04 March 2013
ByAppeared in BioNews 695
He told the Daily Mail: 'I am extremely concerned about prisoners having access to artificial insemination, which is why I am reviewing the policy with a view to banning it'.
The European Court of Human Rights (ECtHR) in Strasbourg has previously ruled that preventing prisoners' access to fertility treatment may breach their right to a private and family life, however. It said prisoners retain rights under the European Convention on Human Rights and any restriction on these must be justified. It ruled in the cases of Dickson and Hirst that the only right removed upon incarceration is the right to liberty.
In 2007, Kirk Dickson, who was serving a life sentence for murder, was awarded 5,000 euros in compensation after the Grand Chamber of the ECtHR ruled that the British Government had violated his and his wife's rights under Article 8 by not allowing him access to artificial insemination. At the time of his expected release, his wife, whom he had met in prison and had already been released, would have been 51-years-old and would have been very unlikely to be able to conceive naturally at that age.
In December, the Daily Mail reported that five prisoners serving custodial sentences for murder and drug dealing had made applications to access NHS fertility treatment. Two of the five cases have since been refused while the remaining cases remain to be considered. At the time, Mr Grayling signalled his intention to take on the ECtHR on the issue. He said: 'I don't believe the originators of the Convention on Human Rights ever imagined it being used for things like this'.
European Court of Human Rights in Strasbourg has extended its remit into areas
which have little to do with real human rights issues and I intend to bring
forward proposals about how we change that', he added.
Andrew Neilson from The Howard League for Penal Reform told ITV This Morning that partners and families of prisoners should not be punished. A prisoner's punishment, he said, is going to prison, not losing the right to family life. However, journalist Angela Epstein responded saying that prisoners have been removed from society and their right to civil liberties is suspended when they break the law. Speaking to the Daily Mail, Mr Grayling said: 'There can be no clearer example of why we need changes to the human rights framework'.
A poll on the programme revealed that 97 percent of viewers felt that prisoners should not have the right to IVF treatment. But the ECtHR in the Dickson case said that public opinion alone could not justify the restriction of Convention rights to prisoners.
The ECtHR decision to uphold prisoners' rights to access fertility treatment does not mean that prisoners are guaranteed treatment. The Telegraph reports that since the Dickson case, 13 prisoners have made applications to access fertility treatment but only one has been granted.
In 2010, BioNews reported that a prisoner's application to access IVF was under consideration and, at the time, the Prison Service explained what factors are identified when considering such applications. 'Prisoners may apply for access to artificial insemination facilities. Each request will be considered on individual merit against a number of considerations and any information which the applicants wish to provide in support of their application', it said.
Prison Service said it considers various factors including the woman's age and how long the couple has been
together but also the welfare of the child and who would pay for the treatment. As
it stands, the justice secretary makes the ultimate decision on each individual