, in a living state from the body of its mother whether or not 
(a) it has breathed 
(b) it has an independent circulation 
(c) the navel string is severed.

According to the criminal code, the baby becomes human only when it has fully emerged from its mother's body.  Therefore, two months, two weeks, two seconds before birth, the preborn child is considered a non-human and receives no protection whatsoever under criminal law.  While some abortion advocates do not deny the scientific evidence proving the humanity of the baby in the womb, they still cling to this piece of legal fiction to defend the right to abortion and maintain that abortion destroys the "products of conception" or a "potential person".  Consequently, no one can be charged with homicide for committing an abortion when the victim is not considered human. In order to decriminalize abortion, it was necessary to have in place a state of legal affairs whereby abortion would be presented as not being a killing act or that there is no human being to be killed by the abortion procedure. 

This is where section 223 provided the convenient definition as to the moment when a child is recognized under the law as a human being. However, the reality still remains that abortion is indeed the killing of a human being.  Canada needs a new definition of human being which will restore personhood to the unborn child for it is now this personhood upon which legal rights depend. The crux of the matter is that the child in the womb is not considered a separate legal entity because "person" in the legal sense means a human being with recognized legal rights. Some claim granting rights to the unborn child diminishes the rights of women.  True equality however consists in giving the same right to life to all members of society. Canada is guilty of discrimination when it refuses to accord personhood and protection to the child in the womb.  Throughout history, the same arguments were used to deny personhood to some members of society, Blacks, Jews, women. Acknowledged only as biological entities, they were treated as a sub-class of humans, deprived of equal rights thus permitting others to exercise power and oppression over them. This refusal to grant personhood to the preborn child is echoed in the Dredd Scott decision concerning the slavery of Blacks in the United States. The decision stated that while slaves were human beings, they were not persons. They were classed as property to be used as the owner wished. During the time of the Third Reich, an entire group of people, Jews, were treated as an inferior species and the highest court in the land deprived them of their legal rights as persons.


Women were also the victims of discrimination by the courts and society. This discrimination and refusal to grant personhood was repeated yet again, in Canada in 1928. Canadian women were not considered persons for the purpose of eligibility to the Senate until the famous Persons case in 1929. A constitutional challenge was launched on behalf of five women: Nellie McClung, Henrietta Muir Edwards, Louise C. McKinney, Irene Parlby and Emily F. Murphy. While recognizing women as human beings, the Supreme Court of Canada declared that women were not persons within the meaning of the British North America Act of 1867. This decision was appealed and judgement was rendered on October, 18th, 1929 by the Privy Council in England affirming that women were indeed persons. Were women "persons" prior to this judgement? Of course, they were! Is the unborn child a person? Yes, he or she is a person. The decision of the Privy Council only marked the moment in history when women were granted legal recognition of their personhood in order to be appointed to the Senate.

No one in society must ever hold absolute power over another human being. As men do not have absolute power over women so women should not have absolute power over the child in the womb. We must uphold the principle of equal rights for all and restore personhood to the child in the womb. It is time to stop depriving the unborn child of the most fundamental right of all - the right to life.

Action Life Online Article

Discrimination - Yesterday and Today.
Yesterday Today
Canadian Women Preborn Children
1876

British common law is used to uphold the notion that "women are...not persons in the matter of rights and privileges." While they have the right to life they cannot inherit property or sue for damages so as to benefit their lives.

2012

The law allows a preborn child to inherit property and sue for damages, however it is denied the right to life so receives no benefit from these privileges.

Prior to 1884

B.C. Provincial law denied mothers any rights and privileges with respect to the disposition, management and education of their children. The father has sole control of a child's destiny.

1984

An Ontario Court denies a father the right and privilege to protect his unborn child from being destroyed despite his willingness to share responsibility for care and education. The mother has sole control of the child's destiny.

1916

Defence lawyer Eardley Jackson yells at police magistrate Emily Murphy, "You have no right to be holding court. You're not even a person!"

1983

Laura Sabia shouts at Canadians, "It's a fetus with no rights in law. It is not a person!"

