The History of Abortion in Canada - Term Paper Example

Abortion in Canada Abortion in Canada has gone through a historical journey that is informed by various legal, ethicalas well as professional concerns over time. Legal framework has been influenced by critically evaluating available laws in the context of realities of how the laws were affecting the people with the view of having the interest of women looking for the services as well as the health providers. Given that Canada has no law restricting access to abortion for women who request the service, many have presented both professional and ethical reasons to support the status or in opposition of the legalization. This attempt has led to various failed attempts to reintroduce legislations that will restrict the access to abortion to only health concerns. However, such efforts have met an equally formidable force from those who think that issues to do with termination of pregnancy should be left to individuals and their physicians to decide. Consequently, there is no chance that those who oppose and those who support women’s access to abortion will achieve a consensus due to their different legal, ethical and professional basis for support of what they believe is the right approach to the abortion issue. Although Canada does not have a law prohibiting abortion now, there was a previous law that spelt tough consequences for anyone convicted for offences related to abortion. Before removal of law that criminalized abortion in 1988, the Criminal Code of Canada had made it illegal abortion since 1869 where those who were determined by a court of law to have provided the service faced up to life incarceration. Women caught attempting to procure or induce their own abortion could also face a prison sentence of up to seven years. The law was applicable to a wide aspect of reproductive health to the extent that advertisers of contraceptives were also liable to a jail term of up to two years for various indictable offences including the sale and provision of these products. Therefore, under this law Canadian women seeking abortion services had to find backdoor and black-market providers who in most cases where not trained providers of health care services or others did not have the necessary facilities to ensure quality and safe services (Sabourin and Burnett, 2012; Cross, 2009). The law on abortion in Canada was relaxed in 1969 after about a hundred years when it was illegal to have an induced abortion. This was after the realization that many women were going to the backstreet and illegal providers of the service, which led to infections, painful experiences as well as death for many due to the lack of facilities and trained providers. However, this liberalization of laws Canadian to allow abortion included a number of restrictive conditions aimed at regulating how the service is offered or procured. Among the conditions for induced abortion to take place under the new law was that such services were to be performed only in a hospital setting. Even when performed within the wall of a hospital, there was also a need for induced abortion to be given a green light by a functional therapeutic abortion committee. The law demanded the setting up of the therapeutic abortion committee in every hospital and was to be made up of no less than three physicians. Further, this committee would only seat and approve induced abortion in cases where the pregnancy posed a threat to the health of the woman. This provision of exceptions on health grounds was also extended to women who were determined to have mental health problems. Consequently, Canadian women seeking abortion could have legal grounds to terminate their pregnancy under this law although it was strict (Sabourin and Burnett, 2012). The 1969 law on abortion spelt the legal grounds under which women could access abortion, but was blamed for its restrictive nature that blocked out a large section of women from qualifying for the services in most hospitals. Nearly a decade after the abortion law took effect in Canada, it was estimated that only about 20 percent of the hospitals had put in place a functional therapeutic abortion committee. Further, almost all the hospitals that had complied with the requirements were located in urban areas making it difficult for women in rural areas to access such services legally. Another area that brought many controversies is in the definition of health grounds that would make it necessary to evaluate a women’s case. Because of these areas of concern, women in need of abortion were not able to access the services while those who did had to face a lengthy wait for their requests to be approved (Sabourin and Burnett, 2012). The difficulty faced by women who wanted to access abortion services led to a number of initiatives calling for the removal of restrictions to access of safe abortion services. Among the people who were in the forefront of the initiative to remove restrictions to access of abortion services in Canada is Doctor Henry Morgentaler. Morgentaler was accused by authorities of having performed a number of illegal abortions in Montreal from 1968 to 1988. The doctor had opened illegal health centers to increase access to women looking for abortion services across Canada, which led to his arrest on a number of occasions. Morgentaler was set free by juries four times, but was still sentenced by a judge in one occasion, which led to the protracted court sessions leading to the case on women access to abortion on request reaching the Supreme Court of Canada (Arthur, 2009; (Sabourin and Burnett, 2012). The consistent efforts by Morgentaler paid off when in 1988 the Supreme Court of Canada affirmed the abortion law was not constitutional in addition to being in contravention of the Charter of Rights and Freedoms. When passing the ruling that made abortion law illegal, Supreme Court of Canada judges found the law to be in contravention of the woman’s section seven of rights to security of her person and liberty. It was determined that the law denied a number of her rights already guaranteed under the right to access therapeutic health care in addition to not taking care of fairness as well as the independence of women over issues to do with procreation. Consequently, the decision to request for therapeutic abortion was linked to the woman’s right to right to liberty contained in section seven of the constitution, which guarantees important aspects of personal autonomy over important decisions. The legal milestone achieved by Morgentaler led to a reaction by a number of provinces that decided to limit funding for abortions in order to frustrate the ruling that women could legally access abortion on request. These move by provinces led to further legal battles in court where the Federal Court of Canada sustained