Woman Seeks Marrow From Retarded Sister

An Orange County judge asked to decide if a severely retarded woman may donate bone marrow to save her sister’s life said Friday that this might be the first such case in California.

Superior Court Judge John C. Woolley on Friday continued a hearing into the matter for a week to hear from the donor’s physician. But observing that “there is no California law on the issue,” Woolley said he will not wait for the state Legislature to act, because a woman’s life is at stake.

Woolley said he recognizes a need for haste, since a City of Hope physician has determined that 53-year-old Kathleen Spence of Huntington Park suffers from a rare and particularly aggressive form of leukemia and can survive only two more years at most without the transplant if she receives chemotherapy.

In a court declaration, Dr. Ashwani K. Agarwal said that in his opinion a bone marrow transplant from her sister, whose marrow is a perfect match, would give Spence a 40% chance of an “absolute cure.”

Agarwal also said bone marrow donation is “an extremely low-risk procedure” that can be done while the donor is under general anesthesia by injecting a needle into the hipbone.

Spence’s sister, Patricia Bourke, 39, who was found to be retarded when she was about 3, is unable to care for herself and has “the mental capacity of a toddler,” according to court records. She lives in a residential nursing facility in Buena Park.

The plea to the court to allow the transplant has been made by the sisters’ mother, Frances Bourke, 80, of Huntington Park, who has been her younger daughter’s legal guardian and conservator since 1977.

Frances Bourke said in court records that her three sons would be willing to donate bone marrow to their dying sister, but theirs is incompatible with hers.

The mother said she believes that it is in Patricia Bourke’s best interest to help, both because she has a close attachment to her older sister and because if Spence survives, she can help watch over her sister when her mother dies. She noted that two of Bourke’s three brothers live outside Southern California.

Moreover, the mother said in court records, “There is also no doubt in my mind, based upon my understanding of the nature of all my children, that this procedure is something that Patty would absolutely consent to if she had the mental and legal ability to do so.”

Contacted Friday at her Huntington Park home, Frances Bourke said:

“It will not hurt Patty in the least. Her bone marrow will grow back, and it is the only possible way of a cure. We can only hope and pray things will turn out all right.”

Kathleen Spence said in the documents that she and her younger sister “have always had a very special relationship.” She said as a teen-ager she took almost motherly care of Bourke, 14 years her junior. Later, she said, she visited the retarded girl when she was sent to a residential school in San Bernardino, intervening to have her transferred to another institution when she felt her sister was being mistreated.

The case was brought to court because while Frances Bourke has the authority to make decisions for her daughter, Patricia is a ward of the court. Because this decision was so unusual, her mother had to seek its guidance.

Barbara J. Mandell, the lawyer representing the mother, said that although the question of bone marrow donations by the mentally retarded is new in California, courts in other states, including Kentucky, Texas, New York, Connecticut and Massachusetts, have authorized transplants of bone marrow and kidneys between siblings when the donor was mentally incompetent.

Woolley said his decision will not be binding in the future on any other California court determining the legality of bone marrow donations by the mentally disabled. But he said if his decision is appealed, it could lead to a precedent-setting decision by a higher state court.

In court Friday representing Patricia Bourke was Jim Simanek, an attorney with Protection & Advocacy Inc., a nonprofit organization serving the interests of the disabled.

Simanek told the judge that one California statute permits courts to stand in for the mentally ill in deciding what they would want to do with their money and other material possessions, but not their bone marrow or kidneys.

Woolley held over the hearing on court jurisdiction until Friday. It is important, he told the conservator, that he first receive evaluations from Patricia Bourke’s personal physician and a court investigator that will satisfy him that she is not capable of choosing whether she wants to help her sister.