ORLANDO, Florida, USA: A state appeals court upheld a decision that a guardian could not be appointed for the foetus of an autistic rape victim, striking another blow to the bid by Florida's Governor, Jeb Bush, to extend guardianship rights to unborn children.

The 5th District Court of Appeal in Daytona Beach ruled late on January 9 that Orange County Judge Lawrence R. Kirkwood had properly denied a woman's petition to be named guardian for the foetus, which has since been born.

Nowhere in the Florida statutes discussing guardianship are foetal rights mentioned, Judge Richard B. Orfinger wrote in his majority opinion. "We find no Florida statute or case law that has determined a foetus to be a person Rather, the opposite is true."

Abortion rights advocates have accused Bush, with the help of Jerry Regier, Secretary of the Department of Children and Families (DCF), of pushing the case so that guardians for foetuses may be broadly appointed, possibly as a method for preventing abortions.

"All the court did was uphold the law and put a roadblock in the way of Jerry Regier's and the Governor's crusade to change the law," Howard Simon, executive director of the American Civil Liberties Union of Florida, said on January 10.

A spokeswoman for Governor Bush, Jill Bratina, said that the governor's office was reviewing the decision and looking at its options.  "We continue to believe that a protective guardianship for both mother and unborn child was necessary in this tragic case," Bratina said.

Bush wanted a guardian to be appointed for the foetus because the mother - suffering from severe retardation, cerebral palsy and autism - was unable to provide for its well-being. Kirkwood refused numerous times but, with the state's support, Jennifer Wixtrom appealed the decision denying her guardianship of the foetus.

The disabled woman, identified in court papers only as J.D.S., was raped in late 2002 while living in a DCF-licensed group home in Orlando. She gave birth to a healthy daughter in August that year.

Days later, the 75-year-old husband of the care home owner was arrested, only to be found incompetent to stand trial. The home's owner is awaiting trial on a felony charge of negligence.

The court-appointed guardian for J.D.S., Patti Jarrell, said she was pleased by the appeals court's ruling. The mother and daughter, known as Baby S., are doing well, Jarrell added.

"The work done by the guardian for J.D.S. demonstrates the positive impact a guardian can make," Bratina said.

Wixtrom refused to comment. She referred questions to her attorney, Edward Jordan II, who did not return a message.

Simon said the appeals court had been correct in its wariness that a ruling in favour of Bush's arguments could affect all pregnant women in Florida.

"The legal principle being advanced here by Wixtrom - but really by Jerry Regier and the governor's office - was contrary to what they tried to argue to the public and in the courts, that this would be a limited action," said Simon.

A three-judge panel of the 5th DCA heard the case, with Orfinger and Judge Emerson R. Thompson upholding the lower court's ruling.

In Judge Robert J. Pleus' dissent, he urged the Legislature to overturn the court's decision by rewriting the law to state human life begins at conception. To make his case, Pleus referred to sonograms of his grandson taken 14 weeks after his conception.

"If all the judges in the world and all justices on the supreme court decided that Nicholas was not a person and merely a 'foetus' until his birth, I would know them blind to reality," Pleus wrote.

(Source: Associated Press, January 11, 2004)