By Carrie Spencer
The Associated Press

COLUMBUS - The Ohio Supreme Court is weighing the constitutionality of a judge's order that a man try not to father more children while on probation for failing to pay child support.

"While conceiving children is not a crime, not supporting them is," Judge James L. Kimbler of Medina County Common Pleas Court wrote two years ago in his sentencing of Sean Talty, who acknowledges fathering seven children by five women.

Talty has appealed the order, which requires him to make "reasonable efforts" not to impregnate anyone during his five-year probation. His attorney argues that the sentence makes wealth a requirement for reproduction to ensure that children don't end up on welfare.

"It is not the function of the trial court to protect the assets of the taxpayers," J. Dean Carro said.

Prosecutors and Talty's attorney agree that reproduction is a fundamental right protected by the U.S. Constitution.

What the justices must decide is whether fathering children is a right that may be curtailed for someone on probation or parole - such as a convict ordered to provide urine samples or not talk to drug-dealing friends.

The Medina County Prosecutor's Office is arguing that the condition meets a three-part test established by previous rulings. In documents filed with the court, prosecutors said the order aids Talty's rehabilitation, is related to the crime for which he was convicted and "reasonably" relates to preventing more criminal activity.

Kimbler sentenced Talty in 2002 after he pleaded no contest to two counts of failing to pay about $38,000 in child support to three of his children with two women, including his former wife.

Since then, Talty, 32, has married the woman he was living with in Medina, paid the court-ordered $150 weekly in back child support and not fathered more children, Carro said. His two children with his new wife were not involved in the child support case. The state Department of Job and Family Services can't release how much Talty still owes.

"In a lot of ways, he's an ideal probationer," Kimbler said.

The 9th Ohio District Court of Appeals in Akron upheld the sentence, saying the condition "is directly related ... to his future rehabilitation and compliance with his child support obligations."

Justices will hear the case May 11. A decision is expected by fall.