a verdict that taxpayers could not refuse to pay their taxes in protesting the funding of abortions by the government. Further, the Supreme Court determined that neither civil law nor common law in Canada had provisions that recognized the fetus as a civil person. Consequently, all legal requirements that would provide a framework on how abortion services will be provided or procured were removed making the decision to have an abortion the prerogative of a woman and her physician (Sabourin and Burnett, 2012; Arthur, 2009). Following legalization that made it possible for women to access abortion services on request, several attempts have been made to reintroduce legal regulations aimed at creating restrictions on the assess. The Canadian Senate rejected bill C-43 which aimed at reintroducing restriction on abortions unless it was carried out by a physician who identified a health reason that threatened the women’s life. The bill had already garnered the required number of votes in the House of Commons and was only awaiting approval by the senate. Another bid to introduce a legal provision in abortion came in 2008 when a private member’s bill that was called “Unborn Victims of Crime Act” was introduced in the senate but also rejected. The bill was not specifically about abortion but was opposed by the SOGC who saw it as opening the way for the re-illegalization of therapeutic abortion through amendment of Criminal Code to award a legal status to fetus. To date, there have been about twenty-six, eight private member bills and motions respectively, as well as one bill by the government that have attempted to introduce legal a framework to restrict abortion since 1989. However, since the 1988 Supreme Court of Canada ruling, there is no law that specifically deals with abortion within the Canadian territory (Sabourin and Burnett, 2012; Arthur, 2009). The defeat of initiatives to introduce a legal frame that will inform the way abortion services take place within Canada has led to a shift of perspective by those who are against women’s access to abortion on request. Even without legal provisions to regulate abortion there are some barriers women in need of abortion services have to overcome. These issues revolve around ethical concerns as well as the physician’s willingness terminate a pregnancy or offer referral services in cases where the physician refuses to offer abortion services. Therefore, in addition to legal restrictions that limit abortion, ethical as well as professional debates influence how the practice is perceived or conducted in the Canadian society. Ethical debates have become common with pro-life advocates claiming the right of the fetus to live as well as the introduction of religious interpretations to the abortion debate. This debate center around the moral status of the fetus with patient issues being whether the fetus is a person and what stage does it become person. On the right to life, many of the pro-lifers argue that the fetus should be allowed to continue with the development processes since after conception it becomes a living thing. However, the pro-choice argues that the fetus cannot be recognized as a person until birth since it cannot survive on its own without being attached on the mother. Consequently, the key area of concern among those who support abortion and those in opposition has been about the right to life of the fetus with divergent views being expressed base on beliefs about when life starts (Arthur, 2009). Another area of concern is about the stance by those who support abortion that since the woman carries the fetus, there should not be any restrictions on what she does with her pregnancy. This view considers the woman as the full custodian of the pregnancy and is the one who nurtures the fetus inside her body. If the woman does not feel comfortable with the fetus inside her, she should have the liberty to decide what she does with it including termination of the pregnancy. However, those against abortion argue that just because the fetus grows in the womb carried by the woman does not imply she is at will to do whatever she pleases with it. Others are also included in the development of the fetus such as the father. It is argued that fathers should also have a say on the decision to terminate a pregnancy since they also contributed to the development of the fetus through fertilization. Therefore, these groups of people who are against the woman being given the right to access abortion on request defend the right of the father to make decisions concerning what happens to the fetus (Arthur, 2009). Further, there has been debate even among people who agree with the right of the woman to access abortion on request about what point during development can a pregnancy be terminated. According to a research on the attitude of Canadians on issues relating to abortion, Environics Research Group (2011) reports varied results from the group that was sampled and asked to state a point in the development of the fetus that a legal framework can be put in place to protect human life. Based on this question, 28 percent of those who sampled indicated protection of life to commence from conception, 17 percent from two months onwards, and 17 percent from three months onwards while 10 percent thought human life should be protected from six months onwards. Among those sampled in the Environics Research Group (2011) only two out of ten representing a 20 percent result indicated that human life should have a legal protection only at birth. The significance of this study is that those who favored protection of human life from conception (28 percent) where more than the group that thought this protection should only be affected from birth (20 percent). Therefore, it can be argued that even as abortion continues to have a legal status, more Canadians are in favor of protection of life from conception. The other area of concern in the abortion debate concerns the question on whether termination of pregnancy for sex selection reason should be legal in Canada. The study by Environics Research Group (2011) reports that after the sampled Canadians were told about how the practice of sex selection was regulated in other countries such as China and India, 92 percent of those sampled thought this form of abortion should not be legal in Canada. Even as a large section of Canadians, continue to be against sex selection as a basis for abortion, the practice continues due to the technological development that has enabled access to ultrasound facilities. This problem has been found to be not only prevalent in Asian countries, but also in a number of societies that have a large number of immigrants from Asia. A good example is in Surrey where the ration of boys to girls was found to be 109:100 but was higher in preceding years with this