1928

Although women are human The Supreme Court of Canada declares that women are not "persons" within the meaning of the BNA Act. .

1989, 1991

The Supreme Court of Canada declares that the preborn child is not a person in law and that the humanity of the preborn child is irrelevant.

Personhood and Discrimination.

Even a brief overview of history reveals that its darkest moments have occurred when people failed to recognize other human beings as persons and, therefore, as equals. This denial of personhood to particular members or classes within the human family is traditionally associated with attempts to deprive them of their fundamental rights and privileges. Who would deny that it is flagrant discrimination to arbitrarily strip certain human beings of the right to be deemed persons? Take, for instance...

Discrimination in recent history.

In North America, Native Americans were considered non-persons, referred to as savages, in order to provide justification for the appropriation of their land. We see this again in the slavery issue, when slaves were considered to be property, to be disposed of or used as the slave owner wished. When the injustice of this was taken to court, the Dred Scott decision was handed down. It recognized that the slaves were indeed human beings, but denied that they were persons. Yet it was this "personhood" upon which their legal rights depended.

During the Third Reich, the personhood of an entire group was questioned. Sociologist Irving Louis Horowitz summed up the plight of Jews in that era by saying, "The Jew as a national question; the Jew as a cultural question; the Jew as an economic question, never a person."1 In May 1923, Adolph Hitler asserted, "The Jews are undoubtedly a race, but not human."2 According to Ernst Fraenkel, a German legal scholar, the Reichsgericht, the highest court in Germany, was instrumental in depriving Jewish people of their legal rights. "The Reichsgericht refused to recognize Jews living in Germany as persons in the legal sense."3

Discrimination in Canada.

Canada too has been historically guilty of discrimination; discrimination which in hindsight is recognized as oppressive and arbitrary. Canadian women were not considered persons for the purpose of appointments to the Senate until October 18th, 1929 when the "Five Persons," Nellie McClung, Henrietta Muir Edwards, Louise C. McKinney, Irene Parlby and Emily F. Murphy, finally won a judgement in the famous Persons Case. This decision obtained for Canadian women legal recognition of their personhood and their eligibility to hold seats in the Senate.

Emily Murphy, a police magistrate, had constantly heard in her court that, "women are persons in matters of pain and penalties, but not persons in matters of rights and privileges."4 As examples, Mabel French of New Brunswick5 and Annie Langstaff of Quebec6 could not practise as barristers because they were not persons. A defense lawyer once yelled at Emily Murphy, "You're not even a person! You have no right to be holding court."7

In 1928, a constitutional reference was launched on behalf of the five women. The question considered was,

"Does the word 'person' in section 24 of the British North American Act (BNA), 1867, include females...?

The Decision handed down by the Supreme Court of Canada was unanimously answered in the negative. Women were not persons within the meaning of the Act.8 This decision was appealed and on October 18th, 1929, the Privy Council in England declared,

"The word person' in Section 24 of the BNA Act,1867 includes members of either sex. "9

Modern Discrimination.

In their efforts to depersonalize the human being in the womb, feminists like Michele Landsberg refer to "fertilized eggs" and "to the cult of worship of fertilized eggs."10 A statement of Concerned Citizens for Choice holds that "a pregnant woman has a group of cells growing within her body."11 Mary Anne Warren, a feminist philosopher, speaks of the preborn child as "an entity far below the threshold of personhood."12 Doris Anderson and the National Advisory Council on the Status of Women lobbied vigorously to have the new Charter of Rights omit the unborn child. In 1980 the Status of Women attempted to have the wording of the Constitution changed so that the Charter could not be interpreted as applying to unborn children.13 The Canadian Abortion Rights Action League (CARAL) argued that under the Criminal Code a fetus does not become a person until it is born. And Laura Sabia, like the defense lawyer of yesteryear, bellows, "It's a fetus with no right in law. It is not a person.'' 14

The advent of modern medical technology demonstrates how specious these arguments are. In vitro fertilization has allowed us to witness with our own eyes the beginning of human life. During "out of the womb" surgery, legally the preborn baby becomes a person; yet when the child is returned to the womb it loses its legal personhood. Such legal schizophrenia is intolerable.

