© Jordan Publishing Ltd 2007 CFam 19 2 (239)
© Jordan Publishing Ltd 2007
Child and Family Law Quarterly
1 June 2007
CFam 19 2 (239)
LENGTH: 4466 words
TOPIC: CHILDREN AND YOUNG PERSONS
TITLE: Prisoners, their partners and the right to family life
AUTHOR: Emily Jackson n1
Law Department, Queen Mary, University of London.
Does the right to ‘found a family’ (Article 12) mean that prisoners and their partners should be granted access to artificial insemination facilities? In Dickson v United Kingdom the European Court of Human Rights, by a majority, decided that the UK was entitled to restrict prisoners’ access to AI to exceptional cases only. The Dicksons did not qualify, despite the fact that Mrs Dickson would be too old to conceive naturally when Mr Dickson was released from prison. In this note, I explore the Court’s reasoning and challenge some of the assumptions which underpin the majority’s judgment.
LEGISLATION REFERRED TO:
Human Fertilisation and Embryology Act 1990; Human Rights Act 1998
The reproductive rights of prisoners and their partners have received scant academic or media attention in the UK, n2 in stark contrast to the USA, where a number of high profile cases, n3 and media reports of a prison guard being bribed to smuggle sperm out of a prison, have led to what Helen Codd describes as a ‘deluge’ of articles debating the issues. n4 It remains to be seen whether this will change in the light of two recent judgments which have addressed the question of whether British prisoners and their partners should be afforded access to the means necessary for them to attempt to conceive a child. n5
In Dickson v United Kingdom, the European Court of Human Rights (ECtHR), by a bare majority, decided that the Secretary of State’s decision to deny a prisoner and his wife access to artificial insemination (AI) was compatible with their rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. It is possible for prisoners in the UK to have access to AI, but the Secretary of State (advised by the Family Ties Unit of the Prison Service) will only exercise his discretion in the prisoner’s favour in exceptional circumstances. In Dickson, the ECtHR decided that the Government had acted lawfully, first, by adopting a policy which would allow prisoners access to AI only in exceptional circumstances and, secondly, by deciding that Kirk and Lorraine Dickson’s circumstances were not sufficiently exceptional.
In upholding the UK’s right to have a policy which grants access to AI only where the circumstances are exceptional, the ECtHR took the same approach as the Court of Appeal four years earlier in R (Mellor) v Secretary of State for the Home Department. n6 In Mellor, the Court of Appeal held that denying access to AI to prisoners could interfere with their right to found a family under Article 12, but only where the denial would not merely delay the prisoner’s ability to start a family, but eliminate it altogether. Tracey Mellor would have been 31 when her husband Gavin was released from prison. There were therefore no grounds for believing that the Mellors would not be able to exercise their right to found a family upon Gavin Mellor’s release from prison, and so their circumstances were not sufficiently exceptional to justify granting them access to AI.
The Dicksons were in a rather different position. Kirk Dickson had been imprisoned for murder in 1994, with a tariff of 15 years. His earliest release date would therefore be 2009. In 1999, he met Lorraine, then 41 years old, through a prison pen pal network. Lorraine was in prison herself but has since been released. The couple married in 2001, and decided that they would like to start a family. Their application for access to AI was turned down. Given that Lorraine would be 51 years old at Kirk’s earliest possible release date, there was virtually no chance that the couple would be able to conceive naturally at a later date. Without access to AI, then, the Dickson’s capacity to start a family together would not just be delayed, as was the case for Gavin Mellor and his wife, but eliminated altogether.
In responding to the Dickson’s request, the Secretary of State laid out the factors which had been taken into account in determining whether they should be permitted access to AI. The first criterion on the list is ‘whether the provision of AI facilities is the only means by which conception is likely to occur’. This was plainly satisfied, but it is not the only relevant factor, and in the Dickson’s case, the Secretary of State decided that it was outweighed by a number of other considerations:
. their relationship had not been tested in the normal environment of daily life;
. there was insufficient provision for the child’s material welfare;
. there was little in the way of an immediate support network for the mother;
. the child would spend the first years of his or her life without a father; and,
. if their request was granted, there would be legitimate public concern that the punitive and deterrent elements of Kirk Dickson’s sentence had been circumvented.
The Dicksons unsuccessfully applied for judicial review of this decision, and were subsequently refused leave to appeal. They then took their case to the European Court of Human Rights, where, by a four to three majority, the Court decided that the refusal to grant the Dicksons access to AI did not violate their rights under Article 8 (the right to respect for private and family life) and Article 12 (the right to marry and found a family).
The majority stressed that the Prison Service’s policy did not amount to a blanket ban, and they drew attention to evidence that the Secretary of State had allowed access to AI facilities in other cases. It was clear that each case was considered on its merits, and the majority agreed with the Secretary of State that in this case the unlikelihood that the Dicksons would ever be able to conceive naturally, while significant, was outweighed by other factors, such as the need to maintain public confidence in the penal system and the welfare of any child that might be conceived.
