Do We Need a National Discussion on the Definition of ‘Human Being’?

Members of Parliament Stephen Woodworth (Kitchener-Centre, CPC) and Jeff Watson (Essex, CPC) are calling for a national discussion on the definition of “human being” and a full examination of Canada’s laws in this regard. The appeal is supported by the Evangelical Fellowship of Canada (EFC).

Faye Sonier, the legal counsel for the EFC emphasized that the question is not so much “What is human?” but “When is human?” Sonier explains:

Medicine recognizes a point of viability for a child in the womb. Science is prepared to experiment using pre-natal human tissue from conception onward. Yet, Canada’s Criminal Code states that a child in the womb is not human.

The Criminal Code provisions on this point are dumbfounding.

Parliament needs to examine these provisions; consider their historical roots; and debate whether they make sense in twenty-first century Canada.”

Section 223(1) of the Criminal Code defines a human being as a child who has completely proceeded in a living state from the mother’s body, whether or not the child has breathed.

Section 223(2) sets out that a homicide occurs when a person injures a child before or during its birth and the child dies after exiting the birth canal.

In its application, the Supreme Court of Canada has emphasized that an unborn child has no “legal” rights. Thus, according to the Criminal Code, the baby becomes human only when it has fully emerged from its mother’s body. The EFC’s Activate CFPL blog offers illustrations of the problems that arise from these definitions.

In R. v. Sullivan (1991), the Supreme Court of Canada ruled that two midwives could not be found criminally responsible in the death of an unborn child because a fetus has no rights. The Court determined that a child in the process of being born was not a “person” according to the definition in the Criminal Code.

In R. v. Drummond (1996), Brenda Drummond was charged with attempted murder after she shot herself in the womb while she was nearly full term in her pregnancy. The child was born two days later, received treatment and survived. Drummond was acquitted of attempting to murder the baby because, according to law, a baby is not a legal “person” until it is born. The Court could only have found the mother guilty of murder if the child had died after he was born. She was later sentenced to 30 months probation for “failing to provide the necessities of life” for having failed to report the injury immediately after the birth.

Yes, the wording of the law and its application are confusing, but do we need a national discussion on the definition of “human being”? In this case, with the likely aim of restricting abortions? Because this will certainly be one result!

In 1988, the Supreme Court of Canada ruled that Canada’s abortion law was unconstitutional and since then abortion has been available without any major restrictions. In 1991, the Senate defeated a Bill that would have criminalized abortion unless a doctor concluded that a pregnancy would threaten a woman’s physical or psychological health.

How do we reconcile the growing understanding of the complexities of life before birth with women’s hard-won access to abortion and right to choose, while also protecting mothers throughout their pregnancies. And what about the increasing calls to intervene on behalf of fetuses, that is, to give them legal rights and even for those interests to outweigh those of the mother?

In an editorial on the Huffington Post, Woodworth asks, “Does it make medical sense in the 21st century to say that a child is not a human being until the moment of complete birth?”

It is obvious that the entire question of life before birth and how it should be treated requires national public discussion, and no doubt such a discussion will lead to compromise and better law; however, I do not think we will find an answer that is satisfactory to all in any century!


  1. In reality there is very limited access to late term abortion (abortion after the threshold of potential viability of 23 to 24 weeks gestation) in Canada. The majority of the late term abortion in Canada is reserved for mothers of babies with lethal abnormalities, most commonly anencephaly (is a human without a functioning brain a person?) or trisomy 18, or Tay-Sachs disease, and for mothers where continuation of the pregnancy is threatening their life (such as severe pulmonary hypertension or heart failure).
    Although abortion is not governed by specific law in Canada, it is in fact limited in its availability based on medical, and medical ethics criteria. I think it is hard to argue that there is a pressing need for law or regulation in regard to late term abortion because the reality is that elective late term abortion is rarely happening and when it does happen it is for criteria that are generally deemed by the general public to be acceptable. There are certainly people who are seeking late term abortion for other reasons (sex selection of the unborn baby) who are going to other countries to have this done (as it is not available here in Canada) but this would not realistically be curtailed by any law.
    The difficulty with a great public debate on this issue is that it is likely to be further divisive, and as you’ve pointed out the result is unlikely to leave everyone satisfied. I think it is logical to ask; Is there a public problem here that requires the intervention of the government and the court, or is there wisdom in leaving this an area without regulation?

  2. This law was made part of the Criminal Code in the early 1950’s.
    There was no technology available at that time to examine a living being in the womb. An unborn baby’s development was a complete mystery.
    To ignore a law that has such a profound impact on society, with out considering the information on the subject that we have today, is completely irresponsible.
    Let science and reason determine what is a “human being”.
    Regardless of which side of a controversial issue the evidence sides with, we cannot ignore the truth.
    This debate will not create more controversy, but will only resolve it.