Prisoner Does Not Have Constitutional Right to Artificially Inseminate Wife, En Banc Ninth Circuit Rules

Friday, May 24, 2002

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Prisoner Does Not Have Constitutional Right to Artificially Inseminate Wife, En Banc Ninth Circuit Rules

By a MetNews Staff Writer

A prisoner has no constitutional right to artificially inseminate his wife, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

In a limited en banc decision, the court held 6-5 that substantive due process does not entitle William Gerber, who is serving a three-strikes sentence, to ship his sperm for the purpose of enabling his 46-year-old wife to attempt to have their child.

“A holding that the state of California must accommodate Gerber’s request to artificially inseminate his wife as a matter of constitutional right would be a radical and unprecedented interpretation of the Constitution,” Judge Barry G. Silverman wrote.

Silverman dissented last fall when a three-judge panel ruled that the state had to prove that it had “legitimate penological interests” that trumped Gerber’s right to procreate.

He explained that while inmates retain certain rights with respect to family life—including the right to marry and protection from forced sterilization, they do not enjoy all of the familial rights that free persons have. Some rights, such as that asserted by Gerber, are “fundamentally inconsistent with incarceration,” obviating any need on the part of the state to show legitimate penological interests, Silverman said.

He was joined by Chief Judge Mary M. Schroeder and Judges Diarmuid F. O’Scannlain, Pamela Ann Rymer, Ronald M. Gould, and Johnnie B. Rawlinson.

Judge A. Wallace Tashima authored a dissent, which was joined by Judges Alex Kozinski, Michael Daly Hawkins, Richard A. Paez, and Marsha S. Berzon.

“Procreation through artificial insemination, however, implicates none of the restrictions on privacy and association that are necessary attributes of incarceration,” Tashima wrote.

Kozinski, in a separate dissent for himself, Paez and Berzon, argued that Gerber’s request that he be permitted to give a sperm sample, which would be sent to a sperm bank in Chicago by overnight mail, with the procedure to be overseen by a physician paid for by the inmate, would put no particular burden on the prison.

“The prison has no penological interest in what prisoners do with their seed once it’s spilt,” Kozinski wrote. “A specimen cup would seem to be no worse a receptacle, from the prison’s point of view, than any other.”

He wrote that the majority’s rule could encourage other restrictions on prisoners’ rights.

“Does the term imprisonment also implicitly abridge the right to speak? Or the right to own property? The right to marry? To practice a religion?” he asked rhetorically.

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

Prisoners serving life sentences cannot receive such visits, under California Department of Corrections rules, unless a parole date has been set.

In opposing his suuit, 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.

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