As has been pointed out by numerous philosophers and lawyers, there is something problematic about basing a decision not to bring a child into the world upon consideration of that child’s best interests. n7 Were the Dicksons to have access to AI, a child might be born who would not otherwise have existed. It would be very hard to argue that that child had been harmed by being born, unless the Dicksons were such dreadful parents that the child would have a life that was not worth living. Since this is very unlikely to be the case, the child, who would not otherwise have existed, would in fact benefit from having been conceived through AI. As Jonathan Glover has briskly explained: ‘children with lives worth living have not been harmed by being born’. n8
The majority judges in the ECtHR did not concern themselves with the philosophical difficulty involved in the claim that any child the Dicksons might have as a result of the provision of AI would be harmed by being brought into the world. Rather they assumed that, if it could be established that the Dickson’s domestic circumstances were less than ideal, this should be taken into account when deciding whether to allow them the opportunity to have a baby. Judge Bonello, in his concurring opinion, was
‘far from persuaded that kick-starting into life a child in the meanest circumstances, could be viewed as an exercise in promoting its finest interests. The debut of life in a one-parent family, deprived of the presence of the father and of a father-figure, offspring of a life prisoner convicted for the most serious crime of violence, would not quite appear to be the best way of giving a child-to-be a headstart in life (my emphasis).’
It is, in my view, interesting that it is generally accepted that there should be limits upon the state’s power to interfere with parental freedom after children are born. To avoid state interference in their family life, parents simply have to meet some minimum level of parental adequacy, judged by whether they pose a risk of significant harm to their children. Yet in relation to decisions taken before a child is born, potential parents are often held to a much more exacting standard, and have to establish that they would be the best possible, as opposed to just minimally adequate parents.
Whether or not it is legitimate to take the welfare of any child who might be born into account when deciding whether to provide her would-be parents with the treatment necessary for them to conceive has been the subject of considerable academic comment. n9 Interestingly, however, the statutory provision which mandates consideration of a future child’s welfare prior to the provision of assisted conception services would not necessarily apply in the Dickson’s case. First, Mrs Dickson could choose to artificially inseminate herself at home with Mr Dickson’s sperm, where no regulatory requirements would apply. But even if Mrs Dickson sought access to intra-uterine insemination (IUI), it is important to note that, prior to the incorporation of the EU Tissues and Cells Directive, it has not been necessary to have a licence from the Human Fertilisation and Embryology Authority (HFEA) in order to provide IUI using the woman’s partner’s sperm. n10 If IUI with the partner’s sperm is not carried out in a licensed clinic, the clinician would not be under an obligation to take account of the child’s welfare before providing treatment to the couple.
The reason for this exception to the general rule that assisted conception services can only provided in clinics which are bound by the Human Fertilisation and Embryology Act 1990, and regulated by the HFEA, is that no special ethical issues arise when a couple simply have some technical assistance with the process of insemination. Unlike IVF, which involves the creation of embryos outside of the woman’s body, and donor insemination, where a third party’s gametes are involved, the provision of IUI to a heterosexual couple was thought to be uncontroversial, and hence scrutiny of their future parenting ability is not necessarily a statutory requirement. n11 Yet in relation to the Dicksons, the majority of the ECtHR took it for granted that factors which might compromise their future child’s wellbeing were good, and indeed sufficient reasons for withholding access to the treatment necessary for that child’s conception.
In addition to his robust denigration of the Dickson’s parental circumstances, Judge Bonello adopted a rather surprising reading of Article 8 of the European Convention which, if applied more generally to the Convention, could have bizarre and far-reaching effects. Article 8, which protects a person’s right to respect for his private and family life, is qualified by Article 8(2), which permits such interference where it is necessary in a democratic society for a number of reasons, including ‘the protection of the rights and freedoms of others’. So, for example, a child abuser’s right to sexual privacy would obviously be trumped by the need to protect children from abuse. Article8 was clearly engaged in the Dickson’s case, and so the question for the Court was whether the interference with their Article 8 rights could be justified under Article 8(2).
The majority found that the government’s policy served a legitimate public interest, in this case, preserving confidence in the penal system; hence the interference with the applicants’ rights was lawful. Judge Bonello on the other hand, found that because ‘permitting offspring to be born to the applicants would not be fostering the best interests of the desired child’ it would ‘be injurious to the ‘rights of others’, and hence the interference was justifiable under Article 8(2). The reason why this is important is that Judge Bonello is treating a child who has not yet been conceived as if he or she has rights which are protected by the Convention. To give an unborn, and indeed as yet unconceived, child ‘rights’ under Article 8(2) runs counter to the assumption that foetuses, who do at least exist, do not have any rights under the Convention, so that, for example, lawful abortion is not incompatible with the right to life under Article 2. In Vo v France, n12 for example, the ECtHR decided that the foetus’s capacity to become a person meant that it should be protected as a matter of human dignity, but that it was not a rights-holder under the Convention. If foetuses do not enjoy enforceable rights, then it would, with respect, be difficult to justify treating as yet unconceived children as if they did have rights protected by the European Convention.
