Should the Right to Procreate Be Imprisoned?: The Debate of Gerber v. Hickman

Transcription

1 Should the Right to Procreate Be Imprisoned?: The Debate of Gerber v. Hickman I. INTRODUCTION Recently, in Gerber v. Hickman, 1 the United States Court of Appeals for the Ninth Circuit determined that a prisoner's right to procreate survives incarceration. 2 After an inmate was denied the opportunity to artificially inseminate his wife, an action was brought against the warden of the corrections facility.' The inmate alleged that his Fourteenth Amendment Due Process rights were violated by the denial of his fundamental right to procreate. 4 The United States District Court for the Eastern District of California ruled that his right to procreate did not survive incarceration. 5 On appeal, the Ninth Circuit reversed the district court's decision. 6 Taking the decision one step further, the Ninth Circuit determined that "there are [no] legitimate penological interests that justify the prison's restriction of the exercise of that fundamental right" to procreate. 7 Therefore, the inmate should be allowed to artificially inseminate his wife while serving his prison term. A majority vote of non-recused regular active judges of the Ninth Circuit, however, ordered that the case be reheard by the en banc court. 8 This Comment will explore, and conclude that the fundamental right to procreate does not survive incarceration. Some constitutional rights do survive incarceration; those rights, however, are not retained while in prison if they are inconsistent with confinement itself. 9 Part II will explore the historical background of the developments in constitutional rights of inmates. Part II will introduce the test used to determine whether a constitutional right is retained while incarcerated. Part III is an analysis of the first opinion of the Ninth Circuit before an en banc hearing was ordered. This section addresses the Ninth Circuit's reasoning when it determined procreation survives incarceration. Part III also reveals the deficiency in the court's reasoning. Also addressed is whether the prison regulation is rationally related to a penological interest. Included in the analysis in part III is a dis F.3d 882, 884 (9th Cir. 2001). 2. See id. at See id. at See id. 5. See id. at See Gerber, 264 F.3d at Id. at See Gerber v. Hickman, 273 F.3d 843, 843 (9th Cir. Dec. 4, 2001). 9. See, e.g., Pell v. Procunier, 417 U.S. 817, 817 (1974).

2 CRIMINAL AND CIVIL CONFINEMENT [Vol. 29:125 cussion and comparison of Goodwin v. Turner, l an Eighth Circuit case that addressed the same issues as Gerber. After examining the first decision of the Ninth Circuit, Part IV will discuss why the en banc court should not uphold the first decision of the Ninth Circuit and instead find that procreation is fundamentally incompatible with imprisonment itself. Finally, Part V will discuss the implications Gerber will have on female inmates, the courts, and prison officials, if the en banc court finds that artificial insemination is a constitutional right that is retained while incarcerated. Specifically addressed is whether female inmates will have an equal protection argument if the right to procreate is denied to them and not to their male counterparts. II. HISTORICAL BACKGROUND A. Development of Inmate Constitutional Rights Pell v. Procunier" established that constitutional rights are retained for inmates as long as those rights are not inconsistent with a prisoner's status and do not interfere with the penological goals of the correctional system.' 2 Prisoners do have some constitutional rights that survive incarceration, 1 3 such as the right to practice religion,' 4 the right to free speech," 5 the right to be protected from cruel and unusual punishment,' 6 the right to access of the courts,' 7 and the right to due process.' 8 According to Pell, those rights cannot be retained while in prison if they are inconsistent with the inmate's status as a prisoner." An example of the Supreme Court determining the consistencies and inconsistencies of prisoner status is illustrated in Turner v. Safley. 20 Turner determined that inmates have a fundamental right to marry while in prison. 2 The Court in Turner explained that marriage is not inconsistent with imprisonment because many aspects of marriage are unaffected by,-.,,.22 A l i... 's-elf kn-ts asp... ct.. of-^1. rfc confinemen ~1 - iiij1iui1i1iiil 1LbIL1I I1ll1lLbUlllL 0 Il i- riage (such as consummation), the emotional support, spiritual significance, F.2d 1395 (8th Cir. 1990) U.S. 817 (1974). 12. See id. at See Gerber, 264 F.3d at See id. (citing O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987)). 15. See id. (citing Pell, 417 U.S. 817 (1974)). 16. See id. (citing Estelle v. Gamble, 429 U.S. 97 (1976)). 17. See id. (citing Bounds v. Smith, 430 U.S. 817 (1977)). 18. See Gerber, 264 F.3d at 887 (citing Wolff v. McDonnell, 418 U.S. 539 (1974)). 19. See id. (citing Pell, 417 U.S. 817, 817 (1974)) U.S. 78 (1987). 21. See id. at See id.

3 Winter, 2003] PROCREATION DURING INCARCERATION and government benefits remain while one is incarcerated. 23 Therefore, a marital relationship while in prison is constitutionally protected. 24 The fundamental right to procreate outside the prison context has been recognized on many occasions. 25 Courts have established that it is a constitutional right for a person to decide when, if at all, to have children. 26 The right to have an abortion is also protected by the Constitution, 27 and that right is maintained while in prison. 28 In 1942, the Supreme Court, in Skinner v. Oklahoma, 29 recognized the right to procreate once an inmate is released from prison. 30 In Skinner, the Court determined that it is unconstitutional to sterilize habitual criminals. 3 " Even though the Court's rationale was based on a violation of the Equal Protection Clause of the Fourteenth Amendment, 3 2 the Court emphasized that sterilization deprives an inmate of the fundamental right to procreate, forever. 3 3 Courts have therefore held that Skinner stands for the proposition that procreation is a fundamental right. 34 B. Facts of Gerber v. Hickman Gerber was convicted in 1997, due to California's three strikes law, for "discharging a firearm and making terrorist threats." 35 The Board of Prison Terms in the State of California prohibits conjugal visits for inmates serving a life sentence without the possibility of parole. 36 Therefore, Gerber and his wife sought other means of conception through artificial insemination See id. at See id. at See Gerber, 264 F.3d at 887 n.4 (citing Carey v. Population Servs. Int'l, 431 U.S. 678, 685 (1977) (holding birth control accessible to minors)); see also Cleveland Bd. of Educ. v. Chesterfield County Sch. Bd., 414 U.S. 632, 640 (1974) (holding unconstitutional for pregnant school teacher to be fired); Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (holding prohibition of access to birth control for unmarried unconstitutional); Stanley v. Illinois, 405 U.S. 645, 651 (1972) (stating right to procreate "basic civil rights of man"). 26. See Gerber, 264 F.3d at 888 n.7 (citing Skinner v. Oklahoma, 316 U.S. 535, 536 (1942) and Carey v. Population Servs. Int'l, 431 U.S. 678, 685 (1977)); see also Cleveland Bd. of Educ. v. Chesterfield County Sch. Bd., 414 U.S. 632, 640 (1974); Eisenstadt v. Baird, 405 U.S. 438, 453 (1972); Stanley v. Illinois, 405 U.S. 645, 651 (1972). 27. See Roe v. Wade, 410 U.S. 959 (1973). 28. See Gerber, 264 F.3d at 889 n U.S. 535 (1942). 30. See Gerber, 264 F.3d at 888 (citing Skinner, 316 U.S. at 536). 31. See Skinner, 316 U.S at 538. A "habitual criminal" is a criminal that committed two or more felonies involving moral turpitude. See id. at See id. at See id. at See Gerber, 264 F.3d at Id. at See id. 37. See id. "Artificial insemination is a noncoital process in which semen is collected from a man under laboratory conditions and then introduced into a woman's body with a

4 CRIMINAL AND CIVIL CONFINEMENT [Vol. 29:125 Combining the fact that Gerber's wife was forty-six and the fact that Gerber was serving a life-sentence, no other means existed for him and his wife to conceive. 38 Gerber wanted to send his semen, by mail, to a laboratory where his wife could be artificially inseminated. 39 The laboratory was to send a container in which Gerber could ejaculate. 4 Gerber was then to send it back to the laboratory by overnight mail. 41 If the prison would not allow Gerber to mail it himself, Gerber's lawyer offered to retrieve the envelope and place it in the mail for him. 42 Also, Gerber and his wife offered to pay all costs relating to the procedure, including the cost of a licensed physician to oversee the project. 43 Denying his request, the prison warden stated that "the procedure was not medically necessary," and that his constitutional right was not proven to have been violated." Gerber sought injunctive relief for the denial of his constitutional right to procreate. 45 The warden, Roderick Hickman moved to dismiss [Gerber's] complaint... for failure to state a claim upon which relief can be granted, or, alternatively for summary judgment on the basis that the right to procreate does not survive incarceration, and... if it did, the restriction on artificial insemination is reasonably related to the legitimate penological goals of treating male and female inmates equally... conserving prison resources, maintaining institutional security interests, and preserving inmates' rehabilitation. 46 Looking to Goodwin v. Turner 4 7 and Anderson v. Vasquez, 48 both compelling for their reasoning, the district court granted the warden's motion to dismiss, and made no ruling on the motion for summary judgment. 49 The court stated that "many aspects of marriage that make it a basic civil right, such as cohabitation, sexual intercourse, and the bearing and rearing of children, are superseded by the fact of confinement. Artificial insemination as a method of begetting a child, falls within this realm of unavailable 'incineedleless hypodermic syringe at a favorable time in her ovulation cycle." Id. (citation Omitted), 38. See id. 39. See Gerber, 264 F.3d at See id. 41. See id. 42. See id. 43. See id. 44. Gerber, 264 F.3d at See id. 46. Id F. Supp. 1452, 1455 (W.D. Mo. 1988) (holding no constitutional right for inmate to father a child through artificial insemination) F. Supp. 617, (N.D. Cal. 1992) (holding no constitutional right to preserve sperm for artificial insemination while incarcerated and equal protection not violated for denying conjugal visits). 49. See Gerber v. Hickman, 103 F. Supp. 2d 1214, (2000).

