Jeremy Olson writes about children and families, and is an overscheduled father of two. His blog tackles the best and worst of parenting, families, health and love. He wants to hear from you - what's going on in your house?

Can courts prevent parents from having more kids?

Posted by: Jeremy Olson Updated: December 5, 2012 - 12:46 PM

A judge in Racine, Wisc., did exactly that Monday when he told a man behind on child support payments that he couldn't have more kids until his debts were paid in full. The man owes $100,000 in child support, and has nine children with six different mothers.

At the prompting of the Racine County prosecutor, judge Tim Boyle stated the no-more-kids condition as part of a probation sentence for the father, Corey Curtis. Boyle lamented that he didn't have the legal authority to order sterilization.

"Common sense dictates you shouldn't have kids you can't afford," the judge said.

Legal scholars debate whether such an order is constitutional in the U.S., but there is legal precedent in the state of Wisconsin. A 4-3 decision in a 2001 case by the Wisconsin Supreme Court ruled that another father -- who coincidentally had also fathered nine children -- could be barred from having more kids until he showed he could financially support his current children. (Among the arguments in that majority opinion: the man was being given probation instead of time in prison, where he surely wouldn't have any kids.)

The judge in Racine determined that his ruling was sufficiently narrow, in that Curtis had a way to have children again if he so desired, said Mike Steenson, a professor who teaches constitutional law at the William Mitchell College of Law in St. Paul. "He can pay his way out of the restriction. If he pays his child support, he can have more children."

Steenson disagrees with the ruling, though, and believes that it -- and other rulings like it -- violate the U.S. Constitution and the American right to procreation. He said there are more rulings like this than are known, and that most receive little attention and don't get appealed. (In news coverage of the Curtis case, it does not appear that Curtis will appeal either.)

American legal history on this issue traces back to 1927, when the U.S. Supreme Court made a ruling in favor of a Virginia statute permitting the sterilization of a woman who was deemed mentally retarded. In reference to the fact that the woman's mother and first child also had mental disabilities, Justice Oliver Wendell Holmes issued the infamous quote that "three generations of imbeciles is enough."

American law has gradually moved away from this decision, though, which was based on the notion of "eugenics" and that the nation should weed out deficient gene pools.

Regarding forced sterilization of criminals, the High Court ruled in 1942 in the case of Skinner vs. Oklahoma that sterilization could not be a condition of sentencing for a crime.

Steenson said there is no guiding Minnesota case law on this issue. He wondered how law enforcement could possible trace and enforce such a condition.

 

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