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Neither the bonds of incarceration nor the prison postmaster can stop California inmates from makin’ babies, the 9th U.S. Circuit Court of Appeals ruled Wednesday. A divided three-judge panel reinstated a claim by a man serving a life sentence that the California Department of Corrections denied him his constitutional right to procreate. “We conclude that the right to procreate survives incarceration and that the factually unsupported arguments put forth by the warden as legitimate penological reasons to restrict [William] Gerber’s exercise of his right to procreate are insufficient to justify dismissal of his complaint,” wrote 8th Circuit Senior Judge Myron Bright, sitting by designation. Bright was joined by 9th Circuit Judge Stephen Reinhardt, while 9th Circuit Judge Barry Silverman did his best Groucho Marx impersonation in dissent. “This is a seminal case — in more ways than one,” Silverman began. The case, which had been thrown out by Judge Frank Damrell Jr. of the U.S. District Court for the Eastern District of California for failure to state a claim, was remanded for further proceedings. Gerber and his wife, now 46, filed in 1999 after their request for artificial insemination was denied by the prison. Gerber had set up a way to get his sperm to his wife via a sperm bank at the University of Illinois at Chicago Medical Center, which may require him to mail the specimen. He also offered to pay for a doctor to oversee the process inside the prison. In its opinion, the 9th Circuit relied on two cases to conclude that the right to procreate exists even inside prison walls. They were Turner v. Safley, 482 U.S. 78 (1978), which established the right of prisoners to marry, and Skinner v. Oklahoma, 316 U.S. 535 (1942), which outlawed the forced sterilization of prisoners. Turner, the court wrote, showed that aspects of marriage are not inconsistent with imprisonment, and Skinner showed that procreation is a fundamental right. Taking the two cases together, the court held that the right to procreate exists while in prison, and that artificial insemination could proceed if the prison could not give a good reason why it couldn’t. Furthermore, the court distinguished the case from numerous others holding that prisoners do not have a right to conjugal visits. “Procreation that results from the employment of recently developed methods or techniques that bypass physical contact with the prisoner’s spouse is not necessarily inconsistent with one’s status as a prisoner,” Bright wrote. The state tried unsuccessfully to argue that there are legitimate reasons to disallow artificial insemination in prisons. The first argument was that since men and women should be treated equally, a ruling in Gerber’s favor could mean that women prisoners would have the right to be inseminated. Here, the court said one cannot ignore the fundamental differences between men and women. A woman’s rights in this area would be an entirely different matter, it held. Another argument was that a ruling in favor of Gerber would lead to a flood of lawsuits from women seeking the right to be inseminated, with each citing the decision. “It is generally reprehensible to suggest that restricting protected fundamental constitutional rights is justified by fear of increasing a party’s liability,” Bright wrote. Silverman was disbelieving of what he called the majority’s failure to acknowledge certain truths. “The majority simply does not accept that there are certain downsides to being in prison,” Silverman wrote. It’s one thing if prisoners retain the right to marry and are protected against forced sterilization, he wrote, but “all of that … is a far cry from holding that inmates retain a constitutional right to procreate from prison via FedEx.”

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