1. Issues in Abortion: Paternal Rights; Finding Common Ground; Personal Conscience
Rels 300 / Nurs 330
January 2016
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2. Tremblay v. Daigle Paternal Rights in Abortion Decisions
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3. Case Study
In January 1989, Jean-Guy Tremblay proposed marriage to Chantal Daigle. In February 1989, the two began to live together. Shortly after commencing living together, the relationship between the parties deteriorated. According to Ms. Daigle, Mr. Tremblay was a dominant and jealous partner who was physically abusive.
Early that spring, Ms. Daigle’s doctor informed her that she was pregnant. In July, following another abusive incident, Ms. Daigle decided to end the relationship and to terminate her pregnancy.
Is this a decision that Chantal should be free to make for herself? Why, or Why not?
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4. Quebec Superior Court
On July 17, 1989, Mr. Tremblay sought an injunction restraining Ms. Daigle from proceeding with the abortion.
[Tremblay’s lawyer argued that, based on article 18 of Quebec’s Civil Code, a fetus is a human being. Articles 338, 345, 608, 771, 838, and 945 of Quebec’s Civil Code identify the fetus as a juridical person.]
Should Jean-Guy Tremblay have a say in whether the pregnancy is continued or discontinued?
Should he have the right to override Chantal’s own decision?
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5. Superior Court’s Decision
The Quebec Court ruled in favour of Mr. Tremblay’s injunction to prevent the abortion.
They said that:
the fetus enjoys a “right to life” and a “right to assistance”
Mr. Tremblay had the necessary “interest” to request the injunction
while the injunction would inconvenience Ms. Daigle, the fetus’ rights should prevail in this situation
What would you have done?
Would you have accepted or challenged this decision?
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6. Quebec Court of Appeal What should Chantal do now?
Ms. Daigle appealed to the Court of Appeal. On July 20, 1989, her appeal was dismissed.
The Judges said that:
A fetus is a human being with a right to life and a right to assistance
Although neither the Quebec Charter nor the Canadian Charter of Rights and Freedoms recognized fetal rights, fetal rights were “recognized by custom”
Fetuses have a “natural right” to gestation that can only be overridden for just reasons
This case did not provide a just reason
What should Chantal do now?
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7. Supreme Court of Canada
Ms. Daigle appealed to the Supreme Court of Canada.
The Court heard her appeal and focused on these issues:
Does the Quebec Charter support an injunction restraining Ms. Daigle from seeking an abortion?
Does the Canadian Charter of Rights and Freedoms support an injunction restraining her?
Does the father have the right to veto a woman’s decision to seek an abortion?
What do you think were the answers to these questions?
What do you think the correct answers should have been?
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8. Tremblay v. Daigle [1989] 2 S.C.R. 530
The Supreme Court of Canada was unanimous in its decision:
The Quebec Charter cannot be used to prevent Ms. Daigle from seeking an abortion;
The Canadian Charter cannot be used either;
A potential father does not have the right to veto a woman’s decision with respect to continuing or ending a pregnancy.
In Canada, a fetus does not have legal rights as a person until it is born alive.
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9. What is the significance of this Decision?
This Supreme Court Decision from 1989 set a legal precedent in Canada regarding:
Legal rights of fetuses – not until live birth
Legal rights of pregnant women to seek abortions – where legal services are available
No legal right for the potential father to veto an abortion (or, presumably, to insist on an abortion)
Might there be any circumstances under which a different decision might be expected?
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10. Finding Common Ground
Are there points of agreement between those who oppose abortion and those who support the right to choose to abort?
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11. Human life has value and is precious
When a woman miscarries, it is perceived as a loss
Women should not use abortions repeatedly as a form of birth control
If sexual partners do not want to become pregnant, they should act in a responsible manner to prevent pregnancy
It is irresponsible not to do so
In certain situations – such as incest or rape – an abortion may provide the least harmful response
If a pregnant woman’s life is endangered by pregnancy, then abortion should be considered
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12. Both fetuses and pregnant women are morally valuable in human families and communities
Perhaps choices concerning continuing or ending a woman’s pregnancy are best made in a relational context where: + women are valued and supported + women’s health and well-being can be supported + women’s choices are free from coercion and threats + sexual partnerships are loving and mutual Where these elements are missing, prohibiting women from seeking legal, medical abortions may be unjust.
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13. Would it be better to pass legislation making access to abortion more limited?
Where abortion is illegal, abortions still take place
Done by non-medical persons in non-medical settings
With substantial risks to women, infants, and abortion providers
Among religious communities, where formal teaching prohibits abortion, rates of abortion are no different from rates among non-religious people
According to Judaism, where continuing a pregnancy poses risks to the life or health of the pregnant woman, the woman’s life takes precedence over that of the fetus – she, after all, is already a living person with relationships and responsibilities, and is a person made in God’s image
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14. Issues of Conscience
What are the responsibilities of professional health care providers regarding provision of abortion services?
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15. Ethical Responsibilities
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