LIFE
CONTENTS:
Choice on Termination of Pregnancy Act No.92 of 1996 .......................................... 2
GERMANY ........................................................................................................................ 3
77 BVerfGE 170 (1987).............................................................................................. 3
46 BVerfGE 16 (1977)................................................................................................ 6
36 BVerfGE 264 (1973).............................................................................................. 7
GBL Article 2.2. ........................................................................................................... 13
39 BVerfGE 1 (1975)................................................................................................ 13
UNITED KINGDOM ....................................................................................................... 21
EUROPEAN COMMUNITY ........................................................................................... 22
Paton v United Kingdom 3 EHRR 408 1980: Father’s rights in termination of a
women’s pregnancy .................................................................................................. 22
Attorney General ex rel. Society for the Protection of Unborn Children
(Ireland) Limited v Open Door Counselling Limited and the Dublin
Wellwoman Centre Limited 1988 2 CMLR 443: Freedom to supply services to
individuals from members state where the service is illegal. ................................... 22
Society for the Protection of Unborn Children (Ireland) Limited v Stephen
Grogan and others [1990] 1 CMLR 689: Commercial Speech and the Right to life
................................................................................................................................... 23
Society for the Protection of Unborn Children (Ireland) Limited v Stephen Grogan
and others [1991] 3 CMLR 849 Court of Justice of the European Communities..... 23
Kelly v United Kingdom 16 EHRR CD 1990: deprivation of life: court’s failure to
protect; prevention of crime: justification of force ................................................... 23
Attorney General v X and others [1992] 2 CMLR 277: Abortion. Public policy:
derogation from the freedom to provide and receive services: injunction to restrain a
person from travelling for the purpose of receiving abortion. .................................. 23
Bruggemann and Scheuten v Federal Republic of Germany 3 EHRR 244 1977:
Not every restriction on the termination of an unwanted pregnancy constituted an
interference with the right of respect for the private life of the mother. ................... 23
ANDRONICOU AND CONSTANTINOU v. CYPRUS
(86/1996/705/897) 9 October 1997: alleged unlawful killing of a young couple by
officers of a special police unit (MMAD) in the course of a rescue operation ......... 24
CANADA ......................................................................................................................... 27
Morgentaler v R 1 SCR 30 1988: Abortion -- Criminal Code prohibiting abortion
except where life or health of woman endangered -- Whether or not abortion
provisions infringe right to life, liberty and security of the person -- If so, whether 27
or not such infringement in accord with fundamental justice -- Whether or not
impugned legislation reasonable and demonstrably justified in a free and democratic
society ....................................................................................................................... 28
R v Morgentaler 3 SCR 463 1993: Abortion -- Provincial legislation prohibiting
abortions outside hospitals -- Whether legislation ultra vires province as being in
pith and substance criminal law ................................................................................ 31
Augustus v. Gosset [1996] 3 S.C.R. 268: Right to life -- Remedy -- Compensatory
damages -- Victim shot in head by police officer -- Victim dying few hours later
without regaining consciousness -- Whether right to life guaranteed by Charter of
Human Rights and Freedoms allows victim's mother to claim compensatory
damages for loss of life or of life expectancy-- Remedy -- Exemplary damages -Victim mortally wounded by shot fired by police officer -- Trial judge finding police
officer negligent in using weapon -- Whether unlawful interference with victim's
right to life intentional -- Meaning of "unlawful and intentional interference" -Whether right to life guaranteed by Charter of Human Rights and Freedoms allows
victim's mother to claim compensatory damages for................................................ 32
loss of life or of life expectancy-- Right of parenthood -- Mother claiming damages
for interference with her right of parenthood -- Whether Charter of Human Rights
and Freedoms or Canadian Charter of Rights and Freedoms protects right to
maintain and continue parent-child relationship. ...................................................... 33
Borowski v The Attorney General of Canada [1989] 1 S.C.R. 342: Mootness -Abortion provisions of Criminal Code -- Provisions under challenge already found
invalid -- Ancillary questions relating to Charter rights of the foetus -- Whether or
not issue moot -- Whether or not Court should exercise discretion to hear case -Whether or not Charter rights extending to foetus -- Charter issues ancillary to
question of validity of abortion provisions of Criminal Code -- Provisions under
challenge already found invalid -- Standing ............................................................. 36
Tremblay v. Daigle [1989] 2 S.C.R. 530: Injunction against abortion -- Foetal
rights -- Father's rights -- Unmarried woman seeking abortion -- Father of unborn
child granted an interlocutory injunction to stop abortion -- Whether injunction
should have been granted -- Whether foetus has a right to life under Quebec
legislation -- Whether potential father has a right to veto the mother's decision to
have an abortion -- Whether Canadian Charter of Rights and Freedoms can be
invoked to support the injunction ............................................................................. 39
ZIMBABWE ..................................................................................................................... 41
NAMIBIA ......................................................................................................................... 41
S v Haimbodi 1993 NR 129: statutory crime to perform an abortion where the
perpetrator is not a medical practitioner and where there is intent to kill a live foetus
................................................................................................................................... 42
African Charter on the Rights and Welfare of the Child .................................................. 42
Choice on Termination of Pregnancy Act No.92 of 1996
The Act (a copy of which is enclosed herewith) repealed the restrictive provisions of the
Abortion and Sterilization Act 2 of 1975. It affords women the right to choose to legally
terminate pregnancy. Section 2 of the Act permits abortions on request during the first 12
weeks of the gestation period. Sub sections (b) and (c) permit abortions after the first 12
weeks under certain circumstances.
Potential Challenges
2
Aspects of the Act which may be challenged include: access, time periods, consent, rights
of doctors and medical staff who object to performing abortions, places other than
hospitals, father's rights etc.
GERMANY
GBL Article 2.2.
Everyone shall have a right to life and to inviolability of his person.
The language requires editing:
77 BVerfGE 170 (1987)
[Facts:
This case combines constitutional complaints of 44 German citizens. The respondents are
the Federal Government and the Federal Legislator, the Bundestag. The various
complaints allege that the government and the legislator violated citizens right to life, as
guaranteed in Article 2.2. first sentence of the Basic Law, by agreeing to allow the United
States of America to store chemical weapons in Germany. The complaints contain
detailed descriptions of the high risk of disastrous accidents resulting from the
transportation and storage of chemical weapons. The petitioners claim that the
respondents neither acted to remove the weapons nor did anything to assure safe storage
and transportation. The respondents admit that chemical weapons are stored in Germany
and that they interfere with the petitioners right to life and inviolability of the person.
The respondents nevertheless argue that the petitioners lack the right to file the
constitutional complaints and that, even if they had the right, the complaints are late and
their reasoning is flawed.
{Translator s note:
This case is very complex. I have edited it heavily with the aim that the court s reasoning
with respect to Article 2.2. first sentence of the Basic Law becomes clear.}
Issue:
Does the presence of American chemical weapons in Germany with the consent of the
German legislative and executive constitute a violation of a citizen s right to life and
inviolability of the person?
Holding by the Second Senate:
No, it does not.
Discussion:
B.
I.
2. b) (2) cc) ...[The fact that] Article 2.2. first sentence of the Basic Law does not only
guarantee a subjective defensive right, but at the same time represents an objective value
decision of the Constitution which applies to all sections of the legal order and is basis for
a constitutionally mandated duty to protect, has been consistently recognized [in the
holdings] by both Senates of the Federal Constitutional Court. If these duties to protect
3
are violated, [such violations] are also violations of the basic right under Article 2.2. first
sentence of the Basic Law, against which the affected person can fight by the means of a
constitutional complaint. In complying with their duty to protect, the legislator and the
executive authorities [enjoy] a wide sphere of assessment, judgment and practical
discretion, [a sphere wide enough] to also permit consideration of competing public and
private interests. This wide freedom of discretion (Gestaltungsfreiheit) can only be
subject to a limited review by the courts, depending on the particularity of the debated
subject matter, the possibilities [of the courts] to come to a sufficiently safe [and
competent] judgment and on the importance of the endangered legal interests. The basic
right [of the individual] which is relative to the duty [of the state] to protect has the sole
bearing on the freedom of discretion of the state (Gestaltungsfreiheit), in that the public
authorities cannot employ regulations for the protection of the basic right which are
completely inappropriate or totally inadequate. Only in very special circumstances can
the freedom of discretion narrow down to the effect that only one particular measure
remains suited to fulfill the duty to protect. In order to meet the threshold requirements of
a constitutional complaint based upon a violation of the duty to protect derived from the
basic right in Article 2.2. first sentence of the Basic Law, the petitioner must
convincingly argue, that the public authorities either did not at all adopt regulations to
comply with their duty to protect, or, that the adapted regulations and measures are
completely inappropriate or totally inadequate to achieve the goal of protection. If the
petitioner wants to assert that the public authorities can only comply with their duty to
protect by taking one very particular measure, he must convincingly argue this as well as
outline the measure to be taken.
The present constitutional complaints do not meet these requirements. This [conclusion]
holds independent of whether the chemical weapons on the West German territory can be
used in their entirety for military purposes as the federal government claims, or, whether
one has to assume--as the petitioners do--that [the chemical weapons] are--at least partly-unfit for deployment [in a defensive war], and, whether their storage on the West
German territory is otherwise compatible with objective constitutional law or not. The
petitioners did not assert that the dangers attendant to the debated storage of chemical
weapons can never be controlled, and [neither did the petitioners assert] that such dangers
cannot be alleviated by precautionary safety measures which would satisfy Article 2.2.
first sentence of the Basic Law. Furthermore, [the petitioners] did not assert that, due the
fact that details of the storage of chemical weapons are kept secret, they were hindered in
making an adequate argument [meeting the strict requirements for constitutional
complaints]. The debated weapons have been on the West German territory for
considerable time now; the petitioners could not name any incidents in which concrete
injuries or endangerment to the people of the Federal Republic of Germany occurred;
considering [this absence of concrete examples], it was bearable to demand [from the
petitioners], disregarding the policy of secrecy, to substantiate their claim that the
executive branch could only satisfy its duty to protect commanded by Article 2.2. first
sentence of the Basic Law, by effectuating a withdrawal of the weapons. Also the
detailed description of precautionary safety measures by the Federal government in the
present case did not cause the petitioners to substantiate their complaint accordingly...
{The constitutional complaints are dismissed with respect to the parts outlined above}
4
[signed by all eight judges, Judge Mahrenholz filed a dissenting opinion]
5
GBL Article 2.2.
Everyone shall have a right to life and to inviolability of his person.
GBL Article 3.1.
All persons shall be equal before the law. (minor importance for this case)
46 BVerfGE 16 (1977)
[Facts:
This case was brought to the Federal Constitutional Court by Hanns Eberhard Schleyer,
the son of the President of the German Federation of the Industries, Dr. Hanns-Martin
Schleyer, acting on behalf of his father. The resondents were the Federal Government and
four German states.
Dr. Hanns-Martin Schleyer was kidnapped and his four aides killed by terrorists who
threatened to execute their hostage if the Federal Government failed to comply with
their demands. The main demand was that the Federal Govenment releases eleven named
terrorists from prison and guarantee their safe departure out of the country. When the
Federal Government denied to comply with the terrorists demands, Hanns Eberhard
Schleyer, acting on behalf of his father, petitioned the Federal Constitutional Court to
issue a temporary injunction to force the Federal Government to release the named
prisoners in order to avert the immediate danger to the life of Dr. Hanns-Martin
Schleyer. The son argued that the duty of the state to protect life, as mandated in Article
2.2. of the Basic Law, obliges the Federal Government to comply with the terrorists
demands. Furthermore, he argued that the state authorities may not sacrifice his father s
life for the protection of some other legal interest of higher value because life itself is the
highest legal value. In addition, the son reasoned that his father is protected by Article
3.1. of the Basic Law, which mandates that all persons are equal before the law and thus
entitled to equal protection by the state. Since in the earlier hostage crisis of Peter Lorenz,
the state gave in to kidnapper s demands and released prisoners, pleaded the son, the
state is now prevented from not complying with the terrorists demands. The court went
on to describe the respondents arguments. The respondents pointed out that the release
of the eleven prisoners may cause significant harm in the future to the Basic Rights of
others and mentined the negative experience of the Lorenz case. Moreover, the
respndents argued that the terrorists aimed at undermining the entire legal system and
therefore pose an especially grave threat to the entire legal order. Finally, the respondents
expressed the opinion that the case at hand does not offer one correct solution from a
constutional perspective. In contrast, the responsible state organs need some degree of
discretion in judging and deciding difficult cases and the Federal Constitutional Court is
called upon to exercise judicial self-restraint.
Issue:
May the Federal Constitutional Court issue binding guidelines to other state authorities
interfering with their decisions how to protect Basic Rights?
Holding by the First Senate:
No, it may not. The motion for a temporary injunction is rejected.
Discussion:]
C.
6
The review determines that the motion [for a temporary injunction] cannot have success.
I.
