The slippery slope to sperm smuggling: Prisoners, artificial insermination and human rights

Medical Law Review

Volumn 15, Issue 2, 2007, Pages 220-235

  Codd, Helen ^a  

^a UNIVERSITY OF CENTRAL LANCASHIRE   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; ARTIFICIAL INSEMINATION; FEMALE; HUMAN; HUMAN RIGHTS; LEGAL ASPECT; MALE; MIDDLE AGED; PRISONER; SPERMATOZOON; UNITED KINGDOM;

FEMALE; GREAT BRITAIN; HUMAN RIGHTS; HUMANS; INSEMINATION, ARTIFICIAL; MALE; MIDDLE AGED; PRISONERS; SPERMATOZOA;

EID: 34547115980     PISSN: 09670742     EISSN: 14643790     Source Type: Journal    
DOI: 10.1093/medlaw/fwm004     Document Type: Article

References (63)

1. At the time of writing, the judgment of the Grand Chamber was pending.
2. Dickson v. The United Kingdom (Application no. 44362/04) Judgment, European Court of Human Rights, 18 April 2006.
3. R (Mellor) v. Secretary of State for the Home Department, [2001] 3 W.L.R 533, C.A.:
4. Dickson v. The United Kingdom, (Application no. 44362/04) Judgment, European Court of Human Rights, 18 April 2006.The film 'Baby Juice Express' was released in 2004 and stars Nick Moran, more well known for his role in 'Lock, Stock :INd Two Smoking Barrels'.
5. Goodwin v. Turner 702 F. Supp. 1452 (W.D.Mo. 1988)
6. Gerber v. Hickman 273.F.3d 843 (9th Cir.2001).
7. See also Bozzuti J. (2003) 'Judicial Birth Control? The Ninth Circuit's Examination of the Fundamental Right to Procreate in Gerber v. Hickman', 2003) 77 St. John's Law Review, 625-647;
8. R. Roth, "'No New Babies": Gender Inequality and Reproductive Control in the Criminal Justice and Prison Systems', (2004) 12 American University Journal of Gender, Social Policy and Law, 391-424.
9. See D. Kadison, M. Weiss, Mob Sperm Bust, New York Post, 3 December 2002, p. 7.
10. I am grateful to Glyn White of UCLAN for bringing the 'Sopranos' storyline to my attention.
11. Divorce fights to have child by Rabin's jailed assassin', The Sunday Times, 23 April 2006.
12. E. Sutherland, 'Procreative Freedom and Convicted Criminals in the United States and the United Kingdom: Is Child Welfare Becoming the New Eugenics?' (2003) 82 Oregon Law Review, 1033-1065.
13. This provision applies to male prisoners. As far as I am aware, no similar applications have been made by female prisoners.
14. Note that the Prisons Ombudsman is not empowered to deal with complaints from families.
15. Letter from the Secretary of State, 28 May 2003, cited in the judgment in Dickson v. The United Kingdom, (Application no. 44362/04) Judgment, European Court of Human Rights, 18 April 2006.
16. Dickson v. The United Kingdom Application no. 44362/04) Judgment, European Court of Human Rights, 18 April 2006.
17. [2001] 3 WLR 533, C.A.
18. Article 8 appears to protect de facto family life: Under Article 12, it could be argued that, following the decision ofthe ECHR in X & Y v. Switzerland, if the applicants are married they have therefore founded a family. See Williams (2002) 'Have the Courts Got it Right? - The Queen on the Application of Mellor v. Secretary of State for the Home Department', (2002) 14 Child and Family Law Quarterly, pp. 218-228.
19. Kirk Dickson, Lorraine Dickson v. Premier Prison Service Ltd., Secretary of State for the Home Department [2004] EWCA Civ 1477:
20. Dickson v. The United Kingdom (Application no. 44362/04) Judgement, European Court of Human Rights, 18 April 2006.
21. Hull Daily Mail [2003] 'Let Me Have Killer's Baby', September 6 2003, p. 2.
22. R (Mellor) v. Secretary of State for the Home Department, [2001] 3 WLR 533.
23. He killed a man in a fight.
24. In support of this, the applicants cited the judgment in Hirst v. the United Kingdom (No. 2) (no.74025/01) ECHR 2004.
25. Dickson v. The United Kingdom (Application no. 44362/04) Judgment, European Court of Human Rights, 18 April 2006.
26. Dickson v. The United Kingdom (Application no. 44362/04) Judgment, European Court of Human Rights, 18 April 2006.
27. P. Proctor, 'Procreating from Prison: Evaluating British Prisoners' Right to Artificially Inseminate their Wives under the United Kingdom's New Human Rights Act and the 2001 Mellor Case' (2003) 31(2) Georgia Journal of International and Comparative Law, pp. 459-492.
28. Dickson v. The United Kingdom (Application no. 44362/04) Judgment, European Court of Human Rights, 18 April 2006.
29. Dickson v. The United Kingdom (Application no. 44362/04) Judgment, European Court of Human Rights, 18 April 2006.
30. Dickson v. The United Kingdom (Application no. 44362/04) Judgment, European Court of Human Rights, 18 April 2006.
31. Ibid.
