Discrimination – Yesterday and Today
|Canadian Women||Preborn Children|
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.
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.
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.
Defence lawyer Eardley Jackson yells at police magistrate Emily Murphy, “You have no right to be holding court. You’re not even a person!”
Laura Sabia shouts at Canadians, “It’s a fetus with no rights in law. It is not a person!”
Although women are human, the Supreme Court of Canada declares that women are not “persons” within the meaning of the British North America Act.
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.
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…
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 of March 6, 1857 was handed down by the Supreme Court of the United States. It recognized that the slaves were indeed human beings, but denied that they were legal persons. Yet it was this “personhood” upon which their legal rights depended.
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.”1 As examples, Mabel French of New Brunswick2 and Annie Langstaff of Quebec3 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.”4
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.5 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. “6
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.”7 A statement of Concerned Citizens for Choice holds that “a pregnant woman has a group of cells growing within her body.”8 Mary Anne Warren, a feminist philosopher, speaks of the preborn child as “an entity far below the threshold of personhood.”9 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.10 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.” 11
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.”12
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. “13 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
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?6
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.”6
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.
Grant MacEwan…and mighty women too, (Saskatoon: Western Producer Prairie Books, 1975), p. 133.
(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.
(1915)470.S.C. 131,at 142. Affirmed at (1915) 16Q.K.B. 11.
Isabel Bassett, The Parlous Rebellion, (Toronto: McCle!land and Stewart, 1975), p. 165.
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.
Edwards v AG. Canada, (1930), Appeal Cases, 124-143.
Michele Landsberg, Toronto Star, May 17, 1983.
Concerned Citizens for Choice on Abortion, A Woman’s Choice – A Strategy for the Abortion Rights Movement, Feb. 1982, p. 47.
Mary Anne Warren, Commentary on “Can the Fetus Be an Organ Farm?”, Hastings Center Report, October 1978, p. 23.
Doris Anderson, Globe and Mail, Nov. 15, 1980.
Laura Sabia, Toronto Sun, May 17,1983.
Globe & Mail, April 29,1991.
Daigle v. Tremblay, p. 29.