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April 5, 1994


Appeal from the Circuit Court of Cook County. The Honorable Gary L. Brownfield, Judge Presiding.

The Name of this Case has been Corrected by the Court June 6, 1994.

DiVito, Hartman, McCormick

The opinion of the court was delivered by: Divito

Presiding Justice DiVito delivered the opinion of the court:

This case asks whether an Illinois court can balance whatever rights a fetus may have against the rights of a competent woman torefuse medical advice to obtain a cesarean section for the supposed benefit of her fetus. Following the lead of the Illinois Supreme Court in Stallman v. Youngquist (1988), 125 Ill. 2d 267, 531 N.E.2d 355, 126 Ill. Dec. 60, we hold that no such balancing should be employed, and that a woman's competent choice to refuse medical treatment as invasive as a cesarean section during pregnancy must be honored, even in circumstances where the choice may be harmful to her fetus.

Both the factual background and the procedural posture of the case are important. "Doe" is a married woman who was expecting her first child. She sought and had been receiving regular prenatal care throughout her pregnancy at St. Joseph's Hospital in Chicago. All parties and the court regarded her as mentally competent.

On November 24, 1993, Dr. James Meserow, a board-certified obstetrician/gynecologist and expert in the field of maternal/fetal medicine who is affiliated with the hospital, examined Doe for the first time. A series of tests he ordered performed on her suggested to Meserow that something was wrong with the placenta, and that the approximately 35-week, viable fetus was receiving insufficient oxygen. Meserow recommended immediate delivery by cesarean section, in his opinion the safest option for the fetus or, in the alternative, by induced labor. Informed of his recommendation, Doe told Meserow that, because of her personal religious beliefs, she would not consent to either procedure. Instead, given her abiding faith in God's healing powers, she chose to await natural childbirth. Her husband agreed with her decision.

Doe was examined by Dr. Meserow again on December 8, and by a Dr. Gautier from the University of Illinois at Chicago on Thursday, December 9. After consulting with Gautier, Meserow concluded that the condition of the fetus had worsened. Meserow advised Doe and her husband that due to the insufficient oxygen flow to the fetus, failure to provide an immediate delivery by cesarean section (Meserow no longer recommended inducement as an option) could result in the child being born dead or severely retarded. Doe reiterated her opposition to a cesarean section, based on her personal religious beliefs.

On December 8, 1993, Dr. Meserow and St. Joseph's Hospital contacted the office of the Cook County State's Attorney. That office filed a petition for adjudication of wardship of the fetus on December 9, seeking to invoke the jurisdiction of the Juvenile Court Act (705 ILCS 405/1-1 et seq. (West 1992)), and asking that the hospital be appointed custodian of the fetus. The juvenile court Judge appointed an assistant public defender as counsel for Doe and her husband. The Judge, who expressed doubt as to whether the JuvenileCourt Act conferred jurisdiction over a fetus in utero, certified the question for immediate appeal to this court, and set the matter for hearing on Friday, December 10.

At approximately 5 p.m. on December 9, 1993, an assistant state's attorney prevailed upon a Judge of the appellate court, first district, to hear an emergency petition for leave to appeal pursuant to Supreme Court Rule 306 (134 Ill. 2d R. 306). Several assistant state's attorneys and assistant public defenders, as well as Doe and her husband, met in the chambers of the Judge for several hours. During this time calls were placed to medical personnel at St. Joseph's Hospital, and the attorneys and the Judge spoke with doctors there. Arrangements were made for Doe, with her consent, to be examined at the University of Illinois Hospital for the purpose of getting a second opinion as to her condition. The meeting in chambers adjourned at about 9 p.m., with no formal rulings or orders entered.

On the next day, in an emergency hearing, the parties' attorneys appeared in chambers before a three-Judge panel of this court, along with Doe's husband; Dr. Meserow; John Seibel, attorney for St. Joseph's Hospital; and counsel from the Roger Baldwin Foundation of the ACLU, Inc., seeking leave to appear as amicus curiae. Doe was not present; her husband explained that she was upset by the previous day's court proceedings and was at home resting in bed. No court reporter was present.

During the emergency hearing, the assistant state's attorneys asked the court for an order forcing Doe to undergo an immediate cesarean section to deliver the fetus. Following argument, the majority of the panel, one Judge Dissenting, held that the appellate court lacked jurisdiction to hear the case because no order had yet been entered by the circuit court, and therefore remanded the case to the circuit court. The majority also suggested that jurisdiction would not lie under the Juvenile Court Act, and that an order compelling a pregnant woman to submit to an invasive procedure such as a cesarean section would violate her constitutional rights. The panel further advised the parties that it would remain available that day to hear any appeal that might be taken once the circuit court entered an order.

Later that afternoon, the juvenile court Judge commenced the hearing on the issue of the circuit court's jurisdiction, and whether an order compelling Doe to submit to surgery should issue. After oral argument from the parties' attorneys, the court ruled that the Juvenile Court Act does not apply to a fetus. The court held, however, that it had equity jurisdiction over the State's petition as a court of general jurisdiction, and denied the public defender's motion todismiss the State's petition. The State then sought leave to file an amended petition, which was granted, and filed instanter its amended "Petition for Hearing on Whether a Temporary Custodian Can Be Appointed to Consent to a Medical Procedure: To Wit Cesarean Section."

Counsel for Doe and her husband moved to dismiss the amended petition, and the motion was denied.

Counsel from the Roger Baldwin Foundation of the ACLU, Inc. (ACLU), asked leave of court to appear as amicus curiae on behalf of Doe and her husband. The Cook County Public Guardian, Patrick T. Murphy, asked leave of court to appear as amicus curiae on behalf of the State. The court granted both motions. Subsequently, the Public Guardian asked to be appointed guardian ad litem for the fetus. The court granted this motion as well, over the objection of the public defender. Still later, Doe and her husband retained counsel from ACLU as their attorneys on appeal.

The hearing then proceeded on the amended petition. The State called Dr. Meserow as its only witness. Meserow testified that he could not ascertain whether the fetus was already injured, or quantify the degree of risk to the fetus from continuing the pregnancy. He indicated that a fetus has some coping mechanisms to deal with decreased oxygen, and that those mechanisms appeared to be functioning. In his expert opinion, the likelihood of injury to the fetus increased on a daily basis, and the chances that the fetus would survive a natural labor were close to zero. On cross-examination, Meserow further testified about the specific medical procedures involved in a cesarean section, and the serious risks and possible side effects to Doe of such procedures. Although he recommended a cesarean section as the safest mode of delivery for the fetus, Meserow was not advocating that the cesarean section be performed over Doe's objection.

Counsel for Doe and her husband called no witnesses, but entered into a stipulation with the State which was accepted by the court: Doe received the recommendation from the physicians, understood the risks and benefits of the proposed procedures and, in consultation with her husband, decided to await natural childbirth.

On December 11, 1993, the court heard closing arguments and then denied the State's petition. All three parties appearing in the case--the State, the Public Guardian, and Doe--submitted proposed findings, and the court entered all of them. Essentially the findings included the following:

1. The fetus is 36 1/2 weeks and viable outside the womb.

2. The lungs of the fetus have worked independently for 2 weeks.

3. The child can live outside the womb with out any assistance of medical technology.

4. Because of medical complications, the chances of the unborn child surviving natural childbirth (the process of labor) are close to zero.

5. If the child were to somehow survive natural childbirth he would be retarded.

6. The unborn child suffers from placental insufficiency which means he is not receiving adequate oxygen and that during the process of labor the placenta will not deliver the needed oxygen and the child will die or suffer the death of the brain cells ...

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