Article 2.2. first sentence, in conjunction with Article 1.1. second sentence, of the Basic
Law, obliges the state to protect every human life. This duty to protect is comprehensive.
It requires the state to stand by to support and to protect life; this means foremost, to
guard it against illegal interferences by others. This command is guideline for all state
organs according to their respective tasks. Because human life represents a highest value,
this duty to protect [human life] must be taken especially serious.
II.
How the state organs fulfill their obligation to effectively protect life is, in principle, a
decision within their own responsibility. [The state organs] decide which protective
measures are useful and necessary to ensure an effective protection of life. Their freedom
in the choice of the means to protect life can, in cases of particular circumstances, be
narrowed down to one particular mean, when an effective protection of life cannot be
achieved in another manner. Contrary to the quite understandable opinion of the
petitioner, such a case is not is not at hand here.
The peculiarity of the protection against life-threatening blackmail by terrorists is
characterized by [the fact that] the called-for measures must be adapted to the multitude
of unique situations.
[The called-for measures] can neither be generally and bindingly standardized
beforehand, nor can [called-for measures] be derived from a Basic Right of individuals in
a binding and standardized fashion. The Basic Law creates a duty to protect not only the
individual, but also all citizens as a whole. An effective fulfillment of this duty requires
[the state organs] to adequately react to the specific circumstances of the individual case;
this alone suffices to render impossible a binding commitments to particular measure. In
addition, such an advance commitment [to react in a certain way] cannot be prescibed by
the constitution, because then the state s reaction would be predictable for terrorists.
Thereby it would become impossible for the state to effectively protect its citizens. This
would be in unresolvable contradiction with the [state s] task as posed in Article 2.2.
first sentence of the Basic Law.
For the same reasons the general equality clause (Article 3.1. of the Basic Law) cannot
command [the state to make] identical and patterned decisions in all kidnapping cases.
Due to this constitutional analysis, the Federal Constitutional Court cannot order the
competent state organs to decide in a particular manner. It is within the discretion of the
respondents to decide which measures are to be taken to fullfill their duty to protect.
[signed by all eight judges]
GBL Article 2.2.
Everyone shall have the right to life and to inviolability of his person. The liberty of the
individual shall be inviolable. These rights may only be encroached upon pursuant to law.
36 BVerfGE 264 (1973)
{Translator s Note:
Some terms were difficult to translate and I chose to stick to the following translations:
7
1. Eroeffnung des Hauptverfahrens. This is the date on which a court opens a trial, in the
following case on the request and after investigations of the District Attorney. I translated it
with opening of the main trial .
2. Beginn des Hauptverfahrens. This is he date when the parties make their opening
statements in the court room. I translated it with begin/commencement of the main trial .
3. Schwurgericht. This is a court within a District Court that deals with criminal cases. I
translated it with District Court in criminal matters .
4. Untersuchungshaft. This is imprisonment before a final sentence has been articulated. No
corrective work is being performed on the inmates during this time. I translated it with
detention/imprisonment while awaiting trial .
[Facts:
This case decides a constitutional challenge to Section 121.1. of the Criminal Law
Procedure Rules (Strafprozessordnung, hereafter CLPR). Section 121.1. regulates the length
someone may be kept in detained while awaiting trial (Untersuchungshaft) without there
having been a court sentencing that person to a prison term. Section 121.1. reads that for the
same act someone may not be held for longer than six months unless a longer time can be
justified. Section 121.1. then lists three justifications--special difficulties with the
investigations, special volume of the investigations, or some other important reason which
renders a final court decision impossible within six months.
The petitioner was put into prison on March 28, 1972. He was accused of having caused
physical injury with deadly consequences to someone (Koerperverletzung mit Todesfolgen).
The reason for the imprisonment was the danger that he may flee. The main trial was
opened by the court on March 1, 1973. The setting of the date for commencement of the
main trial was delayed first due to further investigations and then due to an overburdening of
the District Court in criminal matters (Schwurgericht). In mid-May 1973 the petitioner
applied to be released from prison. The District Court in Duesseldorf refused to do so on
June 7, 1973. The District Court gave a procedural reason for why the delay was not in
violation of the law. Moreover it argued that an overburdening of the District Court in
criminal matters constitutes an important reason to delay the trial within the meaning of
121.1. of the CLPR. The petitioner appealed to this decision. However, the High Court of
Appeals in Duesseldorf affirmed the decision and reasoning of the District Court on July 18,
1973. In the affirmation of the District Court s decision, the High Court of Appeals
estimated that the trial for the petitioner would commence around December 1973/January
1974. On August, 20, 1973, the date for the commencement of the trial was finally set for
October 30, 1973. The petitioner was sentenced to four years and six months on November
22, 1973. Before that, he filed a constitutional complaint against the two court decisions
refusing to release him from prison. This decision was handed down on December 12, 1973.
In his constitutional complaint the petitioner maintained that the two decision of the District
Court and the High Court of Appeals in Duesseldorf violate his right from Article 2.2.
second sentence of the Basic Law. He argued that his right to personal liberty was violated
from March 1973 onwards, because the investigations were completed and the main trial
opened, but the authorities failed to set a date for the commencement of the main trial and
kept him detained. Moreover, he rejected the substance of the procedural argument by the
two courts but emphasized that even if that argument had merit it could not override his
right to personal liberty.
8
The court then summarized statements by the Federal Minister of Justice and by the
Minister of Justice from North Rhine-Westfalia, the state of which Duesseldorf is the
capital. The Federal Minister of Justice supported the argument of the petitioner that an
overburdening of the courts with work does not constitute an important reason within the
meaning of section 121.1. of the CLPR. The Minister of Justice from North Rhine-Westfalia
supported the decisions of the two courts not to release the petitioner.
Issue:
Is it a violation of the petitioner s right to personal liberty from Article 2.2. second sentence
of the Basic Law, if a non-short-run overburdening of the courts with work constitutes an
important reason within the meaning of Section 121.1. of the CLPR?
Holding by the Second Senate:
Yes, it is.
Discussion:]
B.
I.
The constitutional complaint is permissible. It is also justified.
The challenged decisions violate the Basic Right of the petitioner from Article 2.2. second
sentence of the Basic Law. The interpretation of Section 121.1. of the CLPR [on which the
two decisions are based] is not in harmony with the constitutionally guaranteed protection of
the personal liberty of the individual.
1. Article 2.2. second sentence guarantees the liberty of the person--however, not without
boundaries. The liberty of the person, however, [in its function] as a basis of the general
legal position (allgemeine Rechtsstellung) and the right to free development of the
personality of the citizen, has a high rank among the Basic Rights. Therefore, the locking up
of an accused [person] into prison may only be ordered and maintained pursuant to a law if
matters of the general well-being [which outweigh the personal right] compellingly
necessitate [such an action]. Among the matters of the general well-being, against which the
right to liberty of the accused [person] under certain circumstances must step back, are the
undeniable needs of effective criminal prosecution. [An effective criminal prosecution]
would in many cases not be possible, if it were [impossible] for the criminal prosecution
agencies, to arrest a presumed perpetrator before the sentencing and keep him imprisoned
until the end of the criminal trial. A justifiable solution of this conflict of basic norms [which
are] important for the state bound by justice (Rechtsstaat) can only be achieved if the
limitations of freedom, which are necessary and useful from the perspective of criminal
prosecution, are being [scrutinized] with the right to liberty of the accused and not yet
convicted person. This means that [one] has to weigh both legal values, [and when doing
that, one has] to consider that the principle of proportionality--also independent of the
expected sentence--sets boundaries for the length of the detention while awaiting the trial.
When doing the balancing, the circumstance demands attention, that with increasing length
of the detention while awaiting trial, the weight of the right to liberty relative to the interest
of an effective criminal prosecution can increase:
If the accused is not found guilty, than the damage which was caused by the [preventive
detention]--disregarding the financial rights the law on reparations for criminal prosecution
measurements grants--is in its nature irreparable. If, on the other hand, [the accused] gets
sentenced to a prison term, then the prison term either cannot or can only partly be executed.
9
Since, according to Section 60 of the Criminal Code, the time spend in prison while
awaiting trial [has to be subtracted from] the sentenced prison term, [there] remains, in cases
of very long time spend in prison while awaiting trial, during which the accused [receives no
corrective treatment], not rarely no sentence and often only a short sentence, which is too
short to render possible a sensible and promising execution of the sentence. Facing these
circumstances, the constitutional balancing between the duty of the state to prosecute crimes
and the right to liberty of the accused changes the longer the detention while awaiting trial
lasts.
2. This is being taken into account by Section 121.1. of the CLPR in so far as [that section]
generally limits the detention while awaiting trial for one act to six months and grants
exceptions only to a limited extent.[The] prerequisite [for an exception] is that special
difficulties or special volume of the investigations or another important reason do not yet
allow for a sentence and justify a continuation of the detention while awaiting trial. These
circumstances for exceptions are, as is evident from the wording [of Section 121.1. of the
CLPR] and is affirmed by the legislative history, to be construed narrowly.
The interpretation of the regulation of ordinary law is, however, the duty of the generally
responsible courts; [the interpretation] is not accessible to constitutional review to the full
extent. This is also the case if the task imposes itself to find the meaning of the legal term
important reason by the recognized methods and means of interpreting norms
(Normeninterpretation). The Federal Constitutional Court, however, has [the duty] to check
whether the interpretation of this term by the courts is not based on a generally incorrect
view of the meaning and scope of the basic right of personal liberty and imposes upon the
regulation, under disregard of other interpretational possibilities, an unconstitutional
meaning. The duty to interpret in conformity of the constitution demands, [in cases of]
several possible, according to wording and aim of a law, interpretations, of which one leads
to an unconstitutional, the other to a constitutional result, to prefer the one which is in accord
with the Basic Law.
If an important reason within the meaning of Section 121.1 of the CLPR is found, it
remains to be checked, whether a continuation of the detention while awaiting trial is
justifiable under the principle of proportionality.
3. According to these principles the interpretation put forth by the District Court and High
Court of Appeals of Section 121.1. of the CLPR cannot be maintained [from a constitutional
perspective]. Both courts found it an important reason if the overburdening of a District
Court in criminal matters leads to [the situation] that between the opening of the main trial
and the commencement of the main trial a much longer time-span passes, than would be
necessary for a regular preparation of the trial. The challenged decisions do not make clear
whether, in the opinion of those courts, it was impossible to address the overburdening with
organizational measurements. Clarity on this matter especially does not emerge from the
comment of the High Court of Appeals [that the overburdening of the District Court with
criminal matters could not have been addressed, following a Federal High Court decision,
by establishing another court (Schwurgericht) in the District Court to deal with criminal
cases. This is the case] because there are other ways and means to prevent and remedy--as
will be shown later--the overburdening of a District Court in criminal matters. This question
need not be addressed though, because the decision does not depend on it.
10
a) The overburdening of a District Court with criminal matters is in the light of Article 2.2.
second sentence of the Basic Law not an important reason , if, within the available means
of the court by way of personal and equipment [reallocation] the possibility exists, to ensure
the [meeting of all trial deadlines set in regulations] by organizational measurements, [and],
to especially avoid that in cases of detention while awaiting trial, after the opening of the
main trial the commencement of the main trial gets significantly delayed. [Next the Federal
Constitutional Court suggests in detail some organizational measurement by which a District
Court could assure that no overburdening of the District Courts in criminal matters
happens.]
If, in the case of a significant delay of the commencement of the main trial in a criminal case
in front of a District Court, [the delay is due to the fact that] these organizational
measurements were not fully implemented, then this alone already renders the continued
execution of detention while awaiting trial in excess of the time necessary to prepare for the
trial unconstitutional. The Federal Constitutional Court has already articulated that the
execution of a detention while awaiting trial, the length of which significantly goes beyond
the deadline of Section 121.1. of the CLPR, violates Article 2.2. second sentence of the
Basic Law, if the [violation of the deadline] was caused by the fact that criminal prosecution
authorities and the courts did not take all bearable measurements to bring the investigations
to an end as fast as possible and to bring about a court decision on the acts the accused [is
being held for]. The same must, however, also hold if the reason for [the violation of a
deadline] lies therein, that after the opening of the main trial, the commencement of the
main trial, in a case ready to be tried, gets significantly delayed as a result of avoidable,
organizational mistakes or omissions at court.
b) The not solely short-run overburdening of a District Court in criminal matters is, due to
the value-setting meaning of Article 2.2. second sentence of the Basic Law, even then not an
important reason which justifies the continued detention while awaiting trial , if it is due
to a [workload of cases in front of the court] which cannot be dealt while [complying with
all the deadlines] even though all organizational means and ways at court have been
optimally used. [If such a workload of cases causes] that a criminal case after the opening of
the main trial does not come to trial for a while--in the case of the petitioner more than eight
months--then the accused may not be kept detained, after the deadline set by Section 121.1.
of the CLPR has passed by, for longer than the proper preparation of the trial would require.
