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Birth snarls legal debate

The state wants to continue arguing that a guardian should have been appointed for a disabled rape victim's fetus.

By Associated Press
Published September 1, 2003

ORLANDO - A mentally disabled rape victim whose pregnancy led to a debate on whether fetuses may have guardians has given birth, but the court fight over the issue should go on, a spokeswoman for Gov. Jeb Bush said Sunday.

Bush pushed for a guardian to be appointed for the child while it was still a fetus, because the mother was severely disabled and unable to provide for its well-being.

A judge refused to appoint a guardian for the fetus, but a woman who asked to be the guardian appealed, backed by the state.

Abortion-rights activists have accused the Bush administration of pushing the case to open the door to broadly appointing guardians for fetuses, possibly as a method for stopping abortions.

But Bush spokeswoman Alia Faraj said Sunday that the governor's interest in continuing an appeal that would allow guardians for fetuses was only to protect the interests of unborn children in extremely rare cases like that of the severely disabled woman, known only as "J.D.S."

"The J.D.S case was very unique, involving a severely incapacitated woman who couldn't care for herself or her unborn child," Faraj said. "And we hope it would never be repeated. But if it tragically does, we would want both the mother and unborn child to each have a guardian to represent their best interests and ensure their well-being."

For this particular child, the court case is now moot. The girl, for now known as "Baby Girl S," was born at 10 a.m. Saturday during a scheduled Caesarean section at an Orlando-area hospital.

The state Department of Children and Families was granted emergency temporary custody of the child.

After J.D.S. was raped and became pregnant while living in a southwest Orlando group home, she and her unborn child came to be at the center of a statewide debate over treatment of the developmentally disabled and a national debate on fetal rights.

The Florida Supreme Court decided in 1989 that appointing a guardian for a fetus is "clearly improper."

A circuit judge followed that precedent this summer in appointing a caretaker for the 22-year-old rape victim, but not J.D.S.'s unborn child.

Jennifer Wixtrom, an Orlando woman who asked to be the fetal guardian, appealed the decision to the 5th District Court of Appeal, which hasn't ruled on the question. The DCF joined in the appeal.

In addition to granting custody of the newborn to the state, Circuit Judge Jose Rodriguez also ordered a DNA sample to be taken from the child in hopes that Orlando police investigators can determine who raped the now 23-year-old mother.

Rodriguez appointed attorney Lisa J. Augspurger to serve as the newborn's guardian ad litem because the girl has no other relatives or family members available to look out for her best interests.

The baby weighed 6 pounds, 7 ounces. J.D.S.'s guardian, Patti Riley Jarrell, said the baby looked normal and healthy, but it might take months before it is known whether the child shares her mother's developmental disabilities.

The J.D.S. case prompted Bush to appoint a panel to investigate problems with the state's guardianship system, particularly among the developmentally disabled.

The group came up with a series of proposals designed to help anyone in state care who needs a guardian.

[Last modified September 1, 2003, 01:06:50]

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