Down the Slope to Infanticide

Marnie Ko

Genetic terminations unquestionably constitute murder in the minds of the Foothills nurses who contacted this magazine after hospital administrators demanded they assist with abortions. The nurses are backed by a February 26 administrative memo obtained by this magazine which states that for Maternity Care Centre (MCC) staff, "not participating in terminations is not an option."

At Calgary's Foothills Hospital some premature infants are born alive, then routinely allowed to die. For instance, last August a doctor told a mother-to-be that her baby suffered from lethal genetic defects. The mother was persuaded to undergo a "genetic termination," and a regularly used procedure called an induction abortion was performed only five weeks before the baby was due. Chemically induced labour was followed by a live birth. But because the mother had decided her child should not live, nurses were forbidden to provide even such basics as food and fluids.

"For 12 hours we took turns rocking and holding the baby until it finally died," says foothills nurse "Catherine," whose real name, along with the baby's sex, have been withheld to protect her job. The mother believed her child was subnormal, but Catherine could see only a baby. "I was sick for weeks," she says.

Shirley Popadiuk, Foothills' public affairs manager for acute care, says that about 40 genetic abortions occurred at Foothills Hospital in 1998. But the pace is quickening. This year, nurses report, they are performing from two to three induction abortions each week, many of which result in live births. But no one can say exactly how many. Nurse "Sanders" (not her real name) says "it happens all the time," but the actual numbers are kept in a locked log book. Nevertheless, nurse Sanders says, memories of the live births are harrowing. Earlier this year she witnessed a baby of 18 weeks gestation with a chromosomal problem that survived a genetic termination.

"While the mother cried," she says, "the baby was trying to breathe, slowly taking in air, struggling for each breath. She suffered for 30 minutes."

Strictly speaking, abortion in Canada is legal at every stage of gestation, right through to the 40th week when fully developed babies normally make their entrance into the world. But because late-term genetic abortions are repugnant to many nurses, observers say administrators at Foothills made a mistake when they decided this past February that the unit which cares for newborns and their mothers will also have to care for women who undergo genetic terminations. Administrators compounded their error, the observers add, when they also ruled that nurses could not excuse themselves from assisting aborting mothers based on religious or moral objections. But even abortion opponents have only lately realized that when doctors and nurses refuse to make every effort to preserve the lives of babies born alive, even those that result from a genetic termination, they have possibly violated the Criminal Code provisions against murder.

"If I were the doctors, nurses, hospital or even the pregnant mother, I'd be worried," says Edmonton lawyer Mark McCourt. "These late term abortions leave them open to possible criminal prosecution."

Genetic terminations have become increasingly popular, thanks to enhanced forms of ultrasound and other medical techniques that allow doctors to check a baby's development in the womb. Mothers are persuaded to have the tests because, they are told, if problems are detected early enough some of them can be repaired in the womb. But when a genetic anomaly is discovered, some doctors pressure the mother to accept a genetic termination. Impressed by the professional's air of infallibility, mothers come to accept that their babies will certainly die outside the womb.

But the doctors are frequently wrong. A study done by the Oxford Radcliffe National Health Service Trust in Oxford, England, and published last November in the British medical journal The Lancet, looked at 33,000 pregnancies between 1991 and 1996. Researchers found 174 babies that were born healthy and normal after an ultrasound had suggested abnormalities. More ominous was the discovery that 43%, nearly half, of the fetuses identified as having an abnormality through ultrasound or other tests are aborted, making it impossible to accurately gauge how often genetic abnormalities are misdiagnosed. Ultrasound for example, is now sensitive enough to pick up such features as skin thickening on the back of the baby's neck, for example, which is sometimes a sign of Down's syndrome but can also be a temporary developmental phenomenon. Therefore, the study's researchers conclude, doctors and patients should not rely solely on ultrasound to determine the health of an unborn child or to decide the fate of their baby.

Nevertheless, doctors and patients increasingly see abortion, even late-term abortion, as a first response to genetic abnormalities. But Canadian doctors shrink from partial-birth abortions, a method used mainly in the U.S. in which a late-term baby's brains are sucked from its head before the baby is fully drawn from the womb. Canadian doctors prefer induction, in which a nurse inserts the drug Cytotec into the woman's vagina; the drug then ripens the cervix and causes powerful uterine contractions which eventually lead to premature birth. Unfortunately, for pregnancies over 18 weeks, induction can result in a live birth.

The Alberta government refuses to release data on late-term abortions, including how many children are born alive or how the live births are handled. But records available in British Columbia show that since 1995 at least 16 babies have been born alive during mid- to late-term abortions. According to the B.C. coroners service, several of the aborted babies lived for more than an hour after birth, one for six hours. The largest baby weighed 4.9 pounds and was born in 1997 to a North Vancouver woman more than seven months pregnant. In a tacit admission that the babies have legal status as human beings, the infants are issued death certificates.

"A baby that exhibits any sign of life, including heart beat or muscle movement, is registered as a live birth," says Michelle Stewart, spokesman for B.C.'s Ministry of Health.

