The term “accoucheur” is referred to in the Civil Code of Québec (“CCQ”) 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] which could explain the legislator’s choice to use this French term in the English version of the CCQ.
The “accoucheur,” 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 “accoucheur” is described as a doctor or midwife by the Bureau du Directeur de l’état civil (Directeur).[3]
The “accoucheur” 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 Ministère de la Santé 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’s role, is to “support the declaration of the parents” 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, “accoucheur” 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’état civil is responsible for signing them or drawing them up when necessary. See arts 107-109 CCQ.
[2] The Oxford English Dictionary, sub verbo “accoucheur,” online: Oxford English Dictionary.
[3] Directeur de l’état civil du Québec, “Directive: Absence d’un constat de naissance dressé par un médecin ou une sage-femme” (4 April 2011), online: Directeur de l’état civil du Québec; Conversation with employee from the Bureau du directeur de l’état civil (22 June 2012); Édith Deleury & Dominique Goubau. Le droit des personnes physiques, 3d ed (Cowansville, Qué: 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’état civil is solely responsible for the administration, preservation and delivering of these acts.
[6] Office de la révision du Code civil: Rapport sur l’enregistrement 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’d on other grounds [1928] OJ No 14; Aylett v Minnis, [1793] LEXIS 6; Wythe 219 (Supreme Court of Virginia), rev’d on other grounds 1 Wash 300; Rothweiler v Superior Court, [1965] No 2 CA-CIV 109, 1 Ariz App 334 (Court of Appeals of Arizona), aff’d on other grounds 1 Ariz App 487, 100 Ariz 37, rev’d 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): “The most skilful accoucheur is very unlikely ever to meet a case in which […] he is able with certainty to diagnose…”
[9] Williamson (1807) 3 C&P 635: “where 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.”, 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).
