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Abortion law rests on archaic definition

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CALGARY -- Every so often, we all have a good laugh at a story about some archaic law that's still on the books -- laws like the Cobourg, Ont., regulation that says if you have a watering trough in your yard, it must be filled by 5 a.m., or the Dallas, Texas, law that stated if you had a cold, there was a $50 fine for returning your library book to anyone but a city health officer.

City councils sometimes update or toss out these laws, and rightly so. They were enacted in a bygone era and have no modern validity.

Now, Ontario MP Stephen Woodworth wants Parliament to revisit a law that arose in the 1700s, which Canada uses to define when life begins. He says the trouble is it states life begins when a baby is born, breathes on its own and the cord is cut. That is pretty much all anyone knew of pregnancy and birth 400 years ago.

It's a flimsy basis for a law in an era of ultrasounds, fetal surgery and other technology that allows us to peer in on the unborn baby, such as when Japanese researchers at the Kumamoto University School of Medicine a decade or so ago analyzed "normal maturation of the fetal brain with half-Fourier rapid acquisition with relaxation enhancement magnetic resonance imaging."

In other words, they observed fetal brain development via MRIs.

In this context, Woodworth is right. With all the advances science has made in understanding the course of human gestation, is it wise or fair to have a law on the books that can be used to claim that a nine-month fetus is not a human the day before it is born, but magically morphs into one 24 hours later?

Four hundred years ago, in the 17th century, Anton van Leeuwenhoek used his microscope to discover sperm and this led scientists of the day to make popular the theory of preformationism -- the belief that a tiny human, known as a homunculus, lived curled up inside each spermatozoa.

It is more than a bit ridiculous that a Canadian law with origins in the preformationist period is still in force.

Woodworth has filed a motion asking the Commons to establish a committee to examine medical evidence about fetal development. This has led to predictable knee-jerk reactions on both sides of the ideological spectrum -- the pro-life movement applauds it and the pro-choice faction condemns it. The Campaign Life Coalition says Parliament must protect human life from conception on. The other side has gone on the defensive, repeating their fears about interfering with a woman's right to choose.

However, Woodworth said: "Once we decide whether or not a child is a human being before birth, then we can have an honest conversation about all of the other issues, weighing rights and interests, and this would be the subject of another parliamentary debate or maybe a court investigation."

One of those issues is the rights of fetuses who are injured when their mothers are shot, involved in auto accidents, or are otherwise harmed by some outside circumstance -- not abortion -- in utero.

Here's what the aforementioned Japanese researchers discovered: "At 12-23 weeks, the brain had a smooth surface, and two or three layers were differentiated in the cerebral cortex. At 24-26 weeks, only a few shallow grooves were seen in the central sulcus, and three layers, including the immature cortex, intermediate zone, and germinal matrix, were differentiated in all fetuses. At 27-29 weeks, sulcus formation was observed in various regions of the brain parenchyma, and the germinal matrix became invisible. Sulcation was seen in the whole cerebral cortex from 30 weeks on. However, the cortex did not undergo infolding, and opercular formation was not seen before 33 weeks. At 23 weeks and earlier, the cerebral ventricles were large; thereafter, they gradually became smaller. The subarachnoid space overlying the cortical convexities was slightly dilated at all gestational ages, most markedly at 21-26 weeks."

To know when a fetus might be considered to begin to be human among all that brain growth -- the second trimester when layers begin to be differentiated in the cerebral cortex? -- would benefit both pro-life and pro-choice sides. Wouldn't the latter want to know if a fetus at 16 weeks, for example, can be considered a person so they could urge women seeking abortions to have them performed long before that time? And perhaps a more precise definition of personhood would spur Parliament to get in line with European countries and enact a law setting, say, 12 weeks gestation as the limit for abortions.

Abortion isn't going to go away, unfortunately. The best we can hope for is that it gets legally limited by gestational age. But Woodworth is right. The notion that a fetus is nothing but a non-sentient blob of cells that emerges as a fully human baby may be useful for the purposes of the pro-choice side.

But it is as anachronistic legally as is a law setting out the distance a horse's hitching post must be from the general store. It's time to stop hiding from medical advances and start deciding what they mean to the way we intend to live in modern society.

Naomi Lakritz is a columnist with the Calgary Herald. nlakritz@calgaryherald.com

Republished from the Winnipeg Free Press print edition February 11, 2012 J6

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