THE OCTOMOM & THE CONSTITUTION: Should Nadya Suleman lose custody of her 14 children? A look at the Constitutional issues


The Despicable Octomom:

Should Nadya Suleman lose custody of her 14 children?

Nadya Suleman became the most vilified mother in American history in 2009 after it was revealed that she, an unemployed, insolvent and unmarried woman, had birthed fourteen children with the help of assisted reproductive technologies.  Her stunning choice to give birth to fourteen children by in vitro fertilization, while at the same time being unmarried, unemployed and insolvent, resulted in a fire storm of criticism and public outrage this country has not seen since the Roe v. Wade.  Many have called for her to lose custody of her children due to her questionable reproductive choices.

It is well established in the United States tradition that parents have a fundamental right to custody of their children and removing the Suleman children without clear and convincing evidence of parental unfitness would seem to do violence to these traditions. In Wisconsin v. Yoder, the court held “the history and culture of Western Civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children is now established beyond debate as an enduring American tradition.”

In a landmark decision, Troxel v. Granville, the Supreme Court of the United States opined, “The right of a parent to care for and control his or her children is a fundamental constitutional right guaranteed by the federal and state Constitutions.” Citing the Fifth and Fourteenth Amendments the court stated that the state shall not “deprive any person of life, liberty or property, without due process of law.” The Court also expressly stated that these liberty interests are particularly sacrosanct where parental rights are concerned and cited a slew of case law that articulates this proposition. However, the Troxel court implied that there could be exceptions to the general rule and one exception seems to be if the parent is deemed “unfit.” The Court opined, “fit parents act in the best interest of their children.”

Nadya Suleman clearly did not act in the best interest of the six children she already had and could not provide for, by using IVF to impregnate herself with eight additional children. She did not act like a “good mother” by making that choice. On the contrary, many in the public consider Nadya Suleman a “bad mother” precisely because of her unmarried marital status; and because she is, ostensibly, low-income (on public assistance and living with her parents to make ends meet); and because she has made the “crazy” procreative choice to have fourteen children, in spite of the reality that her life circumstances and financial resources did not support this as an option for her.
Merely making bad procreative choices, however, i.e., having too many children, does not seem, without more, to render a parent unfit. (“[C]ardinal with us [is the notion] that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations that state can neither supply nor hinder.”  Prince v. Massachusetts.)
Still, one can understand the argument that Nadya Suleman is unfit because she is unprepared to properly care for her fourteen children’s financial needs; and that this unpreparedness, coupled with her bad choices, makes her a “bad mother;” and that because she is a bad mother she could cause “harm” to her children (at least financially); and so she should lose custody of her children. It is easy to understand this argument. After all, good mothers do not approach their reproduction and procreation the way Nadya Suleman did. Good mothers are able to provide for and care for their children without donations, hand-outs and welfare assistance. Good mothers do not choose to have additional children when they can barely fend for those they already have. Good mothers are fit to retain custody of their children because they make good reproductive choices; and good reproductive choices are determined by how well a woman’s procreative choices match up with her financial status, class, marital status, physical appearance and other factors. When juxtaposed against good mothers like Hillary Clinton, Princess Diana, Angelina Jolie, Kate Gosselin, Rose Kennedy and Michelle Obama, and their progeny, it is easy to see why Ms. Suleman has been found lacking.

For starters, Nadya Suleman is unmarried. She is also poor and cannot afford to provide for her children. While she has gained world-wide celebrity, it is of the infamous nature rather than the famous. Nadya Suleman can scarcely be argued to be “inarticulate” however, she most definitely is not considered “polished,” “sane,” “selfless,” “coherent,” “loving,” “strong,” “generous,” or “admirable,” like most of these women. None of these qualities present in the favored group of good mothers are present in Nadya Suleman.

