State Fights Procreation for Prison Inmates

The state attorney general’s office has moved to block a recent appeals court decision allowing male prison inmates to procreate by means of artificial insemination, arguing that the case should be resolved by the U.S. Supreme Court.

In a motion filed with the U.S. 9th Circuit Court of Appeals, California Atty. Gen. Bill Lockyer seeks to keep from becoming effective the appellate court decision supporting an inmate’s “fundamental right” to procreate, pending a review by the nation’s high court.

The 24-page motion dated Monday notes that the 9th Circuit’s decision was in conflict with another appellate court that ruled prisons are not constitutionally required to allow artificial insemination by inmates.

“Given the importance of the issue, the conflict among the lower courts created by the majority’s decision and the reported likelihood of Supreme Court reversal, the potential for Supreme Court review of this case is considerable,” Lockyer’s office said in its appeal.

Last week, in the first decision of its kind by a federal appellate court, the 9th Circuit ruled that prisoner William Gerber had a right to procreate that survives his incarceration.

Gerber, 41, is serving a 111-year prison 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 after officials refused to allow him to send a semen specimen to a Chicago medical center that could then use it to impregnate his wife, now 46. In making the request, the Gerbers said they would pay all the expenses for the medical procedure.

In its 2-1 decision, the 9th Circuit cited two U.S. Supreme Court rulings governing the rights of prisoners. While the rulings did not specifically address the issue of artificial insemination for prisoners, one concluded that inmates do not lose the right to marry while they are imprisoned, and the other, outlawing the sterilization of prisoners, found that inmates have a constitutional right to have children once they are released from custody.

Taken together, the appellate court said, the Supreme Court rulings suggest the “fundamental right of procreation” may exist in some fashion while a prisoner is incarcerated--even if the only means available is artificial insemination.

The appellate court said its ruling does not apply to female prisoners because caring for a pregnant inmate raises different issues for prison administrators.

In its motion, the attorney general’s office said the ruling has “cast the lower courts into hopeless conflict, created a right that is unprecedented under Supreme Court case law, and triggered ramifications that will far exceed the bounds of this case.”

The 9th Circuit ruling, Lockyer’s appeal says, left many “formidable legal and administrative problems,” including the availability of the same rights for women inmates and whether the state would be required to pay for the procedure for indigent prisoners.

“Indeed, the lack of any limitation on the right of inmates to artificial insemination . . . opens the door to extreme claims by inmates that may have dire implications on society generally,” according to Lockyer’s appeal, written by Deputy Atty. Gen. Gregory S. Walston.

Those implications, Walston wrote, include the potential for inmates abusing the right in such “extreme” methods as marketing their sperm in much the same way murderers have sold paintings.

Gerber’s attorney, Teresa Zuber, called the state’s appeal “an unconscionable” delay tactic that would hurt Gerber’s wife.

“She too wants to exercise her constitutional right to procreate within the bounds of her marital relationship, and at 46 years old, she doesn’t have much time left,” Zuber said.

“The state’s insistence on continuing to litigate this case to the Supreme Court is a waste of taxpayers’ money, and severely strains . . . the Gerbers’ limited finances,” she said.

“The 9th Circuit decision,” Zuber said, “does nothing more than recognize the unremarkable constitutional principle that a person does not lose his basic human rights should he enter the prison door.”