Lesson 1: Challenging Issues in Family Law
Personal Directives and Living Wills
Have you ever considered the possibility that someday you might end up in a coma and on a life support system in a hospital with no realistic hope of recovery? It is not a pleasant thought, but the possibility is always there. In days gone by, of course, the problem did not exist or not to the same degree, because we did not have the technology that is available today to keep people alive. If you were in this situation, unable to communicate your wishes, what would you want your doctor to do?
Some people try to deal with this problem by drawing up what are called personal directives. Personal directives, along with enduring powers of attorney, make up living wills.
A personal directive is simply a document intended for your doctor that specifies the medical procedures you want followed if you ever end up in a position like this. Most people who draw up living wills instruct their doctors not to prolong their lives with life support equipment if there is no real hope of recovery. Rather, they would prefer to die naturally and peacefully.
Of course, the debate on living wills ultimately raises the whole issue of suicide, doctor-assisted suicide, and euthanasia. These larger issues concerning life and death and doctors' moral and legal obligations to their patients are currently very much at the forefront of debates on human rights and medical ethics.
Surrogate Mothers
Another legal controversy that has arisen because of modern technological advances is that of surrogate mothers. Sometimes couples who want to have children find they cannot because the woman is not physically able to bring a child to term. One modern solution to this problem is to extract an egg from the woman, fertilize it in a laboratory with her husband's sperm, and implant the fertilized egg into the woman of another woman who has agreed to carry the child and to give birth to it. When the child is born, he or she has, in effect, two mothers; a genetic mother and a surrogate mother.
Sometimes a surrogate mother is simply a friend or relative of the couple who has agreed to carry their child; more often, however, she is someone who has contracted to do this for payment. Either way, the legal question arises as to who the child's real mother is-the genetic mother or the woman who bore the child. Sometimes surrogate mothers become extremely attached to the children they have carried for all those months, and they do not want to give them up.
Same-Sex Marriage
Canada has moved beyond the traditional definition of marriage as a "voluntary union of one man and one woman to the exclusion of all others." Now two men or two women may legally marry and acquire all the rights and privileges of any married couple. This was not, as you can imagine, a fast or easy change; it involved years of controversy and a series of court decisions, and even now not everyone is happy with the situation. While many Canadians are willing to grant same-sex couples the right to form what are sometimes called civil unions , there is still some resistance to the idea that a true marriage can exist in the absence of a male/female relationship. Alberta's Adult Interdependent Relationships are a sort of civil union.
In Canada, those in favour of same-sex marriages have argued that it is discriminatory to refuse gay men and lesbians benefits taken for granted by other Canadians. Opponents, on the other hand, have maintained that marriage is in its very nature a union between a man and a woman and that its ultimate purpose is procreation (reproduction).
Abortion
It is unlikely that no other legal or moral debate has involved Canadians in recent decades as much as the abortion issue. You yourself very likely have strong views on this question based on your religious beliefs, your views on right and wrong, and/or your attitudes towards the issue of women's rights.
At one time, the Criminal Code contained a clause making abortion a criminal offence unless the procedure had been approved by a therapeutic abortion committee of a hospital. These committees approved abortions only if the mother's life or health were felt to be seriously at risk if the pregnancy were to continue.
In 1988, however, the Supreme Court of Canada ruled that these clauses in the Criminal Code were unconstitutional, and they were removed the following year. Ever since then, Canada has had no law on abortion. The question, of course, hinges on a woman's right to decide when and if she will become a mother.
Those who support this right hold fast to the Criminal Code's assertion that a child becomes a human being only after it is born. As a non-human, of course, the fetus has no rights to conflict with those of the mother. Those opposed to a woman's right to terminate a pregnancy, by contrast, maintain that a fetus, as a developing human being, should enjoy the protection of the law offered everyone else.