The past tyranny of some men against women's legitimate rights in order to maintain power for their own convenience has given way to tyranny by some women over the child in the womb for much the same reasons. These women choose to regard the unborn baby as undeserving of personhood - to do so would, of course, interfere with permissive abortion. "Legally. a fetus doesn't have rights" claims Judy Rebick in her time with the National Action Committee on the Status of Women. "I don't think you can talk about rights when you're talking about an entity that isn't an independent being.''15

Others refuse to grant personhood to the unborn because they wish to maintain the status quo, much like the Supreme Court of Canada did when it reaffirmed that women were not persons. Had it not been for the enlightened and progressive thinking of the Privy Council, the status quo would have won the day.

Today, there exists a deliberate refusal to recognize the child in the womb as a person despite certain knowledge that it is a human being, the youngest member of the human family. Even though an unborn child can sue for damages suffered while in utero (under civil law) it has been consistently refused the right to live (under criminal law) that it needs in order to exercise its rights. In Daigle v. Tremblay, the Supreme Court of Canada ruled that "a fetus is treated as a person only where it is necessary to do so in order to protect its interests after it is born. "16 Why? The Court did not explain. In 1991, the Supreme Court carried this legal absurdity to greater lengths when it declared in the "Midwives' Case" that a nine-month-old baby in the process of birth (its head had emerged from the birth canal) was not a person within the meaning of the Criminal Code. This decision was hailed by radical feminists.

Were women not persons until the Privy Council declared them to be so? Of course not; they were always persons. Society simply refused to grant them legal recognition. Is the child in the womb a person? Of course! Yet once again person- hood is being used as a device to create a class of human beings who may be discriminated against and thereby deprived of their fundamental rights; in this case, the most fundamental of rights, the right to life

Conclusion.

In deciding the "Persons Case" the Privy Council explained:

"The exclusion of women from all public office is a relic of days more barbarous than ours, and to those who ask why the word person should not include females, the obvious answer is, why should it not?9

Denying personhood to the preborn child places us in a time of barbarism. To those who ask why human rights should not be granted to the preborn, the obvious answer is, why not?

The court transcript of the Privy Council's Decision in the "Persons Case" reads in part,

"The Constitution is a living tree capable of growth and expansion within its natural limits."9

The Canadian Constitution must grow with human under- standing. Our knowledge of the preborn human person has grown to the point that we can no longer refuse to graft these persons upon the living tree described by the Privy Council in 1929.

References.

  1. Irving Louis Horowitz, Book Review of Judenat: The Jewish Councils in Eastern Europe Under Nazi Occupation, Commonweal, April 13,1973, p. 139.
  2. C.C. Aronsfeld, `The Nazi Design Was Extermination, Not Emigration," Patterns of Prejudice 9, May-June 1975:22.
  3. Ernst Fraenkel, The Dual State; A Contribution to the Theory of Dictatorship, trans. E.A. Shils with Edith Lowenstein and Klaus Knorr (New York; Oxford University Press, 1941), p. 95.
  4. Grant MacEwan...and mighty women too, (Saskatoon: Western Producer Prairie Books, 1975), p. 133.
  5. (1905) 37, N.B.R. 359, at 371, Re Mabel French (1912)1 WWR 488 (B.C.C.A.) and S.B. 1912, 0. 18.
  6. (1915)470.S.C. 131,at 142. Affirmed at (1915) 16Q.K.B. 11.
  7. Isabel Bassett, The Parlous Rebellion, (Toronto: McCle!land and Stewart, 1975), p. 165.
  8. C.J.C. Anglin, Reference as to the meaning of the word `Persons' in Sec. 24 of the BNA Act, 1867, (1928), 5.CR. 276-304.
  9. Edwards v AG. Canada, (1930), Appeal Cases, 124-143.
  10. Michele Landsberg, Toronto Star, May 17, 1983.
  11. Concerned Citizens for Choice on Abortion, A Woman's Choice - A Strategy for the Abortion Rights Movement, Feb. 1982, p. 47.
  12. Mary Anne Warren, Commentary on "Can the Fetus Be an Organ Farm?", Hastings Center Report, October 1978, p. 23.
  13. Doris Anderson, Globe and Mail, Nov. 15, 1980.
  14. Laura Sabia, Toronto Sun, May 17,1983.
  15. Globe & Mail, April 29,1991.
  16. Daigle v. Tremblay, p. 29.

