Prisoners, their wives and the right to reproduce

In the recent case of Dickson v UK, the European Court of Human Rights (ECHR), by a majority, decided that the British government's decision to deny a prisoner and his wife access to artificial insemination (AI) facilities was compatible with their rights under the European Convention of Human Rights, as incorporated by the Human Rights Act 1998. In short, the ECHR decided that the government had acted lawfully, first, by adopting a policy that would allow prisoners access to AI only in exceptional circumstances and, second, by deciding that this couple's circumstances were not sufficiently exceptional. This decision was not especially surprising, and in some ways simply confirmed the approach adopted by the Court of Appeal five years ago in the Mellor case, where again a prisoner was denied access to AI. A few aspects of the judgements are worthy of note, however.

First, there are striking differences between the ECHR judges' attitudes to the prospect of a single woman bringing up a child whose father would remain behind bars for several years.  In particular, 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'. Contrast this with the joint dissenting opinion of Judges Casadevall and Garlicki who said that 'it is not for the State to decide who may have children and when'.

Second, Judge Bonello adopted a rather surprising reading of Article 8 of the European Convention of Human Rights which, if applied more generally to the Convention, could have 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, such as 'the protection of the rights and freedoms of others'. So, for example, a child abuser's right to privacy would be trumped by the need to protect children against abuse. Obviously Article 8 was engaged in this case, and so the question for the Court was whether the interference with the applicants' rights under Article 8 could be justified under Article 8(2).

The majority found that the government's policy served a legitimate public interest, such as 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 therefore 'be injurious to the 'rights of others'', and hence 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 a person who 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. There would obviously be enormous practical difficulties if as yet unconceived children were to enjoy enforceable rights against public bodies.

Finally, I think it is worth reflecting on whether the female partner's age and past history affected the majority's attitude towards her desire to have a child using AI. Recall that the government's policy was that access to AI facilities would be granted only if there were exceptional circumstances and, in the Mellor case, Lord Phillips suggested that 'the normal starting point should be a need to demonstrate that, if facilities for artificial insemination are not provided, the founding of a family may not merely be delayed, but prevented altogether'. Because the female partner in this case was 48 years old, and would be at least 51 years old when her husband was released from prison, it was agreed that in this case, denying access to AI would prevent this couple from having a baby. Why then were they not a sufficiently exceptional case?

The majority accepted the government's submissions that other factors, such as the gravity of the first applicant's crime and the welfare of the child, outweighed the fact that this was this couple's only chance to have a child together. But it is interesting to consider whether the decision would have been the same if the need for AI had not been the second applicant's advanced age, but, say, a younger woman's impending treatment for ovarian cancer.  Did it make a difference that Mrs Dickson herself had been in prison when she met the first applicant? In short, is a woman in her late forties with a criminal record not an especially sympathetic mother-figure? The three dissenting judges, who shared the view that it is not the business of the state to determine who should reproduce, were more sympathetic to Mrs Dickson. Judge Borrego Borrego described Mrs Dickson as the 'forgotten person in this case', and Judges Casadevall and Garlicki argued that 'it would be difficult to find a situation more exceptional than this one', since the refusal to allow access to AI necessarily involved the 'full and irrevocable destruction' of the right to reproduce.