Prison and Planned Parenthood? Prisoners and the Conception of a Right to Procreate.

Abstract

The decision to have a child is normally considered a private matter between consenting adults. The state only intervenes if individuals require medical treatment to conceive. The ability to choose if, and indeed when, to have children is recognised as an important human right. In contrast, prisoners inhabit a public space where all decisions regarding procreation are subject to public scrutiny. In the USA, prisoners are completely prohibited from procreating, unless they are granted the privilege of private visits. In contrast, in Dickson, the European Court of Human Rights recognised that prisoners retain all of their convention rights, including the right to a private and family life. Rights can only be restricted if necessary and the restriction must be proportionate to the objective that the state is trying to achieve. This thesis will examine the question of whether prisoners should retain a right to procreate and whether restricting prisoners from procreating should form a part of their punishment. Many characteristics of the Victorian penal regime including isolation from family members and the concept of ‘less-eligibility’ continue to affect how prisoners in England and Wales and the USA are treated. Prohibiting prisoners from procreating is often justified as part of a prisoner’s punishment. Many argue that it is a direct consequence of imprisonment. Alternatively, if one accepts the premise that prisoners retain all of their human rights apart from the right to freedom, then there appears to be little justification for removing their right to procreate in most cases. Removing the right to procreate is in effect an additional method of punishing the offender that is not explicitly stated as part of the prisoner’s sentence and is normally given very little consideration by prison officials or by government authorities.