Volume 9, Number 3, December 1998

Fetal Rights and Maternal Autonomy: The Cases

On July 17, 1998, JR was arrested when she was found sniffing a lacquer-soaked rag at a bus stop in Edmonton. A 33-year-old Native Canadian woman, JR was seven months pregnant with her 8th child at the time. She gave birth in jail on July 18; it is unknown whether the infant suffered any ill effects of prenatal solvent exposure, or whether the child (or her other seven children, ranging in age from 2 to 12) would be taken by Social Services. On July 22, she pleaded guilty in provincial court to inhaling intoxicating vapors, contrary to the Public Health Act. Upon issuing a six-month jail sentence, Judge Peter Caffaro said, "If you want to kill yourself, you're not going to do it for the next six months."

This arrest is surprising, given the Supreme Court of Canada decision, by a 7 to 2 majority in October 1997, that forced treatment or confinement of pregnant women is not justified. In that case, Winnipeg resident DG was a 21-year-old Native Canadian with a long history of solvent abuse. She had 3 children, two of whom had serious and permanent brain damage from prenatal exposure to solvents; all three children had been taken from her custody by Child and Family Services (CFS). At one point in 1996, she sought drug treatment but was turned away for lack of space. During a hospital admission on May 28, 1996 for complications of solvent abuse (nausea, confusion, lack of muscle control), it was discovered that she was 13 weeks pregnant. She was discharged from hospital but readmitted several weeks later with worsened symptoms. During a home visit by CFS after her second discharge from hospital, DG agreed to drug treatment; by the time space was available several days later, she was intoxicated and refused to go. CFS petitioned the provincial court of Manitoba for a court order for treatment. The initial court ruling found DG incompetent under the provincial Mental Health Act; this decision was overturned by the Manitoba Court of Appeal as an unwarranted extension of the Mental Health Act, as DG had been determined to be legally competent upon examination. The case reached the Supreme Court in October 1996, but the Court withheld its ruling for a year to consider the issues carefully. In the meantime, an apparently healthy boy was born on December 6, 1996, and DG married the baby's father on November 1, 1997.