INTRODUCTION AND BRIEF DESCRIPTION

The Criminal Code of Canada allows qualified medical practitioners to perform abortions in accredited or approved hospitals if a therapeutic abortion committee has given written certification that the continuation of the pregnancy would or is likely to endanger the life or health of the pregnant person.

SECTION WORDING

287(4) Subsections (1) and (2) do not apply to (a) a qualified medical practitioner, other than a member of a therapeutic abortion committee for any hospital, who in good faith uses in an accredited or approved hospital any means for the purpose of carrying out his intention to procure the miscarriage of a female person, or (b) a female person who, being pregnant, permits a qualified medical practitioner to use in an accredited or approved hospital any means for the purpose of carrying out her intention to procure her own miscarriage, if, before the use of those means, the therapeutic abortion committee for that accredited or approved hospital, by a majority of the members of the committee and at a meeting of the committee at which the case of the female person has been reviewed, (c) has by certificate in writing stated that in its opinion the continuation of the pregnancy of the female person would or would be likely to endanger her life or health, and (d) has caused a copy of that certificate to be given to the qualified medical practitioner.

EXPLANATION

Section 287(4) of the Criminal Code of Canada pertains to the legality of procuring a miscarriage. The section provides two exceptions to the general prohibition of procuring a miscarriage under subsections (1) and (2). These exceptions allow for the actions of a qualified medical practitioner and a pregnant person who intends to procure her own miscarriage, but only in certain circumstances. Under section 287(4)(a), a qualified medical practitioner may use any means to procure a miscarriage in an accredited or approved hospital if the practitioner acts in good faith and without malice. This means that if a qualified medical practitioner genuinely believes that the miscarriage is necessary to protect the health or life of the pregnant person, they may lawfully provide the medical assistance needed to procure the miscarriage. Section 287(4)(b) allows a pregnant person to procure her own miscarriage with the assistance of a qualified medical practitioner in an accredited or approved hospital if she has the intention of procuring the miscarriage and the therapeutic abortion committee has issued a certificate in writing stating that the continuation of the pregnancy would or would be likely to endanger her life or health. This provision ensures that the pregnant person has access to safe and medically supervised procedures to terminate the pregnancy, which is crucial for the protection of her health and well-being. Overall, section 287(4) maintains the importance of regulating the procuring of a miscarriage while also providing necessary exceptions to protect the health and life of pregnant individuals.

COMMENTARY

Section 287(4) of the Criminal Code of Canada creates an exception to the general prohibition against procuring a miscarriage. This exception allows for qualified medical practitioners to carry out the procedure in certain circumstances, without fear of criminal prosecution. The provision is well-drafted, and ensures that the procedure can only be carried out in accredited or approved hospitals, and under the supervision of a therapeutic abortion committee. Subsection (a) of section 287(4) allows a qualified medical practitioner who is not a member of a therapeutic abortion committee to procure a miscarriage if they do so in good faith, and in an accredited or approved hospital. This exception is narrow in scope, and only applies to medical practitioners who are qualified to carry out the procedure. The requirement that they do so in an accredited or approved hospital ensures that the procedure is carried out in a safe and regulated environment. Subsection (b) of section 287(4) allows a female person who is pregnant to give permission to a qualified medical practitioner to carry out the procedure in an accredited or approved hospital. This exception also has stringent requirements, and only applies if the therapeutic abortion committee for that hospital has given a certificate in writing stating that the continuation of the pregnancy would or would be likely to endanger the life or health of the female person. The requirement for a therapeutic abortion committee to give a certificate in writing before the procedure can be carried out ensures that the decision to terminate a pregnancy is not taken lightly. The committee is made up of medical professionals who are experts in the field, and are best placed to make an informed decision about whether the continuation of the pregnancy would be detrimental to the health of the female person. The requirement for a majority of the members of the committee to support the decision also ensures that the decision is not made by one individual, but rather by a group of experts. The provision in section 287(4) recognizes that there may be circumstances where terminating a pregnancy is necessary to save the life or health of the female person. It ensures that, in such circumstances, the procedure is carried out in a safe and regulated environment, and only by qualified medical practitioners who are authorized to do so. It is worth noting that section 287(4) has been the subject of much controversy, with some arguing that it restricts access to abortion, and others arguing that it does not go far enough in protecting the rights of female persons. While the provision is not without its flaws, it strikes a reasonable balance between the rights of the unborn child and the rights of the female person, and provides a framework for the safe and regulated termination of pregnancy in certain circumstances.

STRATEGY

Section 287(4) of the Criminal Code of Canada provides exceptions to the laws prohibiting the procuring of a miscarriage or abortion. While the section provides a degree of flexibility, there are still a number of strategic considerations that need to be taken into account when dealing with this section of the Criminal Code. One of the key considerations is the risk of contravening the law. While the exceptions under section 287(4) provide some flexibility, they are strictly defined and require the approval of a therapeutic abortion committee. Medical practitioners and patients need to be aware of the legal requirements and ensure they comply with them to avoid any criminal liability. Another strategic consideration is the potential for controversy. Abortion remains a controversial issue in Canada and there is always the potential for political, social, and religious consequences. Medical practitioners and healthcare organizations may need to be prepared to deal with criticism or backlash from those who may oppose their actions. A third consideration is the accessibility of abortion services. While section 287(4) allows for abortions under certain circumstances, access to these services may still be limited in some regions. Medical practitioners and healthcare organizations may need to consider ways to increase access to these services or work with advocacy groups to address barriers to access. Additionally, there may be ethical considerations around the use of section 287(4). Medical practitioners may need to balance their obligations to the patient with their personal beliefs or values. Patients, on the other hand, may need to consider their own moral or religious beliefs when making decisions about their healthcare. In terms of strategies that could be employed when dealing with section 287(4), one potential approach could be to work with advocacy groups to promote the importance of access to safe and legal abortion services. By raising awareness of the legal exceptions and working to address barriers to access, healthcare organizations and medical practitioners can help ensure that patients have the support and resources they need to make informed decisions about their healthcare. Another strategy could be to provide training or education to medical staff and healthcare providers on the legal requirements and ethical considerations around abortions. This could help ensure that medical practitioners are aware of their obligations under the law and can provide safe and effective care to their patients. Ultimately, the key to navigating section 287(4) of the Criminal Code of Canada is to ensure that medical practitioners, healthcare organizations, and patients are aware of the legal requirements and ethical considerations surrounding abortions. By working together to promote access to safe and legal abortion services, we can help ensure that everyone has the support and resources they need to make informed decisions about their healthcare.