The contrary opinion, held--with some restrictions--by several High Courts of Appeal,
misjudges the meaning and scope of the basic right of personal liberty and insinuates the
regulation of Section 121.1. of the CLPR [has] a meaning contrary to the constitution.
The interpretation of the term important reason [from Section 121.1. of the CLPR] must-in accordance with the principles developed above--guide itself at the kind of result which a
balancing would produce, [a balancing] at which the right to liberty of the accused, due to
the six months the detention already lasted, meets the state s interest to criminal prosecution
with increased weight. This balancing, however, results [in the conclusion] that an
overburdening of a court may not justify a taking precedence of the state s duty to
prosecute crimes over the right of the accused to liberty.
The detained accused [is not responsible] if his criminal case does not come to trial within
adequate time, because the court lacks the personnel and equipment which would be
necessary to [deal with the workload in a legally correct manner]. This alone, however, is
11
not decisive. [This is so] because the same is the case in other circumstances--for instance if
an indispensable party to the trial is unavailable due to illness--which are beyond the
influence of the accused and nevertheless can be important reasons for the continuation of
detention while awaiting trial. This aspect, however, gains significance in relation with the
fact that an overburdening of the courts--contrary to unforseeable coincidences or events of
fate--falls within the realm of responsibility of the community which forms the state
(staatlich verfasste Gemeinschaft). The state relative to the detained accused person [cannot
justify] that he does not furnish his courts in a manner which is necessary to conclude the
cases [in front of the courts without any unavoidable delay]. It is the duty [of the state],
within the framework of what is bearable, to take all measurements which are useful and
necessary to prevent an overburdening of the courts and, [in cases where and overburdening
occurs, to remedy that in a timely fashion]. [The state] has to finance, provide, and use the
necessary means--personnel and equipment--[for the achievement of that goal]. This task
follows from the state s duty to offer justice (Justizgewaehrung), which is part of the
principle of the state bound by justice (Rechtsstaatsprinzip) of Article 20.3. of the Basic
Law. The accused may not be burdened to accept a longer detention while awaiting trial
than adequate for the trial, just because the state failed to comply with its duty [to offer
justice]. This does not exclude that in individual cases other important reasons may be
present, which justify a continuation of the detention while awaiting trial.
II.
Accordingly, the unconstitutionality of the challenged decisions has to be found. Their
reversal, however, cannot be considered, because they [are not current anymore], after the
petitioner--although the decision is not yet final [since he appealed]--got sentenced to a term
of four years and six months and the District Court after it declared the sentence ordered
anew the continuation of the detention while awaiting trial.
III.
The necessary cost for the petitioner have to be compensated (Section 34.4. of the Federal
Constitutional Court Regulations). The duty to compensate falls upon the state of North
Rhine-Westphalia, to which the reprimanded violation of a basic right can be attributed.
[The decision was signed by all eight Judges. Three of the Judges only concurred in the
result, not in the reasoning.]
12
GBL Article 2.2.
Everyone shall have a right to life and to inviolability of his person.
39 BVerfGE 1 (1975)
[Facts:
The case arose out of a constitutional challenge of Section 218a of the Criminal Code
after the passage into law of the Fifth Law to Reform the Criminal Law. The case was
brought before the Federal Constitutional Court by 193 members of the Bundestag and
five states--Baden-Wuetttemberg, Bavaria, Saarland, Schleswig-Holstein, RhinelandPalatinate. Section 218a of the reformed Criminal Code reads that termination of a
pregnancy is generally legal if the abortion is performed with the consent of the pregnant
woman within the first twelve weeks of the pregnancy.
{Translator s Note:
The Fifth Law to Reform the Criminal Code represents the so-called Fristenloesung--a
solution of the abortion issue relying on a combination of a deadline until when an
abortion may be performed with some mandatory counseling procedures. The Federal
Constitutional Court overturns this solution and adopts the so-called Indikationsloesung-a solution to the abortion issue by limiting the realm of legal abortions to certain
indications, that is, predefined circumstances or legally valid reasons for abortions.}
Issue:
Does the reformed abortion statute violate the right to life of the life developing in the
mother s womb?
Holding by the First Senate:
Yes, it does. The reformed law is enjoined and the legislative is asked to draft a new
statute in accordance with this decision.
Discussion:]
C.
I.
1. Article 2.2. first sentence of the Basic Law also protects the life developing within the
mother s womb as an independent legal interest.
b) Everyone within the meaning of Article 2.2. first sentence of the Basic Law is
every living human being , or, put differently, every human individual possessing life;
everyone thus also includes the still unborn human being.
2. The duty of the state to protect every human life can therefore be derived directly from
Article 2.2. first sentence of the Basic Law. [This duty] also arises from Article 1.1.
second sentence of the Basic Law; for the developing human life is included in the
protection of human dignity which is granted by Article 1.1. of the Basic Law. Where
human life exists it merits human dignity; it is not decisive whether the holder of this
human dignity knows of it and is able to maintain it by himself. The potential capabilities
lying in human existence from its inception on are sufficient to justify human dignity.
3. ... In accordance with the prior decisions of the Federal Constitutional Court the Basic
Rights not only provide subjective defensive rights of the individual against the state,
they also embody an objective order of values which binds basic constitutional decisions
13
in all areas of the law and constitute guidelines and impulses for the legislative, the
administrative and the judiciary...
II.
1. ... Human life, as need not further be justified, represents the supreme value within the
constitutional order; it is the vital basis for human dignity and the prerequisite of all other
basic rights.
2. The duty of the state to protect developing human life exists in principle also with
respect to the mother. Undoubtedly, the natural union of the unborn life with the mother
establishes a special relation for which there is no parallel in any other factual situation of
life. Pregnancy belongs to the intimate sphere of women which is constitutionally
protected by Article 2.1. of the Basic Law in conjunction with Article 1.1. of the Basic
Law. If [one] were to regard the embryo only as a part of the maternal organism, the
termination of a pregnancy would fall within the [mother s] sphere of private life
decisions into which the legislator may not intrude. Because the nasciturus is an
independent human being which is protected by the Constitution, the termination of a
pregnancy has a social dimension which makes accessible to and in need of state
regulation. It is true that a women s right to develop her personality, which consists of
the of the freedom of action in a comprehensive sense and therefore also includes the
women s right to take responsibility for herself and to make a decision against
parenthood and the duties arising therefrom, also deserves the recognition and protection
[of the state]. But this right is not given without limitation--the rights of others, the
constitutional order, and moral law limit it... No balance is possible which would
guarantee both, the protection of the life of the nasciterus and the freedom of the pregnant
women to terminate her pregnancy, for the termination of a pregnancy always means the
destruction of unborn life. In the necessary balancing process both constitutional values
must be perceived in relation to human dignity as the center of the constitution s value
system. When using Article 1.1. of the Basic Law as a standard, the decision must favor
the protection of the fetus life over the right of self-determination of the women. [The
women] may be limited in some potential personal developments by pregnancy, birth,
and childrearing [and her right to self-determination may thus be impaired]. The unborn
life, however, gets destroyed by the termination of a pregnancy. Pursuant to the principle
of the most careful balancing of competing constitutionally protected positions, and
considering the fundamental concept behind Article 19.2. of the Basic Law, the
protection of the nasciterus s life must be granted priority. This priority principally lasts
for the entire duration of the pregnancy...
3. From [the discussion] above the constitutionally required fundamental position of the
legal order with respect to termination of pregnancies may be deduced: The legal order
may not render the women s right to self-determination into its sole guideline for its
regulations. The state must principally assume a duty to carry a pregnancy to terms, a
termination [of a pregnancy] must therefore principally be seen as a wrong. The legal
order must clearly articulate its disapproval of the termination of pregnancies. The wrong
impression must be avoided that a termination of a pregnancy is, for instance, an event
socially similar to a trip to the doctor to cure an illness or, even worse, a legally irrelevant
alternative to contraception. The state may not avoid its responsibility and declare a legal
14
vacuum by not making a value judgment and leaving this judgment to individuals [who
make such decisions only on their own behalf].
III.
[The means] how the state is to fulfill its obligation of an effective protection of life are
first to be decided upon by the legislator. [The legislator] decides which protective
measurements it judges useful and necessary to effectively guarantee the protection of
life.
1. Especially with respect to the protection of unborn life the guiding concept is the
priority of prevention as opposed to repression. It is therefore the state s task to use
sociopolitical means as well as public assistance to safeguard the developing life... To
reawaken and strengthen the maternal will to protect [the unborn life] in cases where it
has been lost shall be the noblest end of the state s endeavor to protect life...
2. The issue of how much the state is constitutionally required, in order to protect the
unborn life, to use criminal law, the harshest weapon it has at its disposal, cannot be
answered by a simplified question asking whether the state has to punish certain acts. [A
view of the entire issue is necessary.] ...
The legislator is principally not obliged to employ the same criminal sanctions for the
protection of unborn life that it deems useful and necessary for the protection of born
life...
a) The task of the criminal law has always been to secure the elementary values of
community life. As established above, the life of individual human beings is among the
highest legal values. The termination of a pregnancy irrevocably destroys human life
which has come into being. The termination of a pregnancy is an act of killing... From
this perspective the use of criminal law to punish acts of abortion is undoubtedly
legitimate; [such use] is the current law in most civilized states--in variously formulated
conditions--and fits within the German legal tradition...
b) However, punishment should never be an end in itself. Its use is principally subject to
the decision of the legislator. Nothing prevents [the legislator] to express the above
outlined constitutionally required legal disapproval of termination of pregnancies by
means other than the threat of penal punishment. What is determinative is that the
entirety of measurements taken to protect unborn life, be they private, public, or more
particularly, be they of the nature of social or criminal law, in fact guarantee a level of
protection adequate to the importance of the legal interest to be safeguarded...
3. As has been shown, the duty of the state to protect the developing life also exists with
respect to the mother... The incisive effects of a pregnancy upon the mental and physical
condition of a woman are evident and require no further exposition... In individual cases
serious and even life-threatening situations of conflict may emerge. The unborn s right
to life may result in a burden to the woman which is significantly larger than the one
normally connected with a pregnancy. Here the question emerges of how much [the
woman] can be expected to endure, in other words, the question arises whether in such
cases the state may compel [the woman] to carry the child to terms by means of criminal
sanction. Respect for the unborn life conflicts with the woman s right not to be forced to
sacrifice her own values to an unbearable degree in order to protect the unborn life. In
such a situation of conflict, which usually does not permit a clear cut moral judgment and
in which the decision to terminate the pregnancy may be one of conscience and worthy of
15
respect, the legislature has the duty to exercise particular restraint. If, in these cases, [the
legislator] does not deem the behavior of the pregnant women deserving of punishment
and forgoes the imposition of the means of criminal punishment, then the result of the
balancing incumbent upon the legislator must be constitutionally accepted.
When filling the unbearable criteria with content, circumstances must not qualify
which do not seriously burden the person with the duty [to carry the child to terms],
because [such circumstances] represent normal situations with which anyone has to deal.
Instead, circumstances with considerable weight must be given, which to a degree out of
the ordinary, render it difficult for the affected person to comply with her duty, so that
she cannot fairly be expected to do so. [Such circumstances] are especially present when
the affected person is thrown into heavy inner conflicts by the fulfillment of her duties.
To solve such inner conflicts by the threat of penal sanction does not seem adequate,
because [such a solution] uses force in a case where respect for the personal sphere of
human beings demands complete inner freedom to make decisions.
A continuation of the pregnancy seems especially unbearable if it can be shown that the
termination is necessary in order to avoid a threat to the pregnant woman s life or [to
avoid] a threat of a serious impairment of her health condition. (Sec 218b, No.1,
Criminal Code in the Version of the Fifth Law to reform the Criminal Law) In this case
[the pregnant woman s] right to life and inviolability of the person (Basic Law Article
2.2., first sentence) is in jeopardy, [a right] she cannot be expected to sacrifice for the
unborn life. In addition, [in circumstances] in which the burdens for the pregnant woman
would subject her to burdens out of the ordinary which, from the viewpoint of what may
be expected from someone to bear, are similarly unbearable than the ones listed in Sec
218b, No 1, the legislator may refrain from imposing penal sanctions for a termination of
a pregnancy... [Among such circumstances are especially cases in which] eugenic, ethical
(criminological), and social or emergency indications {Notlagenindikation} [are reasons
for the desire to termination a pregnancy]. In the deliberations of the of the Criminal Law
Reform, the representative of the federal government demonstrated at great length and
with convincing reasons why, in these four indication cases {Indikationsfaellen}, a
carrying to terms of the pregnancy appears to be beyond the burden of what can be
expected from someone to bear. The decisive point in all these cases is that another
interest asserts itself with urgency, which, from a constitutional perspective is equally
worthy of protection, so that state s legal order cannot demand that the pregnant woman
always gives priority to the right of the unborn.
