Do We All Have A Right To Procreate?

Though we would rarely admit it, most of us, upon hearing about some abusive situation, have muttered about requiring a license to parent or “fixing” the offenders so at least no child will have to go through that again. But when push comes to shove would we really think either was a good idea?

Carter Dillard, writing in the Georgia Law Review, is not exactly recommending either (in fact, he speaks, rightly, of parental licensing schemes as “comical”). But he is, very seriously, arguing that there should be no fundamental right to procreate, that there is a duty on prospective parents to be “fit,” and that courts should have the right to issue no-procreation orders in certain limited circumstances.

In the narrowest case that Dillard focuses on, it’s hard to argue: If, due to egregious harm to previous children, a no-custody order has already been issued, such that any child born is immediately taken into state custody, wouldn’t it be better for all to prevent such a pregnancy in the first place with a “no-procreate” order?

Trouble is, this seems to me almost as rife with problems as parental licensing. Much as Dillard wants to separate out the principle from how it would be implemented, I can’t.

Dillard never manages to acknowledge that the state does a pretty awful job in most cases of determining “fitness” now, and often gets it wrong (in both directions). Some of that can’t be avoided: We need to be able to take kids out of danger, even if we suck at it. But I heard in Dillard’s writing a disturbing willingness to expand the definition of “fitness” tests to include finances (how much money is “enough”? does it matter how you spend it?), “pending neglect cases” (and if they were ruled to be unfounded, as many are?). It just seems like a clear slippery slope to pre-emptive sterilization of people who are different, poor, etc.

But even if we do set aside implementation for a moment, Dillard’s argument that his “no-procreate” orders could be good for everyone by shifting resources from helping kids who have already been harmed to prevention rings a bit hollow.

For that to work, the no-procreate orders would actually have to substantially reduce the number of children born into abusive situations. But only a tiny fraction of the worst cases already have no-custody orders. And even then, how to ensure the order works? Forcible abortion? Sterilisation? (Long sordid history of that already) Court-ordered Norplant (serious side effects for many people)? Criminalizing sex? Imprisoning people? Sending them to a convent?

The answer, of course, is you don’t. You just say it, and if it’s violated, it changes to a “no-custody” order and unspecified penalties are applied after the fact. Could that have a deterrant effect? Unlikely. At least for women, if carrying a pregnancy you know you’re going to have to give up isn’t a deterrant, it’s hard to know what would work better. And most men in this situation are unable to pay the child support they already owe and any other penalties may suck for them, but it’ll make it even less likely that they end up paying. Pregnancies are not always preventable, and in stressed families like this, are also rarely planned.

Would the orders make a point? Perhaps. But they’re not going to make some huge difference in the number of kids who are born to “unfit” parents or who end up abused.

Here’s what might work better:

If you want to put resources into prevention—of unwise pregnancies and of abuse—do it. Don’t wait for some neat legal principle to make you feel better about it. Fund health care, birth control, abortion, good sex ed, parenting education, respite services, and domestic violence response, etc. and improve access to them. There’s plenty of info out there about how to do these things well. If you want to ensure that babies born to parents with a history of serious enough abuse that they already have a no-custody order in place aren’t bounced around from foster home to foster home and maybe-maybe-not back to birth parents sometime (which I agree is not a good plan), make no-custody orders include automatic termination of parental rights for any child conceived after they are issued and allow the kid a permanent adoptive home from day one. It’s still subject to errors in judgment, but at least you know it’ll have real results. (And, frankly, it might be more of a deterrent than some random legal penalty.) (Note: This suggestion works when both bio parents have the no-custody
order. What is the proper response when it’s only one of them who is
subject to such? I don’t know.) Ick.

Photo by walknboston.