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Can Prisoners Procreate While In Prisons?

Aired September 7, 2001 - 12:30   ET



ROGER COSSACK, CO-HOST: He's behind bars serving a 111-year sentence. But that doesn't stop a Federal appeals court from saying he can become a father.

Today on BURDEN OF PROOF: Is procreation a right or a privilege?



COSSACK: Hello, and welcome to BURDEN OF PROOF.

Now, a United States court has ruled that prisoners can send their semen to artificially inseminate their wives. By a two-to-one decision, the Ninth Circuit Court, representing the western United States, has ruled that 41-year-old William Reno Gerber can father children with his 46-year-old wife.

In 1999, Gerber sued the California Department of Corrections. He claimed his civil rights were violated when prison officials refused to let him send a semen specimen to a Chicago medical center to artificially inseminate his wife. But now, Gerber, who is serving a prison sentence of 111 years, has been given a green light to go ahead and sire children.

To discuss all of this today, and hopefully make some sense of it, joining us from Sacramento, California, is Kent Scheidegger, legal director of the Criminal Justice Legal Foundation. From San Francisco, we're joined by Steven Fama of the Prison Law Office, which provides legal counsel to inmates in California correctional facilities. Here in Washington: Mckenna Cole (ph), Terry O'Neill of the National Organization for Women, and public interest law professor John Banzhaf.

Kent, I want to go right to you. Is this decision as crazy as it seems?

KENT SCHEIDEGGER, CRIMINAL JUSTICE LEGAL FON.: Yes. This is a prime example of what I call creeping constitutionalism, where courts just take upon themselves an issue that really should be matter of penal policy and not a matter of constitutional law. The Constitution says nothing on this either way. They've just read their personal views into the Constitution and their own idea of what's desirable policy.

COSSACK: Well...


COSSACK: Professor.

BANZHAF: I'm coming new to this. I don't represent any organization. That at least it's consistent with prior decision. Many decisions have held that there is a right to procreate in the Constitution. Many decisions have held that prisoners don't necessarily surrender all their rights when they go to prison, certainly not speech, certainly not speech; in one case as you know, the right to marry while in prison. Another famous supreme court decision, somebody retains the right to procreate, at least once they get out. In other words, you can't sterilize them once he's there, because when he gets out.

So, the narrow issue here was whether or not you lose that right to procreate when not going to get out. I think it's also fair to point out, they didn't really say: OK, tomorrow, Gerber, you can send your sample Federal Express to your wife. What they basically said is, on the basis of no record, no hearings, we're going to at least give him his day in court, we're going to let a lower court judge decide whether or not all these penal reasons. The problems of equal protection, the problems of safety and so on might override this basic right, and then we'll see whether he does in fact have that right to procreate.

COSSACK: You know, Kent, let me -- let's put up on this screen an excerpt from the decision by the majority in this case, it was a two-to-one case. In this they say:

"We apply a distinct constitutional analysis to cases involving prisoner rights. Because [n]o iron curtain separates' prisoners from the Constitution... a prisoner retains those [constitutional] rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system."

So, I suppose the argument therefore is, look, we put a man in prison, but one of those inherent, basic rights of us as human beings is to be able to continue to species. And if it doesn't interfere with the ability to run the prison, why shouldn't we allow this to happen?

SCHEIDEGGER: That brings up Justice Holmes' old comment that rights tends to declare themselves to their logical extreme.

You're taking some decisions that are dubious to start with, and extending them much farther than they need to be extended. Obviously, when people commit crimes, they do give up their liberty interest. They do choose to forfeit them. And the state can take people's liberty interests away from them with due process of law, the Fourteenth Amendment says so quite clearly.

Having a normal family life is not normally part of being a prisoner, that's one of the things you lose when you go to prison, and it's one of the things you choose to forfeit when you choose to commit the crime.

COSSACK: Steven, you are an advocate for prisoners rights. Is this a good decision?

