A Fascinating Reproduction Story in the New York Times, Part I: Reproducing from an Israeli Prison

About 10 days ago, the New York Times had two fascinating stories about reproduction (on back-to-back days) I wanted to highlight and comment on. In this post I will take about the first concerning Palestinian prisoners in Israel who are smuggling sperm out of prison to get their wives pregnant. As the story reports:

“A Palestinian fertility doctor said Thursday that he was helping about 50 women conceive children using sperm smuggled out of Israeli prisons, that four of the women were now pregnant after in vitro fertilization, and that one delivered a boy last summer, named Muhannad. . . . Dr. Khaizaran said he decided to embark on his unusual fertility experiment because by the time inmates with long sentences are released, their wives are often too old to bear children, leading them to marry younger women. He said he received a fatwa, or legal ruling, from a Muslim cleric permitting the procedure, which he does free of charge. Neither the doctor nor several women interviewed would reveal details of how the sperm was smuggled out.”

Here are some thoughts: First, there are a series of questions about the welfare of the children born from fathers in jail. My own work (see this and this and this and this) has argued that these kinds of Best Interests of the Resulting Child arguments often do not work, but certainly some others have (and will continue) to disagree me.

Second, there are some very interesting issues about rights to procreate of prisoners. There have been cases about rights to do sperm donation in jail in cases where there is no conjugal visits allowed. Here I think, especially for those facing life sentences or the death penalty, there is an interesting question of whether one has a right to produce a child for whom one will be a genetic parent and a legal parent but not a rearing parent in any meaningful way. Is a prohibition on allowing sperm donation to one’s wife while one is in jail a violation of one of the prisoner’s right to procreate? His wife? A woman with whom he has no pre-existing romantic relationship that wants to produce a child with him? And oh, by the way, what if the prisoner is a female and wants to gestate in prison?

Third, the justification offered by the Palestinian doctor is particularly interesting, that this is about maintaining a certain kind of family structure and trying to discourage additional marriages to younger women in Palestine. If this was a culture where additional marriages were not possible or this trend did not apply would it make a difference?

Finally, and this is really just a question (my thoughts are very tentative and non-commital here), I wonder how this looks from an International Humanitarian Law/Law of War perspective? In the Israeli-Palestinian case we are in the murky world of non-state action/terrorism vs. occupation depending on your view of this particular conflict (definitely not taking a position on that here!) But imagine this was state actors actually at war. Should one side in a protracted conflict have a right to say “we want to win this, and allowing the other side to increase their population and produce a set of young men and women who hate us for what we have done to their fathers is against that interest”? Now if that was achieved by, for example, using sterilizing agents in munitions against the other side or trying to put it in the food supply that would clearly be wrong, in part because of its permanence. But what if instead they adopted the less invasive approach taken here where they “merely” (scare quotes purposeful to indicate uncertainty) prohibited prisoners from inseminating a partner. I wonder if any of the major documents governing the treatment of Prisoners of War speak to this issue (happy for commentators who know more to chime in, of course).

I. Glenn Cohen

I. Glenn Cohen is the James A. Attwood and Leslie Williams Professor of Law at Harvard Law School and current Faculty Director of the Petrie-Flom Center. A member of the inaugural cohort of Petrie-Flom Academic Fellows, Glenn was appointed to the Harvard Law School faculty in 2008. Glenn is one of the world's leading experts on the intersection of bioethics (sometimes also called "medical ethics") and the law, as well as health law. He also teaches civil procedure. From Seoul to Krakow to Vancouver, Glenn has spoken at legal, medical, and industry conferences around the world and his work has appeared in or been covered on PBS, NPR, ABC, CNN, MSNBC, Mother Jones, the New York Times, the New Republic, the Boston Globe, and several other media venues. He was the youngest professor on the faculty at Harvard Law School (tenured or untenured) both when he joined the faculty in 2008 (at age 29) and when he was tenured as a full professor in 2013 (at age 34).

0 thoughts to “A Fascinating Reproduction Story in the New York Times, Part I: Reproducing from an Israeli Prison”

    1. Great post, Glenn. I had missed the story but am very interested in inmate rights to procreate. It reminded me of comment from nyt feb 6 story “Impregnated by Prisoner…” in which a prisoner charged with murder of two police wanted to leave a legacy: During the subsequent trial Mr. Wilson, who does not have any other children, wrote a letter to another inmate suggesting that his potential death sentence had provoked concerns in him about his legacy: ”I just need a baby before thiz pigz try to take my life. I need to have something behinde.”
      Gerber v Hickman and Goodwin v Turner seem wrongly decided on male inmate rights, but females are different. Could the internation human right to have a family apply to prisoners when there is no threat to prison or other security?

  1. Glenn,

    Great post. A new Utah Bill allows prisoners to donate organs: http://www.kutv.com/news/top-stories/stories/vid_3758.shtml

    Do these issues map? What is the difference between inmate organ donation and inmate sperm contribution? On one hand, one process (organ donations from prisoners–at least in Utah) is legalized by the legislature. The other other, some might argue, needs no legislative authority to the extent that the state cannot proscribe parenthood without running up against natural law arguments, human rights challenges, and constitutional law barriers. There may be health concerns…

    And yet, when considering Buck v Bell–it is clear that at least in the US, states have the authority to compel sterilization in some cases, foreclosing parenthood. The case has never been overturned despite how scholars read Skinner. Are the questions involved in these two realms of biological intimacy too distinct to draw comparison or do they open the door for further consideration? MG

  2. Thanks to both of you.
    John — I agree with you that Gerber and Goodwin have unsatisfying reasoning for cases where there is no threat to security or the like. I think there is some possibility that they would or perhaps should have come out differently post-Lawrence v. Texas (query whether there have been more recent post-Lawrence challenges, I don’t know the answer). Especially in the case of married couples with pre-existing romantic relationships (I think a single man who had developed a romantic pen-pal relationship with a woman who wanted to bear and beget his child might be harder) I think this language in Lawrence (itself quoting Casey) might be profitably used “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” In general I think (and this is drawing on my days as an appellate litigator) I much more could have been made of the non-incarcerated partner’s procreative interests/rights than the courts seemed to allow. As to female prisoners I think one relevant difference is limited periods for female fertility, such that a prohibition on insemination while in jail may mean losing the ability to have a genetically related child altogether. There is an interesting echo of some of the preembryo disposition cases there.
    Michele — I think this comparison to organ donors in jail is fascinating and one that I had never considered. A couple of thoughts on the comparison off the top of my head. In the post-Abigail Alliance world I think it would be hard to claim one has a right to donate an organ or receive an organ from a particular person. Indeed in the successful 9th Circuit challenge to NOTA the substantive due process type argument was rejected by the district court and never resuscitated on appeal. Given the complexity of the medical procedure and some of the pre/post donation regimen changes that would be needed to prison life, it also seems to me the government may have a stronger argument from penological interests in resisting such policies. All that said, I think a well-designed challenge involving directed donation within a family would be an interesting and might even succeed.

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