Incarceration and infertility: do prisoners have the right to access IVF?

In October 2008, it was reported that a Spanish woman, Elena Beloki, had been granted permission to receive IVF treatment (1). 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 be funded by the Spanish government. Beloki's case has aroused fierce antagonism from a number of quarters. However, it is not unique. This is the latest in a succession of controversies that bring into focus the need to define the scope of prisoners' reproductive rights.

In 2006, the case of Yigal Amir raised similar questions in Israel. Amir is serving a life sentence for the assassination of Yitzhak Rabin. He sought permission to use artificial insemination to conceive a child. His request was initially refused, but after a thwarted attempt to smuggle a vial of sperm out of the prison, Amir was permitted a 10-hour conjugal visit with his wife. They now have a son.

In 2007, Kirk Dickson, a British man serving a life sentence for murder was granted permission to access fertility services to allow his wife to conceive using his sperm (2). More recently, it emerged that inmates of Swaleside Prison in Kent, had been invited to submit applications for IVF treatment (3).

Two fundamental questions are raised by such cases:

1. 
   

   Should the loss of freedom entailed by imprisonment also entail a loss of sexual/reproductive freedom?

   
   
2. 
   

   If prisoners are entitled to receive medical treatment regardless of their crimes, should this extend to fertility treatment?

Some of the reluctance to interfere with prisoners' reproductive lives surely stems from a recollection of the Nazi eugenic excesses. Yet clearly, if imprisonment is to be countenanced at all, it must come at the expense of some liberties. The question is: which ones? The European court's initial ruling on Mr Dickson's case reflected the belief that where a person has forfeited the right of freedom, other rights which are based on this right will also be forfeited, including the right to beget children.

Perhaps part of the problem here is that to impose punitive restrictions on a person's liberty sits increasingly uneasily with societies whose aim is to facilitate the reintegration of offenders rather than to punish, or stigmatise them. There are conflicting ideologies at play here, and the one currently gaining sway seems to be that which construes imprisonment as rehabilitation. Certainly, the final judgment passed in the Dickson case was explicit about the need to reflect this trend (4).

If the point of the prison system is largely or partly to effect the safe rehabilitation of offenders, it could be argued persuasively that it may be both misguided and counterproductive to restrict prisoners' abilities to enter into the kind of relationships that are central to normal human life. But why focus on the parental relationship in particular? Surely sexual relationships are just as central to normal socialisation as parent/child relationships. Yet neither the prison service nor the health service interprets this to mean that prisoners or patients should have sexual partners provided on demand. There are a number of possible answers to this, but I want to concentrate here on the connection between reproductive technology and clinical need.

A failure to reproduce is often assumed to be a direct cause of biological malfunctions that are the proper focus of medical intervention.

It is generally accepted that prisoners should not be debarred from access to medical treatment in accordance with their needs. Therefore, if fertility treatment can be construed as a medical need, it might seem unreasonable to deny access to prisoners.

It is important to consider this assumption a little more closely. IVF and related reproductive technologies do not always fit neatly into the paradigm of medical need that links a physiological malfunction with a curative intervention. For example, if we ask what condition IVF is curing for Beloki, it is hard to formulate a convincing answer. Beloki is 47, an age at which relatively few women are likely to be able to conceive naturally. IVF might be regarded therefore as a means of circumventing the decrease of fertility associated with age. But it does not remedy a 'biological defect' per se. It is more plausible to suggest that treatment in this situation is aimed at meeting a right to reproduce.

The case of Dickson is still more perplexing. Dickson was unable to conceive not because of a physical defect, or due to his age, but simply because he was incarcerated. Yet the court decreed that he should have access to medical treatment. Since Dickson had no clinical need for intervention, again, it seems that the right to have a child was at issue here. The recognition of such a right sets the scene for further, and still more controversial possibilities. Consider what might be the judgment in the case of a prisoner who has no partner but wishes to have a child. Such a prisoner might have no biological need for treatment, but - as I have argued - neither did Dickson. It is bizarre that a prisoner who is 'infertile' precisely because she is a prisoner should have a positive right to fertility treatment. Yet this seems to be the prevailing wisdom.

Where a prisoner is unable to conceive, I would argue that the Israeli approach is the least problematic option. Amir was also infertile by virtue of being incarcerated, but in his case this was addressed through the provision of conjugal visits rather than the provision of fertility treatment. Perhaps this is not ideal, but it does not at least presuppose any guarantee of offspring to the would-be father, nor does it imply any recognition of a positive right to reproduce, which is a costly and misguided endeavour in this context.