As a lit geek, I'm awfully fond of adages.
"In for a penny, in for a pound," I think, surveying the box of leftover Hallowe'en candy, my hand still clutching an Aero wrapper. "Good things come in small packages."
This means conversations in the Sabby household often take the following form:
Sarah: "The only thing necessary for the triumph of evil is for good men to do nothing."
Abby: "So does that mean you're gonna vacuum the kitchen or what?"
And so on. But one saying I'm particularly fond of spouting while reading the newspaper is "hard cases make bad law." I used to say it just to make my mother hope that I was going to apply to law school, the refuge of English majors everywhere - after all, what with the writing and the generally being obnoxious, I was tailor-made for a law career practically from birth. I even bought the LSAT guide and left it in the bathroom, just to make her think I was studying in there. Even now, I suspect that in the crinkles of her left ventricle, my mother feeds a secret hope that one day I'll don robes and use "article" as a verb instead of a noun. I won't, but that's really beside the point.
But hard cases really do make bad law, and I've got to say that the latest debacle in Alberta's courtrooms is certainly as hard and bad as it gets:
The Alberta government will introduce legislation this month to allow
children to sue their mothers for car crash injuries they suffer while
still in the womb.
Yes, apparently now women's bodies are aren't their own anymore if they're in the process of gestating - but it's okay, because it's only while women are driving.
The legislation, a Canadian first, raises concerns it will open the door for mothers to be sued for other activities they pursue while pregnant, such as alcohol consumption or high-exertion sports.
However, Alberta Justice Minister Ron Stevens said the legislation will be written narrowly enough to avoid these worries. Legislation of this type exists in Britain and law academics say it has not undermined women's rights.
Oh, really, Justice Minister Ron Stevens? Well, let's look at that law, shall we? Here's what the United Nations Office on Drugs and Crime has to say about it.
Britain's Congenital Disabilities (Civil Liability) Act 1976 (England and Wales) clarifies the right of a child born disabled, as distinct from the mother, to bring civil action for damages in respect of that disability. In its initial inception, the act determined that
in order to have a right of action for any negligent activity that results in injury, the Act requires that the child be born and have an independent existence apart from its mother, providing for liability only if "a child is born disabled" (sect. l(l)), "born" meaning "born alive". Thus, no cause of action is established by the Act in circum- stances where the child dies by virtue of some act of negligence that affects it while it is in the womb. Furthermore, the Act does not impose any liability on a mother, in the usual course of events, for any negligent act or omission, liability being imposed only in circumstances where the tortfeasor would have been "liable in tort to the parent or would, if sued in due time, have been so" (sect. 1(3)).
So in English, that means that a until a fetus is a born, it has no rights of its own, and cannot be considered independent from its host (ie, if it's born, what we would call its mother). Once born alive, however, a fetus (now a person) has the right to sue those who inflicted injury upon it, provided that the injury could also be claimed by its host while in utero (ie, its mother).
BUT...
This formulation was the result of the deliberations of the English Law Commission (paras. 54-65), which chose to reject any proposition that a child be able to sue its mother for pre-natal injuries caused by her negligence on the grounds of social policy arising out of a concern for family cohesion. The Commission was particularly wary of any litigation that might be brought on behalf of the child which claimed that the mother's failure to give up cigarette smoking or alcohol or follow a particular dietary r6gime during pregnancy had caused it injury. The existence of such an action would be a fertile ground of matrimonial and parental conflict leading to litigation. The Commission did take the view, however, that different considerations applied to injury resulting from a result of a road accident caused by the pregnant woman's negligence; it believed that the existence of third-party insurance would prevent any risk of a child's claim against its mother causing family conflict.
In other words, the reason that women were not allowed to be sued for injuries occurring to their unborn children had nothing to do with women's rights, but was added to the Congenital Disabilities Act to avoid the possibility of family dischord and parental conflict. Women who are exposed to cigarettes and alcohol while pregnant as part of a "social policy" (because, presumably, their husbands/partners also smoke/drink) are permitted to continue their potentially harmful activities without reprisal, but women acting as independent agents while operating a motor vehicle should be liable to punishment if they harm their non-viable offspring before birth.
