Bill's Big Stuff

My friend, Peggy Kaplan, at What If?, posed a difficult question earlier this month: “Is the ability to procreate a right? Or a privilege?” Just to quibble a bit with the English, what I think she is asking is, “Is having children a right or a privilege?” I posted some related material on this back in April.

As best as I can deduce from her post, which uncharacteristically did not give a link, a couple addicted to cocaine, and ordered to counseling, had conceived another child, with three at home, all testing positive for cocaine, and the judge jailed the mother, stating, "This court believes the constitutional right to have children is overcome when society must bear the financial and everyday burden of care."

Peg’s well-placed concern is for the rights of the children and the unborn child. This is quite a can of worms, but I think an interesting can of worms. We have the rights of the children, who are innocent, conflated with the crimes and sins of the parents.

An underlying assumption in all the following discussion is that abortion as an option has either been refused or is not to be considered. This discussion deals with full-term babies. Abortion does an end-run around all this, but it has so many difficulties that I want to leave it alone for now. Also I don’t think the state has the right to command a woman have an abortion – it would be state sanctioned murder to too many people, myself included.

Ultimately the question becomes where does the ability of the state to protect the rights of the defenseless, in this case unborn and born children, end and the right to have children begin? I am not sure there is one single answer to fit all situations but I think there are some possibilities to discuss.

Let’s start with a very obvious case, a woman for what-ever reason born congenitally mentally defective. The defects are severe enough that she is most likely unable to take proper care of her hygiene at menarche much less take care of an infant or even understand pregnancy and childbirth. In such a case her guardians would surgically sterilize her before menarche.

Right away there are going to be echoes from the past of eugenics and genocide. I was very careful to spell out the conditions of this situation. Genetics had nothing to do with the givens. The potential mother is totally incapable of properly exercising the right to have children. Just as we place other mentally incompetents in institutions or give them limited responsibility commensurate with their mental capacity, so we are limiting this one person’s options.

Now let’s look at another extreme. Two parents, both of them mentally competent, possibly highly intelligent. There are no incompetency reasons for them to avoid having children. However, one or both of them has a genetic defect that can potentially doom any children, or cause any children to have defects requiring large amounts of medical care. The easiest case is, if they know of this problem. The moral decision here would be to not have children and either remain childless or adopt. If only one of them has the defect, then modern fertilization techniques could produce a child with half its genes from the non-defect parent, and the other half from a donor of their choice.

Let us now suppose they do not know of this defect but have a child. If the child lives to birth and beyond, what happens then? If the parents are financially capable, they would provide necessary medical care as long as is possible. They would assume the responsibility for their lack of knowledge. But suppose they had financial resources to raise a normal child, but not a severely disabled one? Ultimately they still have responsibility, but they would require outside assistance. My preference would be for private assistance, but unfortunately that is unlikely and the state will somewhere get involved.

In the case of private assistance, strings can be attached to the money, such that the parents would find out why the child was born disabled, and measures (such as sterilization or at the least birth control) would be required to prevent further such births. With private money, there is a choice by the parents to accept under those conditions or not. If the state becomes involved the issue is much thornier. If the state puts such conditions on assistance, assuming a civil rights lawyer doesn’t prevent it, then there becomes a coercive element as illustrated by the example that started this post. If the state simply provides the assistance with no conditions then it is pure unqualified welfare, and taxpayers will have to support all instances with no hope of relief. (I haven’t provided any answers yet to the question, I am still scoping out the territory.)

So far the hypothetical situations do not involve any wrong doing on the part of the parents, the children are being provided with the best care possible under the circumstances. When we look at parents that have children but are unwilling or unable to care for them or willingly engage in behavior that is harmful directly or indirectly to their children, it gets much messier.

First of all, let’s acknowledge that the proper care of children is not a money question. It requires care, love, attention to what they are doing, consistent rules, and adequate nutrition. All of those things can be supplied on a lower class income, and even on a poverty level income with some assistance for food and necessities such as medical care. In fact, I personally know of situations where a middle-class family has physically and mentally abused their children (and unfortunately gotten away with it).

Starting with a parent or parents that have a child that they 1) don’t know what to do to raise it properly, and 2) don’t seem to be able to learn. In this situation, one way or another, authorities or private agencies were notified and have tried to intervene. Nothing seems to help, and the child is being raised in unhealthy conditions with poor nutrition and no caring or love. At some point, the child must be removed from the environment for its own protection. It usually is placed in a foster home. After that the future gets cloudy, to quote the fortune teller. We’ll return to this in a bit.

In the case of parents that are convicted of criminal wrong-doing, the conviction supercedes any parental standing. The children have to become either sole custody of the innocent parent or wards of the state. Their future is also cloudy.

