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Prison inmates do not have a constitutional right to fatherhood, the 9th U.S. Circuit Court of Appeals ruled Thursday. The court, en banc, overturned 6-5 a ruling handed down in September 2001 by a divided three-judge panel and decided that while the basic right to marry survives imprisonment, many of the “attributes of marriage” — including procreation — do not. Writing for the majority, Judge Barry Silverman said that to hold otherwise “would be a radical and unprecedented interpretation of the Constitution.” Judges A. Wallace Tashima and Alex Kozinski wrote the dissents. William Gerber, a 41-year-old California prison inmate serving a 100 years-to-life sentence, wants to be able to artificially inseminate his 44-year-old wife so the couple can have a child. The prisoner argued that the state’s refusal to let him do so violates equal protection principles, because California allows conjugal visits to some inmates but not to him. Gerber had several ideas for getting his sperm to his wife, including sending it through the mail or giving it to his attorney to deliver, and he offered to bear all costs for the process. His requests were turned down by the California Department of Corrections, and a suit he subsequently filed was thrown out by Eastern District of California Judge Frank Damrell. Last year, a split 9th Circuit three-judge panel reinstated Gerber’s claim, finding that the “right to procreate survives incarceration.” At that time, the court distinguished the Gerber case from others which have held 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,” wrote Senior Judge Myron Bright of the 8th Circuit, sitting by designation. He was joined by Judge Stephen Reinhardt, while Silverman wrote the dissent. Thursday’s majority decision cited Hudson v. Palmer, 468 U.S. 517, 524 (1984), which held that “While persons imprisoned … enjoy many protections of the Constitution, it is also clear that imprisonment carries with it the … loss of many significant rights.” Silverman wrote that while some prison officials may permit some inmates to have conjugal visits, the issue “is simply irrelevant, since it is well-settled that prisoners have no constitutional right while incarcerated to contact visits or conjugal visits.” Not only that, the court held, but the decision doesn’t hinge on whatever method Gerber might use to inseminate his wife. “If, for example, science progressed to the point where Gerber could artificially inseminate his wife as easily as write her a letter, would this change our analysis? It would not,” the court wrote. The conclusion isn’t dependent on the science of artificial insemination, or on how easy or difficult it is to accomplish. Rather, Silverman wrote, it stems from “consideration of the nature and goals of the correctional system,” goals such as isolation and punishment. In dissent, Judge Tashima — joined by Kozinski, Michael Daly Hawkins, Richard Paez and Marsha Berzon — fired back that there is “absolutely nothing in the record indicating that procreation simpliciter — the right to have a child — is fundamentally inconsistent with the fact of incarceration.” And while the majority opinion pointed out certain rights that are inconsistent with incarceration — the rights to intimate association and to privacy — “because of the technology of artificial insemination, however, procreation can be achieved without compromising security.” Beyond that, Tashima wrote, if the reason for prohibiting procreation “is to punish offenders, this is a determination that should be made by the Legislature, not the warden.” While the majority emphasized that conjugal visits are a privilege, not a right, the dissent pointed out that “permitting conjugal visits gives rise to the strong possibility of procreation resulting … for hundreds, if not thousands, of inmates. Thus, permitting conjugal visits gives rise to the question of whether procreation truly is inconsistent with incarceration.” “If numerous other prisoners are permitted to procreate,” Tashima asked, “how can procreation, per se, be fundamentally inconsistent with incarceration?” A second dissent, written by Kozinski and joined by Paez and Berzon, added that prison guards “don’t patrol cell blocks at night looking for inmates committing Onan’s transgression. Similarly, the prison has no penological interest in what prisoners do with their seed once it’s spilt; a specimen cup would seem to be no worse a receptacle, from the prison’s point of view, than any other.” And after that, Kozinski added, there is nothing “remotely inconsistent with incarceration in mailing a package, or handing it to your lawyer. … That a package contains semen, rather than a book or an ashtray or some other such object, would seem to make no rational difference from the prison’s point of view.” Kozinski went on to write that by denying the prisoner a right to procreate, prison officials “have enhanced Gerber’s punishment beyond that authorized by statute, and consigned Mrs. Gerber to a childless marriage.”

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