5 Winter, 2003] PROCREATION DURING INCARCERATION dents of marriage."'5 The district court distinguished Skinner 51 and asserted that the right to procreate "is fundamentally inconsistent with imprisonment itself," 5 2 and "the Bureau of Prisons neither is nor should be responsible for guaranteeing a procreative opportunity." 53 III. GERBER V. HCKMAN A. The Majority Opinion The issue on appeal for the Ninth Circuit was whether Gerber's Fourteenth Amendment Due Process Rights were violated by the denial of his request to artificially inseminate his wife. 54 The Court underwent a twostep analysis. First the court decided if the fundamental right to procreate was involved, and whether it was "inconsistent with Gerber's status as a prisoner. '' 55 Second, when procreation is found to survive incarceration, the court decided whether the California Department of Correction's (CDC) restriction furthers a legitimate penological interest Does Procreation Survive Incarceration? The Ninth Circuit found that procreation does survive incarceration 57 and that it is not inconsistent with Gerber's prisoner status. 58 In determining this, the court looked at recognized fundamental rights, non-prisoner procreative rights, and constitutional rights that have been retained while in prison. 59 According to Justice Silverman, the majority's finding was unprecedented. 6 As Justice Silverman explained, "in no reported decision concerning a prisoner's claim of a right to procreate from prison by artificial insemination has any court ever upheld such a right." 6 Quoting Ander- 50. Id. at 1217 (quoting Anderson v. Vasquez, 827 F. Supp. 617, 621 (N.D. Cal. 1992)) (quoting Goodwin v. Turner, 702 F. Supp. 1452, 1454 (W.D. Mo. 1988)) U.S. 535, 62 S. Ct. 1110, 86 L. Ed (1942) (holding that forced sterilization of prisoners is unconstitutional violating their fundamental right to procreate). 52. Gerber, 103 F. Supp. 2d. 1214, 1217 (2000) (quoting Anderson v. Vasquez, 827 F. Supp 617, 621 (N.D. Cal. 1992)) (quoting Goodwin v. Turner, 702 F. Supp. 1452, 1453 (W.D. Mo. 1988)) (quoting Hudson v. Palmer, 468 U.S. 517, 523 (1983)). 53. Id. at 1218 (citing Goodwin v. Turner, 702 F. Supp at 1454) (citing generally Poe v. Gerstein, 517 F.2d 787, 796 (5th Cir. 1975)). 54. See Gerber, 264 F.3d at Id. (quoting Pell v. Procunier, 417 U.S. 817, 822, 41 L. Ed. 2d 495, 94 S. Ct (1974)). 56. See id. at 887 (citing Turner v. Safley, 482 U.S. 78, 96-97, 96 L. Ed. 2d 64, 107 S. Ct (1987)). 57. See id. at See id. at See Gerber, 264 F.3d at See id. at 893 (Silverman, J., dissenting). 61. Id.

6 CRIMINAL AND CIVIL CONFINEMENT [Vol. 29:125 son v. Vasquez, 62 Goodwin v. Turner, 63 and State v. Oakley, 6 ' Justice Silverman explained, that other courts have addressed the right for a prisoner to procreate through artificial insemination, and how incarceration by itself limits a prisoner's fundamental right. 65 Quite to the contrary of the majority opinion in Gerber, the Anderson court held that "no constitutional right to have an inmate's sperm preserved for artificial insemination exists." 6 6 The majority did not utilize past decisions that dealt with artificial insemination and confinement when ruling on the case. Although the district court relied on Anderson and Goodwin, the Ninth Circuit reasoned that those cases were not binding precedent. 67 The Ninth Circuit was correct in determining that they were not binding, however, those cases are useful and persuasive authority that could have helped the Ninth Circuit in its ruling. The district court looked at Anderson because its reasoning was compelling and similar to the Gerber case. 6 8 a. Anderson v. Vasquez Gerber is analogous to Anderson because both cases dealt with artificial insemination as a means of procreation while in prison. 6 9 In Anderson, death row inmates alleged that denial of conjugal visits and the denial to preserve their sperm for artificial insemination was a violation of the Eighth Amendment's prohibition against cruel and unusual punishment. 7 The court in Anderson held that there is not a constitutional right to conjugal visits, nor does the constitutional right to procreate survive incarceration. 71 The court reasoned that procreation does not survive incarceration because F. Supp. 617 (N.D. Cal. 1992). The Court states that "no constitutional right to have an inmate's sperm preserved for artificial insemination exists." Id. at F. Supp (W.D. Mo. 1988). If a fundamental right exists to procreate while in prison, "[t]here exists [ ] an insurmountable obstacle... the fact of incarceration." Id. at ; proratin see Eunives also Goodwin in-c-a-cer-at-on v. Turner, the regulation 908 F.2d 1395,...icri ariica (8th.ria_, Cir. 1990) 1niato (assuming is that,.,aa IIinh-Idati IS ic reated -~... mq to a legitimate penological interest) WI 103, 629 N.W.2d 200 (Wis. 2001). "Incarceration, by its very nature, deprives a convicted individual of the fundamental right to be free from physical restraint, which in turn encompasses and restricts other fundamental rights, such as the right to procreate." Id. at See Gerber, 264 F.3d at (Silverman, J., dissenting). 66. Id. at 893 (Silverman, J., dissenting) (quoting Anderson v. Vasquez, 827 F. Supp 617, 620 (N.D. Cal. 1992), aff'd in part, rev'd in part on other grounds, 28 F.3d 104 (9th Cir. 1994) (unpublished mem. disposition)). 67. See Gerber, 264 F.3d at See Gerber v. Hickman, 103 F. Supp. 2d 1214, 1217 n.1 (E.D. Cal. 2000). 69. See generally Gerber, 264 F.3d 882 (9th Cir. Sept. 5, 2001); Anderson v. Vasquez, 827 F. Supp. 617 (N.D. Cal. 1992). 70. See Anderson v. Vasquez, 827 F. Supp. 617, 619 (N.D. Cal. 1992). 71. See id. at 620.

7 Winter, 2003] PROCREATION DURING INCARCERATION procreation is inconsistent with prison status. 72 Referring to Goodwin, the Anderson court stated that the act of intercourse, and the act of having children "are superseded by the fact of confinement... [and] [a]rtificial insemination, as a method of begetting a child, fall within this realm of unavailable 'incidents of marriage."' 7 3 Therefore, the court in Anderson concluded that the right to artificial insemination is inconsistent with one's status as a prisoner" and procreation does not survive incarceration. 75 Anderson was decided by the Northern District Court of California and affirmed on appeal by the Ninth Circuit. 76 Although the Ninth Circuit's affirmation of the district court's decision in the Anderson case is unreported, 77 and therefore not binding as precedent, the Ninth Circuit's decision not to regard it as persuasive was in error, as Anderson was brought before and decided by the same jurisdiction as Gerber. The Ninth Circuit also stated that this case is not probative. 78 However, the court neither explained the reasoning behind this conclusion, nor distinguished Anderson from Gerber. As noted above, both cases dealt with artificial insemination as a method of procreation while in prison and both cases were appealed to the same court. 7 9 On the contrary, the similar circumstances of both cases originating from the same jurisdiction are probative. b. Goodwin v. Turner The court in Gerber also chose to ignore the Eighth Circuit's decision in Goodwin v. Turner. 8 " In Goodwin, an inmate wanted to artificially inseminate his wife while in prison, arguing that waiting until he is released increases the risk of birth defects due to his wife's age. 8 ' Once the prison rejected Goodwin's request, he petitioned the court to force prison authorities to grant his request. 82 The request was denied by the district court, holding that procreation through artificial insemination does not survive incarceration. 8 3 The Eighth Circuit affirmed the district court's decision. 8 4 The court stated that the issue of whether procreation survives incarceration See id. Id. at 621 (quoting Goodwin v. Turner, 702 F. Supp. at 1454). 74. See id. 75. See Anderson, 827 F. Supp. at See Anderson, 827 F. Supp 617, 28 F.3d 104, 1994 U.S. App. LEXIS (unpublished mem. disposition). 77. See id. 78. See Gerber, 264 F.3d at See generally Gerber v. Hickman, 264 F.3d 882; Anderson v. Vasquez, 827 F. Supp 617, 28 F.3d 104, 1994 U.S. App. LEXIS See id. at 887, 888 n See Goodwin v. Turner, 908 F.2d 1395, 1396 (1990). See id. at See Goodwin, 702 F. Supp. at See Goodwin, 908 F.2d at 1400.

