Procreation and the prisoner: does the right to procreate survive incarceration and do legitimate penological interests justify restrictions on the exercise of the right.

• Author: Guidice, Richard, Jr.

No "iron curtain" separates prisoners from the Constitution. (1)

INTRODUCTION

Criminal conviction and lawful incarceration necessarily deprive citizens of many of the rights, privileges, and freedoms other citizens are afforded under the Constitution. (2) In the past, prisoners generally did not bring lawsuits alleging the deprivation of their constitutional rights, (3) because most courts held that prisoners forfeited their rights upon conviction. (4) Federal courts were reluctant to interfere with the internal administration of prisons, (5) and deferred to the expert judgment of prison officials. (6) Recently, however, the United States Supreme Court has recognized that an inmate retains those fights that are not inconsistent with his status as a prisoner or within the legitimate penological (7) objectives of the corrections system. (8) As a result, litigation surrounding prisoners' rights has grown dramatically over the past thirty years. (9)

One of the most hotly litigated prisoners' rights issues in federal and state courts is whether an inmate has the right to procreate through artificial means while incarcerated. (10) Previously, courts were reluctant to hold that prisoners have such a right. (11) No court had ever held that the right to procreate survives incarceration, (12) or that legitimate government interests did not justify a restriction on that right. (13) In 1990, the Eighth Circuit, assumed without deciding, that the right to procreate survives incarceration, (14) but held that a government-imposed restriction on a male prisoner's ability to exercise that right through artificial means was reasonably related to achieving legitimate penological objectives. (15) In 2001, however, the Ninth Circuit (16) became the first court in the nation to hold that the right to procreate does survive incarceration. (17) The court also held that no government interests offered justify a restriction on a male prisoner's ability to exercise the right by artificially inseminating (18) his civilian spouse. (19) This decision created a new split among federal circuit courts, (20) and this split is sure to spark litigation that will likely end up in the Supreme Court.

A proper discussion of whether a prisoner retains the right to procreate while incarcerated necessarily requires an analysis of two separate and controversial issues. The first issue is "whether there is a fundamental right involved (in this case, the right to procreate) and whether that fundamental right is not `inconsistent with [one's] status as a prisoner.'" (21) In other words, a court must initially determine that the right to procreate is a fundamental right and one that survives incarceration. (22) If the court finds that procreation is a fundamental right, the second issue is whether there are legitimate penological interests that justify a restriction on a prisoner's ability to exercise that fundamental right. (23)

Part I of this Note begins with a historical review of the fundamental right to procreate for nonprisoners. In order to provide a complete context to the procreation issue, a discussion of other fundamental rights that have been deemed to either survive or extinguish upon incarceration follows. Part I also outlines the standard of review for prison regulations that impinge upon a prisoner's fundamental rights. Part II considers whether the right to procreate should survive incarceration and examines the proper standard of review for determining whether a prison may justifiably restrict a prisoner's right to procreate. This analysis weighs an inmate's procreative rights against the penological objectives of the prison system and reviews how courts have attempted to do so. Part III argues that the right to procreate must survive incarceration, and that no valid connection exists between prison regulations and the furtherance of legitimate penological interests that would justify a total abrogation of a prisoner's right to procreate. (24)

1. BACKGROUND

   Free-standing citizens enjoy the full range of rights afforded under the Constitution; prisoners do not. (25) Before discussing whether a prisoner has a right to procreate, this Part first reviews the right to procreate for nonprisoners. Following this review is an examination and analysis of the different rights that citizens retain and relinquish upon entering prison. Then, this Part presents the split between the Eighth and Ninth Circuits concerning a prisoner's right to procreate through artificial means. Lastly, this Part outlines the constitutional standards of review for prison regulations that impinge upon the fundamental rights of nonprisoners and prisoners.

