Without new abortion laws, there's no way to seek justice for fetal homicide victims: Robyn Urback

It feels heinously unjust that Nicholas Baig will serve a "life" sentence in prison, with no chance of parole for 17 years, for murdering one person not two.

The Pickering, Ont., man killed his pregnant wife, Arianna Goberdhan, in April 2017.

Baig was physically and verbally abusive,a pathetic little man who said he wanted to be rid of his wife, yet couldn't tolerate her absence. About a month after they separated, when Goberdhan went to their home one evening, Baig stabbed her 17 times, killing her and her full-term fetus.

The fetus that would have become a daughter she was going to name Assarawas 20 days away from her due date. The fetus was fully formed, perfectly viable, but dead because of her father. She was also not considered a person by Canadian law.

"For the law to tell me that she was not a human being is totally wrong," said Sherry Goberdhan, Arianna's mom.

According to Canada'sCriminal Code Sec. 223 (1), a fetus becomes a human being when it has "completely proceeded, in a living state, from the body of its mother."

For a person to be charged with murder for an infant's death, the injury can occur before or during birth, but the child has to be born alive first, and then die.

To Goberdhan's family, and indeed to many others, that is a distinction without a difference. Had Assara lived for even a moment outside of her mother's body (she would not have had to breathe independently, have had independent circulation, or had her umbilical cord cut, according to the Criminal Code, to be considered a person), Baig would've been charged in a double homicide, instead of her death simply being a factor in sentencing. It compounds their tragedy that she did not.

The Goberdhan family joins the cause of other Canadian families who have lost babies as stillborn, along with daughters or wives, and believe the law should be changed to reflect the multiple deaths.

Aysun Sesen was seven months pregnant when she was stabbed to death by her husband in 2007. Cassandra Kaake was also seven months pregnant when she was killed by a home intruder in 2014. Crystal McFadyen was eight months pregnant when she was the victim of arson in 2018. In allthese cases, the fetuses never lived outside their mothers' bodies, so charges were not laid in their deaths.

But a first-degree murder charge was laid in the case of a Montreal baby who was stabbed in the mother's womb, delivered via caesarean section, and died after a few hours later in hospital. Because the fetus didn't die in utero, the accused could be charged in the baby's death.

A handful of private member's bills introduced in Parliament over the last couple of decades have tried to remedy what seems to be an arbitrary distinction in law. The most recent was in 2016, when Saskatchewan MP Cathay Wagantall tabled BillC-225, which would have made it a "separate offence to cause injury or death to a preborn child during the commission of an offence against the child's mother."

The bill was written in such a way as to protect women from being charged with an offence for having an abortion, since it specified a crime would only occur when someone was committing a violent act against a pregnant woman.

But that specification was also logically incoherent: it created a new class of personhood the "preborn" child who was not yet a human according to the Criminal Code but against whom someone could still be charged with a criminal offence. But the status of the fetus whether or not it was considered a child hinged on who was inflicting the injury. In other words, the fetus was a "preborn child" when someone else was injuring it, but not when the mother was the one inflicting damage. The bill was voted down.

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I can see many readers rolling their eyes at this extent of convoluted legal analysis of a situation where bereaved parents just want thekilling of their daughter's fetus recognized. But there is simply no way to do that without fundamentally changing the nature of abortion laws in Canada. Where fetal rights are recognized, a woman's rights are unavoidably affected.

That is demonstrably true in the United States, where varying state laws recognizing the rights of fetuses have seen mothers charged with crimes against the fetuses they are carrying. In 2011, an Indiana woman was charged with murder and attempted feticide after she tried to commit suicide. Her baby, though born alive, did not survive.

In Alabama, hundreds of women have been charged under the state's "chemical endangerment" law for taking drugs while pregnant, which has allowed the state to detain addicts against their will. The view here is that the rights of the mother and the child are separate and individually deserving of protection, which opposite to the position taken by the Supreme Court here in Canada.

Landmark SCC case

In a landmark 1997 ruling, the court held that a woman and her fetusare one, and that "To make orders protecting fetuses would radically impinge on the fundamental liberties of the mother."

Which is to say: we can't introduce fetal homicide laws without introducing new restrictions on abortion at the same time, as well as new powers of the state to infringe on the liberties of pregnant women.

That wouldn't be much of a problem for those who are adamant that Canada needs new and tough abortion laws, but it creates an impossible moral dilemma for those who see in shades of grey. How do you charge someone with killing a fetus, but not, at the same time, punish a pregnant woman when her actionsharm her fetus? And where is the line? Smoking while pregnant? Doing drugs? Extreme sports? At what point should the state intervene?

All of this is to say, absent a dramatic overhaul of the Criminal Code which would mean subsequent legal challenges, appeals, and likely a Supreme Court ruling there just might not be a fair way to see justice in such cases.That's the price for the freedoms that Canadian women enjoy, but surely cold comfort to her surviving family, and those who have experienced similar devastation.

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