The term 鈥渁ccoucheur鈥� is referred to in the Civil Code of Qu茅bec (鈥淐CQ鈥�) regime governing particularities relating to the status of persons and, more specifically, acts of civil status.[1] Although the etymology of this word is French, the Oxford English Dictionary also uses it to describe a male midwife,[2] 听which could explain the legislator鈥檚 choice to use this French term in the English version of the CCQ.
The 鈥渁ccoucheur,鈥� referred to at articles 111 and 112 CCQ, is a person authorized by law to practice deliveries and draw up the attestation of birth or constat de naissance. Although there has been a certain ambiguity in legal scholarship, and some authors maintain that any person may assist the birth and sign the attestation of birth, the 鈥渁ccoucheur鈥� is described as a doctor or midwife by the Bureau du Directeur de l鈥櫭﹖at civil (Directeur).[3]
The 鈥渁ccoucheur鈥� ensures the accuracy of acts of birth. Before 1972, births were declared to churches and/or municipalities, which made it difficult for the Directeur to keep a proper record of civil acts, particularly births.[4] In 1972, doctors were made responsible for drawing up attestations for the register held and administered by le Minist猫re de la Sant茅 et des Services Sociaux.[5] The Civil Code Revision Office maintained the requirement that the person assisting the mother in the delivery attest the birth, which was consistent with their recommendation that the system of creation and conservation of civil acts be centralized.
In light of the above changes, the purpose of the attestation, which underlies the importance of the accoucheur鈥檚 role, is to 鈥渟upport the declaration of the parents鈥� and ensure the veracity of the information contained in the birth certificate and in the records of civil acts kept by the Directeur.[6]
As a legal term, 鈥渁ccoucheur鈥� is not only used in the civil law. Although the term is not used in Canadian common law statutes, it can be found in late 18th century as well as 19th and 20th century Canadian and American case law.[7] It can also be found in early 20th century case law from the United Kingdom[8] and some, more recent, decisions.[9]
[1] The CCQ recognizes three acts of civil status: birth, marriage or civil union, and death. All of these documents are authentic and drawn up, and the Directeur de l鈥櫭﹖at civil is responsible for signing them or drawing them up when necessary. See arts 107-109 CCQ.
[2] The Oxford English Dictionary, sub verbo 鈥渁ccoucheur,鈥� online: .
[3] Directeur de l鈥櫭﹖at civil du Qu茅bec, 鈥淒irective: Absence d鈥檜n constat de naissance dress茅 par un m茅decin ou une sage-femme鈥� (4 April 2011), online: ; Conversation with employee from the Bureau du directeur de l鈥櫭﹖at civil (22 June 2012); 脡dith Deleury & Dominique Goubau. Le droit des personnes physiques, 3d ed (Cowansville, Qu茅: Yvon Blais, 2002) at para 339, n 54 [Deleury & Goubau].
[4] Deleury & Goubau, ibid at paras 323-24.
[5] Public Health Protection Act, RSQ 1972, c P-35, s 45-47. Today, the Public Health Act, RSQ, S-2.2 does not govern births, instead the Directeur de l鈥櫭﹖at civil is solely responsible for the administration, preservation and delivering of these acts.
[6] Office de la r茅vision du Code civil: Rapport sur l鈥檈nregistrement des personnes (LFIY), at 24, para 3.4.
[7] R v Pocock, [1927] OJ No 152 (Ontario Supreme Court) High Court Division at para 4, Middleton JA, aff鈥檇 on other grounds [1928] OJ No 14; Aylett v Minnis,听[1793]听LEXIS 6; Wythe 219 (Supreme Court of Virginia), rev鈥檇 on other grounds 1 Wash 300; Rothweiler v Superior Court,听[1965] No 2 CA-CIV 109,听1 Ariz App 334 (Court of Appeals of Arizona), aff鈥檇 on other grounds 1 Ariz App 487, 100 Ariz 37, rev鈥檇 in part on other grounds State ex rel De Concini v City Court of Tucson, 9 Ariz App 522.
[8] Ritter and Wife v Godfrey, [1918-1919] All ER Rep 714, [1918-19] (CA): 鈥淭he most skilful accoucheur is very unlikely ever to meet a case in which [鈥 he is able with certainty to diagnose鈥︹��
[9] Williamson (1807) 3 C&P 635: 鈥渨here a man who practiced as an accoucheur, owing to a mistake in his observation of the actual symptoms, inflicted on a patient terrible injuries from which she died.鈥�, cited in R v Misra and another, [2004] EWCA Crim 2375, [2004] All ER (D) 107 (Oct), leave to appeal to the House of Lords was refused, [2004] All ER (D) 150 (Oct) (October 13, 2004).