Barbara C., Matter of
| Citation | 116 Misc.2d 31,455 N.Y.S.2d 182 |
| Parties | In the Matter of BARBARA C. A patient at Brooklyn Developmental Center. |
| Decision Date | 23 September 1982 |
| Court | United States State Supreme Court (New York) |
Sal Sidoti, Asst. Atty. Gen., for the Atty. General's office.
Dennis Feld, Brooklyn, for Mental Health Information Services.
Before the Court is an Order to Show Cause in which the petitioner, John J. Sabatos, Director of the Brooklyn Developmental Center, a mental institution and a part of the Department of Mental Hygiene of the State of New York, seeks the Court's permission to have an abortion performed on a patient at the Brooklyn Developmental Center, by the name of Barbara C.
Barbara C. is a 25-year old female who is profoundly retarded. Her mental age is less than that of a two-year old and she is non-verbal. She is presently approximately in her 21st week of pregnancy, the origin of which is unknown.
On September 9, 1982, a similar motion was made before this court to have the same procedure performed on the basis that the continued pregnancy was "life-threatening". The evidence presented at that time was woefully inadequate to establish any real medical danger resulting from carrying the fetus to term. The present motion has abandoned that theory in favor of the theory that since Miss C. is unable to consent or not consent to the proposed procedure that the consent of her next of kin, in this case her father, William C. may be substituted to allow the procedure. In this case also there is no doubt that Miss C., being pregnant, will have to undergo some type of medical procedure, whether it be an abortion at this point or a delivery at term. The father has consented to the procedure and is willing to execute such consent in favor of the facility. The question before the Court, therefore, is may the consent of a next of kin, where the patient lacks any ability to consent, be substituted to allow the proposed procedure.
Under Section 125.05 of the Penal Law, an "abortional act is justifiable when committed upon a female with her consent by a duly licensed physician acting ..... within 24 weeks from the commencement of her pregnancy."
Mental Hygiene Law Section 33.03 provides, in part: "(A) Each patient in a facility and each person receiving services for mental disability shall receive care and treatment that is suited to his needs and skillfully, safely, and humanely administered with respect for his dignity and...
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... ... As a preliminary matter, the Court notes that although discovery related to class certification closed on March 1, 2005, see Order of Jan. 1, 2005 [Dkt. # 99], no ... any appropriate medical procedure, including an abortion, with regard to the pregnancy of her severely mentally disabled daughter); In re Barbara C., 116 Misc.2d 31, 455 N.Y.S.2d 182, 183 (N.Y.Sup.Ct.1982) (holding that, under New York law, a father has the right to consent to an abortion for ... ...
- Barbara C., Matter of