STEVEN FAMA, STAFF ATTORNEY AT THE PRISON LAW OFFICE: Well, it is, Roger. Incarceration does bring about the limitation of rights, inherently, but -- for example, the prisoners lose their right to associate with whom they want, but our law recognize that they have the right to communicate through mail, and -- the U.S. mail.

And by the same reasoning, if this procreation can be accomplished without unduly jeopardizing safety and security, then it should be allowed. That's all this court said, and that is the correct decision.

What is unfortunate is that Mr. Gerber and other prisoners are put in this position because of California's short-sighted decision, about six years ago, to eliminate family visits.

COSSACK: Well, let me ask you this. The courts have ruled that there is no constitutional right for a prisoner to have a conjugal visit.

Now, if in fact they don't have a right to have a conjugal visit, why would they have a right to them go ahead and procreate in another way?

FAMA: Well, because procreation using recently developed methods that bypass the need for physical contact may not be inconsistent with the status of a person as a prisoner. If artificial insemination, again, can be done without can be done without jeopardizing safety and security and isn't inconsistent with other penological goals, then it ought to be permitted.

BANZHAF: Roger, as one law professor to another, let me reverse the hypothetic. Suppose a prisoner wanted to send out his sperm sample, not to impregnate his wife, but rather that he had a fertility test or some other test done, or indeed some other body parts.

Suppose he wanted to send a lock of hair to his wife for sentimental reasons, to test the DNA, for paternity, whatever else; what interest is it that the prison has, which is so overwhelming, that is going to prevent him from sending this out. That's very different from the very real and practical problems of having conjugal visits.

COSSACK: Let's take that actually a step further. Is really what we're talking about in this situation the notion that by having prisoners procreate -- what we are, in fact, in some way asking for is, one, a realization that people in prison most of the time don't have any money and can't earn any money; and that we would possibly be encouraging the notion of children being born without anyone to support them?

BANZHAF: I think that's really a much further step. There's a very big difference, as we all know, between the state prohibiting somebody from doing something, and then the state having to pay to help somebody do it.

In this case, not only was he willing to do it for free, but indeed if they said you need medical supervision to provide the sample, and I don't see why people using a cup really need a doctor standing there watching them, they would be willing to pay for that.

I think, however, the decision is pregnant with many other possibilities, because the court suggests that maybe if there's a constitutional right to procreate by a Federal Express, as one person put it...


BANZHAF: ... maybe there is a right to conjugal visit, because California in fact does have conjugal visits for many prisoners and others.

COSSACK: Non life prisoners.

BANZHAF: Right...


... and why that distinction. And it may also be a right of some of the women...

COSSACK: Let me go back -- and we're going to get to that in the next block.

Kent, I want to go back to you, that the notion of...

SCHEIDEGGER: That's one of the problems.

COSSACK: ... yes, and I wanted you to discuss that.

SCHEIDEGGER: Because once you declare something to be a constitutional right, then what we know from experience is the federal courts get into litigating every last detail. Every time somebody doesn't like something that the warden does, they're off into federal court, dragging the prison system into court again, running up costs of litigation. It's almost a recreational activity for some prisoners to sue the warden over everything.

That's why we didn't need a constitutional issue here. We have a democratic process, we have a government, and you can take your case to the legislature, or the governor, or whoever you want.

FAMA: Well, the trouble with that thinking is that procreation has been repeatedly recognized as a fundamental right. And as society we are not about to turn back to whatever situation might be, where it was held that the government could tell people when and where and how they could have children. So, it is a...

SCHEIDEGGER: The government can tell people in prison all kinds of things.

COSSACK: You know that's really an interesting point that we're going to talk about it in a second, because we are going to speak with Terry -- yes, with Terry O'Neill, excuse me, regarding what rights then women should have as inmates in prison. After all, if men have this basic right to go ahead and procreate, why can't women become mothers?

Let's find out what she thinks about that when we come back.


