Rochester Ruling On Procreation Is Wrong

A Monroe County Family Court judge has made national news by ordering a woman and a man not to have any more children. Her order is wrong for a number of legal and policy reasons. But first some background: Stephanie gave birth to Bobbijean, who was fathered by Rodney. Bobbijean was immediately removed by the county social services agency. Allegations about the couple made by Monroe County during subsequent court hearings do not encourage sympathy for the couple: drug use, other children in foster care.

On the county’s testimony, the judge validated the baby’s removal, even though neither parent nor a legal representative for either parent was present to refute the allegations. But the judge went one step further: she ordered both parents not to have any more children until they regain custody of all of their children in foster care. The court held that the possibility that taxpayers might be burdened by taking care of Stephanie and Rodney’s potential future children overcame Stephanie and Rodney’s right to conceive them.

The judge has stated that she merely “applied the law to the facts of the case,” but the judge got it wrong. The judge’s ban is bad law and bad policy.

First, the order not to procreate violates Stephanie’s and Rodney’s fundamental rights to reproductive autonomy guaranteed by the United States and New York Constitutions: “The decision whether or not to beget or bear a child is at the heart” of the “cluster of constitutionally protected choices,” such as marriage, contraception, abortion, and family relations, so proclaimed the Supreme Court 27 years ago in Carey v. Population Services International.

• Also, the order violates their rights to due process under the law, as neither Stephanie nor Rodney had prior notice that they could be subject to such a restriction — the county hadn’t even requested such relief — or had an opportunity to refute the county’s allegations.
• The order is unenforceable and thus breeds disrespect for the law.
• The judge is attempting to solve a problem she calls “the cycle of neglect,” that is best remedied by a comprehensive, political approach, not individual punishments.
• The ban, if replicated, will disproportionately impact low-income people and people of color — populations who are overrepresented in Family Court proceedings.

The New York Civil Liberties Union and other groups are trying to locate Stephanie to see whether she wants assistance appealing the order. Regardless, the NYCLU will monitor closely future orders of this and other county family courts to ensure that family court judges don’t continue to trample on the rights of those in front of them.

Click here to read the judge’s ruling on the New York State Unified Court System web site.