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The Pregnant Minor: Contraception and Abortion under Canadian Law

Published online by Cambridge University Press:  01 January 2021

Margaret A. Somerville
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Extract

Regulation of access to contraception or abortion by minors has been a major issue in many jurisdictions over the past decade. This article will investigate the current law in Canada and will enable comparisons to be drawn with the situation in other jurisdictions, particularly those in the United States in light of the United States Supreme Court's recent decision upholding the Hyde Amendment which restricts the use of federal funds for abortions.

Some of the legal issues present are common to both contraception and abortion. However, because abortion is expressly regulated by the Criminal Code of Canada, there are also significant differences. The two major issues are the legality of the procedures themselves and consent. These questions are both separate and related: they are separate because the legality of a medical intervention must be looked at apart from consent, and related because consent is one of the factors upon which legality depends.

Type
Article
Information
Medicolegal News , Volume 8 , Issue 4 , August 1980 , pp. 4 - 19
Copyright
Copyright © American Society of Law, Medicine and Ethics 1980

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References

Criminal Code, Can. Rev. Stat., c. C-34 as amended, §251 (1970).Google Scholar
Somerville, M.A., Consent To Medical Care, at 43–44 (Law Reform Commission of Canada, Ottawa) (1979).Google Scholar
Other possible, but less likely, charges should also be noted. Where the parents purport to consent to contraception for a minor both the physician and parents could be guilty of contributing to the delinquency of a minor, an offense under the Juvenile Delinquents Act, Can. Rev. Stat., c. J–3 §33 (1970). This is true because “juvenile delinquen[cy]” includes being “guilty of sexual immorality or any similar form of vice....” Id., §2(1). The parents may also be guilty under §166 of the Criminal Code, note 1 supra, which creates the offense of a parent procuring his or her female ward to have sexual intercourse. See generally, Dickens, B.M., Medico–Legal Aspects of Family Law, at 33, (Butterworths, Toronto) (1979).Google Scholar
See, e.g., R. v. George, 128 C.C.C. 289 (Supreme Court of Canada) (1960).Google Scholar
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Although irreversible or difficult to reverse methods of contraception are not usually considered in relation to minors, they are sometimes used (see Stump v. Sparkman, 435 U.S. 349 (1978)), particularly with respect to mentally incompetent minors. For a general discussion of the issues raised by the contraceptive sterilization of mentally incompetent persons, see Kouri, R.P. Somerville, M.A., Comments on the Sterilization of Mentally Incompetent Persons in Canadian Civil and Common Law, Revue De Droit De L'Universite De Sherbrooke (Summer 1980).Google Scholar
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The contraceptive technique must be known, beyond a reasonable doubt, to act by way of abortion before the necessary mens rea for the offence of illegally procuring an abortion could be present. There is also the further question of whether the offense of abortion is constituted simply by causing the fertilized ovum to be expelled, or whether it is necessary for the ovum to have been implanted before its expulsion. See Dickens, B.M., note 3 supra, at 40–41, 79.Google Scholar
See Somerville, M.A., Surgical Interventions and the Criminal Law: Lawful or Excusable Wounding, McGill Law Journal (August 1980).Google Scholar
Depending on the particular circumstances a given contraceptive medical intervention may be characterized as therapeutic or non–therapeutic. In this respect, the definitions of therapeutic and non–therapeutic sterilization, formulated by the Law Reform Commission of Canada in Sterilization: Implications for Mentally Retarded and Mentally Ill Persons, at 106, 107 (Working Paper 24; Ottawa) (1979), are of interest. Therapeutic sterilization is “any procedure carried out for the purpose of ameliorating, remedying, or lessening the effect of disease, illness, disability, or disorder of the genito–urinary system....” In comparison, non–therapeutic sterilization is “a safe and effective procedure resulting in sterilization when there is no disease, illness, disability, or disorder requiring treatment....”Google Scholar