8 CRIMINAL AND CIVIL CONFINEMENT [Vol. 29:125 does not need to be answered; rather, the issue is whether restricting the inmate from artificially inseminating his wife is reasonably related to a legitimate penological interest." The court held that it was a legitimate penological interest, reasoning that the prison's interest in treating male and female inmates equally is rationally related to the restriction on artificial insemination. 86 If the court allows a man to procreate while in prison, an equal opportunity should be allowed for women in prison. 87 The prison would have to provide more funding, which would cut into the prison's resources for prison programs and security, in order to accommodate medical care for female inmates who wish to procreate. 8 This is not reasonably related to the prison's legitimate penological interest, and therefore procreation through artificial insemination is not allowed while in prison. 89 Although the Eighth Circuit in Goodwin did not address the issue of whether procreation survives incarceration, the district court held that procreation does not survive incarceration, 90 and the Eighth Circuit did not object to this determination. Rather, the court in Goodwin stated that the issue of procreation in prison need not be addressed. 9 ' Goodwin is on point with Gerber; although the issue of whether the fundamental right to procreate survives incarceration was one of first impression for the Ninth Circuit, it would have been helpful for the Ninth circuit to look at the district court's analysis of Turner in Goodwin. 92 The court was careless to disregard the district court's decision and the Eighth Circuit's affirmation in Goodwin. c. Turner v. Safley Next, the Ninth Circuit looked at Turner v. Safley 93 and Skinner v. Oklahoma, 9 4 declaring that these cases stand for the proposition that prisoners do have procreative rights. 95 However, a constitutional right is not re- 85. See id. at See id. at Sep id. 88. See id. 89. See Goodwin, 908 F.2d at See Goodwin, 702 F. Supp. at See Goodwin, 908 F.2d at See Goodwin, 702 F. Supp. at 1454 (discussing Turner v. Safley, 482 U.S. 78, 96 (1987)) U.S. 78 (1978). The Court established that a right to marry survives incarceration. See id. at However, even though marriage survives incarceration, "it is subject to substantial restrictions as a result of incarceration." Id. at U.S. 535 (1942). The Court established that sterilizing a prisoner violated the Fourteenth Amendments Equal Protection Clause. See id. at 538. Many cases have used Skinner to stand for the proposition that one's ability to decide when and whether to have children is a constitutional right. See, e.g., Carey v. Population, 431 U.S. 678, 685 (1977); Cleveland Bd. of Educ. v. Chesterfield County Sch. Bd., 414 U.S. 632, (1974); Eisenstadt v. Baird, 405 U.S. 438, 453 (1972); Stanley v. Illinois, 405 U.S. 645, 651 (1972). 95. See Gerber, 264 F.3d at 889.

9 Winter, 2003] PROCREATION DURING INCARCERATION tained while in prison if that right is inconsistent with one's status as a prisoner. 96 The court neglected to apply this factor when reasoning that Turner and Skinner give prisoners a right to procreate while in prison. 97 As stated above, the Court in Turner held that "[t]he right to marry, like many other rights, [survives incarceration, however the right] is subject to substantial restrictions as a result of incarceration." 98 The Ninth Circuit focused on this point, reasoning that procreation survives incarceration although "a prisoner necessarily will not be able to exercise that right in the same manner or to the same extent as he would if he were not incarcerated." 99 The Ninth Circuit was correct in determining that procreation survives incarceration, but failed to acknowledge that the act of impregnating a woman is a restriction imposed by confinement. The Court in Turner, however, did recognize that "[m]ost inmate marriages are formed in the expectation that they ultimately will be fully consummated" once an inmate is released from prison." The district court in Goodwin also stated that since Turner recognized that consummating a marriage is restricted due to confinement, then it is also impliedly recognized that "the right to beget and bear a child while incarcerated" 1 1 is also a "substantial restriction as a result of incarceration." 1 2 The Ninth Circuit focused on the fact that Turner established marriage to be a fundamental right with many attributes of marriage remaining while one is incarcerated." 3 The Ninth Circuit only briefly mentioned that Turner considered the consummation of marriage a restriction imposed due to confinement without any further analysis." Thus, the Ninth Circuit failed to equate the inability to consummate a marriage while in prison, to the bearing and rearing of children while in prison; instead allowing the latter. The Court in Turner explained how marriage is consistent with incarceration and also implied that sexual intercourse, which could lead to procreation, to be an element of marriage that cannot be fulfilled when one is incarcerated." 5 When applying the Turner analysis to the Gerber case in this way, the proposition that procreation survives incarceration is not found. The Court in Gerber explained that Turner is "an example of how a right related to marriage and family may be exercised in prison despite a pris- 96. See Pell, 417 U.S. at See Gerber, 264 F.3d at Turner, 482 U.S. at Gerber, 264 F.3d at Goodwin, 702 F. Supp. at 1454 (quoting Turner, 482 U.S. 78, 96) (emphasis added) Goodwin, 702 F. Supp at Turner, 482 U.S. at See Gerber, 264 F.3d at 888 (discussing Turner, 482 U.S. at 95-96) See id See Turner, 482 U.S. at 96.

10 CRIMINAL AND CIVIL CONFINEMENT [Vol. 29:125 oner's inability to carry out the 'typical' marriage while in prison."' 6 The Ninth Circuit explained that these two cases are analogous To the contrary, they are actually very different. The Court in Turner held that the right to marry while in prison is only effective upon inmates who are not incarcerated for life.' 08 The Supreme Court, in deciding Turner, explained that their holding in Turner is not contrary to their holding in Butler v. Wilson.' 09 In Butler, a prison inmate complained that he was denied his constitutional right to marry." 0 The Court explained that since Butler was sentenced to life in prison he could not marry and "the denial of [the right to marry] was part of the punishment for the crime.""' The Court in Turner explained that its holding is not contrary to the holding in Butler, since Turner dealt with inmates who are not in prison for life and Butler dealt with life term prisoners." 2 Therefore, the decision in Turner can be distinguished from the Gerber case. Gerber is a prisoner serving a life sentence, like the prisoners in Butler, unlike the prisoners in Turner." 3 He is, and always will be, restricted from certain aspects of marriage as a result of his incarceration. Those aspects include the "bearing and rearing of children."' 4 By distinguishing Gerber from Turner in this context, a court could conclude that the right to marry, hence the right to procreate, only survives incarceration when one is not incarcerated for life." 5 Therefore, the same analysis the Supreme Court applied when distinguishing Turner from Butler can be applied to the Gerber case." 6 That is, since Gerber is serving a life term without parole, prohibition on procreation is not unconstitutional, and the denial of this right is part of the punishment for Gerber's crime Gerber, 264 F.3d at See id. at See Turner, 482 U.S. at 96 (citing Butler v. Wilson, 415 U.S. 953 (1974), summarily aff'g, Johnson v. Rockefeller, 365 F. Supp. 377, (S.D.N.Y. 1973)) See Turner, 482 U.S. at See id. (citing Butler, 415 U.S. at 953) Turner, 482 U.S. at See id See Gerber, 264 F.3d at Goodwin, 702 F. Supp. at 1454, aff'd, 908 F.2d 1395 (8th Cir. 1990); see also Johnson v. Rockefeller, 365 F. Supp. 377, 380 (S.E.N.Y. 1973), aff'd, 415 U.S. 953 (1974) (holding constitutional to restrict lifetime prisoner from marriage); Gerber v. Hickman, 103 F. Supp. 2d 1214, 1217 (E.D. Cal. 2000) (holding procreation inconsistent with prisoner status); Anderson v. Vasquez, 827 F. Supp. 617, 621 (N.D. Cal. 1992) (holding no constitutional right to preserve sperm for artificial insemination) See Turner, 482 U.S. at 96 (citing Butler v. Wilson, 425 U.S. 953 (1974), summarily aff'g, Johnson v. Rockefeller, 365 F. Supp. 377 (S.D.N.Y. 1973)) See, e.g., Turner, 482 U.S. at 96.

