The headline over a 1994 op-ed article in a Boston newspaper asked the question Who Stole Jane A’s Baby?  The article referred to a case I heard in which I found that a 30-year-old mentally retarded woman, if fully aware of all the circumstances involved, would choose to proceed with her pregnancy and permit the birth of her child. The Massachusetts Appeals Court reversed my decision and ruled that she would choose to terminate the pregnancy.  At the time that I heard the case, Jane was just over 4 months pregnant.     

Jane had a tough history.  She was born with severe mental disabilities.  Her mother failed to provide her with adequate care and proper hygiene.  She had her first sexual encounters at age 13 with one of her brothers and with other boys in her neighborhood.  Astonishingly, her mother blamed her for these activities.  Jane was removed from her home and went through a series of placements, often lashing out with fiercely violent behavior as she moved from placement to placement.  There were periods of sexual activity during home visits.  Twice, Jane contracted a treatable sexually transmitted disease.

Jane’s life took a turn for the better in 1986 when she was placed in a staffed apartment with three other disabled adults.  The environment was highly supervised, structured, and directed, which matched Jane’s needs nicely.  Her violent outbursts dramatically decreased; she began participating in field trips.

Sometime in 1993, she had sex with one of the other residents of the apartment with whom she was friendly and she became pregnant.  Both participants were mentally disabled; no force was involved.  The act was deemed non-coercive.        

The Department of Mental Retardation (now called the Department of Developmental Services) filed a petition in Boston’s Probate and Family Court requesting that a decision be made for Jane concerning an abortion.  Massachusetts law applies a “substituted judgment” standard whereby a court does not substitute its own judgment for the incapacitated person, but rather tries to determine what that person would choose to do if she could step outside of herself and make a competent choice on her own behalf knowing all of her own circumstances.  

The doctrine may be clear, but applying it is not easy in a case like Jane’s.  The court has to consider, among other things, the person’s religious beliefs, the impact of the decision on her family, her previous decisions, the probability of adverse side effects, and her expressed preference. 

In Jane’s case, I was presented with a blank slate.  Jane’s family had not been involved in her life for years and their previous involvement had been negative.  Jane had no religious beliefs; her IQ was in the mid-fifties with a mental function of that of a three to four-year-old child.   To illustrate the extent of Jane’s disability, one expert testified that it would take years to teach Jane to boil an egg.  She was unable to understand that she was pregnant and was incapable of expressing a preference concerning abortion.  Either choice - having an abortion or giving birth - would be traumatic and destabilizing for Jane, wiping out the progress she had made in staying calm and participating in community life.  The evidence also established that the child was developing normally and that there was no reason to believe that the child would suffer from any of his or her parents’ impairments.

In the end, I found that if competent, Jane would consider the fetus as an important factor in making her decision and would not choose to have an abortion.  The appeals court overturned my decision, writing that there was no evidence to support the finding that Jane would consider the fetus as she did not even understand pregnancy and the nature of what was happening to her physically. 

While I was not surprised by the reversal, the ruling that Jane would not consider the fetus was somewhat confusing.  The case would not be in court if Jane were having her gall bladder removed because routine medical decisions do not need court involvement.  The only reason for the case to be in court was the status of the fetus.   Clearly Jane could not comprehend the fetus given her severe mental impairments.  However, the legal standard is what Jane would do if she were competent and could take into account her present incompetency and the nature of the decision being made.  One imagines a competent Jane hovering over her own bed and listening to all of the pertinent arguments pro and con.  A “hovering” and “competent” Jane may have chosen abortion but it is hard to believe that in making her decision she would not have given thoughtful consideration to the life within her.