But Ms. Stewart is not prepared to admit that a baby born as the result of a genetic termination is alive in any meaningful way. "Any woman should know that there's a possibility that when labor is induced over 18 weeks the baby will breathe," she says. "That doesn't mean it's alive-the baby may take one breath and then die. That's not a botched abortion."

To Ms. Stewart her position is consistent with her government's commitment to "giving women choices about their reproductive health." But it reminds Peter Ryan, director of the Respect Life office of the Catholic Archdiocese of Vancouver ancient practice of abandoning newborn infants to die by exposure."

Genetic terminations unquestionably constitute murder in the minds of the Foothills nurses who contacted this magazine after hospital administrators demanded they assist with abortions. The nurses are backed by a February 26 administrative memo obtained by this magazine which states that for Maternity Care Centre (MCC) staff, "not participating in terminations is not an option." But an Alberta mother who underwent a genetic termination at Foothills last year (see story, below) has no sympathy with nurses who object to assisting people like her. This "isn't about abortion," she says, flabbergasted that anyone would accuse her of murder. She explains that interrupting her pregnancy was a heart-wrenching decision made to end the suffering which, she was told, her severely handicapped baby was already experiencing in her womb. She also believes the genetic termination was "necessary for her own emotional well-being, the survival of her marriage and the well-being of her existing child." For her, genetic termination was a "life support issue."

In addition to the problems caused by genetic terminations, Foothills nurses report that morale in the MCC has suffered because the hospital habitually breaks its stated policies on abortion. Although public affairs manager Popadiuk denies it, nurse "Chapman" (not her real name), says that at least 50% of the time nurses must perform the role of doctors and administer the drugs that induce the uterine contractions leading to genetic termination. Then, because the doctors often do not arrive in time, nurses must also handle the delivery. Furthermore, the three staff doctors who perform abortions display no regard for nurses' moral objections. "The doctors say we're too 'sensitive,'" Ms. Chapman reports. Moreover, even though hospital policies state that abortions before 18 weeks and after 24 weeks are supposed to be done elsewhere, the doctors frequently break the rule with impunity.

Mary-Lynn McPherson, coordinator of Canadian Nurses for Life, says Foothills' callous regard for its nurses' sensibilities is a reminder that now that early abortions are considered routine, other forms of mercy killing, including genetic terminations and euthanasia, are quickly becoming acceptable. And once governments and hospital administrators decide to take the next step, they resent employees who think what they are doing is wrong. Across Canada, Ms. McPherson says, RNs are being penalized, even fired, for refusing to assist with abortions.

"For many practising Christian, Jewish and Muslim nurses, abortion is not an acceptable option," she says. "And now that the campaign is on to legalize euthanasia, it will not be very long before all healthcare providers will be required to participate in the killing of other patients in some manner." She believes that soon only those who agree to be involved in killing will be allowed into healthcare professions.

Since the Canadian Supreme Court struck down the country's abortion laws in 1988, every attempt to place legal restraints on abortion has failed. As part of the fallout from the continuing controversy three Canadian abortionists have been shot, but none has been killed. Nevertheless, the result has been a public relations disaster for those who favour life.

A fear that abortion providers could become targets is not unrealistic, says lawyer McCourt. But he suggests doctors should be more worried about criminal sanctions than snipers' bullets. Author of several academic articles on fetal protection, the 32-year-old Edmonton lawyer says that when babies survive late-term abortion attempts, a hospital is treading on dangerous ground if it refuses to offer at least minimum care. He points to Section 223 of the Canadian Criminal Code which states that a child becomes a human being "when it has completely proceeded, in a living state, from the body of the mother, whether or not it has breathed, has an independent circulation, or the naval string is severed."

When a baby's gestation is terminated prematurely and it dies after being born, says Mr. McCourt, "the abortionist might well be guilty of culpable homicide, liable to imprisonment for life." He notes that Section 223 even prohibits injuring a child before or during its birth in such a fashion that it succumbs to the injury after being born. Similarly, the deliberate killing of a child during labor is still a crime in Canada, pursuant to Section 238.

Mr. McCourt cautions that even claiming that the child's death was inevitable because of a lethal fetal anomaly may not be a valid defence. "The claim that the premature induction of labour merely hastened the child's inevitable death," he says, "is laid out in Section 226. It says that where a person causes injury to a human being which results in death, it is no excuse 'that the effect of the bodily injury is only to accelerate the death from a disease or disorder arising from some other cause.'"

Even a pregnant woman who consents to an induction abortion may not be free from criminal sanction if the baby is born alive and dies soon afterwards. "Arguably," says Mr. McCourt, "she might be liable to prosecution for infanticide or for failing to obtain proper childbirth assistance, both of which are criminal offences. Section 234 says that a person who, by act or by omission, intentionally causes the death of her newborn, may be guilty of infanticide and liable to five years in jail." And, adds Mr. McCourt, Section 242 says that if a pregnant woman who does not want her baby to live fails to obtain reasonable childbirth assistance, she will be criminally responsible if the child dies immediately before, during, or soon after birth.

