Case raises questions about fetuse's rights - state Supreme Court may get involved

Charlotte Observer ^ | 10/07/03 | MAX B. BAKER

[bedolido]

FORT WORTH - Donnie and Tara Reese celebrate their son Clarence's birthday every year at his small grave in vast Greenwood Cemetery.

It's one way of dealing with the loss of their son, who died at a hospital before ever taking a breath.

"I bring him presents, a balloon, a cake," Tara Reese said last week as she stood over Clarence's headstone. "Everybody sits down and eats some of the cake here."

Besides drawing the Reeses to the cemetery each year, the love they feel for their stillborn son has put the shy River Oaks couple into the middle of a fight over the rights of the unborn.

In a case to be argued Wednesday, the Reeses are asking the Texas Supreme Court to reinterpret the state's wrongful death statutes and grant viable, unborn children more rights.

On Clarence's behalf, the Reeses want to sue Fort Worth Osteopathic Hospital and its doctors, arguing that Clarence died because Tara Reese's treatment was badly bungled in May 1998. The hospital counters that Reese was a high-risk patient with dangerous, pre-existing conditions.

Thirty-seven states allow civil lawsuits on behalf of fetuses that are capable of living outside the mother's body, court documents show. Texas law, however, allows only infants who are born alive -- if only for one breath -- to be considered an individual with a right to collect damages.

The Reese case troubles legal experts and raises questions for activists on both sides of the abortion debate. The court's decision, they say, could ultimately play a role in the broader debate about a woman's reproductive freedom and the rights of an unborn child.

The U.S. Supreme Court has recognized that viability generally occurs at about 24 to 28 weeks. A pregnancy is considered full-term at about 40 weeks.

"It just gets harder and harder for these justices to say these parents lost nothing," said Kyleen Wright, president of the Texans for Life Coalition in Irving. "It is a great time to be a pro-lifer."

But Kelly Hart, public affairs director for Planned Parenthood of North Texas in Dallas, said cases such as the Reeses' could lead to restrictions on women's rights to make choices.

"It could be a slippery slope," Hart said. "What does it mean to say the embryo is a legal person just like the woman? We are starting to pass laws to say that this is what is happening."

The political discussion is lost on the Reeses, who say they simply want justice for their son.

"Complicated laws and different people's morals and such really are not our concern," Donnie Reese said. "We're ashamed of the state of Texas for not recognizing our son as a human being."

A troubled pregnancy

From the day the Reeses married in 1992, they wanted a baby.

They tried to conceive for six years. Donnie Reese had an operation to correct a possible infertility problem.

When Tara Reese discovered in 1997 that she was pregnant, the elated couple immediately began preparing for the baby's arrival.

"We had the bedroom set up with the baby bed; everything was ready. Diapers. Changing table," Donnie Reese said. "I painted Mickey Mouse on the walls."

When they were told it was a boy, they picked out a name, Clarence Cecil Reese -- Clarence after Donnie Reese's dad, Cecil after Tara Reese's grandfather. While his son was still in the womb, Donnie Reese began buying him big-boy toys.

"I bought a really nice football," he said. "I ended up leaving it at the grave."

Tara Reese's pregnancy was not easy. She gained 50 pounds, eventually weighing about 300 pounds. Her heart rate and blood pressure shot up, then dropped.

"I was worried about the baby," Tara Reese said. "I felt like there was something going on, and that is why I kept telling the doctor about it."

On May 11, 1998 -- after Tara Reese celebrated Mother's Day with a corsage and dinner at Grandy's -- her heart began racing and her stomach churned. She eventually went to Osteopathic Hospital.

In the emergency room, and later in labor and delivery, the Reeses said the baby's heart rate was supposed to be watched through a fetal monitor.

Clarence's heart rate, which was usually between 120 to 160 beats per minute, fluctuated so much that the machine's alarm kept sounding, they said.

At midnight, after Tara Reese had been at the hospital for about six hours, the monitor's alarm was shut off, the Reeses said. The couple noticed that the baby's heart rate continued to drop, but said they were assured by nurses that everything was all right.