The Congenital Disabilities (Civil Liability) Act 1976 thus imposes a duty of care on a pregnant woman with respect to her unborn child only in the context of driving a motor vehicle. Beyond that, the Act does not feature as a means of controlling her pre-natal behaviour. Thus, this legislation cannot serve as a method of regulating female behaviour with respect to drug and alcohol use during pregnancy. The most that can be said is that the existence of the Act serves to provide an educative device in this context, perhaps reminding pregnant women of the consequences that their conduct might have.
But it doesn't exactly work out that way in practice, because the Congenital Disability Act offers an excellent model for a legal evaluation of women's behaviour that is uniquely different from men's, ultimately creating a division between the way male and female parents are treated under the law:
Although the English courts are not prepared to go to extremes regarding protective intervention, intervention in the life of a female drug abuser can be Draconian in a fashion differential to that of a man. If a woman continues her habit during her pregnancy, she will run the risk that her child will be taken into governmental care at birth and it will be difficult for her to re-establish care of the child. This will be so even if the parenting skills of the woman have never been tested and the effect of drug use by a mother on a child whom she keeps free of drugs has not been the subject of research. While criminal penalties may serve to curb drug abuse to some extent, for a pregnant mother the risk of losing her child may well present the ultimate sanction.
So it seems that Justice Minister Ron Stevens is talking out of his ass - such legislation in Britain certainly does have a potentially harmful effect on women's rights.
"I'm absolutely clear that this legislation is focused on a particular circumstance and it will comply with the direction of the Supreme Court ... and that it will not open the door to other cases," Mr. Stevens said yesterday. "I have no intention of going there."
Nor did Britain, it seem, in 1976. But by 1986:
the House of Lords concluded that the use of the present continuous tense in the statutory formulation denoted that the child's position had to be looked at in a continuum. In so doing, it concluded that treatment by a mother of her child before birth was of vital legal significance; it also raised the question of what other maternal conduct during pregnancy was likely to, or at least could, lead to the removal of a child from its mother.
So I call bullshit on Justice Minister Ron Stevens. BAD fucking law.
But it's not only bad fucking law from women's perspective either:
The proposed legislation has drawn criticism from automobile insurers, who would bear the costs of successful lawsuits.
The amount of the lawsuits will be limited to the liability coverage for which the mother is insured. Mothers will not be held personally responsible for costs.
So the point of all of this is to allow children who sustained injuries while fetuses to sue insurance companies?
Erm, yep:
This move has been spurred by the case of Brooklynn Rewega, now four years old, and her family, of Rainbow Lake in northern Alberta.
Brooklynn's mother, Lisa Rewega, was driving to church on Dec. 31, 2000, when she lost control of the car. In the rollover, Lisa Rewega was thrown through the windshield. Brooklynn was born four months later blind, brain-damaged and with cerebral palsy. She suffers from seizures throughout the day and needs constant care. The family believes her injuries came as a result of the accident.
Okay, so the Rewegas need money to help pay for Brooklynn' s "constant care." That's fair. But isn't Alberta the richest province in the country? Surely they must provide adequate care for their disabled, don't they? Don't tell me the province that just gave each of its citizens $400 is trying to go after private money to serve the public need?
The potential for a proliferation of lawsuits has raised the ire of the insurance industry. Jim Rivait, Alberta vice-president of the Insurance Bureau of Canada, said the government is passing this legislation is because it moves responsibility for taking care of some disabled children off the government's shoulders and onto the auto insurance industry.
The only reasons mothers cannot be sued for other risky activities they might engage in, he said, is because no insurance is available.
He said mothers -- and more specifically, their insurance companies -- could be open to lawsuits that stem from something as small as a fender-bender if the child develops Attention Deficit Disorder.
So let me get this straight: bad fucking law for women, bad fucking law for business. Bad fucking law for small-c conservatism, bad fucking law for people with disabilities.
But good fucking law for the Alberta government. Good fucking law for the "thin edge of the wedge" people.
Was that another adage? Amazingly, I don't seem to like that one all that much.
I know it's bad law making when I'm agreeing with insurance companies.
I'm hoping they use all that money they make to send this one to the Supreme court and kick Alberta's stupid, woman-hating, rich fat asses.
I'm also wondering what associations my kids might end up making about their life-circumstances and my driving...
Posted by: Steph | November 04, 2005 at 17:40