The Miracle of Birth Nikki McArthur • Take reproductive rights out of the courts. Commencement 2004

On March 31st, a man and a woman in Rochester, New York, were ordered to stop having children. The woman has four children, all of whom are in foster care. Three of the four children tested positive for cocaine at birth; the fourth was not tested. The man was father to two of the woman’s four children. Both the man and the woman were ordered to stop having children until all four of the woman’s children were out of foster care. Furthermore, they were ordered to wait until the mother and the father were both clean enough to raise children competently. The fourth child born was taken from them before they even left the hospital.

Judge Marilyn O’Connor, who handed down the ruling, used two main arguments to support her decision. First, she argued that society should not be forced to bear the burden of the couple’s irresponsibility. Second, she argued that children should not be born in a family which is not suited to take care of them.

The ruling, unsealed on the seventh of May, seems a prime example of the worst form of government oversight. It has long been understood by civil rights advocates that the right to procreate is one of the most fundamental, and for a court to take that right away would contravene a basic civil liberty. However, some may point out that the ruling is consistent with many already existing practices. For example, it is already common practice to take a child away from a family in which he or she is being abused. How different is it, then, to ensure that children are not born into families in which they most likely will be abused? Additionally, the government already holds the right to take a person’s life away if he or she forfeits the right to it. Thieves and murderers are sent to prison; some criminals are even put to death. If the government has the power to take away such a fundamental right as the right to life, why should it not be able to take away the right to procreate?

Though initially appealing, such simple arguments in favor of the ruling passed down two months ago lack the subtlety needed to deal with an issue as complicated as reproductive rights. While allowing children to be born into households which will not take care of them well seems an atrocious act, the government must not intervene with the right to reproduce.

First, the argument that it is better for a child not to be born at all than to be born into a family where it is not wanted runs counter to experience. No one deserves to live in a household in which he or she is subject to neglect. If one were to put himself into the position of a neglected child, however, he would likely find himself struggling for life. It is certainly hard to imagine that this person would willingly acquiesce to his own murder. It is clear that neglected children, unfortunate though their fate may be, desire life. For this reason, it is strange to say that they are better off having not existed in the first place.

Second, the argument that society should not be forced to care for the children of irresponsible parents is overwhelmingly callous. Children are not like a new highway system, the cost of which overtaxed citizens must bear begrudgingly. They are people unto themselves. To look upon potential life as nothing more than a financial burden is to reject the beauty of life and the beauty of procreation. Such a viewpoint should not be encouraged by the government.

Third, taking away the right to procreate is different from taking away any other right – even the right to life. The right to procreate is one of the few rights enjoyed by humans which extends outside of ourselves. O’Connor’s ruling abides by the assumption that procreation is entirely about the parents. She assumes that if parents are not ready to have children, then children should not be had. Although irresponsible procreation should not be encouraged, it must be understood that procreation is about more than whether or not a mother and a father are ready to have children. Humans are free to do what they will with their own lives. If they want to risk a life in prison in order to commit a crime, that is a decision that they can make. Procreation, though, deals with not one person, but three – the mother, the father, and the baby. Because it cannot be possessed by one person solely, the right to procreate is distinctly different from every other right we enjoy.

Fourth, there are many practical concerns with regard to O’Connor’s ruling. Most important among these is the question of enforcement. O’Connor assures the public that she is not forcing the couple to use contraception, become sterilized, or have an abortion, although she does encourage them to take advantage of free sterilizations offered by the county. In other words, if the couple becomes pregnant, they will go to jail. There are at least two problems with this. First, it sends out a bad message about pregnancy if getting pregnant becomes a crime. In a society in which it is hard work to get a woman to believe that fetuses are not her enemies, it is unwise to jail a woman for bearing a child. Second, the woman is necessarily going to feel compelled to get an abortion if she does get pregnant. She is going to be forced to choose between the child she carries and jail time. This is not a choice any woman should ever face.

Finally, Judge O’Connor sets our country sliding down a dangerous slope with this ruling. There are many reasons why Americans are so reluctant to let the government involve itself in issues of reproductive freedom. One reason, mentioned above, is the delicacy and complexity of the issue. Another reason, though, is that any time society becomes involved in reproduction, we move a little bit farther down the slippery slope toward eugenics. Now that the government is able to control who can have children, what is to stop them from controlling what type of children citizens are allowed to have?

Judge O’Connor’s March ruling stands in harsh conflict with our fundamental appreciation of life. We must realize that life is too much of a gift to be ruled on in court; reproduction is too much of a miracle to be treated as a conditional right. Although it is hard to defend a man and a woman who have allowed four children to enter into the foster system, the government must not interfere in the ability of a man and a woman to reproduce. Such interference is not just unconstitutional— it is callous and simple-minded.

Nikki McArthur is a rising senior in Saybrook College and Editor-at-Large of the Yale Free Press.