Dates modified July 2006

Action Life Online Article

_38247131_harris150It's okay to kill babies after they are born if they turn out to have "defects," says one of the British government's leading advisers on genetics. Professor John Harris, a senior advisor and member of the British Medical Association's ethics committee, said that it was not "plausible to think that there is any moral change that occurs during the journey down the birth canal," suggesting that there was no moral difference between aborting a fetus and killing a baby. His claim is that in some circumstances infanticide is "justifiable."

The professor's comments were made during an unreported debate last week on sex selection, which was held as part of the Commons Science and Technology Committee's consultation on human reproductive technologies. Professor Harris, who is also a professor of bioethics at the University of Manchester, was asked what moral status he accorded an embryo and if he endorsed infanticide in cases of a child carrying a genetic disorder that remained undetected during pregnancy. He replied: "I don't think infanticide is always unjustifiable. I don't think it is plausible to think that there is any moral change that occurs during the journey down the birth canal.

He declined to say up to what age he believed infanticide should be permissible. Professor Harris, who is one of the founders of the International Association of Bioethics and the author of 15 books on the ethics of genetics, was condemned for his remarks.

Professor Harris said he stood by his remarks, which he claimed had been elicited "in response to goading" from pro-life campaigners.

"People who think there is a difference between infanticide and late abortion have to ask the question: what has happened to the fetus in the time it takes to pass down the birth canal and into the world which changes its moral status? I don't think anything has happened in that time."

"It is well-known that where a serious abnormality is not picked up - when you get a very seriously handicapped or indeed a very premature newborn which suffers brain damage - that what effectively happens is that steps are taken not to sustain it on life-support. There is a very widespread and accepted practice of infanticide in most countries. We ought to be much more upfront about the ethics of all of this and ask ourselves the serious question: what do we really think is different between newborns and late fetuses? There is no obvious reason why one should think differently, from an ethical point of view, about a fetus when it's outside the womb rather than when it's inside the womb."

Professor Harris added that it was up to individual families to make a decision on the future of their child and that he was not concerned that such a course of action could lead to infanticide for cosmetic reasons.

The Rev. Joanna Jepson, a Church of England curate who is going to the High Court to try to block late abortions for "trivial reasons" such as a cleft palate case, said: "It is frightening to hear anyone endorsing infanticide but it is shocking when the person is responsible for teaching others."

"This affirms the need for an investigation into the practice of abortion. We have already seen, in the cleft palate case, how the law needs to provide more rigorous protection for such babies but, with medical practitioners such as John Harris at work, there is no question of our fundamental need to reaffirm the human value of every baby's life, no matter what its sex or disability."

A spokeswoman for the British Medical Association said: "These views of Professor Harris are personal views and do not reflect the views of the committee or the BMA, which is utterly opposed to the idea of infanticide."

Editor's Comment: Ironically, Professor Harris points out an important fact, that there is no normal difference between killing a late term pre-born infant and a born child. Morally, the act is identical, precisely because the child is the same being both in the womb and out. Tragically, his reasoning takes him to the absurd position that since it is legal to kill the almost born infant it could be legal to kill the born, instead of the humane and obvious position that the same reason why infanticide is illegal should apply to the late term pre-born baby. This is a stark example of how grotesquely the pro-abortion mentality has twisted the minds of even those reputed to be leaders in the field of ethics.

With excepts from British Medical Association Press Release. This article first appeared in Toronto Right to Life News, Winter 2004. BBC News photo, September 11, 2002


By Gregory Koulk

Those who play the personhood card argue that there is a difference between being a human and being a person. There are, they say, human beings that don't qualify as persons, and therefore should have no legal protection as persons. The unborn is an example of a human who is not a person.

