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Parents from prison


by Jeffrey P. Kahn, Ph.D., M.P.H.
Director, Center for Bioethics
University of Minnesota

In early September, a federal appeals court agreed with a prison inmate serving a life sentence that he should be able to ship semen out of prison for the artificial insemination of his 46-year-old wife. The ruling effectively endorsed a right to procreate for male prisoners, and raises new legal and ethical issues around the liberties of prisoners, and how far society should go in both respecting and aiding the right to have children.

Does locked up mean locked out of parenthood?

What are the limits of prisoners' rights when it comes to having children? By recognizing that advances in reproductive technologies allow procreation without sexual relations, the court endorsed the view that creating children is "not inherently inconsistent with one's status as a prisoner," meaning prisoners should be allowed to use existing and available means to become parents. It is not unusual for prisons to allow conjugal visits -- though they are not required -- but this ruling goes further by allowing not only personal visits, but access to assisted reproduction.

Rights and responsibilities

What's interesting about this ruling is that it sets up an inequity between men and women prisoners. While it may be one thing to allow male prisoners to send their semen to their wives outside of prison, it would be another to aid female prisoners in getting pregnant using assisted reproductive technologies. Even if they could afford the expense, pregnancy in prison creates unique demands that are not comparable to males shipping out their semen. And while advancing technology can give prisoners babies, it can't help them become good parents. The one dissenting judge argued that the majority had invented a right to procreate from prison "via FedEx." How far should we go in allowing prisoners to take advantage of reproductive technology when we know that they can't parent the children they create?

A right to assisted reproduction?

There is longstanding U.S. case law and social policy that make procreation a private matter between consenting individuals. Being in jail makes it very difficult to exercise that freedom, but parenting no longer requires proximity. Should mailing sperm be treated any differently than mailing a letter? Prisoners lose many, but not all their rights -- they have a right to things such as health care, which they often lack on the outside. Should they keep the right to assisted reproduction, or has the court created a new right. If it only takes shipping a vial at one's own expense to exercise the right, it's hard to argue that it ought to be denied, especially when doing so is less burdensome than granting rights to conjugal visits.

Lawmakers have been very careful about making policy regarding who should be allowed to have children. Men and women are incarcerated because they have broken laws, but that may have little to do with their capacity to be good parents. Should we examine the qualifications of prospective parents inside prison and decide whether to allow them to have conjugal visits or use assisted reproductive technologies? One answer creates biological fathers who can't be parents, while the other equates incarceration with sterilization. Sometimes technology creates more problems than it solves.

Visit the
"Ethics Matters" Archive
where you'll find other columns from Jeffrey Kahn
on a wide range of bioethics topics.

"Ethics Matters" is a biweekly feature from the
Center for Bioethics and CNN Interactive.

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