By Karon Liu
National Post

The recent murder of a pregnant Toronto woman resulting in the death of her unborn child has rekindled debate on whether a fetus should be recognized as a person.

Turan Cocelli, 29, was charged on Tuesday with killing his 25-year-old wife, Aysun Sesen, but no charges were laid in the death of the seven-month-old fetus.

Ms. Sesen had an emergency Caesarean section when she was rushed to hospital, but the child was stillborn.

Under the Criminal Code, a child is only considered a human being when it has emerged from the mother’s body alive.

Alberta Conservative MP Leon Benoit introduced a private member’s bill last year that would make it a separate criminal offence to harm a fetus when the mother is assaulted or murdered, but the bill was defeated in the House of Commons.

In August, a Nova Scotia man was charged with attempting to murder his pregnant former girlfriend, but no charges were laid in the attempted murder of the unborn child.

In California, the high-profile 2002 murder of Laci Peterson, who was eight months pregnant, drew international attention when her 32-year-old husband, Scott Peterson, was convicted of two counts of murder — one for his wife and another for the unborn child. Thirty-five U.S. states recognize the fetus as a crime victim in homicide or feticide instances.

In Canada, however, the issue from the perspective of both sides is whether a fetus can be given personhood status in homicides without touching on abortion issues.

While those in favour of abortion rights worry about how that right might be hampered by any acknowledgment a fetus is human, anti-abortion advocates see controversial cases such as these as part of the continuum of not recognizing unborn children legally.

“If we take the position that the fetus is a separate person at viability, then we open up all sorts of issues. All of a sudden, the woman is two separate persons,” said Martha Shaffer, an associate law professor at the University of Toronto who specializes in family and criminal law. “Her liberty and autonomy can be greatly curtailed in the interests of the fetus within her.

“If she’s doing something that somebody decides to be contrary to the fetus’s interests — which could be eating too much sugar, exercising too hard, smoking or drinking — it’s very dangerous to go down that route to say a woman is no longer a separate, independent person at a certain stage of pregnancy.

“I can understand why not being able to charge the husband with two murders as somehow not reflecting the severity of what he did,” Prof. Shaffer said.

“On the other hand, viewing this pregnant woman as two separate persons is potentially more dangerous than saying he can be prosecuted with the murder of the woman here, and that will be a sufficient punishment for what he has done.”

The issue has taken on greater significance in recent years with advances in medical technology that have enabled fetuses to survive out of the womb long before 40 weeks’ gestation.

Canadian ethicist Margaret Somerville, who is also the founding director of the Centre for Medicine, Ethics and Law at McGill University, said if she could change current laws, Mr. Cocelli would also be facing charges in the murder of the unborn child.

“I’d change the law, not so much that I think these cases are frequent, I’d change it because we’re being ostriches with our head in the sand, pretending that the baby doesn’t exist,” she said.

“It’s a separate question in terms of what we’ll do in protecting it, where we’ll draw the lines in terms of protection as opposed to a woman’s right to what she wants to do. Not to draw any lines, which is the case at the moment, or to draw the lines pretending we’re not dealing with a human life, warps our moral intuitions.”

Anti-abortion advocates agree. “Obviously what we’re skirting around is that it would affect the abortion issue in this country,” said Jakki Jeffs, executive director of Alliance For Life Ontario.

“This isn’t the first case of a pregnant woman and the child being killed at the same time in Canada, so until the law is changed, until the discrimination against the unborn is changed, their deaths, even in this way, murder, will never be recognized.”

© National Post, Thursday, October 04, 2007