11 Winter, 2003] PROCREATION DURING INCARCERATION d. Skinner v. Oklahoma Gerber uses Skinner as an example that suggests that the right of procreation exists while in prison However, Gerber's analysis of Skinner is misleading. The court determined that Skinner suggests, "in some form," that procreation survives incarceration. 118 To the contrary, Skinner has been held to stand for the proposition that a prisoner "cannot be deprived of his ability to procreate upon release" from prison There is quite a difference between saving an inmate's procreative abilities and allowing an inmate to utilize those procreative abilities while incarcerated for life. Skinner involved the act of permanently depriving a man of his physical ability to procreate.' 2 According to Gerber, the Supreme Court in Skinner stated that inmates only have the right to save their procreative abilities for use once released from prison." 2 ' Although Gerber recognized that Skinner limited the procreative right of prisoners to post-release, 1 22 the court still gave the right to a prisoner to impregnate a woman while in prison; 1 23 a decision that obviously conflicts with the decision in Skinner. e. Conjugal Visits Next, the court stated that it was a question of "whether the right of procreation is temporarily extinguished simply by the virtue of the fact of incarceration[j" the Ninth Circuit looked to the issue of conjugal visits for guidance. 124 Although the court looked at several cases that stated the denial of contact visitation and conjugal visits does not violate a prisoner's constitutional right, it determined that those decisions do not prevent a finding that procreation survives incarceration. 125 The Ninth Circuit referred to the fact that due to technology, procreation does not have to occur with contact; therefore it is not inconsistent with the prisoner status of Gerber. ' 26 The court also went on to say that family (childbirth and conjugal visits) is 117. See Gerber, 264 F.3d at Id. at 889; see also Skinner v. Oklahoma, 316 U.S. 535, 538 (1942). The court in Skinner determined that it is a violation of the equal protection clause of the Fourteenth Amendment to sterilize a criminal. See id Gerber, 264 F.3d at 888 (explaining the holding of Skinner, 316 U.S. 535 (1942)) (emphasis added) See Skinner v. Oklahoma, 316 U.S. 535 (1942) See Gerber, 264 F.3d at 888 (citing Skinner v. Oklahoma, 316 U.S. at 536) See id See id. at Gerber, 264 F.3d at See id. at (citing Hernandez v. Coughlin, 18 F.3d 133, 137 (2d Cir. 1994)); see also Toussaint v. McCarthy, 801 F.2d 1080 (9th Cir. 1986) (holding contact visitation not cruel and unusual punishment); Bellamy v. Bradley, 729 F.2d 416, 420 (6th Cir. 1984) (holding that denial of contact visitation is not a violation of Eighth Amendment especially when consistent with penological interest such as security concerns) See id. at 890.

12 CRIMINAL AND CIVIL CONFINEMENT [Vol. 29:125 not inconsistent with prisoner status since many penitentiaries have overnight family visitors and rehabilitation programs for prisoners who are parents. 127 The court's reasoning is deficient. First, the court stated that the denial of conjugal visits is constitutional, yet it found that denying the right for an inmate to impregnate a woman while in prison is unconstitutional.' 2 8 These two determinations are contradictory. Gerber wants to impregnate his wife through artificial insemination. 29 If conjugal visits were allowed, Gerber would not have to ask for this procedure. However, conjugal visits are not allowed. 3 They are not always guaranteed because, as the court in Hernandez v. Coughlin 3 ' stated, although "the right to marriage is constitutionally protected for inmates, the right to marital privacy and conjugal visits while incarcerated is not." 132 The "protected guarantee [of the right to marry] is substantially limited as a result of incarceration." 133 ' "[T]he right to have the marriage 'fully consummated' is but an 'expectation' postponed until the inmate is released from custody."' 3 4 This is why Hernandez held that the right to conjugal visits is not guaranteed; it is inconsistent with incarceration itself.' 35 Procreation, like conjugal visits, is incompatible with confinement. It is illogical to allow an inmate to impregnate a woman while in prison, while denying his right to consummate a marriage or have sexual relations in the same setting. Although the court stated that artificial insemination bypasses physical contact, 136 and therefore is not inconsistent with one's status as a prisoner, 137 it failed to acknowledge that confinement restricts inmates from certain privileges that private individuals have.' 38 "There are certain downsides to being confined in prison and [ ] the interference with a normal family life is one of them."' 39 If the court is allowing artificial insemination because there is no physical human contact, where does it end? The 127. See id. (citing CAL. CODE REGS. tit ) See Gerber, 264 F.3d at See id. at See id.; see also CAL. CODE REGS. tit (e)(2). ("[C]onjugal visits are prohibited for inmates 'sentenced to life without the possibility of parole [or] sentenced to life without a parole date established by the Board of Prison Terms.') F.3d 133, Id. at 137 (emphasis added) Id. at 136 (citing Turner, 482 U.S. at 95) Gerber, 264 F.3d at 893 (Silverman, J., dissenting) (citing Turner, 482 U.S. at 96) See id. (referring to Hernandez, 18 F.3d at ) See Gerber, 264 F.3d at 890. "Procreation that results from the employment of recently developed methods or techniques that bypass physical contact with the prisoner's spouse is not inherently inconsistent with one's status as a prisoner." Id See id See id. at 893 (Silverman, J., dissenting) Id.

13 Winter, 2003] PROCREATION DURING INCARCERATION Ninth Circuit, through its reasoning, is opening the doors to make prison seem more like an extended vacation rather than a form of punishment. The Ninth Circuit also failed to acknowledge that, as part of our justice system, certain restrictions are imposed on inmates to deter them from criminal conduct. 4 ' In O'lone v. Estate of Shabazz,' 4 it was noted that deterrence of a crime limits constitutional rights.' 42 If inmates are to have the same rights and privileges as private individuals, the deterrence factor disappears. Procreation is part of a normal family life; confinement, however, interrupts the normal family life, 143 including the means of procreating. Criminals put themselves in jail and must face their punishment. Allowing an inmate to procreate is allowing them to have the same privileges as individuals who have obeyed the law, thereby decreasing their punishment. The general and specific deterrence factors of our justice system will be hindered if an inmate is allowed to reproduce behind bars."4 The court in Gerber also stated that conjugal visits and childbirth are not inconsistent with imprisonment since there are many rehabilitation programs for parenting and overnight family visits for prisoners."' The fact that an inmate already had a family before he or she was incarcerated and is allowed visitation is not of issue in Gerber. Gerber is not petitioning the court for visitation rights, he wants to start a family while he is confined in prison The cases to which the Ninth Circuit refer provide examples of inmates who had kids prior to imprisonment or were pregnant at the time of 4 7 incarceration. In this context, Gerber can be distinguished. None of the cases cited by the Ninth Circuit dealt with beginning a family while incar See Hudson v. Palmer, 468 U.S. 517, 524 (1983); see also GEORGE E. PATAKI ET AL., DOES CAPITAL PUNISHMENT DETER CRIME? 7 (Buno Leone et al. eds.) (1998) ("The theory of deterrence is based on the idea that the threat of punishment must be severe enough to counter the benefits or pleasures that the criminal would received from the crime.") U.S. 342 (1987) See id. at Gerber, 264 F.3d at 893 (Silverman, J., dissenting) See generally Hudson v. Palmer, 468 U.S. 517 (1983) (noting that general deterrence occurs when punishment of an act prevents another from committing a crime). See also PATAKI, supra note 140 (specific deterrence refers to preventing criminals from committing a crime again) See Gerber, 264 F.3d at 890 (citing In re Cummings, 30 Cal. 3d 870, 180 Cal. Rptr. 826, 640 P.2d 1101 (1982)) (discussing policy of overnight visitation for immediate family members); In re Monica C., 31 Cal. App. 4th 296, 36 Cal. Rptr. 2d 910, 911 (Cal. Ct. App. 1995) (discussing overnight visitation for inmate who was pregnant when sentenced) Gerber, 264 F.3d at See id. at 890 (citing In re Cummings, 30 Cal. 3d 870, 640 P.2d 1101, 180 Cal. Reptr. 826 (1982)); In re Monica C., 31 Cal. App. 4th 296, 36 Cal. Rptr. 2d 910 (1995) (discussing overnight visitation for inmate who was pregnant when sentenced).

