DO PRISONERS HAVE A CONSTITUTIONAL RIGHT TO PROCREATE VIA FEDEX?
A Recent Appeals Court Ruling Says Yes, But The Supreme Court May Disagree

By JOANNA GROSSMAN


lawjlg@hofstra.edu
----
Tuesday, Nov. 20, 2001

William Gerber has a problem. He and his wife would very much like to conceive a child, but he is currently serving a 100-year-to-life sentence in a prison that does not permit conjugal visits for lifers. Nor will the prison permit him to transport sperm to his wife via overnight mail for use in artificial insemination.

Gerber filed a lawsuit, hoping to force the prison warden to allow him to FedEx his sperm. The Ninth Circuit Court of Appeals granted his wish.

The Ninth Circuit is sharply ideologically divided, with its liberal rulings often the most liberal in the country. Between 1996 and 2000, the Supreme Court reviewed 90 cases from the Ninth Circuit, and reversed 77 of them. This case may add to the Circuit's dismal reversal statistics.

Gerber's Claim

Gerber's claim is that the prison's policies of disallowing conjugal visits for lifers and of not permitting him to transport sperm to his wife combine to deprive him of rights under the due process clause of the Constitution. His suit was filed under section 1983, a federal statute that gives a remedy for the deprivation of constitutional rights by officials acting under color of state law.

Gerber's suit raises what is called a "substantive due process" claim. Under the contrasting doctrine of "procedural due process," courts interpreting constitutional due process have held that proper procedures must be adhered to before certain rights are taken away — a straightforward doctrine. For other rights, however, courts interpreting constitutional due process have held that no amount of process will suffice, because the rights are too fundamental ever to be taken away. As a result, what was originally a procedural protection (a right can only be taken away if due process is given) is transformed into a substantive entitlement (a right can never be taken away because no process would be good enough) — and to the doctrine of "substantive due process."

The doctrine protects a variety of privacy rights relating to marriage, sexual activity, family, and the upbringing of children. Most people's familiarity with the doctrine grows out of the Supreme Court's abortion cases. There, the Court has held — most recently, in the 1992 decision in Planned Parenthood v. Casey — that the doctrine of substantive due process prohibits states from placing an undue burden on a woman's right to seek an abortion. Gerber's argument is that the doctrine also protects the right of a prisoner to procreate.

The Court's Analysis: A Fundamental Right to Procreate While Incarcerated?

The Court analyzed Gerber's claim in two stages. First, it asked whether there is a fundamental right to procreate. The answer to that question, outside of the prison context, is clearly "yes."

In a long line of cases beginning in the 1970s, the Supreme Court has recognized a fundamental constitutional right to procreate and make decisions about procreation. The right led the Court to strike down laws that prohibited the sale of contraception, laws that refused to allow unwed fathers to have custody of their children, and laws that unevenly imposed sterilization as a punishment for certain crimes. It also led to the Court's invalidating a variety of laws placing restrictions on the availability of abortions.

The Ninth Circuit then asked whether prisoners retain this fundamental right while incarcerated. The Supreme Court has held that prisoners retain some fundamental, privacy-based rights. Those rights include the right to marry and the right to procreate after incarceration (that is, the right to avoid sterilization while incarcerated). Drawing on these rights, the Ninth Circuit held that the right to procreate survives incarceration.

The "Reasonably Related to Penological Objectives" Test

One might think that, at this point, Gerber would have won his case — since the court of appeals accepted both that he has a right to procreate, and that he was not stripped of the right due to his imprisonment. However, within the prison context, fundamental rights can only be exercised if they are, in the Supreme Court's words, "not inconsistent with [an individual's] status as a prisoner or with the legitimate penological objectives of the corrections system."

So the question is whether California's prison regulation prohibiting artificial insemination by male prisoners is reasonably related to such objectives.

The prison warden offered three justifications for the "no FedExing semen" rule. First, he cited the policy of treating male and female prisoners equally (won't women want babies, too?). Second, he invoked safety risks caused by prisoners collecting semen (the purportedly common problem of "gassing"–or dousing fellow inmates in one's bodily fluids). Finally, he noted concerns about litigation relating to the procedure (in particular, lawsuits over negligent handling of sperm deposits).

The Ninth Circuit quickly disposed of each of these three arguments, and held that the prison's regulation was indeed unreasonable.

