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01/16/2015

In for Life: Procreative Liberty for Incarcerated Persons Serving Prison Sentences

The release of Cuban spy Gerardo Hernandez as part of a
prisoner swap made headlines last month not only for the diplomatic
implications for Cuba-US relations, but also for the questions surrounding
assisted reproductive services for incarcerated persons. According to a brief
report from
NPR,
Hernandez’s spouse wanted to have a child with her incarcerated husband and
sought support from a sympathetic US senator to facilitate this expression of
reproductive liberty. While this case includes an added layer of intrigue
because of the impressive barriers that were overcome to secure the means and
support for artificial insemination, the question of how we ought to consider
the use of assisted reproductive technology for couples who wish to bear
children despite one parent serving a life sentence.

While some children may be conceived where prisoners are
permitted conjugal visits, Mr. Hernandez was in a federal prison where it is
reported that such visits are not allowed. The only means for reproduction
would be via assisted technology such as artificial insemination, a now basic
intervention. What about other families who wish to raise children but without
the connections or possibility for release? Is it ethical to support such
endeavors when one parent will be able to contribute gametes and an occasional
visit in a prison setting without freedom to participate in rearing the child?
This is not such an easily answered question.

A superficial look at the law suggests that parental rights
are not presumed to terminate when a parent is incarcerated, but that over time
such rights may terminated to allow for adoption of a minor who no longer has
any parent available to provide guardianship. The scenario where one parent
desires to rear and support the offspring removes this concern because a
committed caregiver present. Perhaps this is sufficient in our consideration of
permitting incarcerated persons to participate in the conception of their own
offspring.

How we perceive these rights may also have a degree of
gender bias as well. For incarcerated women who have a partner in the community
who wishes to raise a biological child for the couple the woman would perhaps
be asked to donate eggs for in vitro use, or even be impregnated and deliver
the baby who would then remain with her partner for care and rearing, like a
surrogate of sorts. It seems unlikely that the prison system would welcome
providing medical care, egg harvesting or maternity services, for women who
wish to conceive after being incarcerated. Yet, for men, the intervention is
sperm donation alone. This does not make the morality more or less weighty, but
as a practical matter, the burdens and barriers differ to a degree that might
be more likely to support an incarcerated male providing genetic material for a
child who will be raised by a partner than for a woman who will provide the
same or even deliver the child.

The Alden March Bioethics Institute offers a Master of Science in Bioethics, a Doctorate of Professional Studies in Bioethics, and Graduate Certificates in Clinical Ethics and Clinical Ethics Consultation. For more information on AMBI’s online graduate programs, please visit our website. 

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