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A
Legal Matter?
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 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 recently in the Georgia Law Review,
is not exactly recommending either (in fact, he speaks, rightly,
of parental licensing schemes as “comical”). But he does,
very seriously, argue 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 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? I don’t think I would go to the mat
for a universal right to procreate.
Trouble is, the implementation 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 acted upon,
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 things like finances (how much money is “enough”?
does it matter how you spend it?), and “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. It could get scary
fast.
As one commenter wrote when I posted about this online, “I
swear, only the people who believe they could never
be poor enough, sick enough, marginalized enough, or stigmatized
enough to be personally affected by policies like forced sterilization
or immediate severance of parental rights advocate for this
kind of thing.”
Another wrote “Decisions about who is and isn’t fit to be
a parent are currently made by all the wrong people. Case
workers who have no training and judges who have never met
the parents outside of short court sessions are frequently
the only ones involved. If this is how we handle the current
situation, should the powers that be really be given MORE
say over families?”
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 to “free up” that money. 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? Sterilization?
(There’s a long sordid history of that already.) Court-ordered
Norplant? (It has 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 deterrent
effect? Unlikely. At least for women, if carrying a pregnancy
you know you’re going to have to give up isn’t a deterrent,
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.
I can’t pretend that I think I have any complete answer to
the miserable damned-if-you-do, damned-if-you-don’t mess that
is child protection. But I don’t think Dillard’s on the right
track.
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. Fix the current system so that case workers
and legal guardians have substantial training and drastically
lower caseloads. Prioritize stable, permanent placements and
fix the ways in which the system discourages good foster and
adoptive parents from participating. There’s plenty things
to do that would make a concrete difference.
Child welfare is seriously hard. But much like procreation
and parenting themselves, it can’t be separated out from the
messy real world in which it occurs, and so answers that come
from the rarified world of theoretical jurisprudence are likely
to fall seriously—even dangerously—short.
—Miriam
Axel-Lute
www.mjoy.org
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