Metropolitan News-Enterprise


Wednesday, December 5, 2001


Page 1


Ninth Circuit to Decide En Banc if Prisoner Has Right to Procreate


By KENNETH OFGANG, Staff Writer/Appellate Courts


The Ninth U.S. Circuit Court of Appeals will decide en banc whether a prisoner has a constitutional right to artificially inseminate his wife, the court announced yesterday.

In a brief order, Chief Judge Mary M. Schroeder said a majority of the court’s unrecused active judges had voted to have an 11-judge panel hear the case. The court does not announce vote totals on its en banc calls.

The action by the full court stays a Sept. 5 ruling by a divided three-judge panel that ordered reinstatement of a suit by Lancaster State Prison inmate William Gerber.

Eighth Circuit Senior Judge Myron Bright, sitting by designation, was joined by Judge Stephen Reinhardt in concluding that a district judge must hear evidence to  determine whether legitimate penological interests trump Gerber’s substantive due process right to become a father.

Dissenting, Judge Barry Silverman argued that while inmates retain certain rights with respect to family life—including the right to marry and protection from forced sterilization—they do not “retain a constitutional right to procreate from prison via FedEx.” This is one of “certain downsides to being confined in prison,” the dissenting jurist explained.

Gerber was convicted in 1997 of discharging a firearm, making terrorist threats, and using narcotics. He was sentenced, under the three-strikes law, to four consecutive terms of 25 years to life, plus 11 years in enhancements.

The sentence precludes Gerber, whose wife is now 46 years old, from conjugal visits. Prisoners serving life sentences cannot receive such visits, under California Department of Corrections rules, unless a parole date has been set.

Gerber—incarcerated at Mule Creek State Prison near Modesto at the time—asked prison authorities to facilitate parenthood by permitting him to give a sperm sample, which would be sent to a sperm bank in Chicago by overnight mail. The procedure would be overseen by a physician paid for by Gerber.

The department rejected his request, leading him to file suit against the warden under 42 U.S.C. Sec. 1983. In moving to dismiss, the state argued that allowing life prisoners to procreate through artificial insemination would discriminate against women inmates, waste prison resources, endanger health and security by having prisoners handle semen, and create a disincentive to rehabilitation.

Motion Granted

District Judge Frank Damrell of the Eastern District of California granted the motion, ruling that prisoners have no right to procreate.

Bright, writing for the appellate panel, disagreed. Noting that the Supreme Court has held procreation to be a fundamental right, and held marriage to be a right that survives incarceration, Bright concluded “the right to procreate does indeed survive incarceration” even if it has to take place in an unconventional manner.

Bright questioned the state’s justifications for the ban.

The contention that allowing men to provide sperm for artificial insemination would require the prisons to allow women to be artificially inseminated, with resulting burdens on the system, cannot be ruled upon without hearing evidence, Bright said, questioning whether men who wish to be sperm donors and women who wish to conceive are similarly situated for purposes of constitutional analysis.

State’s Fear

Nor, the judge went on to say, can the state’s fear that inmates will take advantage of the semen-collection procedure to engage in “gassing”—throwing bodily fluids on other prisoners—or to send semen to persons who do not want it justify banning the procedure outright in the absence of an evidentiary record.

Bright acknowledged that allowing Gerber and other life inmates to artificially inseminate their wives will have economic costs. But to suggest that such costs justify deprivation of the right to become a father is “reprehensible,” the judge said, particularly in the absence of proof that the costs would be “overly burdensome.”

Silverman argued in dissent that the ruling was “as unprecedented as it is ill-conceived.” Other courts, he pointed out, have held that prisoners have no constitutional rights to conjugal visits, to have sperm preserved for artificial insemination, or to procreate.

The case is Gerber v. Hickman, 00-16494.


Copyright 2001, Metropolitan News Company