Family Court cannot order a bad mother not to have any more children

A state appeals court in Rochester, N.Y., has resolved an interesting question of law: can a Family Court order a bad mother not to get pregnant until she cleans up her act? The appellate court said "no."


The case is In the Matter of Bobbijean P. After the baby was born addicted to cocaine, the Monroe County Department of Human and Health Services placed her with a relative. When the mother failed to show up in Family Court, the court ruled that her parents (who were homeless) were guilty of neglect. The court also ordered that the mother "shall not get pregnant again until and unless she has actually obtained custody and care of Bobbijean P. and every other child of hers who is in foster care and has not been adopted or institutionalized."

The Appellate Division reversed. First, it excused the mother for not showing up in Family Court since she was unaware that the court would take the unprecedented step of ordering her not to get pregnant again. The appellate court reasoned: "Regardless of whether respondent willfully defaulted with respect to the hearing, an order prohibiting respondent from conceiving a child is, insofar as our research discloses, unprecedented in this state, and such consequences could not have been anticipated by respondent."

More broadly, the appellate court said, the Family Court had no authority under the rules to prohibit the mother from getting pregnant again. Apparently, another court in New York held that the rules governing Family Court contained implied authority for the courts to impose this condition. That case is Matter of V.R., 6 Misc 3d 1003[A], which broadly interpreted the rules allowing the courts to order certain medical treatment. But, the Appellate Division said, "In our view, the compelled use of birth control measures is not encompassed within the term 'medical treatment' . . . nor does a prohibition against reproduction address the goals of remedying the acts found to have caused the neglect or of safeguarding the well-being of the child within the meaning of " the Family Court rules.

This case obviously raised important constitutional issues, which is probably why the New York Civil Liberties Union got involved. A line of U.S. Supreme Court cases holds that the Constitution guarantees the right to procreate. But the Appellate Division side-stepped those issues because there was an easier way to overrule the Family Court. The question of whether a court may order a woman to avoid getting pregnant will have to be decided some other time.