Comment: How hard is it to accommodate religious practice?

By Kevin L. Boonstra

B.C. lawyer Kevin Boonstra.

The Quebec town of Herouxville has published 'standards' for its community. While the town purports to welcome all people without discrimination, its stated goal is to inform new arrivals how they can integrate into the community.

There are some obvious standards based on Canadian criminal law. These include the statement that Herouxville considers that "killing women in public beatings, or burning them alive" are not part of their community standards. That seems reasonable.

However, there is also a 'standard' that patients in hospitals are offered "traditional meals," and another indicating that, in schools, "children cannot carry any weapons . . . symbolic or not."

Standards which protect the safety of people are laudable; but some of these standards appear to communicate a refusal to accommodate cultural or religious differences. Precluding students from carrying weapons makes sense; but that particular standard appears to be a response to the Supreme Court of Canada decision in Multani (March, 2006).

In that decision, the court permitted a Sikh student to carry a kirpan, or ceremonial dagger, because of the need to accommodate his religious belief and practice. A standard forbidding 'symbolic' weapons portrays a negative message regarding the Sikh religious practice of carrying a kirpan.

Perhaps even more troubling is the standard regarding hospital food. How does it harm the community if a patient in a hospital requires a non-traditional meal to accommodate his or her religious beliefs?

Despite purporting to invite all to live there without discrimination, Herouxville is telling the world that religious accommodation is not a standard to which it ascribes.

Those in the religious majority may identify with this. Those in the religious minority may not feel welcome at all in Herouxville. Religious freedom requires that we accommodate religious practices, to the extent that they do not pose unmanageable health or safety risks.

That brings us to another key event. The parents of the sextuplets born in Vancouver are Jehovah's Witnesses and, based on their religious beliefs, refuse to approve blood transfusions for their new children.

Two of the children have died; the cause of the deaths is not known. The B.C. government has obtained court orders to seize three of the surviving sextuplets, to ensure they get transfusions if deemed medically advisable.

The father has sworn an affidavit in the court proceedings concerning the seizure of the children. He explains that during his wife's pregnancy, they were given the opportunity to abort some of the fetuses -- and they refused, because of their religious beliefs. He also says that just prior to the children's birth, doctors said they support parents' decisions not to resuscitate children born so premature. The parents decided to resuscitate the children at birth.

These appear to be parents who very much want their children to live. The father's affidavit says the refusal to approve transfusions was motivated by a desire to obey God. He describes leaving the hospital in distress when "they were violating [our] little girl" with a transfusion. While it may seem peculiar or wrong to many, this is evidently a deeply held belief -- and the parents appear to be suffering because of it.

The difficulty is that the children are not of an age to choose their own beliefs. The courts in Canada have protected the constitutional rights of parents to rear children according to their religious beliefs. However, the extent of this right is not without limits.

In a similar case involving Jehovah's Witnesses in 1995, a majority of the Supreme Court concluded the right of parents to rear children according to religious beliefs, including that of choosing medical treatments, is fundamental to freedom of religion. They also said imposition of medical treatment was a justified breach of religious freedom.

These are cases in which the courts have held that a child's right to life trumps the parents' right to freedom of religion. One media commentator stated that since we do not live in a theocracy, this result is inevitable.

That is a superficial analysis which does not accord parents appropriate respect and toleration. It also undermines Canada's proud history of accommodating religious practices that seem odd or untenable to the majority.

There's a fine line between religious intolerance and appropriate accommodation. Herouxville has exhibited a level of intolerance by setting standards that appear to interfere with the need for appropriate religious accommodation.

Occasions do arise in which interfering with religious practices may be justified. If the surviving sextuplets required blood transfusions to save their lives, many would agree the parents' beliefs could not be accommodated. But even if this is the right conclusion, we must recognize these parents have had to deal with something horrific, which most of us will never have to grapple with: choosing between what you believe is obedience to God and life for your children.

Limits to religious accommodation should be made cautiously, remembering that respect for perspectives other than one's own is the cornerstone of religious freedom.

Kevin Boonstra is a partner in the law firm Kuhn & Company, in Vancouver and Abbotsford.

