Refusing to perform a “fetal reduction procedure” (aborting one of two or more children in the womb) is not unlawful discrimination, according to an Ontario Human Rights Tribunal decision earlier this year.

The Tribunal decision summarizes the facts as follows:

In May 2015, the applicant was pregnant with twins following in vitro fertilization (IVF). The applicant decided that she did not want to have twins and wished to reduce the pregnancy to one fetus. Her obstetrical specialist advised her that this was a complex procedure that was not generally performed. On May 6, 2015, her treating specialist wrote to an obstetrician colleague at Mount Sinai Hospital to see if that hospital would be able to perform the procedure. The Mount Sinai physician advised that the respondent hospital would not be able to perform the procedure because the circumstances did not fit with the hospital’s policy regarding fetal reduction surgery. ¹

Mount Sinai Hospital’s “multidisciplinary consensus policy” with respect to “fetal reduction” allows for a pregnancy “reduction” to two children, but does not permit reduction to a “singleton” fetus unless there is a medical abnormality with one twin. ²

After the applicant filed her Application, counsel for Mount Sinai referred the applicant to another hospital, where the abortion was ultimately performed. The applicant alleged that she experienced discrimination on the basis of sex and family status, contrary to Ontario’s Human Rights Code.

The Tribunal found the ground of family status was irrelevant here, but took a closer look at the allegation of sex discrimination. Under section 10(2) of the Code, “The right to equal treatment without discrimination because of sex includes the right to equal treatment because a woman is or may become pregnant.”

The applicant failed here, too, however. The Tribunal clarified that in order to establish unlawful discrimination, “it is necessary to show that there is a link between the applicant’s membership in a group identified by a Code-protected ground and the arbitrariness of the disadvantaging criterion or conduct, either on its face or in its impact.”

The Tribunal concluded that the applicant was not denied a service because she was pregnant – and thus a member of a protected group (“a woman who is or may become pregnant”). Rather, the abortion was refused because of “the type of pregnancy… the number of fetuses, the health of the fetuses, and the relative health risks to the other fetuses and the mother.” ³ It continues, “The evidence would show that the decision to deny the requested service was made because the applicant was pregnant with apparently healthy twins and not because the applicant was pregnant.” ⁴

In essence, Mount Sinai Hospital’s decision was a medical one, and “[the] Tribunal does not have a general jurisdiction to review medical decisions or guidelines to determine if they are correct.” ⁵ The Tribunal found that the Hospital’s “multidisciplinary consensus policy was based on medical risk determinations.” ⁶ The applicant argued that she was entitled to decide whether to have a “fetal reduction” and to have Mount Sinai Hospital’s physicians perform the procedure, but the Tribunal found that she was “clearly not correct” on this point, because “[a] doctor is not required to perform a procedure that the doctor believes is not medically appropriate.” ⁷

The applicant also alleged that the hospital had infringed her “constitutional right” to an abortion. In response, the hospital argued “that the procedure used to effect fetal reduction in a multifetal situation is entirely different than an abortion procedure.” ⁸ The Tribunal held that, to the extent the applicant may have such a right, it is outside of the Tribunal’s jurisdiction to grant her a Charter remedy. ⁹

         

¹ CV v Mount Sinai Hospital, 2016 HRTO 941, at para 2.
² Ibid at paras 11-12.
³ Ibid at para 42.
⁴ Ibid at para 43.
⁵ Ibid at para 51.
⁶ Ibid at para 53.
⁷ Ibid at para 55.
⁸ Ibid at para 14.
⁹ Ibid at paras 47-49.