rates being similar to results from studies in a number of Canadian cities including Brampton, Etobicoke as well as Scarborough, which have similar immigrant demographics. Consequently, some women have taken advantage of legality of abortion to propagate sex selection practices (Thiele and Leier, 2010). The realization that there were individuals taking advantage of lack of legal restrictions in abortion to undertake sex selection led to the development of a legal framework to stop the practice. Legal framework that makes sex selection illegal is contained in “Act Respecting Assisted Human Reproduction” that was passed in senate as Bill C-6. The bill creates two wide classifications of undertakings linked to assisted human reproductive practices. The classifications includes practices that are banned and are not to be performed in whatever situation as well as a number of restricted activities that can only be performed to the extent allowed under legislation and the regulations in the provisions of Bill C-13. Under the category of activities that have restrictions on circumstances under which they can be undertaken is sex selection with the necessary conditions being when preventing, diagnosing or treating disorders or disease linked to sex. Consequently, only prevention of possible transmission of genetic diseases can be grounds for sex selection abortion but not activities that support selective abortion of healthy fetus after amniocentesis, or infanticide (BC Women’s Hospital and Health Center and Provincial Health Services Authority, 2008). According to a report by Abortion Rights Coalition of Canada (ARCC) (2005), although provision of abortion services has been made legal, many physicians choose not to offer the service to their patients. The report notes that most of the abortion providers are family physicians or obstetrician who although possess the necessary qualifications in women reproduction, only about 20 percent this services throughout their entire careers. Apart from the ethical and moral issues, others reasons blamed for the low numbers of physicians and obstetrician who are ready to offer abortion services includes safety concerns for the physician as well as members of her family in addition to lack of proper training and prestige, low financial incentives and institutional support that characterize the status of “abortion doctors”. Whether for ethical or other reasons, these concerns reduce the willingness by doctors to undertake therapeutic abortions therefore reducing access to a number of women in need of the services (Downie and Nassar, 2007). There has been a link of physician’s refusal to provide abortion as well as offer referral servicers with access to contraceptives. This connection stems from the fact that most of the abortions are due to unplanned pregnancy, which is because of lack of access to contraception. Statistics indicate that physicians who refuse to provide abortion services do not offer contraception services to their clients due to religious and ethical issues. Therefore, access to contraception is a key determinant in checking the rate of abortion. This further complicates the matter for women in need of reproductive health care as the number of unplanned pregnancies continues to increase while the number of available physicians willing to offer safe services remains low (ARCC, 2005: 3; Wiebe and Sandhu, 2008; 331; Downie and Nassar, 2007). There have been researchers who have studied the issue surrounding abortion in the educational and training of physicians (Downie and Nassar, 2007). These studies have determined that by exposing physicians to educational and clinical training knowledge on abortions, they are more likely to be future abortion providers. Further, those who were exposed to such training had an increased possibility of introducing abortion as an option to reproductive health care for women during the process of counseling. Sabourin and Burnett (2012) notes that a study of nine schools of medicine found that is of them offered medical as well as first trimester surgical abortions in their pre-clinical curriculum. Only 56 percent of the schools offered training on late pregnancy termination procedures in addition to the education on ethics, policy, law and availability of abortions while some only discussed termination of pregnancy as an ethical issue and not a medical procedure. From the foregoing critical discussion of the legal ethical and professional issues that arise from the legalization of abortion in Canada, it becomes apparent that divergent views on the issue will continue to be expressed for the feasible future. Legalization of abortion has led to various consequential outcomes with complexities that can neither be handled through professional, legal or ethical approaches. Although legalizing abortion might have increased access to the service due to removal of restrictions such as approval by a therapeutic abortion committee, there are still pertinent issues to be addressed in order to improve reproductive healthcare service provision to women in need. The refusal to offer abortion service or provide referral to women by some physicians may present a challenge to the government’s effort to make therapeutic abortion accessible to as many women as possible. Further, removal of laws restricting abortion has created a vacuum for exploitation for other motives such as sex selection purposes. This calls for introducing of a legal framework that will guarantee the woman’s liberty while also ensuring that abortion does not become rampant in society. References ARCC (2005). The Canadian Abortion Provider Shortage: Now and Tomorrow, Position Paper No. 5. Vancouver: Abortion Rights Coalition of Canada. Arthur, J. (2009). The case for repealing anti-abortion laws. Toronto: ARC C. BC Women’s Hospital and Health Center & Provincial Health Services Authority (2008). Best Practices in Abortion Care Guidelines for British Columbia. Vancouver: Provincial Health Services Authority Cross, P. (2009). Abortion in Canada: Legal but not accessible: A YWCA Canada discussion paper. Toronto: YWCA. Downie, J., & Nassar, C. (2007). Barriers to Access to Abortion through a Legal Lens. Health Law Journal, 15, 143-173. Environics Research Group (2011). Canadians’ Attitudes towards Abortion. Commissioned Research Conducted for LifeCanada. Toronto: Environics Research Group. Sabourin, J. N., & Burnett, M. (2012). A Review of Therapeutic Abortions and Related Areas of Concern in Canada. J Obstet Gynaecol Can, 34(6), 532-542. Thiele, A. T., & Leier, B. (2010). Towards An Ethical Policy for the Prevention of Fetal Sex Selection in Canada. J Obstet Gynaecol Can, 32(1), 54-57. Wiebe, E. R., & Sandhu, S. (2008). Access to Abortion: What Women Want From Abortion Services. JOGC-TORONTO, 30(4), 327. Read More