232_1When asked, "What's the difference between a mere human and a human person," which is a fair question to ask, there are three possible answers. First, an unborn child doesn't look like other bona fide human persons who are at different stages of development. "After all," they say, "an acorn isn't an oak." Second, an unborn child doesn't do like other bona fide human persons who are at different stages of development. 

You recall the unfortunate case of baby Theresa in Florida who was born without a cerebral cortex. What was the argument there? She's not a person because she can't think like other babies think (this was used as an argument for infanticide in Florida). She can't do what other real persons do. The law implicitly offers a third distinction. The unborn child isn't located at the right place as are other human persons who are at the same stage of development.

In summary, some human beings aren't worthy of human rights because they don't look like the rest of us, they can't do what the rest of us can do, or they're in the wrong location. My question simply is this: Are any of these factors truly relevant to the issue of human rights? I am presuming here that all unborn children are in fact humans. It cannot possibly be otherwise because they are separate beings in themselves, produced by two other human beings-a mother and a father human being-and according to the law of biogenesis, which has been around for a long time in science, all beings reproduce after their own kind. Two human beings can only reproduce another human being.

Since an unborn child is the conceptus of two human beings, then it must be a human being. That's a foundational point here. The question is, though it is a human being, is it really a person? The answer with regards to unborn children is no, it isn't. When I ask why, people either say that it doesn't look like a person, it doesn't do the things a person does, or it's in the wrong location.

Let's take the last one first. You will understand immediately what I mean. According to our law, if an otherwise bona fide human person is not located at the right place, then the mother has the liberty to take its life for any reason. I'm thinking of a little girl right now. Her name is Rachel. She's the daughter of close friends of mine. Rachel is two months old, but she is still six weeks away from being a full-term baby. Rachel was born prematurely at 22 weeks, in the middle of her mother's second trimester. In other words, Rachel is still mid third-term even though she's almost two months old. When she was born she weighed one pound, eleven ounces, but dropped to just over a pound soon after. She was so small that she could rest in the palm of your hand and you'd hardly know she was there.

Here is the relevant point. It would be murder to take the life of little Rachel if she was lying nursing at her mother's breast today. But if the same Rachel, at the same stage of development, was six inches away resting inside of her mother's womb she could be killed, and in many cases the state would pay for it.

If it's wrong to kill an innocent human child at one location, then it's wrong to kill that same innocent human child six inches away. I take this as obvious and axiomatic. If you take this as obvious and axiomatic-and I don't see how you can refute it, frankly, regardless of your view of abortion-if it would be murder to take the life of little Rachel outside of her mother, it is murder to take the same life of the same person at exactly the same point of development inside of her mother. If this is true, then all mid- to late-term abortions are deeply immoral, because the liberty to kill the child is based merely on location.

But does even development make a difference? What about a person who is disqualified because it doesn't look like or doesn't do like? You could argue that Rachel at 22 weeks did survive and so she was a bona fide human person now and doing things little human beings do and little human persons do. But what about prior to that? Many have said clearly a zygote or a child in its earliest stages of development doesn't look like a human being and it doesn't act like a human being. It is not capable of doing those kinds of things that other human beings do. One could point out that this is circular reasoning. In other words, I could say it certainly looks exactly like a human person does at that stage of development. Let me take it from a different direction.

Regarding the other two issues, I have a very important question here. Do I forfeit my rights as a human person-my rights to life, liberty and the pursuit of happiness-because my body is shaped differently than yours? Do I forfeit my rights as a human person-my rights to life, liberty and the pursuit of happiness-because my body can't do what your body can do?

What if I were smaller than you? Am I any less myself? If I weighed only one pound, or even a few ounces, as long as I was alive wouldn't I still be me? If I had no arms or legs, or my body was terribly misshapen (remember the movie Elephant Man?), as long as I'm alive, wouldn't I still be me? And if body size and shape is the criterion, then do larger people with more attractive bodies have more rights?

That's what this argument asserts regarding the unborn. If a human being is smaller, if it looks different, if it isn't just like me, then it has no rights.

