Ethics briefing

Legal prohibition on procreation

The election of George Bush heralded a shift to the right in American politics and with it the expectation of a more conservative approach to issues such as abortion. In an interesting twist, however, the Wisconsin Supreme Court has upheld a decision that has been described as potentially “coercive of abortion”. David Oakley, a father of nine children with four different mothers was found guilty of intentionally refusing to pay child support and was sentenced to three years in prison followed by five years' probation. As a condition of his probation, Oakley cannot have any more children unless he demonstrates that he has the ability to support them and that he is supporting the children he already has. Failure to comply with the conditions of the probation would result in a further eight years' imprisonment. Oakley argued that the condition violated his right to procreate, since he was unlikely ever to be able to support all of his children, but his appeal was rejected. The majority decision held that, since the conditions were “not overly broad” and were “reasonably related to the person's rehabilitation”, the conditions of probation could legitimately impinge upon constitutional rights. In dissenting from the majority decision, Ann Walsh Bradley, J stated: “[b]ecause the condition is triggered only upon the birth of a child, the risk of imprisonment creates a strong incentive for a man in Oakley's position to demand from the woman the termination of her pregnancy. It places the woman in an untenable position: have an abortion or be responsible for Oakley going to prison for eight years”.1

One commentator has pointed out that, in this case, “one precept of rightwing politics–that the state should not pay for the upkeep of offspring irresponsibly acquired–has come into conflict with another: that normal healthy people should …