The Senate Judiciary Committee approved the nomination of its top Republican lawyer to the federal bench on Thursday. The approval of Sharon Prost to the U.S. Court of Appeals for the Federal Circuit is only the 5th judge the committee has approved this year.



COSSACK: On Wednesday, the Ninth Circuit Court of Appeals ruled that male inmates have a constitutional rights to procreate by means of artificial insemination. But according to the decision, this ruling does not apply to female prisoners.

Now, Terry, if male inmates can procreate by sending out their sperm the their wives, why -- I suppose that that's a constitutional right. Wouldn't you be forced to argue, I suppose, that women in prison, therefore, have the same right?

TERRY O'NEILL, NATL. ORGANIZATION FOR WOMEN: Well, certainly women in prison should have rights of equal strength, rights of equal value, as men in prison.

What is troubling to me about this decision, is I read the decision, the court seemed to say that because of women's anatomical differences between men, because of the reproductive functions, the difference in reproductive function, that somehow it is OK for women's constitutional rights to procreate -- which are surely just as valid and just as strong as men -- can be watered down.

COSSACK: That is absolutely as necessary.

O'NEILL: Yes, and that those rights, however, can be watered down...

COSSACK: In prison.

O'NEILL: ... merely because...

COSSACK: In prison.

O'NEILL: Merely because of anatomy. I don't understand that.

COSSACK: And is it -- what they are saying is look, what we are talking about for a male to do here is relatively simple, produce some sperm and mail it off. But for a woman what they are saying is look, medical care would be necessary, good medical care hopefully, daycare, all of those kinds of things that go along with birth, and that women need; and that prisons wouldn't be set up to do that. And it would be unfair to ask prisons to do that.

O'NEILL: That would get into a whole set of facts that would have to be proven at a trial. That's not the kind of thing that could be decided in the procedural posture of this case, which was...

COSSACK: But without putting the facts...


BANZHAF: The court did not say that women don't have the right...

COSSACK: No they didn't.

BANZHAF: ... it said the argument there's a different treatment can't defeat it at this point. Although it may be very difficult to raise children in prison, one could see situations where they might. A woman, for example, was about to be released who has to conceive by a certain time, for example, for medical reasons might be able to get impregnated. A woman who is going to die in prison shortly after child birth maybe able to get impregnate.

The court didn't decide though.

COSSACK: Would that mean, Steven, and then I want to go to Kent, does that mean therefore, if in fact the courts held that there should be no discrimination, that the government then should have prisons that contain that kind of medical care that would be necessary for women inmates to give birth, as well as all of the things that go along with it?

FAMA: Well, in fact here in California we have mother/infant care programs, in which nonviolent, generally short term, female prisoners are allowed to serve their time with their children. It's sound correctional policy. It reduced recidivism, and keeps those children healthier than if they were raise by a non parent on the outside.

COSSACK: Are these women who give birth to the children while in prison?

FAMA: I think that's possible, but the great majority give birth while outside.

COSSACK: Yes, and Kent, doesn't this again get back to the question that I'm trying to talk about; is what kind of medical care would it be necessary, and would the state have to pay for, if in fact we allowed women under this decision, if we said that women should be allowed to have the same rights?

SCHEIDEGGER: Yes, the state does have to provide medical care for prisoners who need it. This is yet another reason then not to go down this slippery slope, and just nip the entire issue in the bud. And say that your right to procreate is suspended while you're in prison, as so many other rights are.

BANZHAF: Wait a minute, that's a false argument because the prisons already are required to provide that care. Many women who are incarcerated come in already pregnant.

SCHEIDEGGER: But there's no reason to make more of them pregnant on purposes.


BANZHAF: ... come in three or four months pregnant, they have to provide all of that extra care. Well, the question here is, do they have to provide five years, or 10 years, or whatever, of child care and so on. But, they already have to provide care for pregnant women as part of their medical condition, just like they...


SCHEIDEGGER: But there's no reason to increase that burden.

