Cree mother loses organ harvest fight

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A member of the Waywayseecappo First Nation (Manitoba) who now works for the Prince Albert Grand Council in north-central Saskatchewan, could only watch with horror as her son's adoptive parents gave permission for his organs to be removed for donation and the body to be cremated.

Onion Lake (Saskatchewan) band member Kelly Hastings, 27, was found unconscious on a Regina street on Friday, Aug. 6 and was pronounced brain dead by doctors at Regina General Hospital the next day. It appears he suffered a seizure and fell and struck his head. His birth mother, Shirley Waskewitch, and several relatives arrived in Regina that night and discovered that the adoptive parents were about to give consent to the doctors to take him off life support systems, remove certain organs for donation and then cremate the remains. To treat a body in that manner offends the traditions of many Native cultures, including those of Waskewitch. She pleaded with his adopted mother and the hospital officials to allow her to take his body home for burial on the reserve. She claims she was not recognized as a parent and her wishes were not respected.

Waskewitch hired Oneida lawyer John Hill, who practices in Regina. He took the case to the Regina Court of Queen's Bench. Hill said it was a hurried affair conducted on a Saturday.

"It wasn't a full Queen's Bench hearing. It was a chambers application because of the time," Hill told Windspeaker. "Because it wasn't a full Queen's Bench hearing, there was no oral evidence - no vive voce evidence - it was all done by affidavit. The way I read the decision, it turned on a technical point. A chambers application is considered an interlocutory motion, or an interim motion, kind of an in-between step.

"The judge determined that she could not make a constitutional decision on an interlocutory motion. So, it's still open to go ahead and argue this thing on a full application and we're discussing the possibility of that. The big problem is the finances of it and how much it costs and who's going to pay for it because there's no benefit to [Waskewitch], now. It's still a triable issue."

Having lost in court with time running out, the grieving mother returned to the hospital. Meetings involving the biological family, the adoptive family and hospital administrators were held on the Saturday and no agreement was reached. The talks were adjourned with a promise that they would re-convene the next morning at 11 o'clock. A letter written by Federation of Saskatchewan Indian Nations Grand Chief Perry Bellegarde to Glen Bartlett, the chief executive officer of the hospital, on Aug. 10 details what happened next.

"Kelly's organs were removed at 2:00 a.m. Sunday without the consent of his biological mother and irrespective of her appeals based on First Nation spiritual and cultural beliefs," Bellegarde wrote.

Waskewitch told Windspeaker she was treated shabbily by hospital employees and was not afforded the proper respect usually accorded a grieving mother who has lost a son.

Bellegarde told the hospital CEO that anyone who dismisses the feelings and concerns of a Native mother who gave her son up for adoption in the 1970s, judging that the adoptive mother has a more legitimate claim to respect and consideration, just doesn't understand the history.

"As you may already know, the deceased, Kelly Hastings, was adopted by a non-Aboriginal family in the 1970s. The circumstances surrounding the adoption were not unlike hundreds of others faced by our First Nation families and communities. In the past decades our communities have lost many First Nation children. They were almost always taken while the parents were at a most difficult and vulnerable time in their lives," he wrote. "Ms. Waskewitch's case is no exception, and as she describes it, two of her children were removed from her custody under duress and pressure from authorities whom she felt obligated to listen to. It has only been in this pat decade that shehas been able to find her children and did in fact re-establish a close and loving relationship with them."

Hill said his client was vulnerable under provincial adoption legislation which extinguishes the rights of the biological parent and transfers them to the adoptive parent, but constitutional protections for Native rights may be found by a court of appeal to protect the rights of birth parents in similar situations.

"Based on the way the legislation's written now, I can't say [the hospital was] wrong. I think legally, they're correct. Morally? Different story. So, it's a tough area," Hill said.

But Hill agreed with the idea that, especially in a province with a significantly high Aboriginal population, the law-makers could have and should have anticipated this kind of situation.

"You'd think so," he said. "But what it boils down to is the Adoption Act basically saying that the birth parents lose all rights and, notwithstanding the fact that he was above the age of majority, that still applies. So in a situation where someone dies without a will, the question is who gets the right to be the executor. In that case, it's the next of kin - the parents - and the Adoption Act purports to get rid of the rights of the birth parents. But in a situation like this where the son has gone back to his roots and participated in education paid for by the band, that makes it a little bit more difficult."

Many Native activists have claimed that removing Native children from their homes and placing them in non-Native homes was part of the same assimilation plan that spawned the residential school system, the stated goal of which (as revealed in Indian Affairs documents) was to undermine and eventually eradicate Indigenous cultures. In several provinces, the harm done by social workers employing this method is still being undone.

Hill said the legal fight will be between two sides with equally valid points of view.

"The reality is that what ou've got is conflicting right. There's no doubt in my mind that adoptive parents can have love and feelings for kids that are adopted as well. The only time that this really comes into play is when you've got conflicting views of the world. That's what it's about. It's about conflicting views as to what should happen; and to Indian people, as I'm sure you are aware, cremation is blasphemy. So you've got conflicting rights in the case of someone who didn't leave a will. So I think there needs to be kind of a middle ground. I think the mediation which they did try to undertake on the Saturday was a good step towards that, but it doesn't appear to have been done in good faith from what I've seen," he said. "She left the mediation with the hospital board and with the adoptive family on Saturday evening with the understanding they would re-convene on Sunday morning and continue the discussions, more like a mediation session between the parties. She went back on Sunday morning and was told, 'Sorry, we've made our decision. The hospital lawyer has told us that we can give the body up legally to the adoptive family.'"

Attempts to contact hospital officials for comment on this issue were unsuccessful. A media relations official promised an interview would be arranged but, as our publication deadline approached two days later, no response was received.

Hill believes this problem should be addressed by the legislature and not, as is the case too often where Native people attempt to assert their legal rights, by forcing Waskewitch to pay thousands of dollars to fight it in court.

"These types of things should be discussed in some other public policy forum because it's a public policy issue," he said. "The courts have been fairly clear in indicating that when it comes to Aboriginal treaty rights, the courts have given direction to government to negotiate these issues. You hear all this talk about judicial activism. I disagree with that. I don't think there's judicial ctivism. I think there's inactivityon public policy decision making by government. So what they're doing is they're shirking their responsibility and putting the courts in a position where they have to interpret things and I think that's exactly what's happening here - the government hasn't acknowledged this as a issue for a policy decision. In a way it's a moot point as far as this particular individual goes but the policy issue's still there."

Waskewitch vows to continue the fight even though it is a battle that she can't win for her son.

"For me, this is going to continue," she said. "I've been kind of waiting all winter, healing and trying to deal with my feelings. But I'm going to go ahead with it. I'll start fundraising, selling blankets, whatever it takes. I don't want this to happen to someone else."