Now let’s take the situation of an addicted mom that would not quit her habit during pregnancy. This is the messiest of the situations so far, because the fetus is impacted by her behavior and will require considerable extra care as an infant and probably through its lifetime. The odds are it will be deficient in some learning abilities, as well as having other problems. My first reaction to this scenario is that she has already proven that she is an inadequate mother, and the child should be removed from her custody at birth, permanently. However, there are those who would argue that if she cleans her act up, she should have the child back. My reply is, if she didn’t clean it up when pregnant and the worst damage occurs then, what chance is there for her to clean it up later? My attitude is, if she cleans up her act and then has another baby, stays clean, and cares for it – she gets to keep it. In this case motherhood has to be earned. Here I begin to see some potential answers for this issue.

Parents that use drugs should be treated the same as parents that are criminals. Note that I personally do not see the need for the drug war, and with the exception of the impact on parenthood, see no reason for drug users to be criminalized.

So far, we have considered various scenarios where parents are inadequate for their children for differing reasons, some innocent and some morally corrupt. In the process of explicating the situations I am beginning to see some possibilities of answers. In the case of genetically deficient parents, once they know, they are morally obligated to have no more children. Where they fail to live up to that obligation, the responsibility of caring for the child if it survives will be further deterrent. In general, though in specific cases I can see it leading to great inequity, I do not see a compelling reason for the state to step in with punitive measures. Where the parents become unable to care for the child and it becomes a ward of the state, I can see that the state then does gain a compelling interest. We’ll discuss that further below.

For parents that are inadequate from the get-go, criminal parents, and drug abusers while parents, we have children in foster homes that need a future. This is where I get hard-hearted, and say that they forfeited their parental rights, and the children should be placed for adoption. [I do not mean adoptions in the current meaning of the word where biological parents can retrieve the child years later to the detriment of all (blog topic?) but a hard and firm adoption where the biological parents are given no opportunity to ever find the child again. This should occur early in the child’s life, not later]

When we get to the case of a pregnant, inadequate mother, how do we protect the fetus with minimum of destruction of the rights of the mother? If the mother is inadequate to care for the child, but can provide a healthy prenatal environment, (her health and nutrition are adequate), then nothing needs to be done. The fetus is protected, and the law can be responsive rather than proactive. In the case of criminal mothers, prison can provide adequate prenatal care. When the child is born, either the other parent has custody if able, or the child is put in a foster home or up for adoption (again in my sense of the word), depending on the remaining length of the prison term.

A pregnant, substance-abusing mother (drugs or alcohol) presents an especially difficult case practically, but not necessarily theoretically. The practical problem is that substance-abusers will be very crafty at hiding their pregnancy and will avoid medical care. The theoretical side is that this person is endangering her unborn child, and the rights of the unborn child can become compelling, especially as the mother is also endangering herself. The self-endangerment in my thoughts is not sufficient for the state to step in, but because it is conflated with the welfare of the fetus, adds additional merit to state action. At the point at which a substance-abusing pregnant woman is detected, she should be institutionalized until her child is born. During that time the best medical care should be used to optimize the withdrawal effects and enhance the life-chances of the fetus. Once the child is delivered, the mother can be allowed to go back to whatever life she wants, and the child placed for adoption. If the mother claims to want to keep the child and raise it, then let her have a very long probationary period in which she is given the opportunity to do just that. She blows it, and the child is gone.

What has come from this discussion is that I do not see grounds for the state to interfere with the right to HAVE children. However, I see that the state can and, in some cases, should interfere with KEEPING children once they are born. This comes from the fact that once the child is born, it is a legal entity in its own right and is capable of living physically independent of the mother.

Prevention in the form of mandatory birth control or sterilization is not practical nor in the hands of the state safe. Birth control depends on the cooperation of the person taking it, and given the intensity of all species to procreate is not reliable, especially with those persons who see a baby as the only thing of value they might produce. With the exception noted at the beginning of congenitally unfit parents, sterilization is not to be considered. Emotionally and politically it is out of bounds.

I think, at this point, that I have two dangling threads, the first is foster children from formerly adequate parents, that can no longer care for them. In this case a determination has to be made if the situation is temporary or permanent. If temporary, then foster care with the children later placed back in the home is recommended. If permanent, and not solvable with the various private and public assistance programs, then instead of playing wishful-thinking games, the child(ren) should be placed for adoption.

The second dangling thread is the parents that produce mentally or physically disabled children, knowing that having (more) children would lead to this. I don't know that there is an answer for all situations. Nothing seems to provide a "right" answer. Letting them have children will expose the potential children to lives of greater or lesser difficulty or even misery compared to normal. Mandatory sterilization has extremely bad political connotations. Offering a choice between sterilization and going to jail or some other consequence may have merit, but I really don't have an answer here.

Returning finally to the case that started this exercise: the judge should put the children in foster homes with a view to adoption, and the mother in jail until the child is born, at which point the child is put out for adoption and the mother and father can go to Hell in their own particular way.