Further, there was nothing “good” about the way Nadya Suleman exercised her Roe  right to choose; or her giving of life. There was nothing admirable and sane about it. Rather, her choices were, at least in the minds of her critics, untraditional, controversial and selfish. She chose a large family when a smaller family, or no family, was the “right choice” given her marital status, socio-economic status, class, and lack of celebrity. In short, Nadya Suleman is a “bad” and “unfit” mother because, quite simply, she is merely Nadya Suleman, a woman without status, resources or celebrity.  She has been called by many epithets including “crazy” “despicable” “immoral” “abusive” and “pathetic excuse for a mother” and many believe she should lose custody because of this reputation.
Nonetheless, a presumption of unfitness does not satisfy the constitutional standards for state action such as removal of the children. The Constitution guarantees Ms. Suleman substantive and procedural due process prior to the state assuming custody of her children. Her fitness to parent pursuant to Meyer v. Nebraska (“Liberty in the Fourteenth Amendment includes the rights of parents to establish a home and bring up children”) and to establish a home and bring up fourteen children without the necessary financial resources such a task demands, may indeed be questionable; and her extreme and reckless procreative decisions potentially will have a detrimental effect on the lives of her children – and this may indeed make her unfit parent – but the state cannot presume her unfit unless she has had an opportunity to be heard. If, after a hearing, she is proven unfit, then the state would arguably have a compelling interest in protecting the children’s lives; but there may be other more narrowly tailored ways to accomplish this objective other than removing the children from her custody. In Stanley v. Illinois, 405 U.S. 645 (1972), the Supreme Court upheld the principle that an unwed father could not be presumed to be an unfit parent, but was entitled to a hearing pursuant to the Equal Protection Clause of the Fourteenth Amendment.
The standard of analysis in a case such as the Suleman case should be strict scrutiny and the state should show by clear and convincing evidence that Ms. Suleman is unfit before the children are removed. In his concurring opinion in Troxel, Justice Thomas opined that with regard to parental liberties, the standard of analysis for these fundamental liberty interests should be strict scrutiny: “The opinions of the plurality, Justice Kennedy, and Justice Souter recognize such a right, but curiously none of them articulates the appropriate standard of review. I would apply strict scrutiny to infringements of fundamental rights.”

Nadya Suleman had a fundamental right to have as many children as she chose. In 1973, the Supreme Court of the United States decided the landmark case, Roe v. Wade, in which a “pregnant single woman (Roe) brought a class action challenging the constitutionality of the Texas criminal abortion laws, which proscribe procuring or attempting an abortion except on medical advice for the purpose of saving the mother’s life.” The Texas law was struck down as an unconstitutional infringement on the same day, a Georgia Supreme Court decision Doe v. Bolton, was also struck down, for similar reasons. In both instances, it was determined that pursuant to the Fifth and Fourteenth Amendments, a woman has a fundamental privacy interest to choose to terminate a pregnancy that had not yet reached viability. Implicit in that decision is the right to choose motherhood if that is the woman’s desire.

Public outcry to the Roe decision in 1973 was as tremendous as it was in 2009 when Nadya Suleman gave birth to eight in vitro babies, even though both cases were diametrically opposed. Many Americans who protested Roe believe that life begins at conception and felt that a law that allows a woman to end that life as inherently bad and immoral. Subsequent amendments to the 1973 decision, including the Hyde Amendment, have curtailed the broad reach of the 1973 law in order to pacify these vehement objectors to the breadth and scope of Roe. In Stenberg v. Carhart, Justice Breyer, in explained:
“Millions of Americans believe that life begins at conception and consequently that an abortion is akin to causing the death of an innocent child; they recoil at the thought of a law that would permit it.
While it appears that those who objected to the Roe decision did so because they felt it was immoral to terminate a pregnancy and “cause a death to an innocent child,” many today vilify Nadya Suleman for failing to “selectively reduce” her multiple pregnancy on the basis that it was immoral of her to have more children than she could afford; especially given the fact that she is unmarried, insolvent, unemployed, and had these children by non-traditional means, i.e., without a father and by in vitro fertilization.

Those who object include many who consider themselves “pro-life.” They argue that this is not an issue of “pro choice and “pro life” but that of a woman who made reckless reproductive choices, and who, therefore, should fend for herself.  It is more than just a little bit ironic that what makes Nadya Suleman the most detested and disdained mother in the history of the United States was her decision and choice to give birth to too many children. It begs the question: did Nadya Suleman make a mockery of both the pro-choice and pro-life arguments? It seems she took both to the extreme tenth power; she “over-chose” and “over-reproduced.”  She crossed the line in the most jarring manner, made outrageous choices, and forced an entire nation to re-evaluate what it means to be either pro-life or pro-choice.