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See Somerville, M.A., note 2 supra, at 3–8. It should be noted that this statement assumes that the minor's common law power to consent to therapy carries with it the same correlative right to refuse therapy, as it would for a competent adult.Google Scholar
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Id.Google Scholar
Cited by Dickens, B.M., note 3 supra, at 34–35.Google Scholar
Note 1 supra. Section 251 of the Criminal Code may indirectly govern the legality of an abortion since one of the conditions for its inapplicability is that compliance with its requirements is not reasonably possible. See discussion of Morgentaler Cases, note 39 and accompanying text infra.Google Scholar
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Dickens, B.M., note 3 supra, at 43. The author states that “[i]t is clear that committee approval of a female's abortion is legally conclusive of the fact that ‘continuation of the pregnancy... would or would be likely to endanger her life or health.’ It is true that such a determination would be conclusive for the purposes of §251(4), that is to protect ‘a qualified medical practitioner’ from liability for procuring a miscarriage. It is not so clear that the determination would bind a court which needed to determine whether or not an intervention was therapeutic for another purpose, for instance in order to see whether third–party authorization (consent) to a medical intervention could be given.”Google Scholar
The defence of necessity is retained pursuant to §7(3) of the Criminal Code, note 1 supra.Google Scholar
Morgentaler v. R., note 39 supra. See also, Dickens, B.M., note 3 supra, at 45.Google Scholar
Note 25 supra, §42.Google Scholar
This would be the case if the law were held to be that a minor could only consent to medical interventions after attaining the age of majority which is 19 years in Newfoundland under the Minors (Attainment of Majority) Act, Nfld. Rev. Stat., Act No. 71 §6(1) (1970).Google Scholar
It should be noted that the distinction between eventualities considered to be part of the “nature and quality of the act” and those regarded as “consequences,” may seem somewhat arbitrary and indistinct in some circumstances. For instance, a certain consequence may be considered an essential feature of the act itself and hence, part of its nature and quality, if it is very likely to occur and is characteristic of that act. See R. v. Bolduc and Bird, 59 W.W.R. 103 (B.C.C.A.) (1967) reversed on appeal, 60 W.W.R. 665 (1967) (Supreme Court of Canada); R. v. Harms, 2 D.L.R. 61 (1943) (Sask. Ct. of App.); R. v. Williams, 1 K.B. 340 (1923); Papadimitropoulos v. R., 98 C.L.R. 249 (H.C. Australia) (1957).Google Scholar
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Dickens, B.M., note 3 supra, at 102, says that a minor can always refuse abortion, except possibly in a life–threatening situation.Google Scholar
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E.g., pursuant to The Child Welfare Act, Ont. Rev. Stat., c. 85 (1978); or La Loi Pour la Protection de la Jeunesse, L.R.Q., c. P–34 (Quebec).Google Scholar
Dickens' comment (note 46 supra) may indicate that the parents' wishes will not predominate where a minor refuses an abortion, even though she is incapable of consent. Whatever is the legally correct position, it is suggested that Dickens' view represents the better ethical approach.Google Scholar
See Somerville, M.A., note 2 supra, at 58–61. It should be queried whether in the abortion situation a physician could make it a condition of undertaking to treat the minor that parental consent be obtained. This would not seem to breach any legal obligation of the physician, providing his conduct did not amount to abandonment of the patient after undertaking a treatment relationship, and providing the situation was not one of emergency in which the physician had an obligation to treat, as, for instance, under the Quebec Charter of Human Rights and Freedoms (La Charte des Droits et Libertés de la Personne), 1977 L.R.Q., c. C–12, §2; or, in Ontario under The Public Hospitals Act, note 24 supra, §§17 and 18.Google Scholar
See Dickens, B.M., note 3 supra, at 54.Google Scholar
Note 37 supra, at 239.Google Scholar
See Dickens, B.M., note 3 supra.Google Scholar