14 CRIMINAL AND CIVIL CONFINEMENT [Vol. 29:125 cerated. ' 48 The cases the Ninth Circuit alluded to only imply that in certain circumstances, an inmate may have the privilege to visit with his or her family, not the privilege to procreate while in prison. Procreation does not survive incarceration. 4 9 The Ninth Circuit failed to show that procreation is not inconsistent with incarceration; rather, it ignored many cases that are persuasive 50 and-used cases as precedent that infer a conclusion opposite to that of Gerber. 5 ' As Justice Silverman stated in his dissent in Gerber, "[t]he majority simply does not accept the fact that there are certain downsides to being confined in prison, and that the interference with a normal family life is one of them."' Is the Regulation Related To A Penological Interest? Next, the Ninth Circuit asked whether the regulation which disallowed Gerber to artificially inseminate his wife was reasonably related to a legitimate penological interest The court distinguished all arguments set fourth by the Prison Warden. 154 First, Hickman argued since it is prison policy to treat male and female inmates equally, allowing Gerber to artificially inseminate his wife would hinder that policy The argument was distinguished because the issue of equal protection was not before the court.' 56 Further discussed was the recognition by other courts that males and females are biologically different and that Gerber is not the one seeking to be inseminated.' 57 Examining the 148. See Gerber, 264 F.3d at 890 (citing In re Cummings, 30 Cal. 3d 870, 640 P.2d 1101, 180 Cal. Reptr. 826 (1982) and (In re Monica C., 31 Cal. App. 4th 296, 36 Cal. Rptr. 2d 910 (1995)) See Gerber, 103 F. Supp at See generally Gerber, 264 F.3d at 882 (citing Goodwin v. Turner, 702 F. Supp. 1452, 1454, afftd, 908 F.2d 1395 (8th Cir. 1990) (holding constitutional to deny artificial insemination while incarcerated); Gerber v. Hickman, 103 F. Supp. 2d 1214, 1217 (E.D. Cal. 2000) (holding procreation is inconsistent with incarceration); Anderson v. Vasquez, 827 F. Supp. 6i 7, 620 (N.D. Cal. 1992) (holding no constitutional right to preserve sperm for artificial insemination while incarcerated and equal protection not violated for denying conjugal visits)). See also Johnson v. Rockefeller, 365 F. Supp. 377, 380 (S.E.N.Y. 1973), aff'd, 415 U.S. 953 (1974) (holding constitutional to restrict lifetime prisoner from marriage) See Gerber, 264 F.3d at 887; see also Turner v. Safley, 482 U.S. 78, 96-97, 107 S. Ct. 2254, 96 L. E. 2d 64 (1987); Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S. Ct. 1110, 86 L. Ed (1942) Gerber, 264 F.3d at 893 (Silverman, J., dissenting) (citing Morrissey v. Brewer, 408 U.S. 471, 482 (1972)) See Gerber, 264 F.3d at See id. at See id. at See id See id. (citing Nguyen v. INS, 121 S. Ct. 2053, 2066, 150 L. Ed. 115 (2001) (holding no equal protection violation and acknowledging women's and men's most basic differences)). But see Goodwin v. Turner, 908 F.2d 1395, 1400 (8th Cir. 1990) (holding that a

15 Winter, 2003] PROCREATION DURING INCARCERATION differences between a female and a male inmate, the Ninth Circuit stated that women cannot provide semen and men cannot become pregnant.1 58 Therefore, the Ninth Circuit reasoned that Gerber's specific request, to provide semen to impregnate his wife, does not apply to the female counterpart. 159 Hence, male and female equality among inmates is not implicated. 160 However, in Goodwin the Eighth Circuit came to a different conclusion. 1 6 The Eighth Circuit found that the restriction against allowing an inmate to artificially inseminate his wife was rationally related to a legitimate penological interest in treating male and female inmates equally.' 62 The Eighth Circuit referred to Madyun v. Franzen 63 and reasoned that if the prison were to allow males to procreate while incarcerated, "whatever the means, it would have to confer a corresponding benefit on its female prisoners."'" This would entail having to expand medical services and staff to accommodate the female population who wanted to reproduce behind the walls of prison. 165 Adding to the financial burden of the prison, other resources used for necessary prison programs would have to be reallocated to provide the services needed for reproduction.1 66 The Eighth Circuit stated that "a pregnant prisoner requires special medical services which may or may not be available within the institution, special diet, exercise, and other pre- and post-natal care."' 6 7 The United States Supreme Court, in deciding Turner, 161 supported the Eighth Circuit's position.' 6 9 In determining whether a prison regulation that arguably impinges on an inmates constitutional right is reasonable, one must look at "the impact the asserted constitutional right will have on the guards, other inmates, and the allocation of prison resources."' 70 The Ninth Circuit chose not to follow the Court's opinion in Turner, and ignored the male inmate cannot artificially inseminate his wife due to policy of equality among female and male inmates) See Gerber, 264 F.3d at See id See id. at 891 n.13. The court acknowledged that a parallel question would be whether a female prisoner could donate her eggs for insemination, but since Hickman did not bring this up, the court did not address the issue. See id See Goodwin, 908 F.2d 1395, See id F.2d 954, 962 (7th Cir. 1983), cert. denied, 464 U.S. 996 (1983) (noting that "male and female inmates must receive substantially equal facilities and conditions while in prison") Goodwin, 908 F.3d at See id See id Id. (quoting Pet'r Br. at 22-23) U.S. 78 (1987); see Turner discussion supra Part III.A.l.c See Turner, 482 U.S. at 90 (When deciding the constitutional right of prisoners one must look at the effect it will have and its potential consequences) Id. at 90.

16 CRIMINAL AND CIVIL CONFINEMENT [Vol. 29:125 ramifications its decision could have on the guards, inmates, and prison resources.' 7 ' The Eighth Circuit, in deciding Goodwin, did address the issue; it recognized that the impact could be significant and decided that denying an inmate the opportunity to artificially inseminate his wife is not unconstitutional. 72 The Ninth Circuit was careless to assume that it need not address the impact its decision could have; rather, following the Supreme Court decision in Turner would have been a more rational route. "When accommodation of an asserted right will have a significant 'ripple effect' on fellow inmates or on prison staff, courts should be particularly 73 deferential to the informed discretion of correction officials."' The Ninth Circuit in Gerber also stated that since men and women are not similarly situated, the prison would not have to provide the same benefit for its female inmates. 174 However the Eighth Circuit addressed this issue and stated: We do not hold that if the Bureau allows Goodwin (the inmate) to procreate, then it must as a matter of constitutional law allow its female inmates to procreate. We merely note that as a matter of the Bureau's established prison policy, and not as a matter of constitutional law, if male inmates are allowed to procreate, the Bureau will either be forced to accord some similar benefit on its female inmates or compromise its legitimate policy. 175 Therefore, the Eighth Circuit did not fail to acknowledge the fundamental differences between women and men, but merely looked at the future impact its decision could have on the prison, guards, and inmates.' 76 Since Goodwin and Gerber are analogous, it is reasonable for the Ninth Circuit to follow Goodwin's rationale. Second, Hickman further argued that prisoners would abuse the decision by "gassing" other people or by sending their semen to un-wanting individuals. 17 ' The court barely addressed this issue, stating that it is argumentative only "in the context of a motion for dismissal under rule 12(b)(6) and the lack of a full record."' 178 Since Gerber has offered to pay for all procedures, and Gerber's lawyer has offered to pick up the specimen, it was ruled that on remand the district court "can consider an appropriate record."' See Gerber, 264 F.3d at See Goodwin, 908 F.3d at Turner, 482 U.S. at 90 (citing Jones v. North Carolina Prisoners' Union, 433 U.S. 119, , 97 S. Ct (1977)) See Gerber, 264 F.3d at Goodwin, 908 F.3d at See id. at 1400; see also Turner, 482 U.S. at See Gerber, 264 F.3d at 891. The term "gassing" refers to the process of inmates throwing their bodily fluids onto others. See id Id Id.

