Aspects of Life and Death across the Atlantic

On the day following the Canadian Medical Association’s announcement that it would be ‘tackling one of the most contentious ethical issues currently facing the health care system – that of end-of-life care’, the Administrative Court of England and Wales delivered its judgement in R (Nicklinson) v Ministry of Justice & Ors: R (AM) v DPP and Ors [2012] EWHC 2381 (Admin) in relation to ‘voluntary euthanasia/assisted suicide’.

The delegates at the CMA’s Annual General Council also considered the law relating to abortion, which to date appears to have been more controversial.


Initial comments on R (Nicklinson) v Ministry of Justice & Ors: R (AM) v DPP and Ors are available here and here, and the case will be subject to further analysis when the official report of the judgement becomes available.  By contrast, the CMA concerns relating to end-of-life are prompted by the lack of access to palliative care in Canada.  In November 2011, a report by the Royal Society of Canada Expert Panel: End-of-Life Decision Making estimated that 95% of deaths would benefit from palliative care, yet as many as 70% of Canadians lack access because hospice and palliative care programmes are unevenly distributed across Canada, [the CMA quoted a figure of 84%].  However, by opening the issue to public debate, the whole spectrum of issues considered in this report is likely to be discussed.

The report of the General Council meeting on the CMA web site states:

‘Delegates also dealt briefly (and somewhat indirectly) with the contentious issue of abortion by passing a resolution supporting the current wording of the Criminal Code which states that a child ‘becomes a human being within the meaning of this Act when it has completely proceeded, in a living state, from the body of its mother…’

‘Dr. Genevieve Desbiens, who brought the motion, said the aim was to prevent a ‘backdoor’ attempt to reopen the abortion debate by changing the wording of this particular section of the Code.  The CMA has a long-established policy supporting the right to therapeutic abortion.’

The ‘born alive rule’ has been attributed to the English jurist Sir William Staunford (1509–1558) and was set down by Edward Coke (1552–1634) in his Institutes of the Laws of England, as

‘If a woman be quick with childe, and by a potion or otherwise killeth it in her wombe, or if a man beat her, whereby the child dyeth in her body, and she is delivered of a dead childe, this is great misprision, and no murder; but if he childe be born alive and dyeth of the potion, battery, or other cause, this is murder; for in law it is accounted a reasonable creature, in rerum natura, when it is born alive.’

As a result of advances in medical science, the ‘born alive rule’ is no longer applicable in many jurisdictions, although it remains in Canada, where in relation to homicide, section 223 of the Criminal Code (R.S.C., 1985, C-46) states:

(1) A child becomes a human being within the meaning of this Act when it has completely proceeded, in a living state, from the body of its mother, whether or not:

(a) it has breathed;

(b) it has an independent circulation; or

(c) the navel string is severed.

 (2) A person commits homicide when he causes injury to a child before or during its birth as a result of which the child dies after becoming a human being.

Not unsurprisingly, the pro-life campaigners have condemned the move.  Others might question why the stance of the medical profession is based upon the state of knowledge 400 years ago.  In the UK, although legislation in this area was introduced following discussions with religious groups and others, the criteria set were  based upon medically-derived evidence.

From a lobbbying point of view, by opening the issue to public debate in this manner, it is more likely to receive unfavourable attention.

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  1. Pingback: The last three months: “law and religion” in 100 posts? | Law & Religion UK

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