Also the indication of general emergency (social indication) may be categorized [as one
of legitimate reasons to terminate a pregnancy]. For the general social situation of the
pregnant woman and her family may produce conflicts of such gravity, that [the state]
cannot extract sacrifices in favor of the unborn life beyond a certain degree from the
pregnant woman by the means of the criminal law. When regulating this indication case,
the legislator must describe the situation which will not lead to punishment in such a way
that the gravity of the required social conflict becomes clearly visible and--from the
viewpoint of what burdens may be expected from someone to bear--congruence of this
indication with the other indication cases is assured. If the legislator removes these true
cases of conflict from the coverage of the penal law, he does not violate his duty to
protect life. Also in these cases the legislator may not be content with merely examining
16
and certifying, where appropriate, that the legal prerequisites exist for exempting a
termination of a pregnancy from punishment. Rather the legislator [has the duty] to offer
counseling and help with the aim to remind the pregnant woman of her fundamental duty
to respect the unborn s right to life, to encourage her to continue the pregnancy, and-especially in cases of social need--to support her by means of practical assistance.
In all other case the termination of pregnancy remains a wrong deserving of punishment;
for here the destruction of a legal interest of the highest order is subject to the unbound
discretion of another which is not motivated by a necessity. If the legislator wanted to do
without criminal sanctions in these cases, this would only be compatible with the duty of
the state to protect [life] outlined in Article 2.2., first sentence of the Basic Law, had he
another equally effective legal sanction at its disposal, which would indicate the
wrongness of the conduct and the disapproval of the legal order [of such conduct] and
which would prevent termination of pregnancies as effectively as a penal provision.
D.
If one scrutinizes the challenged Fristenloesung (deadline and counseling solution) of the
Fifth Reform of the Criminal Code with the guidelines [outlined above], it follows that
the [reformed] statute does not in the required degree live up to the duty to protect
developing life from Article 2.2. first sentence of the Basic Law in combination with
Article 1.1. of the Basic Law.
[In the following passages the court concretely outlines several reasons why the reformed
abortion regulations of the Criminal Code is unconstitutional.
The reformed Criminal Code fails to explicitly articulate the legal disapproval of
termination of abortions as is required under the Basic Law (II. 1).
The reformed Criminal Code fails to provide for legal sanctions in cases where an
termination of a pregnancy is not constitutional (II. 2.).
The mandatory counseling procedure in the reformed Criminal Code insufficiently deters
abortions. First, doctors are not qualified to inform women about available public and
private welfare and aid benefits (II. 3. a)). Second, the fact that the same doctor who
performs the abortion does the counseling to dissuade a woman to abort will very likely
lead to suboptimal deterrence (II. 3. b)). Third, the fact that the abortion may be
performed immediately after the counseling is very unlikely to lead to lead to optimal
deterrence (II. 3. c)).]
E.
[The court enjoins Section 218a of the reformed Criminal Code and asks the legislator to
redraft the statute consistent with the present decision.
signed by all eight Judges]
Dissenting Opinion by Justices Rupp-v. Bruenneck and Dr. Simon
The life of every single human being is self-evidently a central value of the legal order. It
is indisputable that the constitutional duty to protect such life also encompasses its
preliminary state before birth. The disputes in parliament and before the Federal
Constitutional Court did not refer to whether, but only to the how of this protection. The
decision in this matter belongs to the responsibility of the legislator. Under no
17
circumstances can a duty of the state be derived from the constitution to subject every
termination of a pregnancy, at any stage, to punishment. The legislator was as free to
decide for the Fristenloesung (counseling and deadline solution) as he was [to opt] for the
Indikationsloesung (indication solution)...
A.
I.
The mandate of the Federal Constitutional Court to annul decisions of the parliamentary
legislator requires sparse use in order to avoid a shifting of power among the
constitutional organs. The command of judicial self-restraint, which has been labeled the
life-giving elixir of the judicial office of the Federal Constitutional Court, is binding in
particular when a case does not deal with defending against excesses of the state s
power, but rather when it involves directing, by the means of constitutional judicial
control, [the work] of the legislator, who is immediately legitimated by the people, in the
positive shaping of the social order. [In the above situation] the Federal Constitutional
Court may not yield to the inducement to seize the function of the organ to be controlled,
if, in the long run, the status of constitutional [subject matter jurisdiction] is not to
endangered.
1. The [constitutional review] asked for in this case goes beyond the realm of classic
constitutional control. The Basic Rights, which are at the center of our constitution,
guarantee the citizen, in the form of defensive rights in relation to the state, a sphere in
which [the citizen can engage in a free design of his life and where he may assume the
sole responsibility for his life]. The classic function of the Federal Constitutional Court
here lies in warding off injuries to this personal sphere caused by excessive interventions
of state authorities. At the peak of the scale of state interventions lie penal provisions:
They order the citizen to behave in a certain way and subject him, in cases of
noncompliance, to severe restrictions of freedom or to financial burdens. Constitutional
control of such provisions thus means a review of whether the encroachment into the
sphere of personal freedom protected by the Basic Rights due to the passing or
application of the penal provision is permissible. [The question is whether the state] is
permitted to punish at all or in the desired extent.
In the present constitutional dispute the reverse [question] is, for the first time, subject to
review, [namely], whether the state must punish, concretely, whether the lifting of the
penal provision against termination of pregnancy during the first three months of
pregnancy is compatible with the Basic Rights. It is, however, self-evident, that to refrain
from punishment is the opposite of a state intervention...
2. Because the Basic Rights, [if seen] as defensive rights, are from the outset unsuitable
to prevent the legislator from lifting penal provisions, the majority of the senate wants to
find the basis for doing so in a more extensive meaning of the Basic Rights as objective
value decisions. [According to the majority s interpretation], the Basic Rights not only
are normative as defensive rights of the individual against the state, but simultaneously
contain objective value decisions, the realization of which is to be promoted through
active measures by the state authorities. This interpretation has been developed by the
Federal Constitutional Court in the commendable endeavor to improve the effectiveness
of the Basic Rights in their function to secure freedom and achieve social justice. The
18
majority of the senate, however, fails to adequately consider the differences of the two
aspects of the Basic Rights which are fundamental for courts constitutional control.
[Seen] as defensive rights the Basic Rights have a relatively clear, identifiable content; in
their interpretation and application the [judicial branch] has developed practical,
generally accepted criteria for the control of state interventions--for example, the
principle of proportionality. In contrast, it is regularly a highly complex question how a
value decision is to be effectuated by active measurements by the legislator. The
necessarily broadly formulated value decisions could be characterized as constitutional
mandates, which determine the direction of all acts by the state, [mandates] however
which depend upon a translation into binding regulations. Depending on the evaluation of
the factual circumstances, on the concrete goals and their ranking, [and] on the suitability
of conceivable means and methods, very different solutions are possible. The decision [as
to which solution to adopt], which in many cases requires prior compromises and [which]
is arrived at in a trial-and-error process, belongs, pursuant to the fundamental rule of the
separation of powers and the democratic principle, within the responsibility of the
legislator.
The concept of the objective value decision shall not become the vehicle for transferring
specifically legislative functions, [such as] the design of the social order, to the Federal
Constitutional Court. Otherwise the court would be forced into a role for which it is
neither competent not equipped... [The court] may only counter the legislator when he
has completely disregarded a value decision or when the nature and manner in which
[such a decision] was effectuated is obviously erroneous. On the contrary, the majority
accuses the legislator, despite seeming recognition of his freedom to design [the
effectuation of value decision], of not having realized, in the majority s opinion, a
recognized value decision in the best possible manner. If this [way of arguing] became
the general yardstick for review, the command of judicial self-restraint would be given
up.
II.
1. Our strongest worry aims at the fact that, for the first time in constitutional
adjudication, an objective value decision is to serve [as a justification] for postulating a
duty of the legislator to issue penal provisions, that is, [to assume a duty upon the
legislator to employ] the strongest conceivable interference into the citizen s sphere of
freedom. This reverses the function of the basic rights into their contrary. If the objective
value decision contained in a Basic Right for the protection of a certain legal interest
were sufficient to derive therefrom a duty to punish, [then] the Basic Rights could
covertly turn from a hub to secure freedom into the basis of a network of rules limiting
freedom. What applies to the protection of life can also be employed with respect to other
legal interests of high priority, such as inviolability of the person, freedom, marriage, and
family.
Of course, the Constitution presupposes that the state, for the protection of an orderly
living together [in the society], can also use its power to punish; however, the meaning of
the Basic Rights does not aim at demanding [the use of the state s power to punish], but
to draw boundaries for such use. [Following a similar line of argument], the Supreme
Court of the United States even judged it a violation of a Basic Right to punish
termination of pregnancies performed by a physician with the consent of the pregnant
19
woman during the first third of the pregnancy. {citing to Roe v. Wade} [Such an
argument] would go to far under German constitutional law. However, according to the
freedom-oriented character of our constitution, the legislator needs a constitutional
justification for punishing, but not if he refrains from a punitive sanction because, in his
opinion, the threat of punishment does not promise success or seems to be an inadequate
reaction for other reasons.
The contrary interpretation of the Basic Rights inevitably leads to a no less worrisome
extension of constitutional control: Not only has it to be checked whether a penal
provision interferes too far into the legal sphere of the citizen, but also the reverse,
whether the state punishes not enough. [In doing this] the Federal Constitutional Court
will, contrary to the opinion of the majority, not be able to limit itself to the question of
whether the passing of any penal norm is required, but [the court] will also have to clarify
which penal sanction for the protection of a particular legal interest is sufficient. In the
final consequence the court could even be forced to review whether the application of a
penal norm in a single case sufficiently serves the concept of protection [of Basic
Rights]...
B.
Even if one, contrary to our opinion, follows the majority and finds a constitutional duty
to punish conceivable, [one] cannot accuse the legislator of a violation of the constitution
in the present case...
[The court then offers a detailed description of the failure of the penal sanctions before
the reform of the Criminal Code.]
3. In this general situation the reduction of the abortion epidemic is not only a
sociopolitical desirable aim , but especially important and urgent to better protect life
and to restore the credibility of the legal order. In the endeavor to solve this highly
difficult task the legislator exhaustingly considered all main viewpoints. The reform of
Section 218 of the Criminal Code already extensively occupied the public [which is]
deeply polarized with respect to this question. The parliamentary debates, [aware of the
polarized public], were conducted with great seriousness and unusual thoroughness. [In
these debates] the value decisions of the constitution were explicitly considered;
particularly, unanimity existed with respect to the state s duty to protect unborn life...
In choosing the [reform] solution, the legislator could assume that, facing the failure of
the penal sanctions, the suitable remedial means are to be sought in the social and societal
realm, [it could further assume] that it is essential, on the one hand, to employ preventive
psychological, socio-and societal-political measures of a supportive nature to facilitate
the mother s carrying to terms of the pregnancy and to strengthen her own willingness to
do so, [and], on the other hand, to provide better information about the options of
contraception to decrease the number of unwanted pregnancies. The majority evidently
does not doubt that such measures, seen from a complete perspective, are the most
effective ones and most likely [the ones] to lead to an effectuation of the Basic Rights in
the sense of greater freedom and increased social justice.
Supportive measure of this kind can understandably, [for instance] due to differing
authority of state organs, find only limited inclusion into a criminal statute. The Fifth
Law to Reform the Criminal Law therefore solely encompasses a duty to undergo
counseling. According to the legislator s plan, the pregnant woman--without the fear of
20
punishment--is thereby to be taken out of her isolation, [moreover] the coping with her
problems is to be rendered easier for her by open contacts with her environment and by
individual counseling adjusted to her personal situation of conflict. [The fact] that the
prescribed counseling is to protect the developing life by awakening and strengthening
the [mother s] desire to carry the pregnancy to terms, wherever no serious reasons
against [the carrying to terms] exist, is already evident from the statutory material and the
majority vote of the parliament cited by the majority.
We do not dispute that the counseling regulation--as outlined by the majority--still has
weaknesses. As far as these [weaknesses] could not have been remedied by an
interpretation of the law in harmony with the Constitution and by adequate practical
regulations of the states, a constitutional challenge should have been limited solely to
these weaknesses and should not have questioned the Fristenloesung (deadline and
counseling solution) in its entirety...
IV.
Altogether, in our opinion, the legislator was not precluded by the Constitution to drop
the threat of a penal sanction, which, in his undisputed opinion, was for most parts
without effect, inadequate, and even damaging. [The legislator s] attempt to remedy, in
the present circumstances, the inability of state and society to protect life by socially
more adequate means, may be imperfect; [the attempt] , however, is more conform with
the spirit of the Basic Law than the demand for punishment and disapproval.
[signed by Rupp-v. Bruenneck and Dr. Simon]
West German Abortion Decision: A Contrast to Roe v Wade, 9 John Marshall J. Prac &
Proc. 605 1976
UNITED KINGDOM
This section requires elaboration:
1. Abortion: fetus right to life: More protection than under European Convention:
‘Everyone’ under Art 2 does not include fetus according to European Commission of
Human Rights. Paton v United Kingdom 1980 EHRR applies only to persons born.
2. Offences Against the Person Act 1861: cannot unlawfully administer noxious
substance to yourself to procure miscarriage; can further not assist.
