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Missing the point? Human rights, prisoners and artificial insemination

20 June 2011
By Dr Mary Yarwood
Postgraduate Research Student, Queen Mary University of London
Appeared in BioNews 612

'The public are sick to the back teeth of the human rights of criminals being put before the rights of decent law-abiding people, victims and taxpayers'. Philip Davies MP (1).

'Yet again this is human rights nonsense, giving these nasty, vile criminals the right to have a family, which is extraordinary'. Priti Patel MP (2).

The anger generated by the knowledge that in the UK only one prisoner since 2007 has been granted access to artificial insemination (AI) shows there is very little public support for prisoners starting a family while behind bars. Many people feel angry at the prospect, and think that when an individual is convicted of a crime, he or she should lose all of their rights, including the right to start a family.

One of the reasons this news has generated such controversy is that it raises many difficult ethical issues. The main justification given for restricting access to AI is the welfare of the putative child. The prisoner could potentially remain in custody for a long time after the child is born, thus creating in effect a single-parent family. Judges in the cases of Mellor and Dickson argued that this was not in the best interests of either the child or society, especially when considering the financial cost of raising a child (3), (4). A single parent may be unable to work, meaning that the state has to pay benefits to support the parent and child.

There are also concerns that prisoners are not the sort of people that society wants to have as parents. Perhaps Priti Patel MP is worried that by allowing a 'nasty vile criminal' to procreate, we would be allowing prisoners to raise the next generation of future criminals? Others argue that the punishment value inflicted by a prison sentence would be reduced if prisoners are allowed to have children.

Nevertheless, is it the role of society to decide who should and who should not become a parent? Apart from when one seeks access to fertility treatment, there is no test one has to pass, nor questions that one has to answer to become a parent. When a prisoner is prevented from having children, his or her opportunity to do so may be lost. The innocent partner of the prisoner may also suffer 'collateral damage' as a result of restrictions placed upon their relationship. Many of these restrictions could be considered an inevitable consequence of imprisonment, but refusal of access to fertility services does not have to be one of them. The financial cost to the UK's Prison Service itself is minimal, and its involvement ceases once the semen sample has been handed over to the fertility clinic.

Prisoners themselves are not a popular recipient of public sympathy. This has changed very little since the Dickson case, and has been strengthened by recent negative publicity surrounding prisoners' voting rights. Many people think that prisoners are not entitled to have human rights, and (incorrectly) assume that they lose them upon incarceration. In reality, prisoners retain all of their rights under the European Convention on Human Rights. The Grand Chamber of the European Court of Human Rights in Hirst (no. 2) and Dickson, confirmed that the only right which is automatically removed upon imprisonment is the right to liberty (5), (6).

Any other restrictions to prisoners' rights have to be justified and proportionate, balancing the prisoner's human rights with the rights and responsibilities of the state. Before the Grand Chamber ruling in Dickson, access to AI was deliberately restrictive, which made proportionate decision-making impossible. But the fact that only one prisoner (out of 16) since 2007 has been granted access to AI facilities, shows that in practice the UK Government continues to operate a restrictive policy.

Critics of prisoners' rights are missing the point. The Human Rights Act applies to everyone. Human rights, including the right to found a family, are not just granted to nice people, or to people who 'deserve' them. They are given to everyone, to all humans, including prisoners.

1) Prisoner allowed to father a child from jail because of 'human right to a family life'
Mail Online |  06/11
2) Clarke inquiry into prison's test-tube father
Evening Standard |  06/11
3) Secretary of State for the Home Department, Ex parte Mellor [2001] EWCA Civ 472 [67] (Lord Phillips MR)
Court of Appeal (Civil Division) |  4 April 2001
4) Kirk Dickson, Lorraine Dickson v. Premier Prison Service Ltd., Secretary of State for the Home Department [2004] EWCA Civ 1477 [19]-[20] (Auld LJ)
Court of Appeal (Civil Division) |  26 October 2021
5) Hirst v United Kingdom (No 2) App no 74025/01 (ECHR) [69]
European Court of Human Rights |  6 October 2005
6) Dickson v United Kingdom App no 44362/04 (ECHR, 4 December 2007) [67]-[68]
European Court of Human Rights |  4 December 2007
10 September 2012 - by Dr Mary Yarwood 
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18 October 2010 - by Antony Starza-Allen 
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12 July 2010 - by Chris Chatterton 
An Australian Supreme Court has allowed a woman to continue with her self-funded IVF treatment, after she was given an 18-month jail term for fraud last November...
8 March 2010 - by Kyrillos Georgiadis 
A drug dealer serving a life sentence is awaiting a Government decision on whether he can have artificial insemination, after being granted permission by prison bosses...
19 January 2009 - by Dr Anna Smajdor 
In October 2008, it was reported that a Spanish woman, Elena Beloki, had been granted permission to receive IVF treatment. Beloki is currently serving a 13-year prison sentence for her involvement with the Basque separatist organisation, Eta. Her fertility treatment will be carried out while on bail, and will...
18 June 2006 - by Heidi Nicholl 
Israel's High Court of Justice has ruled that Yigal Amir, the assassin who killed Prime Minister Yitzhak Rabin in 1995, will be allowed to father a child using artificial insemination (AI). Amir was jailed for life without parole following the murder and married Larissa Trimbobler by proxy...
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