In 1991, LEAF intervened in this Supreme Court of Canada appeal by two midwives who were convicted of criminal negligence causing bodily harm to a birthing mother due to the death of the unborn child. At the trial level, they were convicted of criminal negligence causing death to a person (the fetus). However, on appeal, the B.C. Court of Appeal substituted a conviction of criminal negligence causing bodily harm to the mother.
This case raised the issue of the legal status of the fetus. LEAF’s argument sought to both advance women’s reproductive freedom and focus on the woman’s relationship to her fetus, rather than placing the woman’s and her fetus’ rights in opposition. In LEAF’s view, the harm in this case was to the mother as the fetus cannot be treated as legally autonomous from her as it is “in and of the mother” until fully born.
The Supreme Court found that the fetus was not a person for the purposes of the Criminal Code offence of criminal negligence causing death to a person and therefore upheld the midwives’ acquittal on that charge.
Because an appeal had not been entered by the Crown to the original acquittal on criminal negligence causing bodily harm to the mother, the Court found that it was not open to the Court of Appeal to enter a conviction on that charge and acquitted the midwives of that charge as well.