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.

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 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.

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