3. Rights of children: to be made a ward of crt you have to be born. A child can sue for
prenatal injuries (Re F 1988) but father cannot sue on behalf of fetus to stop abortion:
Paton v British Pregnancy Advisory Service [1979] QB 276; but crt has declared that
doctors can intervene to safeguard child during birth ie can perform caesarian on
mother who had refused surgery on religious grounds: Re S 1992 ALL ER.
4. Woman’s Right to Abortion: legal under Abortion Act 1967: 4 conditions have to be
met: Royal College of Nursing v Dept of Health and Social Security 1981 All ER..
5. Euthanasia: strict reading = murder. See argument however by David Feldman who
disputes legal duty of doctor to save life: treatment without consent prima facie a
trespass; if patient compentent and refuses treatment, forced treatment is unlawful.
21
Airedale NHS Trust v Bland [1993] 2 WLR 316. Suicide Act 1969: suicide is lawful.
Inciting or aiding is not.
EUROPEAN COMMUNITY
Article 2
1. Everyone's right to life shall be protected by law. No one shall be deprived of his life
intentionally save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this Article
when it results from the use of force which is no more than absolutely
necessary:
a. in defence of any person from unlawful violence;
b. in order to effect a lawful arrest or to prevent the escape of a person lawfully
detained;
c. in action lawfully taken for the purpose of quelling a riot or insurrection.
Paton v United Kingdom 3 EHRR 408 1980: Father’s rights in termination of a
women’s pregnancy
Abortion: whether father a victim- is closely affected by termination of wife’s
pregnancy- he may claim to be a victim. Unborn child- right to life (art 2): subject to an
implied limitation justifying termination of a pregnancy in its early stages in order to
protect the life and health of the woman at that stage. Failure to consult father: Denial of
respect for family life (art 8): was justifiable under 8(2) as being necessary for the
protection of the rights of the mother. Right to respect for family life cannot be
interpreted so widely as to confer on the father a right to be consulted or to make
applications about an abortion his wife intends to have performed.
Attorney General ex rel. Society for the Protection of Unborn Children
(Ireland) Limited v Open Door Counselling Limited and the Dublin
Wellwoman Centre Limited 1988 2 CMLR 443: Freedom to supply services to
individuals from members state where the service is illegal.
Irish Supreme Court. Services. Free movement of clients. Commercial Speech: A
prohibition in one member-State on the giving of information about the suppliers in
another member-state, the service being illegal in the former but lawful in the latter, does
not raise any question of the freedom to supply services under Art 59 and 60.
22
Society for the Protection of Unborn Children (Ireland) Limited v Stephen
Grogan and others [1990] 1 CMLR 689: Commercial Speech and the Right to
life
Irish Supreme Court: Medical Services. Marketing. Commercial Speech. Right to life.
Community law and national law. Freedom to provide services. Information.
Interlocutory injunctions.
Society for the Protection of Unborn Children (Ireland) Limited v Stephen Grogan
and others [1991] 3 CMLR 849 Court of Justice of the European Communities
Kelly v United Kingdom 16 EHRR CD 1990: deprivation of life: court’s failure to
protect; prevention of crime: justification of force
deprivation of life: use of force; right to life; court’s failure to protect; prevention of
crime: includes unspecific crime to be committed in remote future; excessive and
unreasonable force; justification of force under Art 2; deprivation of life in violation of
Art 2: Services: Medicine,: whether abortion performed in accordance with law of
member sate is a service ito Art 60 EEC. Abortion, advertising. Human Rights.
Attorney General v X and others [1992] 2 CMLR 277: Abortion. Public policy:
derogation from the freedom to provide and receive services: injunction to
restrain a person from travelling for the purpose of receiving abortion.
Services. Abortion. Public policy: right to life (prohibition of abortion) provision in Irish
Constitution is a matter of public policy which under Art 56 justifies a derogation from
the freedom to provide and receive services and which justifies a court injunction to
restrain a person from travelling to another member-State for the purpose of receiving
abortion. Freedom of movement.
Bruggemann and Scheuten v Federal Republic of Germany 3 EHRR 244
1977: Not every restriction on the termination of an unwanted pregnancy
constituted an interference with the right of respect for the private life of the
mother.
European Commission of Human Rights: Right to respect for private life (Art 8).
Abortion. Restrictions on obtaining abortions. Not every restriction on the termination of
an unwanted pregnancy constituted an interference with the right of respect for the
private life of the mother. Article 8(1) of the Convention could not therefore be
23
interpreted as meaning that pregnancy and its termination were, in principle, solely a
matter of the private life of the mother. The application concerns the criminal law on the
termination of pregnancy in the Federal Republic of Germany. The 15th Criminal Law
Reform Act 1976 maintained the principle that abortion is a criminal offence but provides
that in specific situations of distress, an abortion performed by a doctor with the woman’s
consent after consultation is not punishable. Applicants submit that the Act interfered
with their right to private life under Art 8(1) and that this interference was not justified by
on any of the grounds enumerated in para (2) of that article. No breach of Art 8.
The above 7 European cases require elaboration.
ANDRONICOU AND CONSTANTINOU v. CYPRUS
(86/1996/705/897) 9 October 1997: alleged unlawful killing of a young couple by
officers of a special police unit (MMAD) in the course of a rescue operation
Cyprus – alleged unlawful killing of a young couple by officers of a special police
unit (MMAD) in the course of a rescue operation
I. GOVERNMENT'’S PRELIMINARY OBJECTIONS
II. ARTICLE 2 OF THE CONVENTION
Reiteration of Court’s case-law on principles governing use of lethal force by
security forces.
B. Planning and control of rescue operation
Court only concerned to establish whether in circumstances authorities had taken
appropriate care in planning and control of rescue operation including decision to
deploy MMAD officers to minimise any risk to lives of couple – not appropriate to
assess alternative ways of handling situation with benefit of hindsight.
Authorities conducted prolonged negotiations in knowledge that were dealing with a
young couple - negotiations carried out in a reasonable manner in view of
circumstances – however, as situation became increasingly fraught with danger
authorities could reasonably conclude that decisive action needed to bring an end
to incident in view of failure of negotiations phase – justified fear that young man,
known to be armed, would kill his fiancée at midnight and commit suicide – decision
to send in MMAD officers only taken after careful reflection and high level
consultation.
24
Although officers armed with machine guns it was never intended that these
weapons be used – officers given clear instructions to use only proportionate force
and to open fire only if life of young woman or their own lives in danger.
Not shown in view of above considerations that rescue operation had not been
planned and organised in a way which minimised to greatest extent possible any
risk to lives of couple.
C. Administration of force
Officers’ use of force was direct result of young man’s decision to open fire when
rescue team entered flat – officers had to take split-second decisions to save life –
officers’ honest, even if mistaken, belief at the time that young man constituted a
real and immediate danger to life of young woman and to lives of officers – valid
reasons for this belief in circumstances and for officers’ conclusion that it was
necessary to kill young man to save young woman’s life as well colleagues’ lives clearly regrettable that Officers 2 and 4 used as much fire power as they did –
however, Court cannot with detached reflection substitute its own assessment of
situation for that of officers confronted with agonising dilemma and the need to
neutralise any risk presented by young man to lives of others.
Use of lethal force in circumstances did not exceed what was absolutely necessary
for purposes of defending life of young woman and lives of officers.
Conclusion: no violation (5 votes to 4).
(b) The Court’s assessment of the rescue operation
181. The Court’s sole concern must be to evaluate whether in the circumstances the
planning and control of the rescue operation including the decision to deploy
the MMAD officers showed that the authorities had taken appropriate care to ensure that
any risk to the lives of the couple had been minimised and that they were
not negligent in their choice of action. It does not therefore consider it appropriate to discuss
with the benefit of hindsight the merits of alternative tactics such as the
administration of drugs to Lefteris Andronicou’s food early in the afternoon of 24 December
or the use of psychologists in the negotiations, or to substitute its own
views for those of the authorities confronted with a dilemma unprecedented in the
respondent State and the need to take decisive action to break the deadlock. It is
to be noted that alternative strategies were in fact discussed and analysed before the
domestic Commission of Inquiry and expert opinion differed as to their
suitability in the circumstances (see paragraphs 97-101 above).
182. In carrying out its assessment of the planning and control phase of the operation from
the standpoint of Article 2 of the Convention, the Court must have
25
particular regard to the context in which the incident occurred as well as to the way in which
the situation developed over the course of the day.
183. As to the context, the authorities clearly understood that they were dealing with a
young couple and not with hardened criminals or terrorists. The negotiations
and the resolve to negotiate up until the last possible moment clearly indicate that the
authorities never lost sight of the fact that the incident had its origins in a
"lovers’ quarrel" and that this factor had to be taken into account if, in the final analysis, it
transpired that force had to be used to free Elsie Constantinou. It was not
unreasonable in view of the context for the authorities to enlist the help of the family and
friends of Lefteris Andronicou in order to bring the situation to an end.
It is also to be noted that the authorities tried to bring an end to the incident through
persuasion and dialogue right up to the last possible moment. The police
negotiator continued his attempts in the later phase of the incident to assure Lefteris
Andronicou that no harm would come to him if he were to release the young
woman. Instructions were in fact given at a meeting which ended at 23:00 to delay the
involvement of the MMAD officers as much as possible to enable
negotiations to continue (see paragraph 55 above). This sustained effort by the authorities to
resolve the situation through negotiations illustrates a deep concern on
the part of the authorities to deploy the MMAD officers only as a last resort.
While there may have been shortcomings as regards, for example, the lack of crowd control
or the absence of a dedicated telephone line between the police
negotiator and Lefteris Andronicou, the Court considers nevertheless that the negotiations
were in general conducted in a manner which can be said to be
reasonable in the circumstances.
184. Irrespective of the domestic nature of the incident the situation progressively
developed in the eyes of the authorities present into a situation fraught with
danger and in which critical decisions had to be taken. Lefteris Andronicou’s intransigence
in the face of negotiations, his threatening tone as well as the young
woman’s shouts for help persuaded the authorities that he intended to kill her and commit
suicide at midnight. Admittedly Lefteris Andronicou never announced that
he would kill Elsie Constantinou and he only threatened to shoot her if the police broke into
his flat. Nevertheless, the authorities could not reasonably ignore her
shouts that her life was in danger. It must be emphasised that one hour before midnight she
was repeatedly heard screaming that Lefteris Andronicou was going to
kill her (see paragraph 59 above) and that Lefteris Andronicou had already shown his
capacity for violence by beating her (see paragraph 16 above). In these
circumstances and in the knowledge that Lefteris Andronicou was armed, the authorities
could reasonably consider that as midnight approached the negotiations
had failed and that an attempt had to be made to get into the flat, disarm and arrest him and
free Elsie Constantinou.
26
185. In the Court’s view the authorities’ decision to use the MMAD officers in the
circumstances as they were known at the time was justified. Recourse to the
skills of a highly professionally trained unit like the MMAD would appear to be quite
natural given the nature of the operation which was contemplated. The decision
to use the MMAD officers was a considered one of last resort. It was discussed both at the
highest possible level in the police chain of command and at ministerial
level (see paragraph 55 above) and only implemented when the negotiations failed and, as
noted above, in view of a reasonably held belief that the young woman’s
life was in imminent danger. While it is true that the officers deployed were trained to shoot
to kill if fired on, it is to be noted that they were issued with clear
instructions as to when to use their weapons. They were told to use only proportionate force
and to fire only if Elsie Constantinou’s life or their own lives were in
danger (see paragraph 38 above).
It is to be noted that no use of weapons was ever intended and in fact the authorities were
deeply anxious to avoid any harm to the couple (see paragraphs 38 and
54 above). However, it was not unreasonable to alert the officers to the dangers which
awaited them and to direct them carefully on firearms use. Furthermore, it
must be stressed that the officers were not in fact informed that Lefteris Andronicou was in
possession of weapons in addition to the hunting gun. They were told
that this possibility could not be excluded (see paragraph 38 above). Seen in these terms the
message could reasonably be considered to be a warning to the
officers to use extreme caution when effecting the operation.
As to the decision to arm the officers with machine guns, it must be emphasised once again
that the use of any firearm was never intended in the execution of the
plan. However, given that Lefteris Andronicou was armed with a double-barrelled hunting
gun and it was not to be excluded that he had other weapons, the
authorities had to anticipate all possible eventualities. It might be added that the machine
guns had the advantage that they were fitted with flashlights which would
enable the officers to overcome any difficulties encountered in identifying the precise
location of the young woman in a dark room filled with tear gas and at the
same time leave their hands free to control their weapons in the event of coming under fire.
Furthermore, the use by the officers of their machine guns was subject to
the same clear instructions as applied to the use of their pistols (see paragraph 38 above).
186. Having regard to the above considerations the Court is of the view that it has not been
shown that the rescue operation was not planned and organised in a
way which minimised to the greatest extent possible any risk to the lives of the couple.
