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Foetal Rights and the Regulation of Abortion

43 Pages Posted: 27 May 2008  

Martha Shaffer

University of Toronto - Faculty of Law


In this article, the author discusses the legal status of the foetus in the wake of the Supreme Court of Canada decision in Tremblay v. Daigle. She examines the Court's finding that the foetus has no rights in the civil or common law and exposes the resulting difficulties with the assertion of foetal rights under the Charter. By drawing upon factums submitted by the parties and by anti-abortion intervenors in Daigle and Borowski v. Canada (A.G.), the author analyzes the scientific and moral claims propounded by opponents of abortion in support of foetal rights but finds them insufficient to establish a normative argument for the recognition of such rights under the Charter.

The determination of foetal rights under the Charter would require the courts to answer the preliminary question of to whom Charter rights apply. The author examines the intent-based and purposive approaches to Charter interpretation to ascertain which approach would be better suited to a determination of the foetus' status under the Charter. She doubts that either approach would lead the courts to find that the foetus has rights under the Charter because there is no evidence of such an intention on the part of the legislature at the time of enactment of the Charter, and because a finding of foetal rights would substantially restrict the rights of women.

Suggested Citation

Shaffer, Martha, Foetal Rights and the Regulation of Abortion. McGill Law Journal, Vol. 39, No. 1, 1994. Available at SSRN:

Martha Shaffer (Contact Author)

University of Toronto - Faculty of Law

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5

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