Pennsylvania Judge Allows Unborn Child to Have Legal Guardian

State   |   Steven Ertelt   |   Jan 22, 2004   |   9:00AM   |   WASHINGTON, DC

Pennsylvania Judge Allows Unborn Child to Have Legal Guardian

by Maria Gallagher Staff Writer
January 22, 2004

Wilkes-Barre, PA ( — Some pro-life activists say a Pennsylvania case shows the schizophrenic nature of the U.S. justice system, when it comes to the rights of unborn children.

A Pennsylvania judge last week granted legal permission to Wilkes-Barre General Hospital to become guardian of an unborn child whose mother had refused to deliver by Caesarean section.

Yet, under Roe v. Wade, the U.S. Supreme Court decision which legalized abortion, unborn children can be destroyed at will.

In the C-section case, Amber Marlowe, a mother of six, left the hospital because she wanted to deliver her child vaginally. Doctors at the hospital had argued that a natural delivery could kill her and/or her baby.

But Marlowe and her husband were unconvinced. She gave birth vaginally last Thursday morning at Moses Taylor Hospital in Scranton. Both the mother and the infant were said to be healthy.

Lawyers for General Hospital sued to obtain guardianship of Marlowe’s unborn baby after doctors said natural delivery would be dangerous because they estimated the child’s weight at 13 pounds.

They also noted that Marlowe had had complications in previous pregnancies, indicating that a C-section would be the appropriate course.

In court papers, lawyer Mary G. Cummings wrote that the hospital was acting "to preserve and protect the rights of (the fetus) regarding its health and survival."

Luzerne County Court of Common Pleas Judge Michael Conahan approved the hospital’s request.

But Marlowe’s husband John told the Wilkes-Barre Times Leader that the hospital staff was "arrogant" in attempting to force his wife to have a C-section. Amber Marlowe added that the baby’s weight at birth was less than what the doctors had predicted.

Marlowe noted that Amber’s friend had died from a C-section, causing her to be wary of the procedure. All of Amber Marlowe’s previous six children were delivered vaginally, including children larger than her newborn.

Cummings wrote to the court that the Marlowes "have made it clear that they are adamant that they will not consent to a C-section, regardless of the danger that a vaginal delivery presents to (the baby). There exists the imminent threat of irreparable harm to (the baby) in the absence of an immediate order."

John Marlowe, however, has said that the hospital’s claims were false and he has threatened to sue as a result.

The fetal guardianship ruling is believed to be the first of its kind in Pennsylvania.

The Pennsylvania Pro-Life Federation, an affiliate of National Right to Life, declined comment on the case, since it did not involve abortion or infanticide.

The issue of fetal guardianship has gained prominence in recent weeks as a result of a contentious legal case in Florida.

An appeals court in Daytona Beach has ruled that an Orange County judge was right in denying an unborn girl a guardian to protect her legal interests. The controversy centers on a child who was conceived after a mentally disabled woman was sexually assaulted.

Pro-life lawmakers in Florida have said that they doubt that the legislature would have the votes needed to enact a measure that would give unborn children rights in the guardianship section of state law.

The disabled woman, identified as J.D.S. in court papers, was being pressured to have an abortion, according to pro-life groups and Florida Governor Jeb Bush. The woman gave birth to a healthy baby girl in August, so the issue now is legal precedent.

J.D.S. now lives in a special group home while her child is in foster care.