Judge to Decide if Retarded Woman May Give Marrow

ORANGE â€”  An Orange County judge said Friday he has authority to decide whether a severely retarded woman may donate bone marrow to save the life of her sister who is dying of acute leukemia, an issue not addressed by California law.

“The court accepts the responsibility to make a decision where the law is a void,� said Superior Court Judge John C. Woolley during a hearing in which he decided his family court has legal jurisdiction in the case.

Woolley’s ruling sets the stage for a hearing scheduled to begin Jan. 18 to determine if Patricia Bourke, a severely retarded 39-year-old woman living in a Buena Park nursing facility, will donate bone marrow to her 53-year-old sister, Kathleen Spence of Huntington Park.

Frances Bourke, the sisters’ mother, who is also a conservator for her younger daughter, has requested permission to allow the bone marrow donation that is needed for more aggressive treatment of the older sister’s disease. The leukemia has failed to respond to more conventional chemotherapy.

Barbara Mandell, the conservator’s lawyer, said she is asking the court for permission to proceed with the transplant because legally it is uncertain whether a conservator can authorize a medical procedure that will not provide a medical benefit to the dependent person.

Woolley said Friday he believes the question should have been brought to the court’s attention earlier, before blood was extracted from Patricia Bourke’s arm and the test made that determined Bourke’s bone marrow was a perfect match with her sister’s.

Woolley said he learned from a court investigator’s report that “blood was taken without anyone knowing. . . . The real question is how long this would have played out if someone hadn’t examined her arm and seen the needle mark.�

Joe Simanek, an attorney with Protection and Advocacy Inc., who is representing Patricia Bourke’s interests in court, and Mandell declined to discuss further the contents of the court investigator’s report, which has been sealed.

Court records filed by the conservator contend that Patricia Bourke is the only family member whose bone marrow was found to be a perfect biological match with her sister’s and could be used in a transplant that would give Spence a 40% chance of surviving her disease.

During Friday’s court hearing, Woolley said he was sufficiently convinced by the evidence, including a declaration by Patricia Bourke’s personal physician and the report of a court investigator, that the woman is incapable of choosing whether to allow the medical procedure.

Woolley said he also was influenced by the testimony of attorney Simanek, who said he met with Patricia Bourke last week and found “she had no understanding of my discussion with her regarding the matter.�

Mandell said she will argue that Patricia Bourke would want to help her sister if she could understand because of her family ties. “My argument is this is a family,� Mandell said in an interview after Friday’s hearing.

But Simanek said that argument holds only if Patricia Bourke recognizes her sister and shows sisterly affection for her. Otherwise, he said, Patricia Bourke would have no more interest in helping her sister than if Bourke were “a stranger off the street.�

Another factor to weigh, Simanek added, are reports that Bourke greatly fears routine medical procedures of the kind that would be involved in a bone marrow donation. “She is incredibly afraid of needles and doctors and such,� he said.