32. Ibid.
33. Dickson v. The United Kingdom (Application no. 44362/04) Judgment, European Court of Human Rights, 18 April 2006.
34. Dickson v. The United Kingdom (Application no. 44362/04) Judgment, European Court of Human Rights, 18 April 2006.
35. [1983] 1 AC 1, H.L.
36. [2000] 2 AC 115, H.L.
37. A. Coyle, 'On being a prisoner in the United Kingdom in the 21st century. Does the Wilberforce judgment still apply?' Inaugural lecture, International Centre for Prison Studies, King's College London, 22 March 2005.
38. Williams, J. (2002) supra n 14.
39. A vivid autobiographical account of conjugal visits in the US context is given in A. Bandele The Prisoner's Wife: A Memoir (Washington Square Press 1999).
40. T. Owen, S. Livingstone and A. Macdonald, Prison Law, (3rd edn.) (Oxford University Press 2003).
41. J. Williams (2002) op. cit.;
42. E. Sutherland, 'Procreative Freedom and Convicted Criminals in the United States and the United Kingdom: Is Child Welfare Becoming the New Eugenics?' (2003) 82 Oregon Law Review pp 1033-1065.
43. See also H. Codd 'Regulating Reproduction: Prisoners' Families, Artificial Insemination and Human Rights', (2006) 1 European Human Rights Law Review pp. 39-48.
44. Roth (2004) supra n 4.
45. The literature on this is extensive and documents a range of challenges faced by prisoners' partners and children both during the offender's custodial detention and also afterwards. A detailed discussion of this research is beyond the scope of this article, but for an informative summary see J. Murray 'The effects of imprisonment on families and children of prisoners' in A. Liebling, S. Maruna (eds.), The Effects of Imprisonment (Cullompton, Willan, 2005) pp. 442-462
46. and A. Mills and H. Codd (2007) 'Prisoners' Families' in Y. Jewkes (ed.), Handbook on Prisons Cullompton, Willan (in press).
47. Other inmates serving long sentences have been granted access to AI on the grounds that their wives would be too old to conceive on their release, including in one case, a drug smuggler serving a 17-year sentence (see Sunday Times (2002) 'Prisoners take up their right to father children from prison', December 15, p. 12.)
48. (1975) 2 D&R 105, cited in the Mellor (supra).
49. For a more detailed summary of the welfare principle in relation to children, see Diduck and Kaganas (2006) ibid. pp. 301-334.
50. E. Jackson 'Conception and the Irrelevance of the Welfare Principle' (2002) 65 Modern Law Review pp. 176-203.
51. For an attempt to challenge the view that decisional privacy ought to be respected, see J. Laing & D. Oderberg 'Artificial Reproduction, the 'Welfare Principle' and the Common Good', (2005) 13 Med. L. Rev, p. 328.
52. Jackson (2002) op. cit., p. 201.
53. See J. Robertson 'Procreative Liberty and Harm to Offspring in Assisted Reproduction', (2004) 30 American Journal of Law and Medicine pp. 7-40.
54. E. Sutherland 'Procreative Freedom and Convicted Criminals in the United States and the United Kingdom: Is Child Welfare Becoming the New Eugenics?' (2003) 82 Oregon Law Review pp. 1033-1065.
55. See Jackson (2002) ibid. p. 188.
56. E. Jackson 'Prisoners, their wives and the right to reproduce' Bionews, 30 April 2006.
57. See Jackson (2001) and (2002) op. cit.:
58. J. Harris 'Rights and Reproductive Choice' in J. Harris, S. Holm (eds.), The Future of Human Reproduction (Clarendon Press 1998).
59. Although his article discussed this possibility in a tongue-in-cheek way: See R. McIntire 'Parenthood Training or Mandatory Birth Control: Take Your Choice' (1973) Psychology Today, October, p. 34.
60. Jackson, 2002: P. 178.
61. That is not to say that if doctors were to make these decisions the situation would be unproblematic. Jackson (2002) has vociferously challenged the application of any welfare principle in relation to the conception decision, arguing that individuals should have the right to privacy in relation to their decision to conceive. If the application of a welfare principle is to be accepted in relation to decision making in relation to prisoners' applications for AI facilities, then there are grounds for arguing that, it is inappropriate for this decision to be taken by civil servants.
62. See, for example, J. Pratt, D. Brown, S. Hallsworth, M. Brown and W. Morrison The New Punitiveness: Trends, Theories, Perspectives, (Cullompton, Willan, 2005).
63. The question of whether such a right, if held to exist, would be a 'positive' right, creating duties and obligations on the prison system, or a 'negative' right, was not explicitly addressed by the courts in these cases.