The Borowski Case

Abstract

The Borowski case first establishes Borowski's status and right to represent the unborn in his action to have the provisions of the Criminal Code concerning abortion declared a violation of the Canadian Charter of Rights and Freedoms. The author, Borowski's lawyer, then presents his arguments in favor of the rights of the unborn: Sections 7 and 15 of the Canadian Charter, confirm his rights by guaranteeing the right of “everyone” to “life, liberty and security” and by protecting his against “discrimination based upon mental or physical disabilities”. In spite of the testimonies of the world's outstanding authorities in the fields of perinatology, neonatalogy, embryology, gynecology, neurosurgery and abortion, the Trial court, turning to Section 206 of the Criminal Code, concluded that until a child leaves the body of his or her mother in a living state, he or she is not a human being. Moreover, the unborn is not “someone” encompassed in the word “everyone” of Section 7 of the Charter. English and Canadian jurisprudence is then reviewed by the author. He proceeds to analyze the impact of important decisions rendered in Spain, West-Germany and the United States and examines the consequences of the Morgentaler decision.