In re Guardianship of J.D.S., 864 So.2d 534 (Fla. 5th DCA Jan. 9, 2004) (TRIAL COURT AFFIRMED) Is a fetus a “person”? In the latest chapter of Florida’s fetal rights debate, the 5th DCA held that in the context of Florida’s guardianship law, the answer is no. Orange County Circuit Court Judge Lawrence R. Kirkwood denied Jennifer Wixtrom’s petition to be appointed guardian of the fetus of “J.D.S.,” a 22-year old woman suffering from severe mental retardation that was pregnant as the result of a rape that occurred while she was in the care of the Department of Children and Families (“DCF”). Ms. Wixtrom’s petition was denied and she appealed. Concluding that the issue was of “great public importance and capable of recurring,” the 5th DCA ruled on the appeal even though the original petition was made moot by the fact that J.D.S. gave birth to her child after oral arguments in the case. Writing for the majority, 5th DCA Circuit Court Judge Emerson R. Thompson, Jr. provided two lines of argument for affirming the trial court’s ruling. First, finding that Chapter 744 of the Florida Statutes (which governs guardianships) makes no explicit reference to the term “fetus”and finding no Florida case law construing Chapter 744 to apply to fetuses, the court held that “the provisions of Chapter 744 do not apply to a fetus.” Second, based in part on the Florida Supreme Court’s ruling in Young v. St. Vincent’s Medical Center, Inc., 673 So.2d 482 (Fla. 1996) (court declined to hold that a fetus is a “person” within the meaning of the Florida Wrongful Death Act) and the 4th DCA’s refusal in State v. Gethers, 585 So.2d 1140 (Fla. 4th DCA 1991) to apply a 2004->Ch0827->Section%2001#0827.01″>child abuse statute to a case involving a fetus, as well as Roe v. Wade, 410 U.S. 113 (1973) (“the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn”) and similar holdings from other jurisdictions, the court held that Chapter 744 does not implicitly encompass fetuses because a fetus is not a “person” under Florida law, and only persons may be 2004->Ch0744->Section”>”wards” for purposes of Florida’s guardianship law. With respect to the Florida Supreme Court’s decision in Young v. St. Vincent’s Medical Center, Inc., the following briefs were filed with the court: 1. Brief for the Petitioner 2. Brief on the Merits of Respondent, St. Vincent’s Medical Center, Inc. 3. Reply Brief for the Petitioner 4. Supplemental Reply Brief for the Petitioner 5. Amicus Curiae Brief of Academy of Florida Trial Lawyers on Behalf of the Petitioner 6. Amicus Curiae Brief of the Florida Defense Lawyers Association on Behalf of the Respondent 7. Brief of Amici Curiae American Civil Liberties Union Foundation and American Civil Liberties Union Foundation of Florida, Inc.
