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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

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