Do Inmates Have The Right To Father Children?
PRO or CON
By Chris Finnie – former Contributing Author to Crime, Justice and America magazine. Originally published in 2002 and reposted with permission from Crime, Justice and America magazine
Male Order Male?
Over the years, a number of issues on the rights of prisoners have been decided in the courts. But a recent case from California raises a unique question—do inmates have the right to father children?
The case centers on the desire of William Gerber, serving 111 years to life for a third-strike conviction of shooting his TV, to mail his semen to a clinic so his wife can try to have his child.
Gerber originally sued the state Department of Corrections two years ago. After a first ruling that granted Gerber’s request in September 2001, the U.S. 9th Circuit Court of Appeals decided to re-hear the case. That hearing ended March 20, 2002, and a ruling is still pending. Crime, Justice & America interviewed Teresa L. Zuber, attorney for Mr. Gerber, and Gregory S. Walston, the California State Deputy Attorney General who represented the state, to present both sides of the issue.
PRO:
Ms. Zuber claims that Mr. Gerber has the constitutional right to procreate; a right she contends is supported by a U.S. Supreme Court decision on a sterilization ruling in Oklahoma. To the idea that imprisonment inherently precludes the right to have children, she points to the fact that some states allow inmates to procreate through conjugal visits.
In response to the argument that Mr. Gerber’s request is unfair to female inmates, who would not have access to similar medical services, Ms. Zuber replies this “makes a much sense as suggesting that a pregnant inmate may not carry her pregnancy to term because male inmates cannot get pregnant.” She further notes that prisons provide sanitary pads to female inmates, but are not forced to offer them to male inmates too, simply for the sake of equal treatment.
As for safety issues, Ms. Zuber points out that inmates can donate blood with permission. She contends the collection of semen is equally simple and “will burden neither the prison nor the taxpayer.”
CON:
Gregory S. Walston, California State Deputy Attorney General says we put people in prison to punish them. “They’re separated from their family as part of that punishment. If inmates retain the same rights as ordinary citizens, it’s not punishment. “
Mr. Walston disagrees that prison procreation is a right, saying, “No court in the land has recognized a right of inmates to reproductive technology or any procreative right while incarcerated. Conjugal visits are a benefit for good behavior, but not a constitutional right.”
He also believes that there is an equal rights issue and cites an 8th Circuit Court decision that “recognizes prisons have a legitimate interest in treating inmates equally.” Mr. Walston further contends that “creating an exemption for one class of inmates, and not another, leads to unrest among the inmates who don’t get the right.”
Other potential problems include administrative costs to supervise the process, possible medical expenses for extended reproductive care, and the chilling prospect that “there could be a market for Charles Manson’s sperm over eBay.”
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