This case concerned whether an unborn child was considered a “child” under the Family and Child Services Act.
LEAF intervened in front of the Supreme Court of British Columbia.
Baby R’s mother, still pregnant with Baby R, initially refused to consent to a caesarian section. The doctor got in touch with the Department of Family and Child Services, who decided to authorize the apprehension of the unborn child. Baby R’s mother was not informed of the apprehension prior to giving birth. She also ultimately consented to the caesarian section prior to giving birth. After the birth, Baby R was placed into foster care pending a hearing.
The Provincial Court of British Columbia found that Baby R was in need of protection, and ordered that Baby R be permanently taken into the care of the state. Baby R’s mother sought judicial review of that decision before the Supreme Court of British Columbia.
LEAF intervened to argue that the term “child” under the Act referred to a living entity separate from their parent and capable of being in physical custody or care of another person. As a result, it did not include a fetus or unborn child. If the term “child” did include a fetus or unborn child, LEAF argued, the Act would violate the rights of pregnant women to life, liberty and security of the person under s. 7 of the Charter. It also would violate their equality rights under s. 15 of the Charter.
The Court found that the term “child” meant living children who had been delivered. It noted that, if it were otherwise, the state would be able to confine a mother prior to delivery, even over a month before term. As a result, it set aside the apprehension, custody, and guardianship orders.
LEAF is grateful to W.G. Baker and N.V. Gray, counsel in this case. LEAF is also grateful for the research assistance of G. George, I. Grant, J. Panos, and G. Parson.
Download the factum here.
Read the Supreme Court of British Columbia’s decision here.
Our records are imperfect, but we are doing our best to update them – if you were involved with LEAF on this case but your name is not reflected here, please email us at [email protected].