COSSACK: Yes. Isn't there a difference between a women coming, being sentence who is pregnant, and a woman who becomes pregnant while in the prison?

BANZHAF: Sure, and that's exactly what probably is going to come out at these further hearings. So, my guess is somewhere between these two. I don't think women are going to have a right...

COSSACK: And as a matter of policy...

BANZHAF: .... to have a child and raise it in prison.

COSSACK: And as a matter of policy, should we be encouraging women to raise their children in prison?

SCHEIDEGGER: No. There will only be further hearings, until it's reversed by the U.S. Supreme Court.

COSSACK: Let me go back to Terry here.

O'NEILL: There's really something wrong with saying we can't give this man constitutional rights. If we give the constitutional rights to men, then women will want them, too. That would be just terrible. It would be too costly. We don't want to give women these constitutional rights, because we don't want to pay for them.

COSSACK: But, Terry, listen, we do agree that under the law it is possible to discriminate between genders if there is a valid reason to do so.

O'NEILL: Only if the state has a very, very, very high interest in discriminating between men and women.

COSSACK: And while we're talking about...

O'NEILL: It's not just to have...

COSSACK: ... prison which is crazy system to begin with.

O'NEILL: Sure.

COSSACK: We're talking about people being held under lock and key...

O'NEILL: Right.

COSSACK: ... for crimes that they have committed.

O'NEILL: You know, I don't disagree with that, but I do think that it is important to say that the argument, which it seems to me the warden seems to have been making that argument: We can't give this right to this man, because if we do that then women will want them, too. And obviously we can't give these rights to women.

COSSACK: I don't know how good an argument that was, but yes.

O'NEILL: That's one of the things that troubled me about the case. The court in the case seems to be suggesting that it is OK to water down women's rights as compared with men's rights, because of the difference in anatomy. To me, this really -- this points up the need for women to be in the Constitution. We need a constitutional amendment, because we're not there.


COSSACK: You know, I didn't think so. I thought what the judge was suggesting -- I'm sorry, Terry. What I thought the judge was suggesting was that because of the biological differences, women are going to have a much tougher argument to make than men would, because it's relatively simple what this guy wants to do.

O'NEILL: Sure.

COSSACK: And women, it's just going to be that much tougher.

O'NEILL: Well, what I heard him saying was that it was going to be easier for the prison to say no to women, to their fundamental right to procreate, much easier for prisons to say no to women than to say no to men, solely on the basis of women's anatomy.

If you stop there, that's just terrible policy. If, on the other hand, what you are talking about is reasonable accommodations for women who want to procreate, and providing reasonable accommodations for men who want to procreate; recognizing that the value and the legitimacy of the right is the same for men and women, not withstanding the physical difference, then I think...

(CROSSTALK) COSSACK: Question one, I think, is the same. Is there a right to procreate, the answer is yes.

Question two is where I think it gets tough, which is the issue of what do you have to do, what the state have to provide. I think that's where the difficulty comes.

BANZHAF: OK. I think there is another decision on that. There is a decision that talks about men donating sperm and then women donating eggs. And because it is much more difficult for women to done eggs than men to donate sperm, they prohibit it for both.

But it may very well be, if there's a fundamental right to procreate, maybe men can donate sperm, and the burden on the state of doing the medical to get the egg from the women, is not great compared, for example of what you keep raising, the burden of raising a child for 10 years in a prison. One is huge, one is much smaller.

O'NEILL: But one can make that cost smaller.

SCHEIDEGGER: Generally the burden on the state...

COSSACK: Go ahead, Kent.

SCHEIDEGGER: There's not only the burden on the state of raising a child in prison, but what are you doing to the child? I mean is it really a good idea to be bringing children into the world, knowing we're going to be bringing them into this place unfit for children?

COSSACK: Steven, what did you see -- you know, look into a crystal ball on this decision. Do you see prisons eventually becoming -- having daycare centers?

