COURT AFFIRMS 'RIGHT' TO BE DEADBEAT DAD.

Byline: CHRIS WEINKOPF

SURPRISING though it may sound, the U.S. Constitution protects not only the freedoms enumerated in the Bill of Rights, but also a special liberty as precious and inviolable: The right of prison inmates to package their semen, express-mail it to their wives and, through the magic of modern science, become fathers from behind bars.

Such is the wisdom of a three-judge panel of the U.S. Court of Appeals for the 9th Circuit. That means that for the time being, the law in California and the eight other Western states governed by the 9th Circuit guarantees inmates a constitutional right to father children through artificial insemination.

But perhaps not for long. The majority of the court's 25 judges has voted to let an 11-member panel reconsider what one judge called the ``seminal'' case of William Reno Gerber.

Gerber is an inmate in the state prison system, facing up to 111 years behind bars, 55 if he plays his cards right. During a drug-induced rage in 1997, he started shooting up his home with an illegal gun. His wife called the police, who promptly arrived and arrested him. The subsequent conviction led to Gerber's third strike under California's ``three-strikes'' law, and thus the life sentence.

For reasons that she alone can understand, Mrs. Gerber now wants to bear the child of the man who frightened her into calling 911 that day. Unfortunately for the Gerbers, California penal code bars conjugal visits for inmates serving life sentences, which means the couple can't go about conceiving their offspring the old-fashioned way. Instead, they hope to make a Gerber baby by way of artificial insemination.

The warden, however, refused to go along with the plan. This being America, the Gerbers sued.

They didn't have much luck until their case made its way to the 9th Circuit. But in September, the three-judge panel ruled that even though the U.S. Constitution predates artificial insemination and overnight delivery by two centuries, it guarantees both to prison inmates. And so now, unless the larger panel or the U.S. Supreme Court overturns the decision, Gerber - and the roughly 25,000 other lifelong inmates in California prisons - will be free to spread their seed to any willing recipients on the outside.

The panel's broad finding that ``the fundamental right to procreate survives incarceration'' isn't even limited to procreating with wives. Presumably it also includes the right to procreate with girlfriends or, for that matter,

through sperm banks.

The judges were careful, though, to insist that just because male inmates can ship their sperm outside the prison doesn't mean that female inmates can have sperm shipped in to them. ``In this case, we cannot ignore the biological differences between men and women,'' the judges noted - a first for the San Francisco-based court.

But, logically, women's right to procreate must also ``survive incarceration,'' and so if left standing, the panel's ruling could one day lead to a prison maternity ward. A footnote to the judges' decision suggests that a female inmate would be entitled to ``donate an egg to her lesbian partner or a surrogate mother.''

When judges get in the business of constructing ``rights'' from thin air, there's no telling where the fun might end.

The panel's decision was itself the extrapolation of other rulings on the rights of prisoners, the first allowing them to marry, the second protecting them from mandatory-sterilization programs. Yet at the heart of both precedents was the common-sense understanding that incarceration necessarily means forfeiting some of the freedoms enjoyed by the law- abiding: Inmates can marry, but they can't cohabit; states cannot sterilize inmates, but only because inmates retain the right to procreate after their release.

There are good reasons why the state sends some of its residents to prison, both to punish them and to protect the rest of society. Convicts are denied certain rights because they've proved themselves unable to exercise them responsibly. They cannot drive cars or even walk about freely. They cannot own weapons. Often, they're not even allowed shoelaces or belts, for fear that they'll use them to strangle themselves or each other.

Yet, according to a panel of the U.S. Court of Appeals for the 9th Circuit, men who cannot be trusted with proper footwear are perfectly fit - and legally entitled - to father children they will never be able to see regularly, provide for or nurture.

If the panel's ruling survives, convicts will have an inalienable right to become deadbeat dads, and taxpayers will end up paying to raise their children. But the children themselves will pay a far greater price, thanks to an activist court that cared more about an inmate's ``right'' to procreate than a child's right to two parents.