Inmate May Not Ship Wife Semen

California inmates have no constitutional right to impregnate their wives by mailing sperm from prison, a sharply divided federal appeals court in San Francisco ruled Thursday.

The 6-5 ruling by the U.S. 9th Circuit Court of Appeals, in the case of an inmate serving a 111-year sentence, overturns a previous 2-1 decision by a 9th Circuit panel that described procreation as a fundamental right, even for prisoners.

That ruling, the first of its kind by any appellate court, spurred controversy and last December a majority of the 9th Circuit’s 25 active judges voted to vacate the decision and rehear the case.

“A holding that the state of California must accommodate [William] Gerber’s request to artificially inseminate his wife as a matter of constitutional right would be a radical and unprecedented interpretation of the Constitution,” Judge Barry G. Silverman wrote for the majority Thursday.

The ruling is binding in eight other Western states that the 9th Circuit covers.

The case commenced in 1999, when Gerber sued the state Department of Corrections after officials refused to allow him to send--at his own expense--a semen specimen to a Chicago medical center that could then use it to impregnate his wife, now 47.

Gerber, now 42, is serving what amounts to a life sentence at Mule Creek State Prison for negligently discharging a firearm, making terrorist threats and possessing a handgun as an ex-felon.

Judge Silverman, who was the dissenter in the earlier 9th Circuit decision, cited several federal court decisions Thursday that say prisoners lose certain rights that they would have in the outside world.

“While the basic right to marry survives imprisonment ... most of the attributes of marriage--cohabitation, physical intimacy and bearing and raising children--do not,” wrote Silverman, an appointee of President Clinton.

Silverman emphasized that the majority’s view was shaped by a U.S. Supreme Court ruling that held that “‘confining criminal offenders in a facility where they are isolated from the society’ serves to deter crime and protect the public.”

Silverman acknowledged that some California inmates--those not sentenced to death or serving life terms--are permitted conjugal visits. He said, however, that “is simply irrelevant to whether there is a constitutional right to conjugal visits or a right to procreate while in prison.”

Silverman’s opinion was joined by fellow Clinton appointees Ronald M. Gould and Johnnie B. Rawlinson, Mary M. Schroeder, a Jimmy Carter appointee; Diarmuid F. O’Scannlain, a Ronald Reagan appointee; and Pamela A. Rymer, a George H.W. Bush appointee.

The lead dissent, written by Judge A. Wallace Tashima, said, “There is absolutely nothing in the record indicating that procreation [by itself]--the right to have a child--is fundamentally inconsistent with the fact of incarceration.”

Tashima, a Clinton appointee, acknowledged that permitting inmates the privacy needed to procreate in prison can pose security concerns.

He emphasized, however, “procreation through artificial insemination ... implicates none of the restrictions on privacy and association that are necessary attributes of incarceration.”

Tashima noted that the Mule Creek prison warden had “conceded that he could not prevent prisoners from sending samples of bodily fluids to a forensic laboratory in order to establish their innocence.” Gerber’s request “involves essentially the same procedure; yet, the warden has failed to explain why Gerber’s request” is different, Tashima wrote.

In a separate dissent, Judge Alex Kozinski wrote that “production of the semen and delivery to a laboratory neither compromises security, nor places a strain on prison resources beyond that required to mail any other package.”

Kozinski said that Gerber was asking “only to engage in activities that prisoners are already free to engage in,” such as masturbation.

“That these activities might result in the creation of a life outside prison walls is no more inconsistent with Gerber’s status as a prisoner than is any other consequence of mailing materials from prison to the outside world,” wrote Kozinski, a Reagan appointee.

For example, Kozinski said, “a prisoner might become a best-selling author by sending out a manuscript for a novel of biography,” citing the example of O.J. Simpson’s 1995 book, “I Want to Tell You,” written with Laurence Schiller while he was jailed in Los Angeles awaiting trial on charges of murdering his ex-wife Nicole Brown Simpson and her friend Ronald L. Goldman.

In addition, Kozinski said, the majority had failed to heed an earlier Supreme Court decision that held that when a prison regulation creates restrictions that have consequences for people outside the prison, such as inmate Gerber’s wife, the regulation should “be subjected to more searching scrutiny than when the burden falls only on inmates.”

Also dissenting were Clinton appointees Michael D. Hawkins, Richard A. Paez and Marsha S. Berzon.

California Atty. Gen. Bill Lockyer praised Thursday’s ruling, saying, “The law, as well as common sense, recognizes that individuals who commit serious crimes forfeit many rights that law-abiding citizens enjoy.”

Gerber’s attorney, Teresa Zuber of Sacramento, said the decision “is obviously disappointing to the Gerbers, and disturbing to anyone troubled by a government that can dictate who may or may not have children.” She said that the Gerbers have not yet decided whether they will appeal to the U.S. Supreme Court.

Legal analysts were divided on the merits of the ruling. “I think the difference here is that the majority understands that people are in prison to be punished,” said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, a conservative organization in Sacramento. “Not having normal family relationships is part of what being in prison is all about.”

Franklin E. Zimring, a criminal law professor at UC Berkeley’s Boalt Hall Law School, said he was troubled by the ruling and its ramifications.

“This kind of litigation outcome may be a symptom of a much larger failure to take seriously the question of the legitimate interests of prisoners and those who are in sustained relationships with them,” Zimring said. “I am much more worried about the majority’s dismissiveness of the human interest involved in a case like this than I am about the ease of ridiculing the idea of a constitutional right to send sperm through the mail.”