Right to procreate survives incarceration, Ninth Circuit rules.

A man serving a life term in a California prison can move forward with a lawsuit that claims the prison violated his constitutional fight to provide semen to his wife so that she may be artificially inseminated, the Ninth Circuit has ruled. The court found in a 2-1 decision that the right to procreate survives incarceration but that it is restricted by "legitimate penological interests." (Gerber v. Hickman, No. 00-16494, 2001 WL 1008205 (9th Cir. Sept. 5, 2001).)

"[T]he fundamental right of procreation may exist in some form while a prisoner is incarcerated, despite the fact that a prisoner necessarily will not be able to exercise that right in the same manner or to the same extent as he would if he were not incarcerated," wrote Judge Myron Bright of the Eighth Circuit, sitting by designation. Life-term prisoners in California are denied conjugal visits.

Bright continued, "Procreation that results from the employment of recently developed methods or techniques that bypass physical contact with the prisoner's spouse is not inherently inconsistent with one's status as a prisoner," he wrote.

The plaintiff, William Gerber, filed suit against a prison warden, alleging that the warden and the California Department of Corrections infringed on his constitutional right to procreate by refusing to allow him to provide semen to artificially inseminate his wife. He claimed that his sentence of 100 years to life, plus 11 years, made that the only method by which he and his wife could conceive a child. The warden countered that the prison had denied the request because the procedure was not medically necessary and that, in doing so, it had violated none of Gerber's rights.

In March 2000, a magistrate judge denied the warden's motion to dismiss and both parties' motions for summary judgment. The judge found that the defense had not shown that on entering prison, inmates lose their right to procreate.

In June 2000, a district court rejected that finding and dismissed the complaint after determining that "a prisoner loses his or her right to access to a means of procreation, be it conjugal visits, artificial insemination, [or] in vitro fertilization."

On appeal, the Ninth Circuit concluded that "the right to procreate does indeed survive incarceration" and that "the arguments advanced as valid reasons to restrict Gerber's exercise of that right fail as a matter of law." It reversed the district court's order and remanded the claim for further consideration.

The opinion noted that although the U.S. Supreme Court has recognized a fundamental Constitutional right to procreate, neither it nor any federal appeals court has decided whether inmates have the right to procreate during their time in prison. Among other Supreme Court rulings, Bright cited Skinner v. Oklahoma, a case that involved surgical sterilization of inmates. (316 U.S. 535 (1942).)

Skinner "states that, at a minimum, a prisoner while in prison cannot be deprived of his ability to procreate upon release, which, in turn, tends to support the notion that a person's procreative rights survive while he is in prison," Bright wrote.

He also referred to Turner v. Safley, in which the Court determined that the right to marry survives incarceration. Bright wrote that the case "stands as an example of how a right related to marriage and family may be exercised in prison despite a prisoner's inability to carry out the `typical' marriage while in prison." (482 U.S. 78 (1978).)

In a lone dissent, Judge Barry Silverman wrote, "The majority simply does not accept the fact that there are certain downsides to being confined in prison and that the interference with a normal family life is one of them."

Silverman acknowledged the rights protected in Skinner and Turner. "All of that, however, is a far cry from holding that inmates retain a constitutional right to procreate from prison via FedEx," he wrote, adding that Turner held that the right to fully consummate a marriage is an "expectation" postponed until an inmate is released from custody.

He referred to two other cases, the first holding that "many aspects of marriage that make it a basic civil right, such as cohabitation, sexual intercourse, and the bearing and rearing of children, are superseded by the fact of confinement." (Goodwin v. Turner, 702 E Supp. 1452, 1453-54 (W.D. Mo. 1998).) The second case determined that "incarceration, in its very nature, deprives a convicted individual of the fundamental right to be free from physical restraint, which, in turn, encompasses and restricts other fundamental rights, such as the right to procreate." (State v. Oakley, 629 N.W.2d 200, 209 (Wis. 2001).)

Silverman wrote, "Common sense also suggests that procreation is fundamentally inconsistent with incarceration.... [T]he majority's analysis of whether there is a legitimate penological reason to abridge that right is all beside the point. There is no such right."

Teresa Zuber, an attorney in Sacramento, California, represents Gerber. She said, "The majority opinion noted that the ruling pertained only to the right to procreate, not the means of procreation. The majority decision is absolutely correct and is in accordance with all U.S. Supreme Court precedent addressing inmates' rights regarding marriage and family. The decision properly gives prisons the authority to reasonably restrict the right to procreate while accommodating inmates' constitutional right to procreate."