17 Winter, 2003] PROCREATION DURING INCARCERATION Finally, Hickman contended that allowing Gerber to artificially inseminate his wife while in prison will increase lawsuits brought by female inmates who want to be artificially inseminated. 8 He also argued that the risk of litigation would increase due to the possible mishandling of the specimen by the prison authorities.' 8 ' Distinguishing this argument, the court declared that it would be unjust to make a decision due to the fear that another party might bring a lawsuit as well.' 82 Also noted was that a decision cannot be based on the possibility of increased liability of potential lawsuits. 183 Again, the Ninth Circuit is ignoring the potential impact of ruling in favor of Gerber. The potential lawsuits and the need to address the equal protection issue for women, are substantial issues that are hard to ignore and are costly to the prison administration. As a result, resources needed for necessary prison programs and security would be limited.' 84 In conclusion, the court held that procreation does survive incarceration, and that "there is no valid rational connection between the prison regulation and the legitimate governmental interest put forward to justify it."' 85 The district court's decision was reversed and remanded for further proceedings consistent with the opinion put forward by the Ninth Circuit. 186 However, on December 4, 2001, this opinion was vacated and will be reheard by the en banc court pursuant to Circuit Rule IV. EN BANC COURT A. Procreation is Fundamentally Incompatible with Imprisonment Itself Justice Silverman, in Gerber, stated that the right to procreate is fundamentally incompatible with imprisonment itself; therefore, determining if 88 there is a penological interest is unnecessary. Although it is clear that prisoners have a fundamental right to marry, this constitutionally protected guarantee is substantially limited as a result of incarceration. Similarly, inmates possess the right to maintain their procreative abilities for later use once released from custody, even though this right is restricted. Citing Skinner v. Oklahoma Rights of marital privacy, 180. See id See id See Gerber, 264 F.3d at See id. at n.14. The court acknowledged that there may be increased costs due to security and safety reasons, but because this specific issue was not brought up by Hickman, it was not addressed. See id See, e.g., Turner, 482 U.S. at 90 and Goodwin, 908 F.2d at 1399 (referring to the Turner case) Gerber, 264 F.3d at 892 (quoting Turner v. Safely, 482 U.S. 78, 89 (1978)) See Gerber, 264 F.3d at See Gerber, 273 F.3d 843, 843 (9th Cir. 2001) See Gerber, 264 F.3d at 894 (Silverman, J., dissenting).

18 CRIMINAL AND CIVIL CONFINEMENT [Vol. 29:125 like the right to marry and procreate, are necessarily and substantially abridged in a prison setting For the reasons set forth above, the en banc court should reverse the prior holding in Gerber. 9 First, the en banc court should hold that procreation via artificial insemination is a constitutional right that is naturally abridged in a prison setting.' 9 ' In Hernandez, 9 ' 2 an inmate (Hernandez) commenced an action against the correction officials, arguing that the denial of conjugal visits violated his due process rights.1 93 Hernandez claimed that he has "a guaranteed right to marital privacy derived from the fundamental rights of marriage and procreation." 194 The court did not accept this argument, stating that "[r]ights to marital privacy, like the right to marry and procreate, are necessarily and substantially abridged in a prison setting."' 195 "The exigencies and operational considerations of our penal system preclude a prisoner from retaining a fundamental right to cohabitate with his or her spouse."' 196 The Second Circuit in Hernandez, relying on the Supreme Court decisions of Turner v. Safley,' 97 O'lone v. Estate of Shabazz, 98 and Skinner v. Oklahoma, 99 held that the "constitution does not create any constitutional guarantees to conjugal visitation privileges while incarcerated, ' '2 00 and stated that although the fundamental right to marry survives incarceration, "this constitutional guarantee is limited as a result of incarceration." ' ' The Supreme Court has made this clear in a series of cases. First, the Supreme Court in Bell v. Wolfish stated that, "[slimply because prison inmates retain certain constitutional rights does not mean that these 189. Id. at 893 (Silverman, J., dissenting) (quoting Hernandez, 18 F.3d at (2d Cir. 1994) (citations omitted) See discussion supra Part III See Gerber, 264 F.3d at 893 (Silverman, J., dissenting) F.3d 133 (2d Cir. 1994) See Hernandez, 18 F.3d at Id. at Id. at 137 (emphasis added). Tm.r 4 U.. IT 5-96) Hernandez, 18 F.3d at 137 (citing Jones v. North Carolina Prisoner's Labor Union, 433 U.S. 119, 125, , 97 S. Ct , , 53 L. Ed. 629 (1997)) U.S. 78, (1987); see discussion supra Part. III.A.l.c U.S. 342 (1987). Prison inmates who were members of the Islamic faith brought suit contending that policies adopted by the New Jersey prison officials preventing then from attending Jumu'ah, a Muslin congregational service held on Friday afternoons, violated their rights under the Free Exercise Clause of the First Amendment. See id. The policy required inmates to work outside the building in which they were housed and did not allow the inmates to return to those buildings during the day. The Court held that the prison regulation was reasonably related to a penological interest and therefore do not offend the Free Exercise Clause. See id U.S. 535 (1942); see discussion supra Part III.A.I.c Hernandez, 18 F.3d at 137 (citing Turner, 482 U.S. at 95-96) Hernandez, 18 F.3d at 136 (citing Turner, 482 U.S. at 95) U.S. 520, 545 (1979).

19 Winter, 2003] PROCREATION DURING INCARCERATION rights are not subject to restrictions and limitations; '20 3 "a detainee simply does not posses the full range of freedoms as an un-incarcerated individual." '204 Next, the Second Circuit noted that the Supreme Court in O'lone held, "deterrence of a crime, rehabilitation of prisoners, and institutional security limit constitutional rights." 2 5 Finally, the Second Circuit explained that although, the Supreme Court held, when deciding Skinner, that prisoners have the right to maintain their procreative abilities while in prison, Skinner also noted that procreation is restricted due to confinement and the procreative abilities can only be used once released from prison Gerber's claim that his constitutional right was violated is unsound when following the reasoning of the Supreme Court cases noted above. While Gerber maintains his right to procreate, the en banc court should hold that his procreative right is restricted while incarcerated. There are no constitutional guarantees of the privilege of artificial insemination while incarcerated. Constitutional guarantees are limited in the prison setting Although prisoners have the right to marry 20 8 and have the right to procreate, 2 these rights are restricted as a result of confinement. 2 0 Also, Justice Silverman points out that during confinement the prisoner is deprived of his liberty to the extent that he is subject to the rules and regulations of the prison. 211 These types of restrictions serve as a general deterrence to remind others of the privileges lost while in prison. 212 Therefore, the right to procreate is "fundamentally incompatible with imprisonment itself Madyun v. Franzen, 704 F.2d 954, 958 (7th Cir. 1983) (quoting Bell v. Wolfish, 441 U.S. 520, 545 (1979)) Madyun, 704 F.2d at 956 (quoting Bell, 441 U.S. at 545); see Jones v. North Carolina Prisoner's Labor Union, 433 U.S. 119, 125 (1977); Meachum v. Fano, 427 U.S. 215, (1976); Wolff v. McDonnell, 417 U.S. 539, 555 (1974); Pell v. Procunier, 418 U.S. 817, 822 (1974); see also Price v. Johnston, 334 U.S. 266, 285 (1948) Hernandez, 18 F.3d at 136 (citing O'Lone, 482 U.S. 342, 348, 107 S. Ct. 2400, 2404, 96 L. Ed. 282 (1987)) See id. (citing Skinner, 316 U.S. 535, 541, 62 S. Ct. 1110, 1113, 86 L. Ed (1942)) See Turner, 482 U.S. at See id See Skinner, 316 U.S. 535 (1942) See Hernandez, 18 F.3d at See Gerber, 264 F.3d at 894 (Silverman, J., dissenting) (citing Meachum v. Fano, 427 U.S. 215, 224 (1976)) See id. at 894 (citing Hudson v. Palmer, 468 U.S. 517, 524 (1884)) Id. (referring to Hudson, 468 U.S. at 524) (In Hudson an inmate brought an action against an officer of the Virginia penal institution claiming violation of his Fourth Amendment rights for unreasonable search of his jail cell. The Court held that a prisoner has no reasonable expectation of privacy in his prison cell because it is inconsistent with the objective of the prison facility to promote security and safety.).