But what if it wasn't what I looked like, but rather what I could do that makes the difference. What if I weren't as smart as you? Am I any less myself? What if I had a lower IQ-an IQ of 70 or 50, or even 10, or 1? What if I could hardly think at all? Wouldn't I still be me? What if I couldn't play basketball, or couldn't write, or couldn't even feed myself? Wouldn't I still be who I am, a human person with rights and value? Do I as a human being become disposable simply because I can't do all that you can do, because I may be helpless and defenseless and dependent? And if this is the case, then do stronger and more capable and more intelligent people have more rights than others? That's what this argument asserts regarding the unborn. If a human being is not as intelligent, if it can't do what others can do, then it has no rights. That's the argument. The unborn doesn't look like other real persons and it doesn't act like other real persons, therefore it is not a real person. My point is, being a real person is not a look-like or an act-like kind of thing. It is a be-like kind of thing. Human beings are persons by their nature.

This was an argument that Lincoln made regarding the Lincoln-Douglas debates against slavery.

Do you begin to see how devastating this argument is to human rights-all human rights, even yours? If personhood is gradual and admits to degrees, then human rights based on personhood are gradual and admit to degrees. If any human being can be disposed of simply because he or she doesn't look just right or can't do what others can do, then the world is only safe for the perfect.

That's what this argument says. Is this the kind of argument you want to stand behind? That is precisely what the personhood argument entails. If so, be very careful, because sooner or later someone is going to discover your imperfection. Then what?

Transcript of a commentary from the radio show "Stand to Reason," with Gregory Koukl. Reproduction permitted for non-commercial use only. ©1995 Gregory Kouk

Reprinted in Action Life News, November 2004.

 

"In the eyes of the law...the slave is not a person."
Virginia Supreme Court decision, 1858

 "An Indian is not a person within the meaning of the Constitution."
George Canfield
American Law Review, 1881

"The statutory word 'person' did not in these circumstances include women."
British Voting Rights case, 1909

"The Reichsgericht itself refused to recognize Jews...as 'persons' in the legal sense."
German Supreme Court decision, 1936

"The law of Canada does not recognize the unborn child as a legal person possessing rights.
Canadian Supreme Court
Winnipeg Child and Family Services Case, 1997

Sometimes the most important lessons take the longest to learn.

(Quotes compiled by National Campus Life Network)

October 18 - Persons Day in Canada.


1928 2012
 Nellie McClung picture circa 1900. Fetus sucking thumb.
Not a person Not a person
Canadian women were not considered persons until the famous Persons case in 1929. A constitutional challenge was launched on behalf of five women: Nellie McClung, Henrietta Muir Edwards, Louise C. McKinney, Irene Parlby and Emily F. Murphy. While recognizing women as human beings, the Supreme Court of Canada declared that women were not persons within the meaning of the British North America Act of 1867. This decision was appealed and judgement was rendered on October 18th, 1929 by the Privy Council in England affirming that women were indeed persons. Were women “persons” prior to this judgement? Of course, they were! The decision of the Privy Council only marked the moment in history when women were granted legal recognition of their personhood. It is incredible that, in the 21st century, the child in the womb still does not have the status of personhood under the Criminal Code of Canada. In fact, according to Section 223, the unborn child is not even legally recognized as a “human being” until “it has completely proceeded, in a living state from the body of the mother whether or not (a) it has breathed (b) it has an independent circulation (c) the navel string is severed.” Therefore, two months, two weeks, two seconds before birth, the preborn child is considered a non-human and consequently cannot be legally recognized as a “person”. As a result, this child receives no protection whatsoever under criminal law. Given all the technological and scientific advances, such as ultrasound and intrauterine photography, which gives a clear picture of life before birth, is it not just as absurd in 2002 to deprive the baby awaiting birth status of personhood as it was in 1928 to deny personhood to women?
Isn’t it time to update Section 223 of the Criminal Code to reflect the scientific knowledge of this century?

This ad appeared in the Ottawa Citizen on October 18th, 2002.

 

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