The next morning, after his wife ate breakfast, Donnie Reese said his worst suspicions were confirmed. The baby was not moving and kicking as it normally did after she ate.

"I was looking at the monitor and it would show like 6 and 7 [heart rate], and a tech or nurse had come in and I told him, 'They need to get a doctor in here to check this, this isn't right!' " Donnie Reese said.

The staff member looked at the machine, ripped off the long monitor tape and then met in the hall with others on the medical staff, Donnie Reese said. Soon, the room filled with people.

"I knew at the time that the baby was dying or dead," Donnie Reese said.

After Tara Reese was wheeled to another room for a sonogram, the parents were told that Clarence had died in the womb. On May 13, after about 24 hours of labor, Clarence was delivered.

He was about 1 1/2 months early, weighed 1 pound, 7 ounces and was 12 inches long.

"They said it wasn't anybody's fault," Donnie Reese said.

Today, the Reeses and the hospital agree that Clarence was stillborn. Depositions and interviews suggest that a blood clot blocked the umbilical cord, but no determination has been made as to the exact cause of death, say lawyers on both sides of the case.

Donnie Reese has testified that his wife felt the baby move throughout the night of May 11 and as early as 6 a.m. May 12. A Houston doctor hired by the Reeses' attorneys has testified that an emergency Caesarean would have saved Clarence's life.

"He was viable," said Bernard Suchocki, the Reeses' attorney. "He could have been taken by proven medical techniques, and he could have been here today."

The Reeses have settled out of court with some of the defendants, including several doctors.

The hospital contends that its medical staff adequately monitored Tara Reese in the 12 hours before the baby's death, court documents say. A cardiologist was assigned to her case and an EKG, to test her heart, was conducted.

The hospital blames Tara Reese's medical conditions for what happened. Questions posed during depositions suggest that she suffered from elevated heart rates and high blood pressure during the pregnancy.

Another central argument by the hospital is that what happened to the Reeses was "completely unavoidable and without negligence."

During depositions, the Reeses were questioned about Tara Reese's weight gain, and hospital officials suggest that her weight made it difficult for the fetal monitor to keep track of the baby's condition.

Poor prenatal care, including an inadequate diet and lack of exercise, might also have contributed, court records suggest.

"I think they are in denial about what happened," said Earl Harcrow, the hospital's attorney. "I believe that it is clear that this is a circumstance where nature does some things that we don't understand, and it's not the result of any negligence."

Legal indifference?

In 2001, state District Judge Fred Davis in Fort Worth dismissed the Reeses' wrongful death claim. He based his decision on previous Texas Supreme Court rulings that an unborn fetus has no legal standing if it dies before birth.

Those rulings contend that an unborn child is not a person because the fetus did not pass through the mother's birth canal and survive, even briefly.

"The Supreme Court has spoken on this," Harcrow said. "The Supreme Court has to place a line of demarcation, and it has chosen to do it this way."

But the Reeses have the 2nd Court of Appeals on their side. The Fort Worth-based court ruled in 1999 that fetuses that have reached viability -- even if they didn't survive birth -- have the right to sue.

The court's ruling came in the case of a woman who was 36 weeks pregnant and lost her baby in a car accident. The justices said that Texas' wrongful death statute discriminates against parents who lose a viable fetus through the negligence of others.

Justice Dixon Holman, writing for the majority, noted that Texas law recognizes that fetuses have rights in several areas, including property, probate, family and tort law and third-trimester abortions.

The state's other appeals courts, however, have stood by a 1985 state Supreme Court decision that says it is up to the Legislature to change the law.

This spring, lawmakers passed a law giving an embryo or a fetus the same protections from violent crime as those held by the mother. An attacker who kills a fetus could be charged with murder.

The law defines an individual as starting from the moment of fertilization.

But it exempts doctors and those performing legal procedures -- including pharmacists, abortion providers and the pregnant woman -- from criminal or civil liability.

"The Legislature is free to address anything that they believe is appropriate," Harcrow said. "They have addressed it on other levels and had the chance to make it applicable in the medical malpractice area and have chosen not to do so."

Standing at their son's grave recently, the Reeses say they aren't political activists.

The family is "liberal in what other people do but we are conservative with how we behave," Donnie Reese said.

