The Right to Procreate
When a parent is having trouble living up to the legal obligations of being a parent (not paying support or neglecting/abusing the child), people in the “system” hope that the parent does not do something to make the situation worse. When a parent is struggling with their obligations to the children they have, the last thing they need is another child. I have been involved in many situations that just seem incredible. Parents who are struggling to support the kids they have out there, turning around and producing more.
I was once involved with a case where the state was moving to terminate the rights of a mother in her three children. By the time the matter was all the way through court, and the appeals process, the mother had lost her rights in the three kids, but she had one more already, and another on the way. When courts are faced with people who just cannot reasonably be expected to provide for another child, the urge is to stop them before they bring another life into being.
At least one court as offered a father a choice between jail and castration when he repeatedly failed to pay child support. So far, most efforts to come up with a physical solution to people’s trouble with their children has not faired well in the higher courts. These efforts run into the right to procreate, which has been designated as a right under the US constitution. The federal courts have recognized some limitation on the right to procreate. The Ninth Circuit held that a prisoner did not have the right to procreate by Fedex during his term of incarceration. (Gerber v. Hickman, 291 F.3d 617 (9th Cir. 2002)).
The Ohio Supreme Court is being asked to review a trial court’s order in a criminal case directing a father to refrain from having any more kids for the next five years. NPR had a story on this this morning, and the Cleveland Plain Dealer has more extensive coverage:
Sean Talty, according to court records, isn’t sure how many kids he has fathered.
Six for sure. Probably seven.
But his lawyer, J. Dean Carro, is certain of one thing: A judge’s order requiring Talty to make “all reasonable efforts” not to have more is unconstitutional.
The Ohio Supreme Court will weigh today the unusual sentence that Medina County Judge James Kimbler imposed on Talty for failing to pay child support.
Talty, 32, who installs windows and siding, is more than $30,000 behind in support for three daughters he fathered with two women, including an ex-wife. He has made regular payments since Kimbler’s decision.
Talty, who has fathered children by five women, also owes support in Butler, Summit and Wayne counties.
Carro and prosecutors agree that reproduction is a fundamental right protected by the Constitution, but they differ over a judge’s authority to curtail it.
