Judges Back Procreation by Inmates

Male prisoners have a constitutional right to procreate by means of artificial insemination, the U.S. 9th Circuit Court of Appeals ruled Wednesday.

The 2-1 decision, the first of its kind by a federal appellate court, comes in the case of William Reno Gerber, a 41-year-old third-strike convict now serving a 111-year sentence for negligently discharging a firearm, making terrorist threats and possessing a handgun as an ex-felon.

Two years ago, Gerber sued the state Department of Corrections for allegedly violating his civil rights after prison officials refused to let him send a semen specimen to a medical center in Chicago that would then use it to impregnate his 46-year-old wife.

Wednesday’s ruling sided with him. Gerber has a “fundamental right to procreate” that “survives incarceration,” wrote Judge Myron H. Bright. Prison officials can restrict that right only if they can show that prison safety issues would make it impossible for Gerber to proceed, the judges ruled.

Strong Reactions From Observers

The ruling does not apply to female prisoners, the court said, because caring for a pregnant female inmate raises different issues for prison officials. “The two sexes are not similarly situated here,” wrote Bright, who was joined in the opinion by Judge Stephen Reinhardt. “In this case we cannot ignore the biological differences.”

The decision brought a stinging dissent from Judge Barry G. Silverman. He criticized his fellow judges for effectively ruling “that inmates retain a constitutional right to procreate from prison via FedEx.”

The law and common sense suggest that procreation and prison incarceration do not mix, Judge Silverman said.

“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 wrote. “With the utmost respect, the majority’s reading of the Constitution is as unprecedented as it is ill-conceived.”

State officials may appeal the ruling, and the 9th Circuit has a record of producing liberal decisions on prisoners’ rights issues that have been overturned by the Supreme Court. For now, however, the ruling is law in California and eight other Western states.

The decision prompted swift, strong reactions from legal observers, some of whom expressed concern about just who could eventually be allowed to become a father. California does not permit conjugal visits for inmates serving life sentences, so artificial insemination would be the only means of fatherhood for certain inmates.

“You don’t want sexual predators exercising this right,” said Sacramento attorney Ron Zumbrun, founder and former president of the conservative Pacific Legal Foundation. “You don’t want insane prisoners exercising it.

“If you are having lifetime criminals furthering their genes, is that in the best interests of society?”

Civil rights advocates countered that courts have long held that convicts have the right to be parents.

“A prisoner’s procreative rights . . . are not extinguished when he passes through prison walls,” said Eric Balaban, staff counsel for the National Prison Project of the ACLU. “We don’t support eugenics in this country. We don’t support sterilizing people that we don’t think are worthy of having children, thank God.”

In its 20-page ruling, the court said that while the U.S. Supreme Court has not ruled on allowing artificial insemination for prisoners, it did decide in 1978 that inmates do not forfeit their right to marry while they are incarcerated. Moreover, the 9th Circuit said, the Supreme Court has decided--in an Oklahoma case that struck down sterilization of certain prisoners--that prisoners have a constitutional right to maintain their ability to procreate once released from custody.

“Taken together,” Bright wrote, “[the Supreme Court rulings] suggest that the 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.”

The court disagreed with state prison officials who argued that artificial insemination should not be allowed because male and female prisoners would be treated differently.

“Women cannot avail themselves of the opportunity Gerber narrowly seeks,” Bright wrote. “. . . And men cannot do what Mrs. Gerber is likely capable of doing--conceive and give birth to a child.”

The appellate court also dismissed the notion that accommodating Gerber would create “an unacceptable risk” of liability for the California state prison system either because of possible mishandling of the specimens or lawsuits by women inmates seeking to be artificially inseminated.

“It is simply impermissible to restrict the constitutional rights of one group because of fear that another group will assert its constitutionally protected rights as well,” the court said. “Moreover, it is generally reprehensible to suggest that restricting protected fundamental constitutional rights is justified by fear of increasing a party’s liability.”

The attorney for Gerber, who was convicted in 1997 in Riverside County, could not be reached for comment. The state attorney who argued the case called the ruling unprecedented.

Reversal by High Court Seen as Likely

“The issue is not whether procreation is a constitutional right . . . but whether it is a right inmates have while they are incarcerated,” said Deputy Atty. Gen. Gregory S. Walston. “Every [lower] court that has addressed this issue--until now--has held that it is not.”

The attorney general’s office has not decided whether to appeal the case to the U.S. Supreme Court or seek a rehearing before a larger panel of the 9th Circuit, Walston said. The ruling could have far-reaching implications, he added.

USC law professor Charles Whitebread said he believes that the U.S. Supreme Court would probably reverse the 9th Circuit.

“The only thing I can say is that the present Supreme Court has very little sympathy for any claim that would identify with prisoners’ rights,” said Whitebread, who is cited in Silverman’s opinion. “And it would strike me that the issue here involves the absolute minimal rights of a prisoner.”