Related stories:

B.C. intervened to save 3 sextuplets after 2 died
The B.C. government got court orders in the past week to seize three of the surviving sextuplets born in Vancouver earlier in January and ensure they got blood transfusions if necessary. Two of the sextuplets have already died. The babies were part of the group of of six born at B.C. Women's Hospital into a family of Jehovah's Witnesses, a religious group that prohibits blood transfusions.
CBC, January 31

B.C. seized 3 sextuplets for blood transfusions over parents' objections
Father, a devout Jehovah's Witness, likens province's intervention to 'a hit and run'
Globe and Mail, February 1

B.C. seized three ailing sextuplets
Blood transfusions carried out before parents could challenge move in court
Canadian Press, February 1

Church vs State: Battle over surviving sextuplets
The province has forced at least two of the Lower Mainland's four surviving sextuplets to have blood transfusions as a life-saving measure, over the objections of their Jehovah's Witnesses parents.
Vancouver Sun, February 1

B.C. seized Sextuplets, gave two transfusions
'Gross violation of parents' rights,' lawyer says
National Post, February 1

Ethicist says B.C. blood feud may save children and Jehovah's Witness parents
Four babies are struggling to live while a furious debate rages outside their hospital room about religious freedom and the power of the state to protect its citizens.
Canadian Press, February 1

Jehovah's Witnesses say they seek "best treatment" for selves, children
The group that speaks for Jehovah's Witnesses in Canada has issued a statement urging people not to jump to conclusions about their faith.
Canadian Press, February 1

Science, religion clash over Canadian sextuplets
Canada's first birth of sextuplets has become a battle of church versus state over medical care for the surviving children.
Canadian Press, February 1

Doctors advised government to seize sextuplets
Two medical experts helped advise the B.C. government to seize three sextuplets and give two of them blood transfusions over the objections of their Jehovah's Witness parents.
Canadian Press, February 1

Child protection workers have wide power to seize children, lawyer says
'A lot of people think you need a warrant or a court order' before apprehension, but not at all
Vancouver Sun, February 2

Parents must prove blood not needed
Showing that transfusions are not medically required could spare surviving infants: lawyer
Vancouver Sun, February 2

Transfusion alternatives don't exist, doctors say
So-called blood substitutes are only a short-term remedy
Vancouver Sun, February 2

Parents, province step up blood-transfusion battle
Government withdraws court order, but vows to seize babies again if necessary
Globe and Mail, February 2

Sextuplets' parents live life by the Bible
'We are not fanatics' says fellow Jehovah's Witness of intensely private B.C. family
Globe and Mail, February 2

Father recalls breaking with faith for daughter
Lawrence Hughes walked into a Calgary hospital room in February, 2002, with a Bible in his hand, ready to do everything he could for his dying daughter, Bethany -- everything, that is, short of allowing her to have a lifesaving blood transfusion.
Globe and Mail, February 2

Gut-wrenching dilemma born
Fate of babies born prematurely to Jehovah's Witnesses brings troubling questions to public again
Douglas Todd, Vancouver Sun, February 2

Sextuplet dilemma hard to solve but easy to predict
Long before the birth of sextuplets in B.C. Women's and Children's Hospital the government of British Columbia should have known that difficult questions about state and religious freedoms were going to be faced. And yet, given the hasty way the issue was dealt with, they don't seem to have been ready for it.
Mark Hume, Globe and Mail, February 5

Winnipeg Jehovah's Witness teen loses fight to refuse blood transfusions
A Jehovah's Witness teenager with Crohn's disease says she may end up leaving Manitoba for treatment after the province's highest court denied her the right to reject blood transfusions. In a unanimous decision released Tuesday, the Manitoba Court of Appeal ruled a lower-court judge was correct in allowing doctors to give the 15-year-old Winnipeg girl a transfusion they considered medically necessary.
Canadian Press, February 6

Witness for the family
Debate over role of sextuplet case lawyer
National Post, February 10

Sextuplets court battle adjourned until April
The next round in the battle over the future of four surviving sextuplets born in Vancouver has been postponed. Their parents were to appear in B.C. Supreme Court today to appeal the government's decision to seize their children and give them potentially lifesaving blood transfusions. The family are Jehovah's Witnesses and their theology does not permit the medical procedure. But their lawyer said yesterday the government asked for an adjournment of proceedings and the family agreed. The case has been put over until at least April.
Canadian Press, February 22

March 1/2007