NCPA - National Center for Policy Analysis

Male Prisoners' Right to Procreate?

November 9, 2001

The 9th U.S. Circuit Court of Appeals recently discovered that male prison inmates have a "fundamental'' right to procreate by artificial insemination, notes columnist George Will.

William Gerber, a "third strike" California prisoner, sued the warden for violating his civil rights by not allowing him to send semen to a sperm bank that would impregnate his wife.

The majority opinion in the 2-to-1 ruling explained how "the right to procreate survives incarceration.''

  • California regulations forbid conjugal visits for prisoners serving life sentences.
  • But the Supreme Court has several times affirmed the "fundamental'' nature of the right to procreate -- for instance, in 1942 it struck down Oklahoma's Habitual Criminal Sterilization Act, saying that prisoners have a constitutional right to retain their procreative abilities for use after incarceration.
  • Furthermore, no "legitimate penological objectives'' are served by not recognizing Gerber's procreative right.

However, says Will, the court inexplicably accepted that prisoners have no constitutional right to conjugal visits.

  • And it found there is no constitutional right for women inmates to be impregnated -- noting that "We cannot ignore the biological differences between men and women.''
  • Still, prison authorities worry women prisoners will now claim the Constitution's guarantee of equal protection of the laws confers the right to be inseminated.

Dissenting Judge Barry Silverman quotes Wisconsin's Supreme Court: "Incarceration, by 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.''

In the five terms from 1996 through 2000, notes Will, the U.S. Supreme Court reviewed 90 rulings from the 9th Circuit, and reversed 77 of them.

Source: George Will, "An inmate's right to procreate,", November 8, 2001; Opinion, Gerber v. Hickman, Case No. 00-16494, D.C. No. CV-99-01315-FCD, September 5, 2001, United States Court Of Appeals For The Ninth Circuit.


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