CANADA
Morgentaler v R 1 SCR 30 1988: Abortion -- Criminal Code prohibiting abortion
except where life or health of woman endangered -- Whether or not abortion
provisions infringe right to life, liberty and security of the person -- If so, whether
27
or not such infringement in accord with fundamental justice -- Whether or not
impugned legislation reasonable and demonstrably justified in a free and
democratic society
Constitutional law -- Charter of Rights -- Life, liberty and security of the person -Fundamental justice --Abortion -- Criminal Code prohibiting abortion except where life
or health of woman endangered -- Whether or not abortion provisions infringe right to
life, liberty and security of the person -- If so, whether or not such infringement in accord
with fundamental justice -- Whether or not impugned legislation reasonable and
demonstrably justified in a free and democratic society -- Canadian Charter of Rights
and Freedoms, ss. 1, 7 -- Criminal Code, R.S.C. 1970, c. C-34, s. 251.
Whether or not impugned legislation reasonable and demonstrably justified in a free and
democratic society (page 31).
Appellants, all duly qualified medical practitioners, set up a clinic to perform abortions
upon women who had not obtained a certificate from a therapeutic abortion committee of
an accredited or approved hospital as required by s. 251(4) of the Criminal Code. The
doctors had made public statements questioning the wisdom of the abortion laws in
Canada and asserting that a woman has an unfettered right to choose whether or not an
abortion is appropriate in her individual circumstances. Indictments were preferred
against the appellants charging that they had conspired with each other with intent
to procure abortions contrary to ss. 423(1)(d) and 251(1) of the Criminal Code.
Counsel for the appellants moved to quash the indictment or to stay the proceedings
before pleas were entered on the grounds that s. 251 of the Criminal Code was ultra vires
the Parliament of Canada, in that it infringed ss. 2(a), 7 and 12 of the Charter, and was
inconsistent with s. 1(b) of the Canadian Bill of Rights.
The Court stated the following constitutional questions:
1. Does section 251 of the Criminal Code of Canada infringe or deny the rights and
freedoms guaranteed by ss. 2(a), 7, 12, 15, 27 and 28 of the Canadian Charter of Rights
and Freedoms?
2. If section 251 of the Criminal Code of Canada infringes or denies the rights and
freedoms guaranteed by ss. 2(a), 7, 12, 15, 27 and 28 of the Canadian Charter of Rights
and Freedoms, is s. 251 justified by s. 1 of the Canadian Charter of Rights and Freedoms
and therefore not inconsistent with the Constitution Act, 1982? (page 32)
3. Is section 251 of the Criminal Code of Canada ultra vires the Parliament of Canada?
4. Does section 251 of the Criminal Code of Canada violate s. 96 of the Constitution Act,
1867?
28
5. Does section 251 of the Criminal Code of Canada unlawfully delegate federal criminal
power to provincial Ministers of Health or Therapeutic Abortion Committees, and in
doing so, has the Federal Government abdicated its authority in this area?
6. Do sections 605 and 610(3) of the Criminal Code of Canada infringe or deny the
rights and freedoms guaranteed by ss. 7, 11(d), 11(f), 11(h) and 24(1) of the Canadian
Charter of Rights and Freedoms?
7. If sections 605 and 610(3) of the Criminal Code of Canada infringe or deny the rights
and freedoms guaranteed by ss. 7, 11(d) 11(f), 11(h) and 24(1) of the Canadian Charter of
Rights and Freedoms, are ss. 605 and 610(3) justified by s. 1 of the Canadian Charter of
Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982?
Held (McIntyre and La Forest JJ. dissenting): The appeal should be allowed and the
acquittals restored. The first constitutional question should be answered in the affirmative
as regards s. 7 and the second in the negative as regards s. 7. The third, fourth and fifth
constitutional questions should be answered in the negative. The sixth constitutional
question should be answered in the negative with respect to s. 605 of the Criminal Code
and should not be answered as regards s. 610(3). The seventh constitutional question
should not be answered.
Per Dickson C.J. and Lamer J.: Section 7 of the Charter requires that the courts review
the substance of legislation once the legislation has been determined to infringe an
individual's right to "life, liberty and security of the person". Those interests may only be
impaired if the principles of fundamental justice are respected. It was sufficient here to
investigate whether or not the impugned legislative provisions met the procedural
standards of fundamental justice and the Court accordingly did not need to tread the fine
line between substantive review and the adjudication of public policy.
State interference with bodily integrity and serious state-imposed psychological stress, at
least in the criminal law context, constitutes a breach of security of the person. Section
251 clearly interferes with a woman's physical and bodily integrity. Forcing a woman, by
threat of criminal sanction, to carry a foetus to term unless she meets certain criteria
unrelated to her own priorities and aspirations, is a profound interference (page 33) with a
woman's body and thus an infringement of security of the person. A second breach of the
right to security of the person occurs independently as a result of the delay in obtaining
therapeutic abortions caused by the mandatory procedures of s. 251 which results in a
higher probability of complications and greater risk. The harm to the psychological
integrity of women seeking abortions was also clearly established.
Any infringement of the right to life, liberty and security of the person must comport with
the principles of fundamental justice. These principles are to be found in the basic tenets
of our legal system. One of the basic tenets of our system of criminal justice is that when
Parliament creates a defence to a criminal charge, the defence should not be illusory or so
difficult to attain as to be practically illusory.
29
The procedure and restrictions stipulated in s. 251 for access to therapeutic abortions
make the defence illusory resulting in a failure to comply with the principles of
fundamental justice. A therapeutic abortion may be approved by a "therapeutic abortion
committee" of an "accredited or approved hospital". The requirement of s. 251(4) that at
least four physicians be available at that hospital to authorize and to perform an abortion
in practice makes abortions unavailable in many hospitals. The restrictions attaching to
the term "accredited" automatically disqualifies many Canadian hospitals from
undertaking therapeutic abortions. The provincial approval of a hospital for the purpose
of performing therapeutic abortions further restricts the number of hospitals offering this
procedure. Even if a hospital is eligible to create a therapeutic abortion committee, there
is no requirement in s. 251 that the hospital need do so. Provincial regulation as well can
heavily restrict or even deny the practical availability of the exculpatory provisions of s.
251(4).
The administrative system established in s. 251(4) fails to provide an adequate standard
for therapeutic abortion committees which must determine when a therapeutic abortion
should, as a matter of law, be granted. The word "health" is vague and no adequate
guidelines have been established for therapeutic abortion committees. It is typically
impossible for women to know in advance what standard of health will be applied by any
given committee.
The argument that women facing difficulties in obtaining abortions at home can simply
travel elsewhere would not be especially troubling if those difficulties (page 34) were not
in large measure created by the procedural requirements of s. 251. The evidence
established convincingly that it is the law itself which in many ways prevents access to
local therapeutic abortion facilities.
Section 251 cannot be saved under s. 1 of the Charter. The objective of s. 251 as a whole,
namely to balance the competing interests identified by Parliament, is sufficiently
important to pass the first stage of the s. 1 inquiry. The means chosen to advance its
legislative objectives, however, are not reasonable or demonstrably justified in a free and
democratic society. None of the three elements for assessing the proportionality of means
to ends is met. Firstly, the procedures and administrative structures created by s. 251 are
often unfair and arbitrary. Moreover, these procedures impair s. 7 rights far more than is
necessary because they hold out an illusory defence to many women who would prima
facie qualify under the exculpatory provisions of s. 251(4). Finally, the effects of the
limitation upon the s. 7 rights of many pregnant women are out of proportion to the
objective sought to be achieved and may actually defeat the objective of protecting the
life and health of women.
30
R v Morgentaler 3 SCR 463 1993: Abortion -- Provincial legislation prohibiting
abortions outside hospitals -- Whether legislation ultra vires province as being in
pith and substance criminal law
Constitutional law -- Distribution of powers -- Abortion -- Provincial legislation
prohibiting abortions outside hospitals -- Whether legislation ultra vires province as
being in pith and substance criminal law -- Constitution Act, 1867, s. 91(27) -- Medical
Services Act, R.S.N.S. 1989, c. 281 -- Medical Services Designation Regulation, N.S. Reg.
152/89.
In March 1989, in order to prevent the establishment of free-standing abortion clinics in
Halifax, the Nova Scotia government approved regulations prohibiting the performance
of an abortion anywhere other than in a place approved as a hospital as well as a
regulation denying medical services insurance coverage for abortions performed outside a
hospital (the "March regulations"). The government later revoked these regulations and
adopted the Medical Services Act and the Medical Services Designation Regulation,
which continued the prohibition of the performance of abortions outside hospitals and the
denial of health insurance coverage for abortions performed in violation of the
prohibition. Despite these actions, the respondent opened his clinic and performed 14
abortions. He was charged with 14 (page 464) counts of violating the Medical Services
Act. The trial judge held that the legislation was ultra vires the province because it
was in pith and substance criminal law and acquitted the respondent. This decision was
upheld by the Court of Appeal.
Held: The appeal should be dismissed. Classification of a law for purposes of federalism
involves first identifying the "matter" of the law and then assigning it to one of the
"classes of subjects" in respect of which the federal and provincial governments have
legislative authority under ss. 91 and 92 of the Constitution Act, 1867. A law's "matter" is
its true character, or pith and substance. The analysis of pith and substance necessarily
starts with looking at the legislation itself, in order to determine its legal effect. The court
will also look beyond the four corners of the legislation to inquire into its background,
context and purpose and, in appropriate cases, will consider evidence of the actual or
predicted practical effect of the legislation in operation. The ultimate long-term, practical
effect of the legislation is not always relevant, nor will proof of it always be necessary in
establishing the true character of the legislation. The court is entitled to refer to extrinsic
evidence of various kinds provided it is relevant and not inherently unreliable. This
clearly includes related legislation, and evidence of the "mischief" at which the
legislation is directed. It also includes legislative history, in the sense of the events that
occurred during drafting and enactment. Provided that the court remains mindful of the
limited reliability and weight of Hansard evidence, it should be admitted as relevant to
both the background and the purpose of legislation. The excerpts from Hansard were thus
properly admitted by the trial judge in this case. This evidence demonstrates that
members of all parties in the legislature understood the central feature of the proposed
law to be prohibition of the respondent's proposed clinic on the basis of a common and
almost unanimous opposition to abortion clinics per se.
31
The Medical Services Act and Medical Services Designation Regulation together
constitute an indivisible attempt by the province to legislate in the area of criminal law.
Since they deal with a subject historically considered to be part of the criminal law -- the
prohibition of the performance of abortions with penal consequences -- they are suspect
on their face, and it is not necessary to invoke the colourability doctrine. An examination
of their terms and legal effect, their history and purpose and the circumstances
surrounding their (page 465) enactment leads to the conclusion that the legislation's
central purpose and dominant characteristic is the restriction of abortion as a socially
undesirable practice which should be suppressed or punished. Although the evidence of
the legislation's practical effect is equivocal, it is not necessary to establish that its
immediate or future practical impact will actually be to restrict access to abortions in
order to sustain this conclusion. The legislation has an effect on abortions in private
clinics virtually indistinguishable from that of the now defunct abortion provision of the
Criminal Code, and this overlap of legal effects is capable of supporting an inference that
the legislation was designed to serve a criminal law purpose. The events leading up to
and including the enactment of the impugned legislation also strengthen the inference that
it was designed to serve a criminal law purpose. In addition, the Hansard evidence
demonstrates both that the prohibition of the respondent's clinic was the central
concern of the legislature, and that there was a common and emphatically expressed
opposition to free-standing abortion clinics per se. The concerns to which the provincial
government submits the legislation is primarily directed -- privatization, cost
and quality of health care, and a policy of preventing a two-tier system of access to
medical services -- were conspicuously absent throughout most of the legislative
proceedings. The impugned legislation treats of a moral issue. While legislation which
authorizes the establishment and enforcement of a local standard of morality does not
ipso facto invade the field of criminal law, interdiction of conduct in the interest of public
morals was and remains one of the classic ends of the criminal law. There is
thus a strong inference that the purpose and true nature of the legislation relate to a matter
within the federal head of power in respect of criminal law. This inference is supported
by the absence of evidence that privatization and the cost and quality of health care
services were anything more than incidental concerns and by the relatively severe
penalties provided for in the Act.
Augustus v. Gosset [1996] 3 S.C.R. 268: Right to life -- Remedy -Compensatory damages -- Victim shot in head by police officer -- Victim dying
few hours later without regaining consciousness -- Whether right to life
guaranteed by Charter of Human Rights and Freedoms allows victim's mother to
claim compensatory damages for loss of life or of life expectancy-- Remedy -Exemplary damages -- Victim mortally wounded by shot fired by police officer -Trial judge finding police officer negligent in using weapon -- Whether unlawful
interference with victim's right to life intentional -- Meaning of "unlawful and
intentional interference" -- Whether right to life guaranteed by Charter of Human
Rights and Freedoms allows victim's mother to claim compensatory damages for
32
loss of life or of life expectancy-- Right of parenthood -- Mother claiming
damages for interference with her right of parenthood -- Whether Charter of
Human Rights and Freedoms or Canadian Charter of Rights and Freedoms
protects right to maintain and continue parent-child relationship.
