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Appeals court hears fetus guardian issues

The judges ask tough questions in the case of a pregnant mentally disabled rape victim.

By Associated Press
© St. Petersburg Times
published August 22, 2003

DAYTONA BEACH - Gov. Jeb Bush's attempt to get a legal guardian appointed for the fetus of a mentally disabled rape victim ran into tough questioning Thursday from state appeals judges, who were concerned that a ruling involving one woman might be interpreted to cover all expectant mothers in Florida.

The hearing before the 5th District Court of Appeal was significant because the Florida Supreme Court in 1989 decided that appointing a guardian for a fetus was "clearly improper."

A circuit judge followed that precedent earlier this summer in appointing a caretaker for the 22-year-old victim, known as J.D.S., while repeatedly denying Jennifer Wixtrom of Orlando guardianship of the fetus, now in its ninth month. J.D.S. will carry her pregnancy to term.

Edward Jordan, Wixtrom's attorney, told the three-judge panel a conflict exists when a woman who cannot make her own decisions has a guardian and her unborn child does not.

"But isn't that conflict apparent in a woman who is healthy and bright, but drinks a lot?" Appellate Judge Emerson R. Thompson asked. "Couldn't a guardian be important because the fetus is in danger of being abused by fetal alcohol syndrome, or if the mother is a heavy smoker or is overweight?"

Jordan replied that a guardian for a fetus would be necessary only in cases such as this, where a pregnant woman is incapacitated.

Wixtrom is joined in her appeal by the Florida Department of Children and Families.

A ruling could be issued as late as next spring.

Appellate Judge Richard Orfinger repeatedly said he was troubled by the state's interest in a fetus only when it is in the womb of an incompetent mother, while ignoring pregnant women who are healthy.

"If you're interested in children, you should be interested in all children," Orfinger said.

Senior Assistant Attorney General George L. Waas acknowledged it was difficult to find a narrow, yet encompassing solution.

Opponents of the state's bid to overturn the 1989 decision said the judges were correct in their wariness over a potentially broad interpretation.

"Let's not make any mistake here; this case is not about one person," Randall C. Marshall, legal director for the American Civil Liberties of Florida, said after the hearing. "If appellate Wixtrom is successful in getting the appointment for the guardian of the fetus in this case, every pregnant woman in the state of Florida is subject to interference by the state into even the most minute details of their life."

Also in question is how long a fetal guardian is needed. Does thatneed end after the baby's birth? Judge Thompson asked.

"Once you have an outside-the-womb child, we have the entire statutory mechanism that allows the state to step in and protect that living child," Marshall said.

Joining the ACLU were the Florida Advocacy Center for Persons with Disabilities and the American Association of People with Disabilities. In their amicus brief, the organizations said the state's position would harm the rights of the disabled while undercutting Florida's guardianship law.

Although J.D.S. is expected to give birth by the end of August, perhaps long before the court would rule, delivery of the child would not make the issue moot. The legal concept of "capable of repetition yet evading review" would allow a court ruling despite the lack of a fetus to which a guardian could be appointed.

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