Florida judge rules against appointing a guardian for fetus

From: CNN International - May 30, 2003

Monday hearing scheduled for pregnant, mentally disabled rape victim

ORLANDO, Florida (CNN) -- A Florida judge has ruled out appointing a legal guardian to represent a fetus in a controversial case involving a raped, mentally disabled 22-year-old woman who is about six months pregnant and has been living in the state's care.

The ruling is a defeat for Gov. Jeb Bush, who had urged the court to appoint a guardian, saying, "it's appropriate to have someone looking after the rights for the child as well as the mom, and that's our intent."

However, Orange County District Judge Lawrence Kirkwood disagreed.

"There is no basis in the (Florida) statutes or case law for appointment of a guardian for a fetus," he ruled in a decision obtained by CNN Friday.

The ruling paralleled that of a Circuit Court judge who last week in Miami rejected a pro-life group's effort to represent the fetus of a disabled, deaf rape victim with the mental capacity of a 4-year-old. The 6-month-old fetus was aborted Thursday.

In the Orlando case, Kirkwood specifically responded to a petition filed by Orlando homemaker Jennifer Wixtrom, who petitioned the court to represent the fetus.

In a court filing, Wixtrom told the judge a guardian was needed "to ensure the safety, well-being, health and proper pre-natal care for the fetus" and added, "a guardian must be appointed as the unborn child may be placed in immediate danger and in life-threatening situations unless his or her interest (sic) are protected."

In response, the judge ruled Friday, "Florida statutes simply do not support this allegation."

Kirkwood added that according to Florida case law, "appointment of a guardian ad litem for a fetus is clear error."

A 1989 Florida Supreme Court ruling called the appointment of a guardian when an abortion is possible in "clear error."

The woman, known only by her initials, J.D.S., has no known relatives and police said she has the mental capacity of a 1-year-old.

A court administrator said the governor "has no legal standing in this case. The Department of Children and Family does."

Initially, an Orlando lawyer for DCF told the court the agency would not pursue a guardian for the fetus after the rape case came to light. Then, the governor said, he decided to get involved along with DCF Secretary Jerry Regier because he did not want a "mid-level attorney" determining policy for the state.

A spokesman for Regier said the issue might be a test case for the courts. There was no immediate response to Friday's ruling from the governor or DCF.

On Monday in Orlando, Kirkwood will officially decide whether J.D.S. is mentally incapacitated. That is a required step before appointing a guardian to represent her.

The guardian will then help decide whether the woman should continue her pregnancy.

Judge cites health concerns in Miami abortion case

In the Miami case, Thursday's abortion capped a week of legal maneuvering in which an Orlando pro-life group, the Liberty Counsel, sought to be appointed as guardian for the unborn child after the judge in the case ruled that the rape victim could have an abortion.

The unidentified 28-year-old woman is deaf, mute, suffers from seizures and has the mental capacity of a toddler, according to her attorney. She has been living in a group home run by the state.

In that case, the young woman's doctor told the court his patient's life could be in danger and the baby might be deformed or possibly die if the baby was carried to term. Other doctors disagreed.

The DCF did not become involved in that case.

The Associated Press reported that doctors who specialize in high-risk pregnancies had told the judge that the fetus appeared to be developing normally and there was no medical reason to terminate the pregnancy.

The woman's mother, however, said she had been told by doctors early on that pregnancy could be life-threatening to her daughter, who became disabled from bacterial meningitis when she was 3 weeks old, has the cognitive skills of a 4-year-old and now lives in a group home, the AP reported.

Just before the abortion was carried out, the judge in the case briefly reconsidered, then said the young woman's mother "strongly objected to a C-section" and added that the fetus' "extremely high risk of morbidity" closed the door on that option.

Detectives from the Miami-Dade Police Department secured a sample from the fetus to be used as evidence in the determination of paternity in their rape investigation.

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