Boris Bytensky appeared on CTV News to discuss a tricky legal conundrum: can a child die before it’s born
Boris Bytensky appeared on CTV News to discuss a tricky legal conundrum: can a child die before it’s born?
The case of Ivana Levkovic, who was acquitted of concealing the body of her infant daughter, has recently brought this question to the forefront. The Supreme Court of Canada has determined that a retrial should take place with their unanimous decision that children are considered alive even before they are born. Levkovic’s newborn child had been found on her apartment balcony by the building superintendent after she had vacated it. The badly-decomposed body was believed to be at or near full term, but forensic examinations could not conclusively determine whether the child was alive at the time of delivery.
Mr. Bytensky appeared on CTV News to discuss this hotly-discussed topic with special attention paid to Section 243 of the Criminal Code, which states:
243. Every one who in any manner disposes of the dead body of a child, with intent to conceal the fact that its mother has been delivered of it, whether the child died before, during or after birth, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
Mr. Bytensky stresses that in prosecutions under this section it must be proven that the child had been born alive for authorities to determine whether a crime, such as murder or infanticide, has in fact taken place. Mr. Bytensky is asked about the universally controversial and emotionally-charged topic of abortion and how that relates to the legal question of does a fetus
or become a child under Canadian law. Mr. Bytensky draws on Canada’s current legal definitions and the absence of any existing anti-abortion laws. With the legislative focus on stillbirths, the Supreme Court of Canada steered away from defining this historically problematic question and ruled that abortions and miscarriages are not covered by the section.
The High Court however did the “likelihood of survival” for the child, stating that if the mother was cognizant of the fact that the child could survive, then harm to the well-being of that child would warrant a criminal investigation and would fall outside the protective and non-criminal abortion or miscarriage realm.