WHO IS FIT TO PARENT?

This week, with great fanfare, the California-based Children Requiring
a Caring Kommunity brought to Chicago its innovative approach to birth
control: paying drug users $200 if they agree to sterilization or
long-term contraception.

CRACK's pilot program boasts an impressive record when viewed solely
in terms of the statistical impact its clients have had on the
child-welfare system. Fifty-seven CRACK participants had given birth
to 250 children. Roughly two-thirds of them are in foster care and
many others suffer from prenatal drug exposure complications. CRACK's
tactics clearly have appeal to a broad spectrum of child-welfare and
health professionals who contend daily with the scourge of substance
abuse. Yet something about the non-profit program remains deeply unsettling.

Some may be surprised to learn that the world's history with eugenic
sterilization is not confined to Nazi Germany and Communist China.
Social reformers in the United States advocated sterilization as a
solution to mental retardation during the early 1900s. In 1927, U.S.
Supreme Court Justice Oliver Wendell Holmes rejected the pleas of a
feeble-minded woman named Carrie Buck and allowed her forced
sterilization to go forward with the admonition that "three
generations of imbeciles is enough."

Echoes of Holmes' words reverberate in the arguments of CRACK founder
Barbara Harris, who contends that the best solution to curtailing the
number of drug-addicted babies is to stop drug-addicted parents from
having children in the first place.

Much of the criticism leveled at CRACK can reasonably be addressed by
pointing to the best interests of the children and the money saved by
reducing the number of children born to substance-addicted parents who
can't care for them.

While this type of cost-benefit analysis does much to justify Harris'
entrepreneurial spirit, it does not address a more fundamental issue
about using permanent or long-term contraception as a market-based
tool for social control.

In the law of reproductive rights and parent-child relations, public
policy-based limits on market forces are the norm rather than the
exception. For this reason, the law generally prohibits baby selling,
regulates surrogacy contracts and requires the intervention of a
social agency before a parent can voluntarily surrender a child for
adoption. All of these controls help to guard against the exploitation
of largely powerless constituencies.

Despite this fact, CRACK continues to operate in a regulatory vacuum.
Moreover, while CRACK professes to be colorblind toward its clientele,
its billboards in California, Minnesota, Florida, and now Chicago,
have been raised almost exclusively in minority neighborhoods. This
fact addresses the same concerns raised about two recent trends in the
law that affect poor black women disproportionately: the
criminalization of pre-natal substance abuse and the forced
sterilization of mothers convicted of drug use as a condition of probation.

Legal scholar Dorothy Roberts has argued that prosecutors and judges
see these kinds of reproductive penalties as appropriate, in large
part because society does not view these women as suitable mothers in
the first place. While Roberts' view is subject to debate, the
complete absence of any regulation or control of CRACK's work, "in an
area of law where such control is the norm," makes it difficult to
respond to the charge that its cash-for-fertility exchange is just
another attempt to control the birth of black children.

In the 72 years since Justice Holmes' infamous opinion on Carrie
Buck's case, the social science theories that once provided the
foundation for eugenic sterilization laws have all been repudiated. If
nothing else, this unfortunate chapter of history suggests compelling
reason to be cautious about CRACK's tactics.