Ninth Circuit bars inmate's plan to father a child.

Prisoners have no constitutional right to procreate, the Ninth Circuit held in a case involving a California inmate who wanted to mail his semen to his wife for artificial insemination.(Gerber v. Hickman, 291 F.3d 617 (9th Cir. 2002).)

The en banc decision overturned a ruling by a three-judge panel of the circuit. (Right to Procreate Survives Incarceration, Ninth Circuit Rules, TRIAL, Dec. 2001, at 76.) The plaintiff, inmate William Gerber, is serving 100 years to life at Mule Creek State Prison. Gerber had sought permission for a laboratory to send him a plastic container he could use for the mailing. Gerber stated that he and his wife would bear any costs associated with the procedure and that it would not compromise prison security.

The court said that a prisoner's removal from society necessarily involves the separation of the prisoner from loved ones, including a spouse. While the U.S. Supreme Court has held that the basic right to marry survives imprisonment, the Ninth Circuit said, most of the attributes of marriage--cohabitation, physical intimacy, and bearing and raising children--are inconsistent with incarceration. Writing for the court, Judge Barry Silverman said that it is "well-settled" that prisoners have no constitutional right to conjugal visits, although states may choose to allow them.

Citing more Supreme Court case law, Silverman wrote that the right to marry and "many important attributes of marriage," such as expressing emotional support and exercising religious faith, survive incarceration. But, the right to marry, like other constitutional rights retained by inmates, "is subject to substantial restrictions."

The court said its decision was not related to any technological issues raised in this particular case. "Our conclusion that the right to procreate is inconsistent with incarceration is not dependent on the science of artificial insemination, or on how easy or difficult it is to accomplish," the court said. "Rather, it is a conclusion that stems from consideration of the nature and goals of the correctional system, including isolating prisoners, deterring crime, punishing offenders, and providing rehabilitation."

Gerber had cited a 1942 Supreme Court decision striking down a state policy of forcible sterilization of repeat offenders. The court distinguished the situations by noting that "sterilization is intrusive, permanent, and irreparable." Inmates possess the right to maintain their procreative abilities, the court said, but may use them only after release from custody.

Teresa Zuber, an attorney in Sacramento, California, who represents Gerber, said there is "a distinct possibility" the case will be appealed to the U.S. Supreme Court.