Present: La Forest, L'Heureux-Dubé, Gonthier, Cory and McLachlin JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Damages -- Moral prejudice -- Solatium doloris -- Whether solatium doloris a type of
moral prejudice for which compensation available under Quebec law --Assessment of
prejudice -- Applicable criteria -- Civil Code of Lower Canada, arts. 1053, 1056.
Damages -- Right of parenthood -- Victim mortally wounded by shot fired by police
officer -- Mother claiming damages for interference with her right of parenthood -Whether Charter of Human Rights and Freedoms or Canadian Charter of Rights and
Freedoms protects right to maintain and continue parent-child relationship.
Damages -- Loss of life or of life expectancy -- Victim shot in head by police officer -Victim dying few hours later without regaining consciousness -- Whether right to life
guaranteed by Charter of Human Rights and Freedoms allows victim's mother to claim
compensatory damages for loss of life or of life expectancy -- Charter of Human Rights
and Freedoms, R.S.Q., c. C-12, ss. 1, 49.
Civil rights -- Right to life -- Remedy -- Compensatory damages -- Victim shot in head by
police officer -- Victim dying few hours later without regaining consciousness -- Whether
right to life guaranteed by Charter of Human Rights and Freedoms allows victim's
mother to claim compensatory damages for loss of life or of life expectancy -- Charter of
Human Rights and Freedoms, R.S.Q., c. C-12, ss. 1, 49.
Civil rights -- Right to life -- Remedy -- Exemplary damages -- Victim mortally wounded
by shot fired by police officer -- Trial judge finding police officer negligent in using
weapon -- Whether unlawful interference with victim's right to life intentional -- Meaning
of "unlawful and intentional interference" -- Charter of Human Rights and Freedoms,
R.S.Q., c. C-12, ss. 1, 49.
The appellant brought a civil liability action against G and the CUM following the death
of her 19-year-old son. G, a police officer, responded to a call from a taxi driver
complaining that the victim had refused to pay his fare. On checking his identity, G
learned that an arrest warrant was outstanding against the victim and arrested him. When
they arrived at the police station, G opened the door for the victim, who got out of the car
and started running. G began chasing him. At the same time, G drew his revolver and
ordered the victim to stop running. The victim stopped, although he did not stand
perfectly still. G again ordered the victim to stop while aiming his revolver at him. At that
instant, the victim was hit in the head by a gunshot. He was taken to the hospital, where
he died the same day without regaining consciousness.
After reviewing the evidence, the trial judge found that G was negligent in aiming his
weapon with his finger on the trigger while running and that this negligence was the
direct cause of the victim's death. Since the CUM had admitted its liability as G's
employer, the judge ordered G and the CUM jointly and severally to pay the appellant
33
$10,795 in compensatory damages: $9,000 for loss of moral and financial support, and
$1,795 for funeral expenses. The trial judge dismissed the appellant's claim for solatium
doloris and refused to compensate her, as her son's heir, for his loss of life expectancy
and suffering, of which he would not have been aware. The judge ordered G to pay the
appellant $4,000 in exemplary damages. Although he found that G had not intended to
kill the victim, the judge found that the way G handled his weapon when he knew or
ought to have known that he was placing the victim's security in jeopardy constituted
wanton or reckless misconduct and amounted to "unlawful and intentional interference"
within the meaning of s. 1 and the second paragraph of s. 49 of the Charter of Human
Rights and Freedoms. The Court of Appeal, in a majority decision, allowed the
appellant's appeal in part and increased the compensatory damages to $16,795, including
$15,000 as solatium doloris, but refused both to recognize interference with her right of
parenthood and to award her compensation as her son's heir for his loss of life expectancy
and the interference with his right to life and security. The majority of the court also
allowed G's appeal and quashed the order that he pay exemplary damages. The court
pointed out that in aiming his weapon at the victim, G did not intend to kill him, but to
keep him under control at a distance, and held that G's actions did not constitute
"intentional interference" within the meaning of the second paragraph of s. 49 of the
Charter.
Held: The appeal should be allowed in part.
(1) Solatium doloris
Solatium doloris is a compensable head of moral prejudice in Quebec civil law under
arts. 1053 and 1056 C.C.L.C. In civil law, any prejudice, whether moral or material, even
if it is difficult to assess, is compensable if proven. From this perspective, compensation
for the grief and distress felt when someone close dies is clearly consistent with the civil
law's full recognition of moral damages. Furthermore, it is French law, not English law,
that must be applied in deciding whether to recognize solatium doloris in Quebec civil
law. French law has always recognized that compensation is available for the moral
prejudice resulting from the death of a close relative or friend, and this is also the case in
Quebec civil law.
In granting an award for solatium doloris, the Court of Appeal considered all the
elements of moral prejudice. However, it erred in its assessment of the moral prejudice
suffered by the appellant. The Court of Appeal based its assessment on the amounts
generally awarded by Quebec courts and the awards provided for in various social
statutes. The Quebec jurisprudence does not reflect the principle of restitutio in integrum,
as the courts have considered themselves bound by the rule that solatium doloris is not
available as a head of compensable damage. Furthermore, a comparison with the
indemnities provided for in certain pieces of social legislation can only be of limited
relevance; such statutes generally allow smaller awards in order to provide compensation
to a larger number of persons who might not receive compensation under the general
principles of civil liability. By recognizing that compensation for solatium doloris is
available in Quebec civil law yet failing to develop new tests for assessing prejudice in
that form, the Court of Appeal thus deprived the appellant of her right to be fully
compensated for the moral prejudice she suffered as a result of her son's death.
Furthermore, due to the need for certainty and predictability in the law concerning the
34
amounts awarded for this type of prejudice, appropriate parameters of assessment must
be established. Although a parent's grief over the death of a child cannot be compensated
adequately, the assessment of the moral prejudice depends on the assessment of the
evidence presented to the court. From this perspective, it is appropriate to develop criteria
in order to preserve the objectivity of the process. Furthermore, while remaining sensitive
to the particular circumstances of each case, such a process cannot ignore the limits of the
principle of restitutio in integrum in this area in which moderation and predictability
must always be fostered. In assessing the moral prejudice resulting from the death of a
loved one, a court should consider the following factors, inter alia: the circumstances of
the death, the ages of the deceased and the parent, the nature and quality of the
relationship between the deceased and the parent, the parent's personality and ability to
manage the emotional consequences of the death, and the effect of the death on the
parent's life in light, inter alia, of the presence of other children or the possibility of
having others. In this case, taking these factors into account, an award in the order of
$25,000 might be fair and reasonable in the circumstances, although it remains to the
Court of Appeal to fix the quantum, after hearing the parties on this point.
(2) Right of parenthood
Neither the Canadian Charter of Rights and Freedoms nor the Quebec Charter protects
the right to maintain and continue a parent-child relationship. The Court of Appeal was
thus correct both in refusing to recognize interference with the appellant's right of
parenthood and in rejecting this head of compensation.
(3) Loss of life or of life expectancy
Since the right to life is extinguished when the victim dies, an action for damages for loss
of life or shortening of life, where the victim dies immediately as a result of the wrongful
act or survives a few hours without regaining consciousness before dying, cannot become
part of the victim's patrimony and, therefore, cannot be transmitted to his or her heirs.
The right to life guaranteed by s. 1 of the Quebec Charter does not require a change to
this principle of non-transmissibility. The Charter has not created an autonomous system
of civil liability and, although it has helped clarify the scope of fundamental rights in
Quebec law, it did not create the right to life, which has always been valued and
recognized in Quebec civil law. The major judicial policy considerations underlying the
judge-made principle that the right to claim damages for loss of life or of life expectancy
cannot be transmitted to one's heirs -- the most significant of which is that it is extremely
difficult to quantify life -- have continued to be just as relevant since the advent of the
Charter. Loss of life or of life expectancy, by its very nature, constitutes a unique
prejudice which justifies departing from the civil liability rule of restitutio in integrum.
Moreover, in light of the basically remedial function of the civil liability system, it is hard
to justify compensating a prejudice the very nature of which will systematically ensure
that the victim is unable to gain any benefit therefrom. Thus, no compensation can be
awarded in respect of the appellant's claim for interference with her son's right to life
under either art. 1053 C.C.L.C. or ss. 1 and 49 of the Charter. The refusal to award
compensation does not depreciate the right to life. Finally, the victim's right to personal
security was not interfered with independently of his right to life when G trained his
weapon upon him in the aim of keeping him under control at a distance.
(4) Exemplary damages
35
The Court of Appeal was right to refuse to award exemplary damages to the appellant.
While unlawful interference with a right protected by the Charter has been established -the victim's right to life was infringed as a result of G's wrongful conduct -- this unlawful
interference was not "intentional" within the meaning of the second paragraph of s. 49 of
the Charter. There is unlawful and intentional interference within the meaning of that
paragraph when the person who commits the unlawful interference has a state of mind
that implies a desire or intent to cause the consequences of his or her wrongful conduct,
or when that person acts with full knowledge of the immediate and natural or at least
extremely probable consequences that his or her conduct will cause. In this case, the trial
judge therefore erred in law in holding that G's negligent conduct was sufficient to
constitute "unlawful and intentional interference". It is clear from the evidence that G did
not shoot to kill the victim and that he did not fire his weapon intentionally. Furthermore,
since using a weapon to keep a suspect under control at a distance is standard police
practice, the unfortunate consequences of doing so in this case surely cannot be
characterized as "immediate and natural" or even as "extremely probable".
Borowski v The Attorney General of Canada [1989] 1 S.C.R. 342: Mootness -Abortion provisions of Criminal Code -- Provisions under challenge already found
invalid -- Ancillary questions relating to Charter rights of the foetus -- Whether or
not issue moot -- Whether or not Court should exercise discretion to hear case -Whether or not Charter rights extending to foetus -- Charter issues ancillary to
question of validity of abortion provisions of Criminal Code -- Provisions under
challenge already found invalid -- Standing
Present: Dickson C.J. and McIntyre, Lamer, Wilson, La Forest, L'Heureux-Dubé and
Sopinka JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN
Appeal -- Mootness -- Abortion provisions of Criminal Code -- Provisions under
challenge already found invalid -- Ancillary questions relating to Charter rights of the
foetus -- Whether or not issue moot -- Whether or not Court should exercise discretion to
hear case -- Criminal Code, R.S.C. 1970, c. C-34, s. 251 -- Canadian Charter of Rights
and Freedoms, ss. 7, 15.
Criminal law -- Abortion -- Provisions under challenge already found invalid -- Ancillary
questions relating to Charter rights of the foetus -- Whether or not issue moot -- Whether
or not Court should exercise discretion to hear case.
Constitutional law -- Charter of Rights -- Right to life, liberty and security of the person - Right to equality before and under the law -- Whether or not Charter rights extending to
foetus -- Charter issues ancillary to question of validity of abortion provisions of
Criminal Code -- Provisions under challenge already found invalid -- Whether or not
issue moot -- Whether or not Court should exercise discretion to hear case.
Civil procedure -- Standing -- Standing originally found because action seeking
declaration as to legislation's validity -- Provisions under challenge already found invalid
-- Whether or not standing as originally determined -- Whether or not s. 24(1) of the
Charter and s. 52(1) of the Constitution Act, 1982 able to support claim for standing.
36
Appellant attacked the validity of s. 251(4), (5) and (6) of the Criminal Code relating to
abortion on the ground that they contravened the life and security and the equality rights
of the foetus, as a person, protected by ss. 7 and 15 of the Canadian Charter of Rights and
Freedoms. Appellant's standing had been found on the basis that he was seeking a
declaration that legislation is invalid, that there was a serious issue as to its invalidity,
that he had a genuine interest as a citizen in the validity of the legislation and that there
was no other reasonable and effective manner in which the issue could be brought before
the Court.
The Court of Queen's Bench found s. 251(4), (5) and (6) did not violate the Charter as a
foetus was not protected by either s. 7 or s. 15 of the Charter and also held that the s. 1 of
Canadian Bill of Rights did not give the courts the right to assess the substantive content
or wisdom of legislation. The Court of Appeal concluded that neither s. 7 nor s. 15 of the
Charter applied to a foetus. The constitutional questions stated in this Court queried: (1)
if a foetus had the right to life as guaranteed by s. 7 of the Charter; (2) if so, whether s.
251(4), (5) and (6) of the Criminal Code violated the principles of fundamental justice
contrary to s. 7 of the Charter; (3) whether a foetus had the right to equal protection and
equal benefit of the law without discrimination because of age or mental or physical
disability as guaranteed by s. 15 of the Charter; (4) if so, whether s. 251(4), (5) and (6) of
the Criminal Code violated s. 15; and (5) if questions (2) and (4) were answered
affirmatively, whether s. 251(4), (5) and (6) of the Criminal Code were justified by s. 1 of
the Charter. All of s. 251, however, was struck down subsequent to the Court of Appeal's
decision but before the appeal reached this Court as a result of this Court's decision in R.
v. Morgentaler (No. 2).