Stay and Mootness Issues

The prison warden in this case will undoubtedly ask the Supreme Court to review this case. In the meantime, he has asked the Ninth Circuit to stay the opinion–so it will have no effect until the Supreme Court has a chance to review the case (or decline to do so).

The stay should not be granted, and Gerber should immediately be allowed to FedEx his sperm. Justice delayed in this case will certainly mean justice denied, since Gerber's wife, who is forty-six years old, is already perilously close to the end of the fertility curve. And certainly the case should not be mooted by the stay itself — which would be unfair to the couple. (In contrast, the case would not be mooted by Gerber's wife's pregnancy, since it would likely fall into the exception for cases "capable of repetition but evading review," since women might frequently become pregnant from FedExed sperm before court review could be completed).

How the Supreme Court Might Rule

How this decision will fare if it reaches the Supreme Court is uncertain. In evaluating the likelihood of reversal, one cannot ignore the current Court's hostility to prisoners' rights claims. There is no reason to think that this is the case to buck the trend.

On the other hand, given the Court's rulings on prisoners' rights to marry and avoid sterilization, it is not obvious that the right to procreate is beyond the pale. Aiding Gerber's case may be the facts that the method of procreation sought requires no physical contact with the potential mother; no medical intervention (on the father's end, anyway); and no long-term physical effects on the father.

It may be that the Supreme Court will not be able find a legitimate penological objective that conflicts with the right to be a sperm donor — as much as the Justices might want to do so, in order to continue their history of deference to prison officials' policies.

For example, the three objectives raised so far by the warden in Gerber's case seem thin, to say the least. The "women's equality" rationale — ensuring that if women cannot procreate in prison, then men cannot procreate either — seems a poor reason to deny a woman, Gerber's wife, the ability to bear her husband's child. The "gassing" rationale can easily be handled by sperm collection overseen by a prison doctor or nurse (and may, in any event, occur even without officially sanctioned sperm donations).

Finally, the rationale that lawsuits will be filed based on negligent sperm collection seems pretextual at best; prisoners can theoretically sue over virtually any policy, and many policies are less worthy than one allowing an imprisoned husband to send sperm to his wife.

Equal Rights for Women to Procreate in Prison?

Let's say that, albeit it is statistically unlikely, the Supreme Court does affirm the Ninth Circuit's decision, or declines to review the opinion and leaves it standing. What happens in the inevitable next case when a female prisoner comes forward with a request to be artificially inseminated?

In passing, the Ninth Circuit suggested there would be no basis for making such a claim for equality. Under the Supreme Court's equal protection jurisprudence, a sex-based inequality is only unconstitutional if men and women are similarly situated with respect to the particular law.

Here, the argument goes, women are not similarly situated in that they will not be asking to donate sperm; rather, they will be asking to become pregnant. That is a very different proposition, according to the Ninth Circuit. A pregnant women poses challenges to the penal system that a man who, on one occasion, has donated sperm does not–ongoing medical needs, safety risks, physical limitations, and so on.

Nevertheless, if the right is conceived at a higher level of abstraction–as the right to procreate, rather than the right to be a sperm donor–men and women seem more similarly situated. And prisons in fact deal with pregnant women all the time, since, according to the Department of Justice, as many as 6 percent of female inmates are pregnant when first incarcerated.

Thus, any claim that they are incapable of doing so can hardly pass the laugh test, let alone the rigor of judicial scrutiny. (Indeed, prisons' ability to accommodate pregnant women might make one confident that they can also handle a lesser task such as sperm collection without too much disruption.)

The Future of the Children Who May Result

Mr. Gerber's desire to procreate may ultimately be fulfilled. And that may be the right outcome for constitutional principles. But one has to wonder a bit about the lives his resulting children might have.

A small bit of good news for them is that, in most jurisdictions, a parent's incarceration does not preclude a court from imposing an order of child support. But incarcerated parents are unlikely to be able to pay that support. Parents like Gerber, incarcerated for life, also will never be able to see their children outside of the prison setting — a disturbing reality for any child growing up.


Joanna Grossman, a FindLaw columnist, is an associate professor of law at Hofstra University, where she teaches Sex Discrimination and Family Law, among other subjects. Her other columns on sex discrimination and family law issues may be found in the archive of her columns on this site.

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