   1. Origin of Procreative Rights for Nonprisoners

      The Supreme Court has consistently recognized a fundamental right to procreate. (26) In 1942, the Court stated that certain legislation deprived individuals "of a right which is basic to the perpetuation of a race--the right to have offspring." (27) In cases involving family and marital rights outside the prison context, Skinner v. Oklahoma has been cited as standing for the proposition that procreation is a fundamental right, and that choices surrounding when and whether to have children are protected by the Constitution. (28)

      Thirty years later, in Stanley v. Illinois, (29) the Court found that, "The rights to conceive and to raise one's children have been deemed `essential,' `basic civil rights of man' and `rights far more precious ... than property rights.'" (30) Subsequently, the Court in Carey v. Population Services International, stated that, "It is clear that among the decisions that an individual may make without unjustified government interference are personal decisions `relating to ... procreation.'" (31) The Court further declared, "The decision whether or not to beget or bear child is at the very heart of this cluster of constitutionally protected choices." (32) Although the Supreme Court has established that the right to procreate is of fundamental status, (33) it has yet to decide whether the right extends to the incarcerated. (34)

   2. Prisoner's Rights

      1. A Brief Early History of Prisoner's Rights in the United States

         At one time, convicted prisoners were considered slaves of the State. (35) Like slaves, the state afforded them no rights and no access to the courts. (36) In fact, during the 1800s, many states instituted a convict lease system, leasing many or all of their prisoners to the highest bidder for a fixed sum. (37) The government maintained no control over the management of the prisoners, and prisoners were treated exceptionally poorly. (38)

         Towards the middle of the twentieth century, signs appeared that indicated the beginning of an advance in prisoners' rights. (39) Few substantive changes, however, were realized at that time (40) because courts supported a policy of noninterference in prison affairs. (41) This policy, generally referred to as the hands-off doctrine, (42) made it almost impossible for inmates to get judicial relief. (43) Some inmates were kept in solitary confinement without clothes, hygienic materials, bedding, adequate food or heat, and the opportunity to clean either themselves or the cell. They were sometimes kept in such confinement for longer than twenty-four hours continuously. (44)

         During the 1960s, federal courts began to depart from the hands-off doctrine. (45) Several factors provided the impetus for this change. (46) One factor was the Supreme Court's ruling that the Eighth Amendment (47) applied to the states by way of the Fourteenth Amendment. (48) In doing so, the Court provided prisoners with a foundation upon which to bring suits challenging the conditions in state prisons. (49) Another factor was the Court's decision that, under certain circumstances, actions could be commenced against state officials. (50) Consequently, the hands-off doctrine gradually eroded as courts became increasingly prisoner rights oriented. (51) The following subsection discusses some of the fundamental fights that courts have held to survive incarceration.

      2. Other Rights Found to Survive Incarceration

         The Supreme Court has enumerated several guiding principles underlying its policy regarding prisoners' rights. (52) The Court has found that because "no `iron curtain' separates" prisoners from the Constitution, (53) a prisoner "retains those [constitutional] rights that are not inconsistent with his status as a prisoner." (54) In addition, the Court has emphatically held that prisoners do not forfeit all of their constitutional rights simply because of conviction and confinement in prison. (55) However, the Court has balanced these principles by also recognizing that incarceration necessarily limits many privileges and rights, (56) a constriction arising from both incarceration and valid penological objectives, "including deterrence of crime, rehabilitation of prisoners, and institutional security." (57) In applying these constitutional principles to cases implicating prisoners' rights, federal courts have recognized that some constitutional rights, other than the right to procreate, do survive incarceration. (58)

         Regarding privacy rights of personal choice in family matters, including the right to procreate, the Supreme Court has held that inmates may not be sterilized while in prison. They have the constitutional right to maintain their procreative abilities for use when released from custody. (59) The Court has also held that a prisoner's right to marry survives incarceration. (60) The Court has further affirmed that the rights of free exercise of religion, (61) meaningful access to courts, (62) equal protection to be free of invidious racial discrimination, (63) and free speech (64) are all retained by inmates during imprisonment.

         In Skinner v. Oklahoma, the state sought to enforce its Habitual Criminal Sterilization Act ("Act"). (65) The Act authorized the sterilization of persons convicted of three felonies involving...