20 CRIMINAL AND CIVIL CONFINEMENT [Vol. 29:125 B. Implications if Constitutional Right Found If the en banc court determines that prisoner, Gerber, has a right to artificially inseminate his wife during his incarceration, serious implications for the correction facility, courts, and female inmates will follow. The correctional facility will be affected because it will have to add new procedures and resources in order to accommodate for this type of request, particularly if women prisoners assert their equal protection right to be treated the same as similarly situated male prisoners. This, in turn, will have an impact upon the courts because women will be able to bring equal protection suits against the prison. In Goodwin v. Turner, 2 14 the Eighth Circuit found that restricting a prison inmate from artificially inseminating his wife was rationally related to the prison's interest in treating male and female inmates equally. 215 The court determined this by deciding whether this regulation met the rational basis test; it found that it did Many factors were considered in determining whether or not the regulation met the rational basis test: First there must be a "valid, rational connection" between the prison regulation and the legitimate governmental interest put forward to justify it. 217 Second, where alternative means of exercising the right remain open to the prisoner, courts should be "particularly conscious of the measure of judicial deference owed to correction officials. '218 Third, we must consider "the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally. '219 Finally, "the absence of ready alternative is evidence of the reasonableness of a prison regulation," however, prison officials do not "have to set up and then shoot down every conceivable alternative method of accommodating the claimant's constitutional complaint., 220 The prison facility's Bureau argued that allowing Goodwin to artificially inseminate his wife would go against the prison policy of treating female and male inmates equally. 221 The rourt nnnlied- th fr -h-ve nnrt t-- nnd found that the Bureau's policy was rationally related to the State's interest of equality. 22 First, the court found that if the prison were required to let this procedure occur, regardless of the simplicity of the procedure, then it F.2d 1395 (1990) See Goodwin, 908 F.2d at ; see also discussion supra Part III.A.l.b See Goodwin, 908 F.2d at Id. (quoting Turner, 482 U.S. at 90) (quoting Block v. Rutherford, 468 U.S. 576, 586 (1984)) Id. (quoting Turner, 482 U.S. at 90) (quoting Pell v. Procunier, 417 U.S. at 827) Id. (quoting Turner, 482 U.S. at 90) Goodwin, 908 F.2d at 1399 (quoting Turner, 482 U.S. at 90-91) See id. at See id.

21 Winter, PROCREATION DURING INCARCERATION would have to confer a corresponding benefit to its female prisoners The court reasoned: The significant expansion of medical services to the female population and the additional financial burden of added infant care would have a significant impact on the allocation of prison resources generally and would further undercut the Bureau's limited resourced for necessary and important prison programs and security. 224 Next, the Eighth Circuit reasoned that although alternative means of exercising the right to procreate existed, the regulation was still reasonable. 225 "The lack of such alternative avenues stems from that the fact that none can exist without compromising prison policy or expending a large amount of prison resources accommodating the requests of its female prisoners. 226 The Eighth Circuit reasoned that the absence of ready alternatives lends credibility to the reasonableness of the Bureau's policy. 227 Finally, the Eighth Circuit determined that by granting Goodwin's request to artificially inseminate his wife, other inmates would be "significantly" affected. 228 For example, medical services would need to be expanded in order to satisfy female prisoners who make a request similar to that of Goodwin. 229 In turn, resources that are typically used to fund "other legitimate penological interests," such as security, would have to be reallocated to fund the medical expansion, thus depleting important prison resources. 230 "The accommodation of the female inmates is just the kind of 'ripple effect' to which the Turner Court referred." '23 ' As a result of the "ripple effect," the Eighth Circuit concluded that it should be "particularly deferential to the informed discretion of the Bureau officials. 232 Thus, the court found that the "Bureau's restriction on inmate procreation is reasonably related to furthering the legitimate penological interest of treating all inmates equally to the extent possible. 233 The en banc court should follow the same reasoning as the Eighth Circuit in Goodwin. Following the reasonable basis test of Turner, 234 the en banc court should find that the CDC has a legitimate concern of treating male and female inmates equally. The Warden in Gerber set out the same argu See id. Id. at 1400 (Cf Turner, 482 U.S. at 90, 92, 107; Southerland, 784 F.2d at 718) See Goodwin, 908 F.2d at Id See id See id See id Goodwin, 908 F.2d at Id. (citing Turner, 482 U.S. at 90); see Turner discussion supra Part III.A.l.c Goodwin, 908 F.2d at Id. at See Turner, 482 U.S. at 89.

22 CRIMINAL AND CIVIL CONFINEMENT [Vol. 29:125 ment as the Bureau did in Goodwin The Ninth Circuit determined that the issue of equal protection was not a matter before the court, and, therefore, the court did not need to consider it. 236 The Goodwin court would disagree. 237 When Goodwin proposed that the equal protection issue need not be determined, the Eighth Circuit responded: We do not hold that if the Bureau allows Goodwin to procreate, then it must as a matter of constitutional law allow its female inmates to procreate. We merely note that at a matter of the Bureau's established prison policy, and not as a matter of constitutional law, if male inmates are allowed to procreate, the Bureau will either be forced to accord some similar benefit on its female inmates or compromise its legitimate policy. 238 As a matter of prison policy in treating prisoners equally, the prison will have to afford the same benefit to its female inmates if it allows Gerber to procreate while incarcerated. Although burdensome, this means that the prison would have to expand its medical facilities and staff to accommodate the demands of females, which would take money away from other necessary penological programs. The court should not ignore the implications its decision could have on other inmates and the prison system itself. The equal protection clause states that "[n]o state shall make or enforce any law which shall... deny to any person within its jurisdiction the equal protection of the laws. ' 2 39 In essence, it guarantees that people who are similarly situated will be treated equally. 24 In this case, if the en banc court finds for Gerber, then an equal protection argument could be raised on behalf of female inmates who want to procreate, because the female inmate is similarly situated to the male inmate. 21 ' The prison system will have to accommodate those female prisoners who want to procreate, or expect to face a lawsuit. 242 Either way, the situation is not favorable and seems to go against the objectives of the penological system. Those objectives are not only limited to the extent of treating female and male prisoners the same, but also the deterrence factor our justice system relies on.243 These cases are examples of some implications the Gerber decision could have on the penal system. If the Ninth Circuit rules in favor of Gerber, there is a gamut of scenarios that may arise and result in litigation concerning equal protection. For example, a female may want to donate her 235. See Gerber v. Hickman, 264 F.3d 882; see also Goodwin v. Turner, 908 F.2d 1395 (8th Cir. 1990) See Gerber, 264 F.3d at See generally Goodwin, 908 F.2d Goodwin, 908 F.2d at U.S. CONST. amend. XIV See U.S. CONST. amend. XIV See Gerber, 264 F.3d 882, 890 (9th Cir. 2001) See id See id. at 892.

23 Winter, 2003] PROCREATION DURING INCARCERATION eggs to a lesbian partner or surrogate mother. 2 " If the prison prohibits this in light of the Ninth Circuit's ruling in favor of Gerber, the equal protection and the fundamental right to procreate arguments could be brought before a court. In Madyun v. Franzen 245 the Seventh Circuit stated that male and female inmates must receive substantially the same conditions and facilities while incarcerated. 246 In Glover v. Johnson, 247 the court stated that the prison officials "are bound to provide women inmates with treatment and facilities that are substantially equivalent to those provided to men i.e., equivalent in substance if not in form. 248 Under these cases, the equal protection argument would survive and the penitentiary would have to accommodate those female prisoners. As stated above, this would be burdensome on the prison system. 249 It is doubtful that a court would find that a fundamental right exists for male prisoners but not for female prisoners. This would be another violation of the equal protection clause. However, as the first decision of the Ninth Circuit stated in regard to the equality issue of female and male prisoners, an argument against the equal protection allegation is found in Nguyen v. INS.25 Nguyen acknowledged the biological differences between males and females and held that there is no equal protection violation due to those basic differences. 251 The Court in Nguyen upheld a statute with a gender-based classification stating that "it served important governmental objectives and the discriminatory means employed are substantially related to the achievement of those objectives. '252 It is unlikely that the test used in Nguyen to uphold a gender inequality would work in the example of a female inmate wanting to donate her eggs. The female inmate, just as Gerber, could pay for all the expenses, employ her own doctor, and sign a 244. See id. at 891 n F.2d 954, 962 (7th Cir. 1983), cert. denied, 464 U.S. 996 (1983) Madyun, 704 F.2d at 962 (An inmate brought action under the Equal Protection Clause stating that since female prisoners are not frisked by male guards, female guards should not be allowed to frisk male prisoners. The court denied this argument stating "prisoners by the very nature of incarceration are subject to indignities and deprivations that would be impermissible outside the prison") F. Supp 1075 (E.D. Mich. 1979) (Female inmates brought a suit against the prison officials focusing on alleged inequalities apparent in the treatment and rehabilitation programs available to the female inmates as compared to male inmates. The court found the inequalities exist and ordered an injunction as to the educational and vocational programs) Glover v. Johnson, 478 F. Supp at See discussion supra part III.A L. Ed. 2d 115, 121 S. Ct. 2053, 2064 (2001). A state statute imposed different requirements of a child's acquisition of U.S. citizenship based upon whether the citizen parent is the mother or the father. See id See Gerber, 264 F.3d at 889 (citing Nguyen v. INS, 533 U.S. 53, 121 S. Ct. 2053, 2066, 150 L. E. 2d 115 (2000)) Nguyen, 121 S. Ct. at 2064 (citing Hogan, 458 U.S. at 724, 102 S. Ct. 3331).

