The first 43 minutes that Ximena Renaerts spent outside her mother's womb were the most crucial and damaging in her life. After surviving an abortion attempt in Bellingham, Washington, Ximena was born alive at Vancouver General Hospital, but was then left by medical staff to die, even though she was whimpering and gasping for air. The hospital's failure to provide the necessary care for those fateful 43 minutes led to Ximena, now 12, suffering severe brain damage.

But a statement made public by VGH two weeks ago suggests that, even though the hospital recently reached an out-of-court settlement in a malpractice suit filed by Ximena and her adoptive parents, the institution believes it did nothing wrong by abandoning her. Moreover, the statement- released in response to questions from BC Report-indicates that it is still VGH policy to withhold care from abortion survivors if the child's parents want it to die.

This surprises many legal, medical and ethical commentators, who point out that, under Canadian law, a child is supposed to enjoy the rights of " personhood" from the moment of birth. Observers say they had assumed that standard medical ethics would compel doctors and nurses to care for a sick but viable newborn baby, even if the child's parents objected and even if it meant facilitating the seizure of the child by social workers.

BC Report gave VGH the opportunity to explain its response last week, but the hospital did not do so by press time.

In the original questions, VGH was asked what its medical policy was in December 1985 (when Ximena was born) regarding the live birth of babies intended to be aborted, and what its policy is now. Hospital spokesman Susan Adaskin released a statement July 10 declaring that, "The policy of the hospital was, and is, that therapy and treatment considered by the healthcare team to be beneficial and not futile is to be provided with consent [emphasis added], except in an emergency situation, in the absence of consent if there is no reason to believe the treatment would not be wanted..." The hospital also says that it conducted an internal review of its procedures after Ximena's birth, but that the review centred, not on the lack of care she received but only on the hospital's failure to note that she was still alive in her mother's womb. "As a result of internal review, a revised protocol was implemented concerning routine ultrasounds on women presenting with possible or apparent pregnancy," the hospital states.

The hospital refused to say if any staff had been subjected to disciplinary proceedings as a result of the case, but that it would co- operate with the B.C. College of Physicians and Surgeons and the Registered Nurses Association of B.C. (RNABC), which are reviewing the case. Informed of the fact that the Vancouver Police Department is looking into the case, the hospital declared that it believes a criminal investigation "is not warranted."

It is the hospital's apparent declaration that it will not act to save an abortion survivor's life without parental consent-even if doctors decide the child can be saved-that is most controversial. Vancouver lawyer James MacMaster, acting vice-chairman of the health law section of the B.C. branch of the Canadian Bar Association, reviewed VGH's statement closely and concluded in a written analysis that either the hospital had "made an error in its response" or maintains a policy that "does not appear to take into account the law relating to the protection of children and the limitations on parental authority in healthcare decision making."

Mr. MacMaster, who has taught a course on health law at the University of B.C. for eight years, points out that under common law, the federal Criminal Code and B.C.'s Child, Family and Community Service Act, a child becomes a human being when it has completely exited in its living state from the body of its mother. "Once a child becomes a human being it is a person in law with a recognized legal identity and legal rights," he says. " This includes the right to receive necessary healthcare." The state's ability to intervene on behalf of the child is broad and well-defined, Mr. MacMaster points out, adding that, "Any person who has reason to believe that a child is in need of protection must report the matter" to authorities.

Vancouver physician Dr. Will Johnston is similarly troubled by VGH's statement. "If they truly believe they've answered your question, their worrisome response deserves very close scrutiny, for the sake of any unwanted child, at any age, that falls into their care," Dr. Johnston says. In other words, if the same logic were applied to other cases, it would mean, for example, that VGH doctors would be prevented from operating on a three-year-old traffic-accident victim if his parents wanted him to die.

On the other hand, Dr. Johnston, who is associated with Physicians for Life, says it is possible VGH did not know what it was saying-that it answered with a "boilerplate" response about consent that is more suitable to adult patients. "They've sloughed you off," the doctor says. "They haven't given you a specific reply."

That lack of clarity concerns Ted Gerk, a Kelowna-based right-to-life activist. "I found the answer very scary, because it is deliberately very vague and you can read a lot into it," he says. If, however, the hospital intended to say that it will not provide life-saving treatment to a medically viable infant, then something is seriously wrong. "The policy is dangerous," he says, "because then the bias here is not on the side of life, but on the termination of life. Then the ideology is that, in an abortion, since a women has a right to a dead baby, then they're going to ensure that she gets one, even if it means letting a healthy baby die after it is born."

Criminology professor Simon Verdun-Jones of Simon Fraser University affirms that a general legal principle is that newborns are entitled to the same rights as adults. "It would seem that if the child were alive, somehow the duty of care would be owed by the medical team," he says. "If you come across a child that is whimpering and can be saved, presumably you don't worry about seeking consent."

Nevertheless, Prof. Verdun-Jones maintains that the Ximena case presents " a bit of a nightmare for nurses" because their legal obligations are, in fact, not clear. "I just think this is such an unusual situation, probably there isn't any standard." In that light, he said he would hate to see any individuals at VGH "dragged through the court" because of their action or inaction, when it is "society's responsibility to legislate."

Vancouver police have not decided whether a criminal investigation is warranted, but Mr. Gerk announced last week that he is filing formal complaints with the RNABC and College of Physicians and Surgeons against all the medical staff involved in Ximena's care. "We're told, we in the pro-life community, so often of the rule of law," he says. "If we're to abide by the rule of law regarding protests, then the same strict standard should apply to everyone who was supposed to care for Ximena." BCR

'BIGGER AND MORE OMINOUS'

Just how often have children who have survived abortions been allowed to die at Vancouver General Hospital? In an answer to queries from BC Report, the hospital said that a review of its records "reveals no other case in which an aborted fetus was determined to be viable." However, a 1986 Vancouver Sun story quoted a Vancouver nurse as saying several B.C. children had survived attempted abortions in the prior 20 years, and some were left to die.

What worries children's rights activists is that a "pro-death" attitude now appears to be extending to other at-risk children as well. They point to the case of Toronto nurse Gita Proudman, 24, who was charged earlier this month with second degree murder after a disabled two-day-old boy, Mustafa Dehzad, was found dead June 12 at Humber River Regional Hospital as a result of asphyxiation. Also this month, a 37-year-old New Zealand woman, Janine Albury-Thomson, went to trial for the murder of her 17-year-old autistic daughter, Casey. Ms. Albury-Thomson admitted trying to persuade her daughter to commit suicide by jumping off a bridge and then to strangling the girl with a bathrobe cord.

"Either all life has value or it doesn't," observes pro-lifer Ted Gerk. "You can't pick and choose. And what's happening here is that the medical community especially is picking and choosing. I would go so far as to say what happened to Ximena Renaerts was attempted infanticide. And because of that, this is a whole new ball game."

Concludes Mr. Gerk: "We're not just dealing with abortion now, but with something that is bigger and more ominous."