Sunday, August 30, 2009

Guelph: Care of mother versus unborn child at issue

The Liebig family has brought a motion before the courts on behalf of their 8-year-old son, Kevin, born with hypoxic ischemic encephalopathy, or brain damage caused by oxygen deprivation.

He has since been diagnosed with cerebral palsy — the result, his family says, of negligence on the part of three obstetricians and four obstetrical nurses at the birthing unit of Guelph General Hospital.

The Liebigs claim that the mother, Susan, was given too much of the drug oxytocin to speed up labour and then not adequately monitored.

The defendants deny the allegations, which have not been proven in court.

The family’s lawyer, Barbara Legate, says the defendants are claiming to have no duty toward an unborn child.

“I think that’s a jaw-dropping proposition and I bet you that most obstetricians wouldn’t agree,” Legate says.

Interesting case. Since the baby was born alive, his existence as a fetus is recognized.

That's part of the legal fiction in Canada, where the fetus only exists once the baby is born.

If the baby is not born, the fetus does not exist.

What I find stupid about this legal convention is that it has nothing to do with reality. We know that fetuses exist before birth. We know they are distinct from their mothers.

The law should simply acknowledge reality.

The legal fiction of the non-existence of the fetus had a point once upon a time, when women did not always know for certain if they were pregnant or not, or even if their fetus was alive at any given moment.

But this view is antiquated.

With widespread knowledge of pregnancy, a relatively accessible medical system, home pregnancy tests and ultrasound, we can know very early on when a woman is pregnant.

A legal system that does not reflect reality is bound to create a sense of injustice. Justice must rest on truth and facts. If such are lacking, then justice will be lacking.