A New York judge ordered a mother struggling with drug addiction to not get pregnant until she regains custody of her youngest child, drawing sharp criticism from legal experts and reproductive rights advocates.
Family court Judge Patricia Gallaher said that her intention was to help the mother of four's chances at rehabilitation and reuniting her with her son. Another pregnancy would make that less likely to happen, she noted. Gallaher wrote her opinion in December, but The Daily Record first reported the story last month.
"Having no pregnancies should be ordered like the drug treatment, mental health treatment, and parenting classes provisions which are boilerplate now," the judge said.
The woman, identified as Brandy F., said she has worked as a prostitute, and admitted to using crack cocaine, methadone, and alcohol while pregnant with her last child. She had already lost custody of all her children based on findings of neglect.
Brandy's infant was born prematurely "and exhibited signs of withdrawal almost immediately after his birth." Her two other children were born addicted to drugs and were taken away a few years earlier. Her 16-year-old son has been living with his grandmother since 2007 after having access to a hypodermic needle.
"Over and over this court has had to order children removed from the mother only to see her show up in court in a few months obviously pregnant, often by another man," Gallaher argued.
Gallaher, who has since retired, said the case exemplified the need for courts to enforce birth control for "respondent, neglectful" mothers, citing the rise in heroin use across the US.
“This court has seen about a half-dozen seemingly ‘nice couples’ show up as respondents in neglect cases where both are addicted to heroin and literally throwing their lives away — and the lives of their children — in just this year,” she wrote.
Martin Guggenheim, a clinical law professor at NYU specializing in child rights and family law, said Gallaher was "misusing a bully pulpit" and said "the order is plainly illegal and unenforceable."
Her "failure to appreciate the important distinction between what she happens to believe is a smart idea and the limits on state power exercised through judicial pronouncements is very troubling," he explained.
Monroe County Public Defender Tim Donaher, who is representing Brandy, agreed and said he plans to appeal.
“We think that Judge Gallaher’s decision raises significant constitutional concerns regarding the right to privacy and the role of a state in telling people when or whether they can procreate,” he said.
Guggenheim said there is an extremely slim chance the order would be "affirmed on appeal," noting that despite the stark political divide on abortion, "both sides completely agree that procreative choice is an individual’s liberty."
"No one wants to live in a society in which the state gets to say who may procreate," he said.