Aside from the right to liberty, the ECtHR agreed that prisoners do not forfeit their Convention rights when they are imprisoned. They do, therefore, continue to have the right to respect for their family life, and the right to marry and (in theory at least) the right to found a family. However the fact of imprisonment inevitably places limits and restrictions upon their ability to enjoy those rights. So in relation to Article 12, prisoners retain the right to marry but their ability to found a family will necessarily be restricted by their inability to engage in sexual intercourse. It would be possible for States to allow conjugal visits to enable prisoners to maintain sexual relationships with their partners, and it would also be possible for states to provide access to AI facilities, but, according the ECtHR, neither must be made available as a matter of right under Article 12. The majority decided that the state was entitled to balance competing interests, such as the gravity of Kirk Dickson’s crime and the welfare of any child who might be conceived against the applicants’ right to found a family when deciding whether they should be provided with the means necessary for conception.
The question of whether a prisoner’s right to found a family survives incarceration is a complex one. As Lord Wilberforce explained in 1983, ‘a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication’. n13 Imprisonment obviously excludes the possibility of sexual relations between a prisoner and his partner, unless conjugal visits are permitted or the prisoner is released on temporary licence. Conjugal visits are not permitted in the UK because of the security implications of leaving prisoners and their partners alone, and the ECtHR has upheld the ban on conjugal visits on the grounds that it is a proportionate response to a security risk. n14
If prisoners in the UK cannot have sexual intercourse with their partners, is the right to found a family taken away ‘by necessary implication’? This appeared to be the position of the Court of Appeal in Mellor: Lord Phillips of Worth Matravers MR held that ‘it is an explicit consequence of imprisonment that prisoners should not have the opportunity to beget children while serving their sentences’. While it could plausibly be argued that incarceration necessarily removes the right to conceive through sexual intercourse, it is important to remember that sexual intercourse is not a necessary prerequisite of conception, which could be achieved with minimal effort on the part of the prison authorities, and without any threat to prison security, by the prisoner’s partner simply taking a sperm sample out of the prison. So while it might be true that the right to found a family through natural conception is taken away by necessary implication upon imprisonment, is this also true of the right to found a family through non-sexual insemination?
n1 My thanks to Jonathan Herring and the CFLQ’s two anonymous reviewers for their comments.
n2 A notable exception is J.Williams ‘Prisoners And Artificial Insemination: Have The Courts Got It Right?’  CFLQ 217.
n3 Goodwin v Turner 908 F2d 1395, 1400-01 (8th Cir 1990); Gerber v Hickman (Gerber II), 264 F3d 882, 891 (9th Cir 2001); State v Oakley 629 NW2d 200 (Wis, 2001)
n4 ‘Policing Procreation: Prisoners, Artificial Insemination and the Law’ (2006) 2 Genomics and Society 110. See, for example, J. Bozzuti (2003) ‘Judicial Birth Control? The Ninth Circuit’s Examination of the Fundamental Right to Procreate in Gerber v Hickman’ (2003) 77 St John’s Law Review 625; R. Roth, ”No New Babies’: Gender Inequality and Reproductive Control in the Criminal Justice and Prison Systems’ (2004) 12 American University Journal of Gender, Social Policy and Law 391.
n5 R (Mellor) v Secretary of State for the Home Department  EWCA Civ 472,  QB 13; Dickson v United Kingdom (Application No44362/04)  2 FLR 449.
n6  EWCA Civ 472,  QB 13.
n7 D. Parfit, Reasons and Persons (OUP, 1984); J. Glover, Choosing Children: The Ethical Dilemmas of Genetic Intervention (OUP, 2006), at p 52; E. Jackson, ‘Conception and the Irrelevance of the Welfare Principle’ (2002) 65 Modern Law Review 176.
n8 J. Glover, Choosing Children: The Ethical Dilemmas of Genetic Intervention (OUP, 2006), at p 52
n9 See, for example, E. Jackson ‘Conception and the Irrelevance of the Welfare Principle’ (2002) 65 Modern Law Review 176; J.A. Robertson, ‘Liberty, Identity, and Human Cloning’ (1998) 76 Texas Law Review 1371; J. Harris, ‘Rights and Reproductive Choice’ in J. Harris and S. Holm (eds), The Future of Human Reproduction: Ethics, Choice, and Regulation (Clarendon Press 1998).
n10 This will change as a result of the incorporation of the European Directive on Tissues and Cells.
n11 Where any treatment, licensed or unlicensed, takes place in licensed clinics, the HFEA expects clinicians to take the child’s welfare into account, but the important point is that IUI with partner’s sperm can be provided without a licence, where there may be no scrutiny at all.
n12 Vo v France (2005) 40 EHRR 12.
n13 Raymond v Honey  1 AC 1.
n14 ELH and PBH v United Kingdom (1997) 91A D&R 61, at 64-65.
n15 J. Williams. ‘Prisoners And Artificial Insemination: Have The Courts Got It Right?’  CFLQ 217.