24 CRIMINAL AND CIVIL CONFINEMENT [Vol. 29:125 release of prison liability form; basically she could employ everything needed for the egg donation without compromising the prison. VI. CONCLUSION The en banc court should find that Gerber does not have a constitutional right to procreate "via FedEx '253 from prison. First, there are cases that have addressed this issue in the past that should be looked at when determining the fate of Gerber. Collectively the Anderson Court, Turner Court, and Goodwin Court state, the act of intercourse, and the act of having children "are superseded by the fact of confinement... [and] [a]rtificial insemination, as a method of begetting a child, fall within this realm of unavailable incidents of marriage. ' 254 Also, these cases recognized that some fundamental rights are retained in prison as long as they are not inconsistent with confinement The district courts of Anderson and Goodwin found that artificial insemination is inconsistent with confinement and therefore is not allowed, 2 56 while Turner established a fundamental right to marry while in prison, but that "cohabitations, sexual intercourse, and the bearing and rearing of children" are restrictions on a marriage due to incarceration."' These cases stand for the proposition that although one's "procreative abilities" are maintained while in prison, "the right... to procreate [is]... substantially abridged in a prison setting. ' "258 Second, courts have held that conjugal visits are not a right retained while in prison,' 59 and have accepted that "[t]here are certain downsides of being confined and interference with a normal family life is one of them." ' 26 " The fact that Gerber is confined for life inhibits him from carrying on as a normal family member. Procreation is a factor in normal family life that is inconsistent with imprisonment itself and therefore, a right that cannot be retained. Third, the en banc court should look at the impact its decision could have oi inmates, the courts, and prison officials if Gerber is allowed to artificially inseminate his wife Particularly, prison officials would have to 253. Gerber, 264 F.3d Gerber, 103 F. Supp. 2d at 1217 (citing Anderson v. Vasquez, 827 F. Supp. 617, 620 (N.D. Cal.1992) (quoting Goodwin v. Turner, 702 F. Supp. 1452, (W.D. Mo. 1988)); see also Turner, 482 U.S See Gerber, 103 F. Supp. 2d at See id. at (referring to Goodwin v. Turner, 702 F. Supp (W.D. Mo. 1988); Anderson, 827 F. Supp. 617 (N.D. Cal. 1992)) Goodwin, 702 F. Supp. at 1454 (referring to Turner, 482 U.S. at 95-96) Gerber, 264 F.3d at 893 (Silverman, J., dissenting) (quoting Hernandez v. Coughlin, 18 F.3d 133, (2d Cir. 1994)) See id. (quoting Hernandez v. Coughlin, 18 F.3d 133, (2d Cir. 1994)) Id. (citing Morrissey v. Brewer, 408 U.S. 471, 482 (1972)) See Gerber, 264 F.3d at 891.

25 Winter, 2003] PROCREATION DURING INCARCERATION expand their resources to accommodate similar requests of female inmates. 262 If this does not happen, the prison would have to endure the cost of litigation for suits brought by female inmates claiming violations of equal protection. 63 Finally, the court should look at the purpose of the justice system. Our justice system is designed to punish those who have wronged. The most severe cases put the wrongdoer into confinement for punishment and to protect the public from harm. If a prisoner can marry and later decide to have kids from behind the bars of a prison cell, what else will the courts let him do? Is this really a punishment for the inmate's wrong doing? What happens to the deterrence factor? The fact that one is confined prohibits him from having the opportunity to do certain things than a non-incarcerated individual. This is part of his punishment for committing the crime. The punishment will diminish if the courts start allowing prisoner's to have the same rights as law abiding citizens. The fact is that Gerber committed a crime and is serving time for that crime; he is the one who put himself in jail. It is not the prison who is at fault because Gerber cannot procreate, it is his own fault. For this and the reasons set out above, the en banc court should not rule in favor of Gerber. VII. ADDENDUM Gerber v. Hickman 264 was decided by the en banc court on May 23, The en banc court affirmed the district court's decision and determined that the right to procreate is inconsistent with Gerber's status as a 266 prisoner. As pointed out earlier in this comment, the vacated decision of the Ninth Circuit determined that since procreation by artificial insemination does not occur with contact, it is not inconsistent with incarceration; distinguishing the fact that the denial of conjugal visits is constitutional. 267 The en banc court differed in its decision, stating that "[i]ncarceration is simply inconsistent with the vast majority of concomitants to marriage, privacy, and personal intimacy," and the simplicity to procreate through scientific methods while incarcerated is irrelevant to the courts determination See id See id F.3d 617 (9th Cir. 2002) See id See id. at See supra Part III.A.l.e Gerber, 291 F.3d at 621; see also Goodwin, 702 F. Supp. 1452, 1454 (W.D. Mo. 1988) ("[M]any aspects of marriage that make it a basic civil right, such as cohabitation, sexual intercourse, and the bearing and rearing of children, are superseded by the fact of confinement.") and Hernandez, 18 F.3d 133, 137 (2d Cir. 1994) ("'Rights of marital privacy, like the right to marry and procreate, are necessarily and substantially abridged in a prison setting."').

26 CRIMINAL AND CIVIL CONFINEMENT [Vol. 29:125 The en banc court focused more on "the nature and goals of the correctional system ' 269 rather than the method Of procreation. "The loss of the right to intimate association is simply part and parcel of being imprisoned for conviction of a crime. ' "270 The court went on to explain that the very nature of incarceration "'deprives [one] of the fundamental right to be free from physical restraint,' and 'this in turn encompasses and restricts other fundamental rights,"' including the right to procreate regardless of the method The en banc court also discussed how deterrence and retribution are goals of the penal system, which the prior Ninth Circuit decision neglected to consider "[C]onfining criminal offenders in a facility where they are isolated from the rest of society serves to deter crime and protect the public." '73 "Also, by quarantining criminal offenders for a given period of time... the rehabilitative processes of the corrections system work to correct the offender's demonstrated criminal proclivity." 74 Earlier in this comment it was noted that if inmates are to have the same rights and privileges as private individuals, the deterrence factor would disappear. 275 The en banc court alluded to this fact stating, "these restrictions or retractions also serve... as reminders that, under our system of justice, deterrence and retribution are factors in addition to correction If a criminal convicted for life can start a family behind prison bars, then the deterrence and rehabilitative functions of the penal system weakens. Previously, this comment discussed Skinner v. Oklahoma and Turner v. Safely and distinguished the Ninth Circuit's former determination that these cases conclude there is a constitutional right to procreate while in prison First, as the comment emphasized above, the en banc court also emphasized that Skinner holds that inmates have the right to keep their "procreative abilities while in prison for later use once released from custody. '2 78 The right to procreate while in prison is very different from the right to keep your reproductive abilities. 279 Second, also discussed above and noted by the en banc court, although Turner held inmates have a right to marry while incarcerated, Turner also noted that many restrictions on marriage result 269. Id. at 622 (citing Jack B. Weinstein & Catherine Wimberly, Secrecy in Law and Science, 23 CARnoZo L. REV. 1, 9-11 (2001)) Id. at Id. (quoting State v. Oakley, 2001 WI 103, 629 N.W.2d 200, 209, 245 Wis.2d 447 (Wisc. 2001)) (citing Meyer v. Nebraska, 262 U.S. 390, 399, 67 L. Ed. 1042, 43 S. Ct. 625 (1923)) See id. at 621; discussion supra Part III.A.l.e Gerber, 291 F.3d at 621 (quoting Pell, 417 U.S. at 822) Id. at 621 (quoting Pell, 417 U.S. at 823) See discussion supra Part III.A.I.e Gerber, 291 F.3d at 621 (quoting Hudson, 468 U.S. at 524) See discussion supra Part Ill.A.l.c-d Gerber, 291 F.3d at 622 (emphasis added) (quoting Hernandez, 18 F.3d at 1361) See id. at 622; discussion supra Part II.A.l.d.

27 Winter, 2003] PROCREATION DURING INCARCERATION due to confinement, such as consummation. 28 Therefore, the en banc court explained that the court in Turner "envisioned that while the intangible and emotional aspects of marriage survive incarceration, the physical aspects do not." '281 Those physical aspects encompass all methods of procreation, regardless of advanced scientific procedures. The en banc court's decision held that allowing an inmate to artificially inseminate his wife would be an "unprecedented interpretation of the Constitution" and therefore is inconsistent with incarceration. 282 The en banc court did not discuss whether the prison's regulation is rationally related to a penological interest or whether procreation is a fundamental right while incarcerated. 283 Tammi Michele Kipp 280. See Gerber, 291 F.3d at 623 (citing Turner, 482 U.S. at 96); discussion supra Part III.A. 1.c Gerber, 291 F.3d at 623 (citing Hernandez, 18 F.3d at 137) Id See generally Gerber, 291 F.3d 617.