Section: MAIN
Page: A1
Date: Tuesday, December 1, 1992

WOMAN CLAIMS ABORTION DENIED

A woman who claims that she was deprived of the right to abort a deformed fetus while serving time in the Schenectady County Jail is suing the state and the county over the birth of her severely handicapped daughter.

    Susan Demir-Schmitt of Corinth says in two separate lawsuits that the state Division of Parole and Schenectady County refused to recognize her right to terminate a pregnancy. Her mentally and neurologically impaired daughter, Sarah Jane, was born Dec. 19.

     Demir-Schmitt was about six months pregnant when she was jailed in September 1991 on a parole violation, records show. While incarcerated, she received the results of an ultrasound procedure on Oct. 2, 1991, showing that the fetus was deformed, according to E. Stewart Jones Jr. of Troy, one of her attorneys. Demir-Schmitt immediately requested an abortion, but officials "ignored" her, Jones said. By the time she was released on Oct. 25, 1991, she was more than seven months pregnant and beyond the point at which a pregnancy can legally be terminated in New York.

     Abortion in this state is legal through the 24th week of pregnancy.      "She was never given the opportunity to exercise her right," Jones said. "The fact that you are in custody does not deprive you of the right to medical attention. She was deprived of medical attention. Basically, they just abandoned her. They ignored her requests."      Jones said the child suffers from substantial brain damage and physical defects. She lives at home but will eventually have to be institutionalized, he said.

     Robin B. Phelan, an attorney with the Albany firm of Thorn & Gershon, which is defending Schenectady County, denies that Demir-Schmitt was deprived of medical care. She said Demir-Schmitt, after her release from jail, could have traveled to some Midwestern states that allow abortions throughout a pregnancy.      "The records that I have had the opportunity to review show she was released from jail with ample opportunity to terminate the pregnancy," Phelan said. "There are places she could have terminated the pregnancy outside of New York state. She was counseled to that effect. For whatever reason, she chose not to terminate the pregnancy."

     Phelan also said Demir-Schmitt has admitted that she refused to accept prenatal care offered at the Schenectady County Jail.      The case appears to present an interesting legal issue. While courts in New York routinely award damages for a wrongful death, they have generally rejected claims for what is alleged to be a wrongful birth, attorneys said.      However, the damages claimed by Demir-Schmitt in the state Court of Claims and Supreme Court in Schenectady County actions extend beyond the unwanted birth of Sarah Jane.      Demir-Schmitt contends, in documents filed in the Court of Claims, that she continues to sustain emotional harm, which results in both physical and mental anguish. She complains of cramps, shaking, nausea, numbness, bleeding, swelling, toxemia, headaches and insomnia.      Jones declined to put a dollar amount on how much he will seek in the two lawsuits to compensate Demir-Schmitt and to pay for the perpetual care of her daughter.

     Assistant Attorney General Providence Baker, who is defending the Division of Parole, contends in court papers that the state is blameless. Baker argues that the state is not responsible for the actions of local jail officials and also maintains that Demir-Schmitt was at least partially responsible.

     Demir-Schmitt is also represented by attorney Randall E. Kehoe of Albany.

Schenectady County Jail inmate requested abortion, but was ignored, lawsuits say She later gave birth to severely handicapped girl .