A serious issue existed at the commencement of the appeal as to whether the appeal was
moot. Questions also existed as to whether the appellant had lost his standing and,
indeed, whether the matter was justiciable. These issues were addressed as a preliminary
matter and decision on them was reserved. The Court then heard argument on the merits
of the appeal so that the whole appeal could be decided without recalling the parties for
argument should it decide that the appeal should proceed notwithstanding the preliminary
issues.
Held: The appeal should be dismissed.
The appeal is moot and the Court should not exercise its discretion to hear it. Moreover,
appellant no longer has standing to pursue the appeal as the circumstances upon which
his standing was originally premised have disappeared.
The doctrine of mootness is part of a general policy that a court may decline to decide a
case which raises merely a hypothetical or abstract question. An appeal is moot when a
decision will not have the effect of resolving some controversy affecting or potentially
affecting the rights of the parties. Such a live controversy must be present not only when
the action or proceeding is commenced but also when the court is called upon to reach a
decision. The general policy is enforced in moot cases unless the court exercises its
discretion to depart from it.
The approach with respect to mootness involves a two-step analysis. It is first necessary
to determine whether the requisite tangible and concrete dispute has disappeared
rendering the issues academic. If so, it is then necessary to decide if the court should
exercise its discretion to hear the case. (In the interest of clarity, a case is moot if it does
37
not present a concrete controversy even though a court may elect to address the moot
issue.)
This appeal is moot as there is no longer a concrete legal dispute. The live controversy
underlying this appeal -- the challenge to the constitutionality of s. 251(4), (5) and (6) of
the Criminal Code -- disappeared when s. 251 was struck down in R. v. Morgentaler (No.
2). None of the relief sought in the statement of claim was relevant. Three of the five
constitutional questions that were set explicitly concerned s. 251 and were no longer
applicable. The remaining two questions addressed the scope of ss. 7 and 15 of the
Charter and were not severable from the context of the original challenge to s. 251.
A constitutional question cannot bind this Court and may not be used to transform an
appeal into a reference. Constitutional questions are stated to define with precision the
constitutional points at issue, not to introduce new issues, and accordingly, cannot be
used as an independent basis for supporting an otherwise moot appeal.
The second stage in the analysis requires that a court consider whether it should exercise
its discretion to decide the merits of the case, despite the absence of a live controversy.
Courts may be guided in the exercise of their discretion by considering the underlying
rationale of the mootness doctrine.
The first rationale for the policy with respect to mootness in that a court's competence to
resolve legal disputes is rooted in the adversary system. A full adversarial context, in
which both parties have a full stake in the outcome, is fundamental to our legal system.
The second is based on the concern for judicial economy which requires that a court
examine the circumstances of a case to determine if it is worthwhile to allocate scarce
judicial resources to resolve the moot issue. The third underlying rationale of the
mootness doctrine is the need for courts to be sensitive to the effectiveness or efficacy of
judicial intervention and demonstrate a measure of awareness of the judiciary's role in our
political framework. The Court, in exercising its discretion in an appeal which is moot,
should consider the extent to which each of these three basic factors is present. The
process is not mechanical. The principles may not all support the same conclusion and
the presence of one or two of the factors may be overborne by the absence of the third,
and vice versa.
The Court should decline to exercise its discretion to decide this appeal on its merits
because of concerns for judicial economy and for the Court's role in the law-making
process. The absence of an adversarial relationship was of little concern: the appeal was
argued as fully as if it were not moot.
With respect to judicial economy, none of the factors justifying the application of judicial
resources applied. The decision would not have practical side effects on the rights of the
parties. The case was not one that was capable of repetition, yet evasive of review: it will
almost certainly be brought before the Court within a specific legislative context or
possibly in review of specific governmental action. An abstract pronouncement on foetal
rights here would not necessarily obviate future repetitious litigation. It was not in the
public interest, notwithstanding the great public importance of the question involved, to
address the merits in order to settle the state of the law. A decision as to whether ss. 7 and
15 of the Charter protect the rights of the foetus is not in the public interest due to the
potential uncertainty that could result from such a decision absent a legislative context.
38
A proper awareness of the Court's law-making function dictated against the Court's
exercising its discretion to decide this appeal. The question posed here was not the
question raised in the original action. Indeed, what was sought -- a Charter interpretation
in the absence of legislation or other governmental action bringing it into play -- would
turn this appeal into a private reference. The Court, if it were to exercise its discretion,
would intrude on the right of the executive to order a reference and pre-empt a possible
decision of Parliament by dictating the form of legislation it should enact. To do so would
be a marked departure from the Court's traditional role.
The appellant also lacked standing to pursue this appeal given the fact that the original
basis for his standing no longer existed. Two significant changes in the nature of this
action occurred since standing was granted by this Court in 1981. Firstly, the claim is
now premised primarily upon an alleged right of a foetus to life and equality pursuant to
ss. 7 and 15 of the Charter. Secondly, the legislative context of original claim disappeared
when s. 251 of the Criminal Code was struck down. Standing could not be based on s.
24(1) of the Charter for an infringement or denial of a person's own Charter-based right
was required. Here, the rights allegedly violated were those of a foetus. Standing could
not be based on s. 52(1) of the Constitution Act, 1982 as this is restricted to litigants
challenging a law or governmental action pursuant to power granted by law.
Tremblay v. Daigle [1989] 2 S.C.R. 530: Injunction against abortion -- Foetal
rights -- Father's rights -- Unmarried woman seeking abortion -- Father of unborn
child granted an interlocutory injunction to stop abortion -- Whether injunction
should have been granted -- Whether foetus has a right to life under Quebec
legislation -- Whether potential father has a right to veto the mother's decision to
have an abortion -- Whether Canadian Charter of Rights and Freedoms can be
invoked to support the injunction
Present: Dickson C.J. and Lamer, Wilson, La Forest, L'Heureux-Dubé, Sopinka,
Gonthier, Cory and McLachlin JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Injunction -- Injunction against abortion -- Foetal rights -- Father's rights -- Unmarried
woman seeking abortion -- Father of unborn child granted an interlocutory injunction to
stop abortion -- Whether injunction should have been granted -- Whether foetus has a
right to life under Quebec legislation -- Whether potential father has a right to veto the
mother's decision to have an abortion -- Code of Civil Procedure, R.S.Q., c. C-25, art.
752.
Civil rights -- Provincial human rights legislation -- Right to life -- Father of unborn child
obtaining an injunction to prevent mother from having an abortion -- Whether foetus a
"human being" under the Quebec Charter of Human Rights and Freedoms -- Charter of
Human Rights and Freedoms, R.S.Q., c. C-12, preamble, ss. 1, 2.
Civil law -- Legal status of unborn child -- Father of unborn child obtaining an injunction
to prevent mother from having an abortion -- Whether foetus recognized as a juridical
person under the Civil Code -- Civil Code of Lower Canada, arts. 18, 338, 345, 608, 771,
838, 945, 2543.
39
Constitutional law -- Charter of Rights -- Application -- Injunction -- Father of unborn
child seeking an injunction to prevent mother from having an abortion -- No state action
involved -- Whether Canadian Charter of Rights and Freedoms can be invoked to support
the injunction.
The parties ended their relationship after five months of cohabitation. The appellant was
18 weeks pregnant at the time of the separation and decided to terminate her pregnancy.
The respondent, the father of the unborn child, obtained an interlocutory injunction from
the Superior Court preventing her from having the abortion. The trial judge found that a
foetus is a "human being" under the Quebec Charter of Human Rights and Freedoms and
therefore enjoys a "right to life" under s. 1. This conclusion, he added, was in harmony
with the Civil Code's recognition of the foetus as a juridical person. He then ruled that the
respondent had the necessary "interest" to request the injunction. The trial judge
concluded, after considering the effect of the injunction on the appellant's rights under s.
7 of the Canadian Charter of Rights and Freedoms and s. 1 of the Quebec Charter, that
the foetus' right to life should prevail in the present case. The injunction was upheld by a
majority of the Court of Appeal.
Held: The appeal should be allowed.
The injunction must be set aside because the substantive rights which are alleged to
support it -- the rights accorded to a foetus or a potential father -- do not exist.
A foetus is not included within the term "human being" in the Quebec Charter and,
therefore, does not enjoy the right to life conferred by s. 1. The Quebec Charter,
considered as a whole, does not display any clear intention on the part of its framers to
consider the status of a foetus. It is framed in very general terms and makes no reference
to the foetus or foetal rights, nor does it include any definition of the term "human being"
or "person". This lack of an intention to deal with a foetus's status is, in itself, a strong
reason for not finding foetal rights under the Quebec Charter. If the legislature had
wished to accord a foetus the right to life, it is unlikely that it would have left the
protection of this right in such an uncertain state. As this case demonstrates, a foetus'
alleged right to life will be protected only at the discretionary request of third parties.
The difficult issue of whether a foetus is a legal person cannot be settled by a purely
linguistic argument that the plain meaning of the term "human being" includes foetuses.
Like a purely scientific argument, a purely linguistic argument attempts to settle a legal
debate by non-legal means. What is required are substantive legal reasons which support
a conclusion that the term "human being" has a particular meaning. As for the differing
usage of the terms "human being" and "person" in the Quebec Charter, it does not lead to
the conclusion that a foetus is included within the term "human being". The more
plausible explanation is that different terms were used in order to distinguish between
physical and moral persons.
A consideration of the status of the foetus under the Civil Code supports the conclusion
that a foetus is not a "human being" under the Quebec Charter. The provisions of the
Code providing for the appointment of a curator for an unborn child and the provisions
granting patrimonial interests to such child do not implicitly recognize that a foetus is a
juridical person. Articles 338 and 345, like art. 945, simply provide a mechanism
whereby the interests of the foetus described elsewhere in the Code can be protected.
They do not accord the foetus any additional rights or interests. In addition, the
40
realization of the patrimonial interests of the foetus under arts. 608, 771, 838 and 2543 of
the Code is subject to a suspensive condition that the foetus be born alive and viable. The
recognition of the foetus' juridical personality is only a "fiction of the civil law" which is
utilized in order to protect the future interests of the foetus. In view of the treatment of
the foetus in the remainder of the Code, the term "human being" in art. 18 of the Code,
which provides that "Every human being possesses juridical personality", cannot be
construed as including foetuses. The Civil Code, therefore, does not generally accord a
foetus legal personality. A foetus is treated as a person only where it is necessary to do so
in order to protect its interests after it is born.
While Anglo-Canadian law is not determinative in establishing the meaning to be given
to general terms in the Quebec Charter, it is instructive to consider the legal status of a
foetus in that body of jurisprudence. In Anglo-Canadian law, a foetus must be born alive
to enjoy rights. In light of the treatment of foetal rights in civil law and, in addition, the
consistency to be found in the common law jurisdictions, it would be wrong to interpret
the vague provisions of the Quebec Charter as conferring legal personhood upon the
foetus.
The Canadian Charter cannot be invoked in this case to support the injunction. This is a
civil action between two private parties and there is no state action which is being
impugned. The respondent pointed to no "law" of any sort which he can claim is
infringing his rights or anyone else's rights. The issue as to whether s. 7 of the Canadian
Charter could be used to ground an affirmative claim to protection by the state was not
raised. This Court should generally avoid making any unnecessary constitutional
pronouncement.
Finally, there is nothing in the Quebec legislation or case law, to support the argument
that the father's interest in a foetus he helped create gives him the right to veto a woman's
decisions in respect of the foetus she is carrying. The lack of legal basis is fatal to this
argument.
ZIMBABWE
In Zimbabwe the Termination of Pregnancy Act 29 of 1977 (see chapter 4 of 'Family
Law in Zimbabwe') prohibits most abortions. Abortions are only permitted where there is
a serious threat of permanent impairment of physical health (s4a); or that the child will be
born with a physical or mental handicap (s4b); or that the conception took place as a
result of unlawful intercourse (4c).
NAMIBIA
Article 6 of the Namibian Constitution protects the right to life. Naldi, author of
'Constitutional Rights in Namibia' writes (at p40) that 'it may be that the Namibian
Constitution does not intend to protect unconditionally the foetus'.
41
S v Haimbodi 1993 NR 129: statutory crime to perform an abortion where the
perpetrator is not a medical practitioner and where there is intent to kill a live
foetus
In this case the accused was charged with a contravention with s10(1)(a) of the Abortion
and Sterilisation Act 2 of 1975. It appeared that the Namibian Government continued to
apply this statute which made it a statutory crime to perform an abortion where the
perpetrator is not a medical practitioner and where there is intent to kill a live foetus. The
court held the charge to be fatally defective. The accused was not represented and the
court made to reference to the constitution.
African Charter on the Rights and Welfare of the Child
The charter does not allude to abortion. See footnote 67 at p39 of Naldi.
42