Personhood and Discrimination in Recent History

Even a brief overview of history reveals that its darkest moments have occurred when people failed to recognize other human beings as persons and, therefore, as equals. This denial of personhood to particular members or classes within the human family is traditionally associated with attempts to deprive them of their fundamental rights and privileges. Who would deny that it is flagrant discrimination to arbitrarily strip certain human beings of the right to be deemed persons? Take, for instance...

In North America, Native Americans were considered non-persons, referred to as savages, in order to provide justification for the appropriation of their land. We see this again in the slavery issue, when slaves were considered to be property, to be disposed of or used as the slave owner wished. When the injustice of this was taken to court, the Dred Scott decision was handed down. It recognized that the slaves were indeed human beings, but denied that they were persons. Yet it was this “personhood” upon which their legal rights depended.

During the Third Reich, the personhood of an entire group was questioned. Sociologist Irving Louis Horowitz summed up the plight of Jews in that era by saying, “The Jew as a national question; the Jew as a cultural question; the Jew as an economic question, never a person.”(1) In May 1923, Adolph Hitler asserted, “The Jews are undoubtedly a race, but not human.”(2) According to Ernst Fraenkel, a German legal scholar, the Reichsgericht, the highest court in Germany, was instrumental in depriving Jewish people of their legal rights. “The Reichsgericht refused to recognize Jews living in Germany as persons in the legal sense.” (3)

Discrimination in Canada

Canada too has been historically guilty of discrimination; discrimination which in hindsight is recognized as oppressive and arbitrary. Canadian women were not considered persons until October 18th, 1929 when the “Five Persons,” Nellie McClung, Henrietta Muir Edwards, Louise C. McKinney, Irene Parlby and Emily F. Murphy, finally won a judgement in the famous Persons Case. This decision obtained for Canadian women legal recognition of their personhood. Emily Murphy, a police magistrate, had constantly heard in her court that, “women are persons in matters of pain and penalties, but not persons in matters of rights and privileges.”(4) As examples, Mabel French of New Brunswick (5) and Annie Langstaff of Quebec (6) could not practise as barristers because they were not persons. A defense lawyer once yelled at Emily Murphy, “You’re not even a person! You have no right to be holding court.” (7)

In 1928, a constitutional reference was launched on behalf of the five women. The question considered was, “Does the word ‘person’ in section 24 of the British North American Act (BNA), 1867, include females...?” The Decision handed down by the Supreme Court of Canada was unanimously answered in the negative. Women were not persons within the meaning of the Act. (8) This decision was appealed and on October 18th, 1929, the Privy Council in England declared, “The word ‘person’ in Section 24 of the BNA Act,1867 includes members of either sex.”(9)

Modern Discrimination

In their efforts to depersonalize the human being in the womb, feminists like Michele Landsberg refer to “fertilized eggs” and "to the cult of worship of fertilized eggs.”(10) A statement of Concerned Citizens for Choice holds that “a pregnant woman has a group of cells growing within her body.”(11) Mary Anne Warren, a feminist philosopher, speaks of the preborn child as “an entity far below the threshold of personhood.”(12) Doris Anderson and the National Advisory Council on the Status of Women lobbied vigorously to have the new Charter of Rights omit the preborn child. In 1980 the Status of Women attempted to have the wording of the Constitution changed so that the Charter could not be interpreted as applying to preborn children.(13) The Canadian Abortion Rights Action League (CARAL) argues that under the Criminal Code a fetus does not become a person until it is born. And Laura Sabia, like the defense lawyer of yesteryear, bellows, “It's a fetus with no right in law. It is not a person.”(14)

The advent of modern medical technology demonstrates how specious these arguments are. In vitro fertilization has allowed us to witness with our own eyes the beginning of human life. During “out of the womb” surgery, legally the preborn baby becomes a person; yet when the child is returned to the womb it loses its legal personhood. Such legal schizophrenia is intolerable.

The past tyranny of some men against women's legitimate rights in order to maintain power for their own convenience has given way to tyranny by some women over the child in the womb for much the same reasons. These women choose to regard the preborn baby as undeserving of personhood - to do so would, of course, interfere with permissive abortion. “Legally, a fetus doesn't have rights” claims Judy Rebick of the National Action Committee on the Status of Women. “I don't think you can talk about rights when you're talking about an entity that isn't an idependent being.”(15)

Others refuse to grant personhood to the preborn because they wish to maintain the status quo, much like the Supreme Court of Canada did when it reaffirmed that women were not persons. Had it not been for the enlightened and progressive thinking of the Privy Council, the status quo would have won the day.

Today, there exists a deliberate refusal to recognize the child in the womb as a person. Despite the certain knowledge that it is a human being, the youngest member of the human family, it remains beyond the protectionof the law, deprived of its fundamental rights and priviledges. Even though a preborn child can sue for damages suffered while in utero (under civil law) it has been consistently refused the right to live (under criminal law) that it needs in order to exercise its rights. In Daigle v. Tremblay, the Supreme Court of Canada ruled that “a fetus is treated as a person only where it is necessary to do so in order to protect its interests after it is born.”(16) Why? The Court did not explain. In 1991, the Supreme Court carried this legal absurdity to greater lengths when it declared in the “Midwives’ Case” that a nine-month-old baby in the process of birth (its head had emerged from the birth canal) was not a person within the meaning of the Criminal Code. This decision was hailed by radical feminists.

Were women not persons until the Privy Council declared them to be so? Of course not; they were always persons. Society simply refused to grant them legal recognition. Is the child in the womb a person? Of course! Yet once again personhood is being used as a device to create a class of human beings who may be discriminated against and thereby deprived of their fundamental rights; in this case, the most fundamental of rights, the right to life.

Conclusion

In deciding the “Persons Case” the Privy Council explained: “The exclusion of women from all public office is a relic of days more barbarous than ours, and to those who ask why the word person should not include females, the obvious answer is, why should it not?(9)

Denying personhood to the preborn child places us in a time of barbarism. To those who ask why human rights should not be granted to the preborn, the obvious answer is, why not?

The court transcript of the Privy Council's Decision in the “Persons Case” reads in part, “The Constitution is a living tree capable of growth and expansion within its natural limits.”(9)

The Canadian Constitution must grow with human understanding. Our knowledge of the preborn human person has grown to the point that we can no longer refuse to graft these persons upon the living tree described by the Privy Council in 1929.