They say they need only look at their three biological children to know how differently things could have been. Their fourth child is Nicholas, now 6, whom they adopted soon after Clarence died.

When Tara Reese was pregnant with their daughter, Kiara, who is now 4, she encountered some of the same medical problems she faced with Clarence, including a blood clot in the umbilical cord.

Those problems, however, were properly monitored, the Reeses said.

"But I worried up until the day she was born," Tara Reese said.

Texas laws

Fort Worth Osteopathic Hospital has asked the Texas Supreme Court to overturn a decision by the 2nd Court of Appeals in Fort Worth that Clarence Reese, who was stillborn, has legal standing that allows his family to sue for wrongful death.

Here are some parts of Texas law regarding fetuses:

• Fetuses have protected rights in several areas, including property, probate and family law.

• In wrongful death cases, only infants who are born alive are considered individuals with rights to collect damages.

• In the case of assault, homicide and intoxication manslaughter, a fetus is defined as an individual from the moment of fertilization and has the same protections as the mother. The defendant can be charged with murder, and the parents can sue for damages.

• Doctors and those performing legal procedures involving a fetus are exempt from criminal or civil liability.

--------------------------------------------------------------------------------

[KantianBurke]

"Tara Reese's pregnancy was not easy. She gained 50 pounds, eventually weighing about 300 pounds."

Is that common? Expected?

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[Onelifetogive]

In a case to be argued Wednesday, the Reeses are asking the Texas Supreme Court to reinterpret the state's wrongful death statutes and grant viable, unborn children more rights.

"It could be a slippery slope," Hart said. "What does it mean to say the embryo is a legal person just like the woman? We are starting to pass laws to say that this is what is happening."

Notice...the abortion lobby can't argue the facts. There is a SLIGHT difference between "viable, unborn children" and an "embryo."

[ancient_geezer]

the Reeses are asking the Texas Supreme Court to reinterpret the state's wrongful death statutes and grant viable, unborn children more rights

Grant?? Courts cannot grant anything, they however are required to recognize(in this case restore) pre-existant rights to Life stolen by prior judicial fiat.

[RS]

""I bring him presents, a balloon, a cake," Tara Reese said last week as she stood over Clarence's headstone. "Everybody sits down and eats some of the cake here."


Sounds to me like these people need some serious help -
Each year they take their four kids to sit around a cemetary with balloons ?
Surely that can't be too good for the kids mental health either.

[Saundra Duffy]

God bless this couple.

[Roughneck]

Sounds to me like these people need some serious help -
Each year they take their four kids to sit around a cemetary with balloons ?
Surely that can't be too good for the kids mental health either.

I agree.

I also agree they should sue the sh*t out of whoever was responsible. Was her doctor Pro-Choice? Was one of the nurses pro-choice? Dis someone at that hospital "make a decsision" of some kind. . .?

[dandelion]

It's a common custom in Mexico for families to congregate at the cemetery for a picnic. Because of our shared Tex-Mex heritage, the cemetery picnic is also not uncommon in many parts of Texas, both Tejano and otherwise. In the East-Texas cemetary where my father is buried, there are many graves of little children, and they are decorated with toys, candles, and items of devotion. The families frequently come to see them.

I don't think that it is a sign of mental illness to gather at a graveside and mourn as a family...

[muawiyah]

Well, let's see, my grandmother had 1 son and 9 daughters. One of the daughters died when she was 8 years old.

On Decoration Day, every year, Grandma and the aunts went out to the graveyard and visited the young girl who died before her time.

Never thought about it much, but they always had lunch. Seemed pretty normal at the time. Frankly, I am really surprised there are people who don't do that!

[RS]

"I don't think that it is a sign of mental illness to gather at a graveside and mourn as a family..."

Presents, balloons and cake ( a NON-birthday party ? ) for a dead child is mourning ?
... and remember - None of these kids ever knew dead one - so the only connection is that of the parents.


In the basement of St.Martins in the Fields at Trafalgar Square in London they have a small cafe - It's kind of strange to be having lunch on the memorial stones of those buried there. I would feel a lot stranger if it was one of my relatives..