A recent Freedom of Information request has revealed that since December 2007, 22 prisoners have applied to the Ministry of Justice for artificial insemination treatment. Of these applications, 16 were declined and five remain under consideration but, in a break from previous decisions, one inmate was permitted to receive treatment earlier this year. This fact has attracted significant press coverage, with fresh concerns about the impact and influence of the European Court of Human Rights on domestic decisions.
The change in approach followed a decision of the European Court of Human Rights (Dickson v United Kingdom1), which criticised the UK’s policy in dealing with treatment requests. It raises a multitude of social, ethical and legal questions about the extent to which prisoners forfeit their human rights.
The historic position
The Secretary of State is empowered to make rules for the management of prisons and the treatment of detainees by Section 47 of the Prison Act 1952. Requests by a prisoner to the Home Office to have artificial insemination treatment were “carefully considered on individual merit and [would] only be granted in exceptional circumstances”.
This followed the guiding principles set out by Lord Wilberforce2: “a convicted prisoner… retains all civil rights which are not taken away expressly or by necessary implication”. It is unarguable that the loss of ‘conjugal rights’ is an ordinary consequence of imprisonment. Without current fertility techniques, losing the opportunity to conceive or father children would also be an inevitable consequence.
That inevitability was not accepted by Gavin Mellor (Mellor v Home Secretary3). In 1997, Mr Mellor was serving a life sentence for murder when he formed a relationship with and married Tracey McColl. The tariff element of Mr Mellor’s sentence was due to expire in 2006, when he would be 35 and she would be 31. Mr Mellor sought (but was refused) permission to conceive with his wife by means of artificial intrauterine insemination.
He sought judicial review of the Secretary of State’s decision, arguing that the decision infringed his rights under Articles 8 and 12 of the European Convention, enshrined in the Human Rights Act 1998. (Article 8 confers the right to respect for private and family life; Article 12 enshrines the right of men and women of marriageable age to marry and found a family).
Mr Mellor’s application was rejected and this was upheld in the Court of Appeal, which held that the interference with Mr Mellor’s rights was proportionate to the aim of operating a penal system designed for both deterrence and punishment. Part of the punishment of imprisonment was the denial of the rights of which he was trying to avail himself.
The court accepted that, in certain exceptional circumstances, it might not be appropriate to deny a prisoner the opportunity to have a child, whether by artificial or natural means. In Mr Mellor’s case, however, there were no such exceptional circumstances. The Mellor decision represented the legal position until Mr Dickson came along.
Dickson v United Kingdom
Kirk Dickson was serving a mandatory life sentence for murder when he met Lorraine via the prison pen friend scheme in 1999. They married in 2001 whilst they were both serving prisoners. Mrs Dickson was subsequently released, but the earliest expected release date for her husband was 2009, when she would have been aged 50.
In October 2003, Mr Dickson’s application for access to insemination facilities was refused on a number of grounds:
- the relationship had not been tested in the normal environment of everyday life
- there was insufficient provision for the material welfare or support of any child born
- the child would be without a father for an important part of its childhood
- there would be a legitimate public concern that the punitive and deterrent elements of Mr Dickson’s sentence for violent crime were being circumvented.
The English courts upheld the refusal to grant Mr Dickson’s application, and he took his claim to the European Court of Human Rights.
In December 2007, the Grand Chamber concluded that the UK’s policy did not strike a fair balance between the competing public and individual interests involved. It held that the requirement to prove that the circumstances of their case were exceptional placed an inordinately high burden on the applicants.
The inability to have a child was not an inevitable consequence of imprisonment given the availability of artificial insemination treatment. The judgment also highlighted the fact that the rehabilitative aims of imprisonment were becoming increasingly important.
The response to the FOI request suggests that, following Dickson, the Ministry of Justice has been obliged to lower the bar for granting prisoner requests. This raises numerous issues for public debate, with strong opinions on both sides.
- Some argue that to allow prisoners who are guilty of serious offences to conceive or father children whilst serving their sentence circumvents the punitive and deterrent elements of the sentence. This in turn could undermine public confidence in the prison system.
- Others would contend that a family life on release from prison represents the best opportunity for the prisoner to avoid re-offending, which benefits society.
- There is a philosophical question as to whether rights (or the interpretation of them) change with medical and scientific advance. It is only the availability of fertility treatment which makes it possible for a prisoner to become a parent.
- There is a necessary comparison between the rights of men and women prisoners: it may be less likely that a woman in prison would be granted the right to receive intrauterine insemination, with the prospect of a resulting birth in prison. If so, there is an issue of discrimination in favour of male prisoners.
- The principle embodied in section 13(5) of the Human Fertilisation and Embryology Act 1990 (as amended in 2008) is that fertility treatment services should not be provided “unless account has been taken of the welfare of any child who may be born as a result of the treatment”. Does the protection of a prisoner’s right to found a family override the child’s right to a family life which involves having both parents at liberty? The inevitable absence of one parent for a long period of time by reason of imprisonment might well have negative consequences for the child, and arguably for society as a whole.
- The counter to that argument is that it is not possible to compare the circumstances of a child who has limited parental access with one who does not exist at all. Moreover, there are many children who, through no choice of their own, are born into circumstances that are less than “ideal”. The issue therefore is whether it is either desirable or legitimate for the State to make seemingly moral judgements on the welfare implications for a society in which children are conceived by prisoners.
- Comparison is often made with the plight of many law abiding citizens who face significant obstacles to their attempts to start a family. This can foster public resentment of inmates who supposedly have easy access to fertility services. On the other hand, there is an argument that to use the State’s authority to prevent offenders from conceiving can be interpreted as an eugenic approach.
- Although the prisoner most recently granted permission will be responsible for any costs incurred for the treatment, it is unclear whether this will always be the case. The Article 12 right could be extended to claim any necessary financial assistance, and there would certainly be an additional burden on the public purse if a woman were to conceive, give birth and keep her child in prison.
The issues discussed in this article raise questions about the nature, impact and purpose of imprisonment and the balance to be struck when interpreting the rights of prisoners and their families under human rights legislation. The Secretary of State, Kenneth Clarke, has ordered a public inquiry into the successful application for artificial insemination and it will be interesting to see how this moves the debate forward.