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Guidelines Issued to Safeguard Rights of Pregnant Canadian Prisoners and their Children

Authorities in the western Canadian province of British Columbia have published a set of guidelines to govern the implementation of Mother-Child Units in provincial prisons as the result of a successful legal challenge that declared unconstitutional the B.C. government’s abolition of such units in 2008.

The guidelines, issued in August 2015 by The Collaborating Centre for Prison Health and Education at the University of British Columbia in Vancouver, “are predicated on the clear and compelling evidence that early mother-infant bonding supports positive future outcomes for the child, and that the child has a right to non-discrimination.”

Declaring that a “wide range of psychological, physiologic and developmental harm caused by separation of a child from her/his mother is well documented,” the guidelines focus on the child as well as the incarcerated mother.

“The best interests of the child must be of a primary concern, including her/his safety and security, and the physical, emotional and spiritual well-being of the child,” the introduction to the guidelines states. “It is in the best interests of the child to remain with her/his mother, to breastfeed and be allowed to develop a healthy attachment.”

The British Columbia Supreme Court ordered the Ministry of Justice to reinstate the Mother-Child Unit at the Alouette Correctional Centre for Women after ruling in December 2013 that closing the unit was a violation of the women’s constitutional rights. Writing for the Court, Justice Carol J. Ross agreed that closure of the units was contrary to the principles of fundamental justice under the Canadian Charter of Rights.

“The decision to cancel the Mother Baby Program removed one important option, the one presumed at law to be favourable, from the process of determining the best interests of the child,” she stated. “As a result infants have been and will be separated from their mothers during the critical formative period of their life, interfering with their attachment to their mother, and depriving them of the physical and psychological benefits of breastfeeding.” Justice Ross also termed the closure of the units “arbitrary, overbroad, and grossly disproportionate.” See: Inglis v. British Columbia (Minister of Public Safety), 2013 BCSC 2309, Docket No. S087858 (Dec. 16, 2013).

The Supreme Court’s ruling was hailed by Grace Pastine with the BC Civil Liberties Association.

“The government will no longer have the option of refusing to administer a successful program that had fundamental, proven benefits for mothers and babies,” Pastine said. “This program was highly respected. It respected the family unit and the bond between mothers and their babies.”

Even though facilities have been preparing to accommodate women prisoners and their children up to age four, there are no babies yet in provincial prisons, according to Dr. Ruth Martin, who testified in the court case and helped develop the guidelines. She said the needs of the child should be the primary focus.

“If you take a baby from his or her mother at birth, you actually are discriminating against that child, because that child then does not have the opportunity to breastfeed and to develop those early bonding attachments that are needed,” Martin declared. She added, however, that incarcerated mothers also benefit from being kept together with their babies, even if being together means behind bars.

“Most women who are incarcerated are of childbearing age,” Martin explained. ”Most of them are mothers and are separated from their children, so when the opportunity is there to have the baby with them from birth, and to actually be supported in their parenting skills, mothers are very motivated to become the best possible mother they can.”

“What we’re aiming to achieve here is to foster that bonding between mom and child which is needed for the welfare of their relationship, going forward in life,” said B.C. Attorney General Suzanne Anton.

The guidelines cover a wide range of child bearing and child rearing issues, detailing procedures designed to guarantee readily-accessible pre-natal care through the birthing process and afterwards. Except in cases where the welfare of the child might be endangered by a relationship with its mother, the guidelines empower prisoners to make crucial decisions concerning their children’s health and well-being.

“Woman centered care should be implemented in correctional facilities, using the same standards as the community, recognizing that incarcerated women are valued as key informants for all decisions for their care and their future, including defining their own family,” the guidelines state. “Pregnant and parenting incarcerated women should be informed of their choices and rights.” (emphasis in original)

“Preserving the integrity of the mother-child relationship should be a priority at all times and is the responsibility of all service providers. Any practice that separates a child from her/his mother (for any reason other than the safety or well-being of the child or the well-being of the mother), and does not provide for the maintenance of the mother-child relationship, harms the family unit,” the guidelines continue.

The closing of the Mother-Child Unit at the Alouette Correctional Centre became the focus of a court battle after prisoner Patricia Block’s baby was taken from her two days after she gave birth at the prison. Later, during the summer of 2015, the babies of two Aboriginal prisoners were taken only hours after birth. The guidelines pay particular attention to cultural sensitivities.

“Women’s religious, cultural and spiritual customs and beliefs relating to pregnancy, giving birth and parenting should be respected without compromising safety and security,” the guiding principles state. The guidelines also specify the level of care prisons are expected to provide for pregnant prisoners: “All incarcerated women should have timely access to pregnancy testing. The correctional health care manager should alert the local hospital as soon as the incarcerated woman reaches her third trimester of pregnancy.”

The guidelines further note that “Pregnancy and birth during incarceration can be traumatic. All efforts should be made to provide clear and timely access to health care during this time. All pregnant women should be offered culturally safe and competent pre-natal, delivery and post-natal care. For example, Aboriginal practices should be accommodated upon request and where possible.”

The guidelines were designed to reflect well-respected international standards for early childhood development. “The World Health Organization (WHO) and the United Nations (UN) have established minimum standards regarding the rights of the child and the rights of the family. The standards, which have been endorsed by Canada, were incorporated into the writing of these guideline principles. In addition, the WHO recommends exclusive breastfeeding for the first six months, and breastfeeding up to two years of age.”

Finally, the guidelines call on Canadian authorities to consider alternatives to prison when seeking punishment for women offenders, recommending community-based programs as a better solution.

“Women who are expected to give birth while in custody, or who are the primary caregivers of dependent children, should remain in the community where ever possible,” the guidelines suggest. “The justice system should make all effort to seek supportive community alternatives to custody for these women.”

Unfortunately, no similar guidelines exist for pregnant women prisoners in the United States. Although some prison systems have special units where prisoners can live with their children for short periods of time after giving birth, PLN regularly reports cases where pregnant women are forced to give birth in their cells or lose their babies due to inadequate medical care and indifference by prison and jail staff. [See, e.g., PLN, Dec. 2014, p.28; April 2013, p.24; Aug. 2012, p.14; Oct. 2007, p.32].

Sources: “Guidelines for the Implementation of Mother-Child Units in Canadian Correctional Facilities,” The Collaborating Centre for Prison Health and Education, University of British Columbia, Vancouver (August 2015); The Canadian Press; 

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Related legal case

Inglis v. British Columbia (Minister of Public Safety)