Neither of these two camps wants to be associated with Nadya Suleman. But if hers is not a pro-life and pro-choice issue, what is? The pro life position seems, ostensibly, to be about the sanctity of life, and preserving it at almost any cost – including at the expense of the life of the mother. But there appears to be  an exception: it does not apply in a situation where the mother is unmarried, unemployed, and poor and is using assisted reproductive technologies to procreate and have more children than she can afford, especially when she already has a few children before she makes the choice to have more.  Conversely, if this was not a pro-choice issue, then what was it? The pro-choice position seems to be in favor of freedom to choose for all women. But there is an exception: women in a disfavored group can choose to procreate if they are in a traditional family structure that includes a husband, if they can afford to independently provide for their offspring, and if they don’t have an excessive number of children.

One over-riding issue, even amongst pro-life advocates, was the notion that Nadya’s choice would be unfairly burdensome to taxpayers who would have to foot the bill for the care of her children through the welfare system. The irony is that there nothing unusual about the government assisting parents with the financial care of their children. Both federal and state governments have a history of providing financial assistance to tax payers and their children. The states do so by providing tuition-free public education which includes school lunches, textbooks and school supplies; free medical insurance for low income children and their families; food stamps; disability insurance and care; legal assistance including free legal services for parents and children in family court and criminal proceedings; housing assistance; foster care and adoption services and parenting classes. This list is not exhaustive. The federal government provides assistance through federal programs such as Title IX and No Child Left Behind. However, while there are millions of children enjoying these benefits from the state and federal government, many argued that Nadya Suleman’s fourteen children would be the needle that broke the back of the tax paying camel; and that it would unfairly burden the tax payers.

The public reaction to Nadya Suleman’s decision seems to suggest that there is a discriminatory application of the right to choose doctrine. All women do not have an equal choice to choose; and not all life will necessarily be treated as sacred. The public’s reaction also seems to suggest that how the children are conceived, or howthe parent becomes a parent, matters. For instance, had Nadya Suleman chosen to adopt fourteen children she might have been perceived as the new Mother Teresa. Had she been wealthy, she would have been the new Rose Kennedy. Had she been married she might have been dueling Kate Gosselin for top spot as America’s most beloved mom of multiples. Had she been a celebrity like Angelina Jolie she would have been offered an ambassadorship with the UN. Had she been Hillary Clinton and Michelle Obama, she would have been celebrated for producing “heirs to the throne.” She was none of these things. Therefore her motherhood is illegitimate and foul. She was bad, despicable and immoral. She was an unfit mother who should lose custody of her children.

It is questionable whether divesting Nadya of custody will pass constitutional muster because it is not the least restrictive means to achieve these compelling state objectives and it is not narrowly tailored. For one thing, there is no evidence that all attempts have been exhausted to assist Ms. Suleman with her parenting duties. As the TroxelCourt stated, “the Due Process Clause provides heightened protection against government interference with certain fundamental rights and liberty interests.” 521 U.S. at 720. That being the standard, the state would arguably have to show, prior to interference with Nadya Suleman’s fundamental parental rights, that she received parenting classes, counseling, psychiatric aid, custody evaluations, family counseling, therapy and child care assistance, among other things. The state would have to go much further than the fact that Nadya Suleman had more children than she was economically able to provide for without public assistance, prior to interfering and removing these children from her custody. The state would have to show that the children are suffering actual  harm. Failure to demonstrate that there is a compelling interest and no less restrictive means, would cause the state to fall short of the constitutional due process mandates of the Fifth and Fourteenth Amendments and do violence to established American traditions and constitutional and family law jurisprudence.

Table of Cases
Roe v. Wade, 410 U.S. 113 (1973)
Stenberg v. Carhart, 530 us 914, (2000)
Meyer v. Nebraska, 262 U.S. 390 (1923)
Troxel v. Granville, 530 U.S. 57 (2000)
Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438 (1944)
Wisconsin v. Yoder, 406 U.S. 205, 92 S.  Ct. 1526 (1972))
Unedited version
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