FAMA: Well, it's first going to depend upon what the facts show on remand when the prisoner and the warden will presents evidence as to the safety and security concerns, if any, that give rise in this situation.

I don't see prisons becoming daycare centers, on the other hand, I repeat, California's mother/infant care program is a shining example of a forward thinking, aggressive approach to reducing the chance of a female prisoner reoffending; and at the same time allowing her to continue her bond with her child. It's an important program, and it shouldn't be dismissed as some crazy idea. It is a very important idea and ought to be looked at further here in California, and across the country.

COSSACK: All right, let's take a break.

Will this case end up in the United States Supreme Court? Let's talk about that when we come back. Don't go away.


Q: The Department of Justice recently subpoenaed an A.P. reporter's phone records in regards to a story written about Senator Toricelli. How often has the Department had to do this?

A: 13 times in the past decade.



COSSACK: According to the California Attorney General's office, the issue surrounding William Reno Gerber's case is not a constitutional debate, but rather an issue of prisoners' rights.

Now, professor, the noted scholar Charles Whitbread from USC said prisoners have two rights and two rights only. One, the right to do their time, and second of all, the right to be free from secondhand smoke.

BANZHAF: And as an anti smoking advocate, I'm very familiar with and very supportive of the second.

COSSACK: This United States Supreme Court is not known for its smiling countenance on prisoner's rights. What's going to happen when this case goes to the supreme -- if it goes to the supreme court?

BANZHAF: OK. This case itself will not go to the supreme court, because as we said before, it's a very preliminary decision. It now goes back for trial. The supreme court is not going to decide a constitutional issue until they have all the facts.

Subsequently, if he is still given this right to procreate by Federal Express, it probably will go to the supreme court, and I think the chances that it would survive as a basic constitutional right are somewhat limited.

One thing we didn't get in, is that they're using a reasonably related test, that this is really a constitutional right. You talk about a compelling state interest to overcome it, and means narrowly tailored, then a long parade of horribles, beyond even anything we've discussed here today, could grow out of it. I think the supreme court would be wary of that.

COSSACK: Terry, in terms of what the supreme court would review, if it goes up on the issue of, say, the prisoners right to procreate on by sending out his sperm through the mail, and an argument then would be made; well you know what, you've got to do this for women.

How do you think that would fare before the supreme court?

O'NEILL: Well, I didn't know. I thought it was very interesting that this court relied on a recent supreme court ruling, in the supreme court ruling, for the first time in decades allowed a sex based classification to stand, in part on the basis, as the dissent put it in that case, this is the case of Nguyen v. INS...


O'NEILL: ...the majority was approving the very stereotypes the law condemns. That this was -- the majority of the supreme court, a very narrow majority of the conservative justices, ruled that a sex based classification could stand.

This court relied on that case in saying, you know what, we can give this right to procreate to this man, and don't worry, we don't have to give it to women.

COSSACK: That's right.

O'NEILL: Because of this recent supreme court case.

This is why we think that what you're going to start seeing as a result of Nguyen v. INS, and the supreme court -- you think they're hostile to prisoners, let me tell you, they are extremely hostile to women's rights. We think that women need to be in the Constitution.

We need a constitutionally equality amend, like the ERA that was recently reintroduced in Congress. We've got to have something because of these kinds of rulings that are coming down.

COSSACK: Kent, one of the things that seems to be found here is a -- by the majority, is a, I guess, an articulated ruling with the Constitution that people have the right to procreate.

Is that what one can take out of this case?

SCHEIDEGGER: Well, the question not is whether there is the right to procreate, but whether that right is suspended during incarceration. I think the issue will go to the supreme court, either in this case or a different case, and I would expect that the ruling at that point will be no, that right is suspended during incarceration. That takes care of the equality problem.

COSSACK: All right. I'm afraid that's all the time we have today. Thanks to our guests. Thank you for watching.



4:30pm ET, 4/16

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