Life Question for Fetus Seen as Crucial to Rights Issues

While Marie Odette Henderson lies brain dead in a hospital here with life support systems keeping her 6-month-old fetus alive, her parents and boyfriend head to court for an unprecedented custody battle.

Henderson, 34, never regained consciousness after surgery June 4 for a brain tumor and was proclaimed legally brain dead three days later.

The San Francisco school teacher’s condition first pitted her parents and boyfriend against each other when Otis and Edna Henderson, of Oakland, asked doctors to disconnect their daughter’s life-support systems.

Derrick Poole, 31, learned at 9 p.m. on June 11 that his girlfriend’s life-support systems would be disconnected the next day at 10 a.m. In an effort to save his unborn child, Poole contacted a San Francisco anti-abortion group that found him an attorney.

Frantic Effort in Night

Attorney Mark Swendsen scrambled through the night to get a temporary restraining order naming Poole the legal guardian of the fetus. Santa Clara County Superior Court Judge John A. Flaherty signed the papers at 8:45 a.m. and Swendsen rushed it to the hospital only 15 minutes before doctors were going to disconnect the life-support systems, he said.

“Had they been married he (Poole) clearly would have been the one to make the decision of life support,” said Denise Clarke, spokeswoman for Kaiser Permanente Medical Center in Santa Clara.

The Hendersons, their attorneys and Poole are not commenting on the case.

A Wednesday court hearing will answer what Swendsen considers to be the two main questions in the case: What are the rights of an unwed father to determine the fate of his unborn child, and what are the rights of the child in the womb?

In the few medical cases where a brain-dead mother’s body has been kept alive to save the child, the couples were married.

Henderson and Poole had been living together in Oakland for 11 months and had planned to get married, Swendsen said. The Hendersons and Poole have not spoken to each other since he was temporarily named the legal guardian of the fetus, Swendsen said.

Doctors want to keep the female fetus, known as “Baby Poole,” in its mother’s uterus as long as possible to increase the chances for survival.

Chance for Survival

If the mother’s body functions, such as blood pressure, circulation and the digestive system, begin to deteriorate, doctors would perform an emergency Caesarean section. However, the chances of survival for a 26-week-old fetus are only 10%, said Dr. Stephen Fernbach, director of the intensive care nursery at Kaiser.

In two or three weeks, the chances for survival would increase to 75%, Fernbach said. In most cases, the body of a brain-dead person can only be maintained for two weeks, doctors said.

In 1983 doctors at UC San Francisco kept a brain-dead woman’s body on life support for nine weeks and delivered a 3-pound boy by Caesarean section. The baby, 1 1/2-months premature, suffered from a minor lung disease as an infant, but is healthy today, said Dr. Russell Laros, a perinatal specialist who worked on the case.

“The key difference in our patient’s case was that there was unanimity on the part of the family,” Laros said.

Poole cannot prove that his girlfriend would have wanted him to keep the child, Swendsen said.

Parents’ Expectations

“They (Henderson and Poole) had discussed the baby and were happy about it, but they didn’t anticipate that something this bizarre would occur,” Swendsen said.

Baby Poole has remained in stable condition in its mother’s uterus since June 7. However, hospital spokeswoman Clarke said doctors don’t know if its health has been affected by its mother’s condition before death, or by the medications the mother received.

The biggest threat to the fetus is that it could suffer neurological damage because of oxygen deprivation, Laros said.