In Ohio, Supreme Court Considers Right to Procreate

A Man Behind on Child Support Got Orders Not to Beget

MEDINA, Ohio -- Sean Talty fathered seven children with five women and fell $40,000 behind on support payments, once going two years without making a payment.

When he appeared in Common Pleas Court on felony charges for not paying child support, Talty found himself before one fed-up jurist: Judge James L. Kimbler ordered the 32-year-old Akron resident to take "reasonable efforts" not to get anyone pregnant for five years -- or go to jail.

That was two years ago, and today the Ohio Supreme Court hears oral arguments in Talty's case to decide the constitutionality of what has come to be known as "pay up or zip up."

"There's no limit in the constitution on the number of children you can have," said Talty's attorney, J. Dean Carro, a University of Akron law professor. "If he were a man of means, he would have paid it up. He doesn't have any money. He's supporting the kids to the best of his ability."

Medina County prosecutors have argued in court papers that the judge's order meets a three-part test established by previous court rulings: It aids rehabilitation, relates to the original crime and helps prevent more criminal activity because Talty -- also deep in debt -- will not create any new obligations.

Kimbler said the rights of people on probation and parole are routinely taken away. They can be forced to take drug tests, remain at home under house arrest or be searched without probable cause. "We interfere with fundamental rights of probationers all the time," the judge said in an interview. "This has to be seen in the context of parolee and probationer rights."

But some bioethicists say that in cases where the legal system interacts with reproductive rights, it is best for courts not to intervene in such intimate details. "It is as well grounded as any constitutional right to privacy," said Arthur L. Caplan, director of the department of medical ethics at the University of Pennsylvania.

He said Talty's case could set a significant precedent: What would stop the government from forcing a mother whose child would be born with spina bifida or cystic fibrosis to have an abortion? What would prohibit a judge from requiring a mother who receives welfare to get contraceptive implants? (A decade ago, a California judge did just that, but a state appeals court overturned the order.) "Cases like [Talty's] make great water-cooler discussion," Caplan said. "But if we open that door, there are very ugly things behind it. It's very tough to interfere with reproductive freedom."

A case similar to this one, however, has held up to scrutiny. In 1999, a Wisconsin man was sentenced to three years in prison and five years of probation on three separate counts of failure to pay child support. The man, David Oakley, was also ordered not to father any children during probation "unless he could prove to the court that he could support them all." The decision was upheld by the Wisconsin Supreme Court. The U.S. Supreme Court did not hear the case.

Laura W. Morgan, who headed the American Bar Association's committee on child support, said such cases set a bad precedent for society. She said she wishes more people tailored their family size to their budget, and she noted that Talty does not inspire sympathy.

"He should have to pay," she said.

"There are, however, lines that government can't cross," Morgan said. "I would hope that we are well away from the line where the government can tell you how many children you can have."

As part of the national push to reduce the welfare rolls, lawmakers and prosecutors made a concerted effort in the late 1990s to get deadbeat parents to pay what they owe. State and federal laws now allow officials to suspend driver's licenses, require paternity matches at birth and deny the passports of parents who owe more than $5,000.

The biggest hammer has been the National Directory of New Hires, which requires employers to submit a list of all new hires, their quarterly wages and any unemployment claims. Those employees who have outstanding child support have their wages automatically garnished, said Wade F. Horn, assistant secretary for children and families at the Department of Health and Human Services.