Mr. McCourt also points out that any hospital which forces nurses to assist with abortions without "regard for their religious and moral convictions" is likely violating provincial human rights legislation, not to mention opening the hospital to possible constructive dismissal grievances and lawsuits. In addition, says Mr. McCourt, hospitals have a legal duty based on the Charter of Rights and Freedoms to accommodate employees who "choose not to assist with pregnancy terminations for moral or religious reasons."

Joanne Hatton, president of Alberta Pro-Life, says she is pleased to learn that newborns are protected by the Criminal Code. But she is dismayed that nobody has applied the law to the situation at Foothills, and predicts this may soon change.

"We've spoken to legal counsel," she says, "and we are presently considering whether criminal charges should be pursued in cases where babies are born alive and allowed to die."

Ms. Hatton is not issuing an idle threat. According to Edmonton crown prosecutor Stan Fowler, if police do not act when presented with evidence that a crime is being committed, a private citizen may go before a justice of the peace. If convinced that the Criminal Code has been violated, the JP can then refer the matter directly to a crown prosecutor.

Foothills nurses who are opposed to assisting at abortions may also get some relief. Six years ago, nurses at Ontario's Markham Stouffville Hospital filed a complaint with the Ontario Human Rights Commission because the hospital was forcing them to participate in abortions. But two weeks ago a mediated settlement between the hospital and nurses ruled that staff with religious objections to abortion will no longer have to violate their consciences to keep their jobs. Observers believe that the Ontario decision has set a precedent that other hospitals will find difficult to ignore.

Other efforts are being made to protect nurses who object to abortion. Saskatchewan Reform MP Maurice Vellacott reports that his "conscience bill," C-461, has passed first reading and is more than halfway toward getting the 100 signatures needed to force Parliament to give it second reading and pass it on to committee. If passed, C-461 would amend the Criminal Code to protect the jobs of healthcare providers whose religious and moral convictions prevent their participation in abortion
or euthanasia.

On April 23 this magazine faxed CHRA chairman Jim Dinning and Foothills public affairs manager Popadiuk, asking them to explain how the hospital reconciles its abortion practices with the Criminal Code provisions against murder. The hospital faxed back two pages outlining the College of Physicians and Surgeons of Alberta policy on surgical terminations. The policy states that the doctors are "aware" of the relevant portions of the Criminal Code. But it does not address the legal issue.

Instead, it recommends that before performing an abortion physicians "consult" with each other, and it states several times that patients must be made aware of "all available options in dealing with unwanted pregnancies." Moreover, it states that "after 24 weeks a pregnancy may be terminated by induction of labour...if prenatal assessment confirms a fetal condition which is confidently predicted to be lethal during the first 30 days after birth." But the document never explains how a refusal to offer care to a baby born alive does not constitutes murder.

Richard Sobsey, a University of Alberta professor of educational psychology who works with disabled children, says the news that Foothills Hospital deliberately allows babies to die comes as no surprise. "Roughly one-third of the babies that die in hospital," he says, "do so because a doctor makes the decision that although the baby could survive with medical treatment, there would be something wrong with it anyway, so why bother." Prof. Sobsey also objects to the way doctors twist language to influence parents' decision to abort. "They are mislead," he says. "They are fed information that will make 80% of them choose genetic termination, the choice the doctors wanted in the first place."

Parents should not view doctors as infallible, says Prof. Sobsey. Moreover, society needs to get over its fears of imperfect children, and doctors should quit viewing themselves as having the power to control life and death. "Things some doctors can't fix they end in some way," he explains. "Besides, doctors are being pressured to bring healthcare costs down and babies with disabilities cost a lot of money." He also mentions that due to a fear of lawsuits, doctors sometimes prefer to let a baby die rather than help a handicapped baby to live. In malpractice suits, he says, parents are usually awarded more money for a handicapped baby than for one that died.

In Prof. Sobsey's view, society is not thinking clearly when it criticizes a parent for using abortion to choose a child's sex but accepts that women can legitimately use abortion to eliminate babies with Down's syndrome.

McGill University medical ethicist Margaret Somerville says that "if you deliver the baby without killing it, you have no right to kill it, but sometimes allowing a baby to die is acceptable. If a patient is terminal and going to die, there's nothing wrong with letting it happen."

Prof. Somerville's position points to the rapidity with which views on mercy killing have changed in Canada. As recently as 1989 the federal Law Reform Commission took the view in a working paper that disabled babies were fully human. The Commission concluded that even in cases where an unborn baby suffers from a serious, but non-lethal, defect "our society and our law, especially since the enactment of the charter, has no place for the notion that the handicapped, born or unborn, are a lesser breed than their more fortunate able-bodied counterparts."

Nurse Chapman remains convinced that what she sees at Foothills is wrong. But she does not entirely blame the doctors. "Society has let this happen," she says. "People want this technology that lets them look in the womb. That it's being used to end life is the fault of society. This is murder. I know. I've been forced to participate. No matter what it's called-abortion, induction, genetic termination-nothing changes the fact that it is taking innocent life."

Related:

Personal Qualms Don't Count:  Foothills Hospital Now Forces Nurses To Participate In Genetic Terminations