Medicolegal Implications of Constitutional Status for the Unborn: "Ambulatory Chalices" or "Priorities and Aspirations"

CATHERINE TOLTON

ABSTRACT

In his appeal to the Supreme Court of Canada, Joseph Borowski argues that the unborn are juridical persons which should have the protections of the Charter. In this article, it is pointed out that constitutional status for the unborn would have effects far beyond its impact on abortion. Pregnant women would be vulnerable to dramatic challenges to their rights of autonomy and personal integrity. For example, a mother whose behaviour was believed to endanger the fetus might, if that fetus is accorded constitutional status, be subjected to court-ordered restrictions on her lifestyle, or even on forced caesarian section. But the fact that the fetus or conceptus is part of the woman's body requires that any "rights" accorded to the unborn be mediated through her; the "rights" of the unborn cannot, because of this geography, override the rights of the pregnant woman. Issues of reproductive technology are also canvassed.

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Citation: (1988) 47(1) U.T. Fac. L. Rev. 1.
Copyright © 1988. University of Toronto Faculty of Law Review.
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