Posted on Sun, Sep. 17, 2006

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HIALEAH

Fetus' age key to possible charges against Hialeah abortion clinic

Prosecutors looking into the case of a Hialeah abortion clinic where a baby was born alive are weighing whether to file criminal charges.

BY SUSANNAH A. NESMITH, DAVID OVALLE AND JACOB GOLDSTEIN

snesmith@MiamiHerald.com

When witnesses told police a baby was born alive and later died at a Hialeah abortion clinic, Miami-Dade prosecutors found themselves trying to determine when a fetus becomes a viable baby.

If the fetus found at the clinic was at 22 weeks of gestation, as the Miami-Dade Medical Examiner believes, healthcare experts say the decision is a fairly easy one. The fetus wasn't viable.

Assistant State Attorney Kathleen Hoague said her office is still gathering evidence in the case, including two sonograms done on the mother before the baby was born.

''There are lots of questions that medically I don't have the answer to yet,'' Hoague said. ``You're talking about a fetus that could be aborted legally.''

A witness told police that someone at the clinic put the baby on the roof of the building when police first searched for it, casting suspicion on the whole incident.

''They hid the body from us for eight days,'' Hialeah police Deputy Chief Mark Overton said.

Hialeah police are pushing for indictments. They say the clinic staff should have called 911 and sent the baby -- a girl -- to the hospital.

''This has to be a homicide, an unlawful killing. It could be manslaughter, but we believe it falls in that realm,'' Overton said.

Prosecutors aren't so sure.

Hoague plans to present the evidence to medical experts to determine if the fetus was viable. But it will be at least several weeks before a determination can be made.

The case began July 20 when an anonymous woman called from a pay phone outside the clinic, saying a baby had been born alive and was killed by employees.

The next day, detectives located an 18-year-old who said she gave birth at the clinic. She declined to speak with The Miami Herald, which is not publishing her name to protect her privacy.

She told police she went for an abortion on July 19 and clinic employees gave her drugs to begin dilation. The next day, the teen said, she went to the clinic to complete the procedure. When she told the clinic staff she wasn't feeling well, they put her in a recovery room while she waited for the doctor to arrive.

In the recovery room, she said, she suddenly gave birth.

She told detectives she saw the baby gasping for five minutes as clinic staffers began shrieking, according to a search warrant.

On July 22, detectives searched the clinic -- but did not find the baby. Five days later, a source told police the baby had been tossed on the roof of the one-story strip mall.

On July 28, investigators raided the clinic again. This time, they found the baby inside a red biohazard bag in the clinic.

The medical examiner estimated the mother was 22 weeks pregnant, within the legal 24-week limit for an abortion in a clinic. Experts consider 22-week-old fetuses not viable because the overwhelming majority don't survive even in intensive care.

The medical examiner's office can't conclude from the physical evidence if the fetus was born alive or not because the corpse was so badly decomposed and because of its age, Hoague said. It's unclear if the baby's organs could have functioned.

''To the medical examiner now, this is a premature fetus that died,'' Hoague said. ``That would be a natural death because a fetus that premature that doesn't go into a neonatal unit is going to die.''

The medical examiner is basing the fetus age on several things including two sonograms done on the mother. The first one at Broward General Hospital determined she was 20 weeks pregnant, Hoague said. The second one, done at the clinic just a few days later, found she was 23 weeks pregnant.

The actual age will be crucial to any criminal case, and ultimately may be difficult to determine.

''At 23, 24 weeks you start getting some survival,'' said Dr. Richard Auerbach, chief of neonatology at Joe Dimaggio Children's Hospital in Hollywood. Auerbach said a fetus delivered at 22 weeks is considered ''nonviable'' and usually would not be admitted to the neonatal unit because the chances of survival are so low.

Guidelines issued last year by the American Academy of Pediatrics and the American Heart Association advise against trying to resuscitate babies born before 23 weeks because ``functional survival is highly unlikely.''

Dr. Saroj Saigal, director of the neonatal follow-up program at McMaster University in Canada, said that roughly 95 percent of babies born at 22 weeks die before they are discharged from the hospital.

Among those who survive, profound disabilities are common.

HARD TO PROSECUTE

Legal experts said the case will be hard to prosecute, given the conflicting sonograms and the medical standards.

''If there's going to be conflicting testimony about viability, and I suspect there is, they may not have enough probable cause for a homicide case,'' said Bruce Winick, a professor of criminal and constitutional law at the University of Miami.

Prosecutors can't legally charge anyone with a crime without at least meeting the legal standard of probable cause.

''The prosecution has an obligation here to bring a charge only if there is probable cause, which means . . . not just that it might have survived on its own, but was it likely to have survived,'' Winick explained.

Anti-abortion activists are watching the case carefully.

''In no other homicide investigation do you wonder how long would this person have lived had she not been murdered,'' said Jill Staneck, an Illinois registered nurse and anti-abortion activist who testified before Congress when it debated the Born Alive bill. Staneck is also a columnist for the website WorldNetDaily.com.

If prosecutors decide not to charge the clinic owner with any form of homicide, then they must decide whether the owner or staff violated laws regulating the proper disposal of fetuses or the licensed practice of medicine.

After the baby was born, Belkis Gonzalez, co-owner of the clinic, cut the umbilical cord and put it in a red biohazard bag, the warrant said.

Then ''Gonzalez swept the baby, with her hands, into the same red bag along with the gauze used during the procedure,'' the warrant says.

Detectives have not been able to take a statement from Gonzalez and her attorney, Gregory Iamunno, did not return repeated phone calls from The Miami Herald.

The doctor scheduled to perform the abortion was not in the building when the woman gave birth, nor did anyone present have a healthcare license, Hoague said. The doctor had seen the mother the day before.

State law requires abortion clinics to dispose of a fetus in the same manner clinics and hospitals dispose of other human tissue, using biomedical waste containers and following strict sanitary guidelines.

LEGAL PROBLEMS

The clinic owners have run into legal problems before.

Last year, three people at a Miramar branch of A GYN Diagnostic Center were arrested for practicing medicine without proper licenses. A fourth person, Kieron Nisbet, also accused of practicing medicine without a license, is still a fugitive.

One woman arrested, Joselin Collado, had been providing sonograms and dispensing medication before doctors arrived to perform abortions. She's a licensed dental assistant.

All three arrested in Miramar pleaded guilty to practicing medicine without a license and received probation. Gonzalez and the other co-owner, Siomara Senises, were not charged.

The Hialeah clinic where the baby was found has since surrendered its state license and is closed.

However, the pair runs two other clinics in East Hialeah and North Miami Beach. Both are open.

All three clinics have received complaints in the past.

A spokeswoman for Agency for Health Care Administration said inspectors have visited the East Hialeah clinic and found no violations.

The state Department of Health is investigating the case.