Canada’s Supreme Court Strengthens Parents’ Rights
BY AWAKE! CORRESPONDENT IN CANADA
WHEN your child faces serious medical problems, as loving parents you naturally feel concern and anxiety. How reassuring and comforting it is for you when responsible, compassionate doctors respect your choice of treatment! However, situations arise where arbitrary action is taken and parents’ wishes are ignored. Very often this leads to a traumatic experience.
In Canada child-welfare statutes authorize state officials to apprehend children. Four provinces permit the state to override parental choices without a judicial hearing. This presents issues important to all parents and children. What area of decision-making belongs to the parents? If the state elects to intervene in parental decision-making, what procedure should be adopted to provide parents and children with fundamental justice? Does the Constitution protect parental decision-making?
An article appeared in The Toronto Star of March 3, 1995, which summarized these issues as they related to a case involving a premature baby girl born in 1983. Her parents were Jehovah’s Witnesses. “[They] would accept most medical treatment but objected to blood transfusions. The doctors asked for a court order. The judge gave the Children’s Aid Society control. No blood was given to the baby until three weeks later, and then only in preparation for an elective eye examination and possible eye surgery. The parents objected all the way to the Supreme Court.”
A judgment was delivered on January 27, 1995, and while the Supreme Court did not overturn what had been done in 1983, five of the nine justices set out guidelines to prevent the abuse of state authority. The Court decision strengthens the rights of parents to make medical decisions for their children.
In particular, the Court considered parental decision-making in the light of freedom of religion guaranteed by the Canadian Charter of Rights and Freedoms. Justice Gerard La Forest, for the majority, stated: “The right of parents to rear their children according to their religious beliefs, including that of choosing medical and other treatments, is an equally fundamental aspect of freedom of religion.”
This is the first time Canada’s highest court has ruled that freedom of religion under the Charter includes the right of parents to choose medical treatment for their children. Justice La Forest crystallized this principle when he stated: “This is not to say that the state cannot intervene when it considers it necessary to safeguard the child’s autonomy or health. But such intervention must be justified. In other words, parental decision-making must receive the protection of the Charter in order for state interference to be properly monitored by the courts, and be permitted only when it conforms to the values underlying the Charter.”
Justice La Forest underscored the need to justify interference with parental decision-making when he responded to remarks made by two of his fellow justices: “Some of their remarks may be understood as supporting a parent’s rights being overturned simply because a professional thinks it is necessary to do so. I would be very much concerned if a medical professional were able to override the parent’s views without demonstrating that necessity.”
Parental decision-making as to medical treatment was identified as a constitutional right under the Canadian Charter of Rights and Freedoms. Thus, a strong message was sent out to child health-care officials and judges. They must act with caution and proper respect for parents’ rights. Responsible doctors will also welcome these guidelines in that they support parental choice of reasonable alternatives, including nonblood medical treatment for children.
In view of the current debate about blood transfusions and their known risks, including AIDS, one can appreciate the comment of Justice La Forest when he added: “The concern voiced by the appellants in the present appeal raises the more general question of the appropriateness of proceeding with treatments for which the medical benefits are highly questionable . . . However, the medical evidence presented in 1983 . . . does not permit us to question the necessity of the blood transfusion, although some might in retrospect be tempted to do so. This appeal does remind us, however, of the necessity of proceeding with care when overriding parental refusal.”—Italics ours.
The article in The Toronto Star mentioned earlier concluded: “What has been achieved by the Supreme Court decision? First, doctors, parents, social workers and judges now have guidelines for when there is a difference of opinion between parents and doctors. Second, the emphasis on medical alternatives should open the doors to more flexibility on the question of transfusion medicine at a time when more and more non-blood alternatives are being developed and made available. Third, when a decision is made to seek reversal of the parents’ decision, there must be a fair hearing in court with the onus on the state and doctors to prove the necessity of the proposed intervention.”
Medical practitioners, judges, and parents in other lands will no doubt find helpful and constructive the guidelines set out by the majority in the decision of the Canadian Supreme Court. It is hoped that medical practitioners everywhere will continue to provide medical care in a sensitive and compassionate manner with concern for the rights of both children and parents.