QUEEN MARY UNIVERSITY OF LONDON Prison and Planned Parenthood? Prisoners and the Conception of a Right to Procreate. Submitted in partial fulfilment of the requirements of the Degree of Doctor of Philosophy Mary Yarwood 1 Statement of Originality I, Mary Kathleen Yarwood, confirm that the research included within this thesis is my own work or that where it has been carried out in collaboration with, or supported by others, that this is duly acknowledged below and my contribution indicated. Previously published material is also acknowledged below. I attest that I have exercised reasonable care to ensure that the work is original, and does not to the best of my knowledge break any UK law, infringe any third party’s copyright or other Intellectual Property Right, or contain any confidential material. I accept that the College has the right to use plagiarism detection software to check the electronic version of the thesis. I confirm that this thesis has not been previously submitted for the award of a degree by this or any other university. The copyright of this thesis rests with the author and no quotation from it or information derived from it may be published without the prior written consent of the author. Signature: Date 28th July 2015. 2 Abstract The decision to have a child is normally considered a private matter between consenting adults. The state only intervenes if individuals require medical treatment to conceive. The ability to choose if, and indeed when, to have children is recognised as an important human right. In contrast, prisoners inhabit a public space where all decisions regarding procreation are subject to public scrutiny. In the USA, prisoners are completely prohibited from procreating, unless they are granted the privilege of private visits. In contrast, in Dickson, the European Court of Human Rights recognised that prisoners retain all of their convention rights, including the right to a private and family life. Rights can only be restricted if necessary and the restriction must be proportionate to the objective that the state is trying to achieve. This thesis will examine the question of whether prisoners should retain a right to procreate and whether restricting prisoners from procreating should form a part of their punishment. Many characteristics of the Victorian penal regime including isolation from family members and the concept of ‘less-eligibility’ continue to affect how prisoners in England and Wales and the USA are treated. Prohibiting prisoners from procreating is often justified as part of a prisoner’s punishment. Many argue that it is a direct consequence of imprisonment. Alternatively, if one accepts the premise that prisoners retain all of their human rights apart from the right to freedom, then there appears to be little justification for removing their right to procreate in most cases. Removing the right to procreate is in effect an additional method of punishing the offender that is not 3 explicitly stated as part of the prisoner’s sentence and is normally given very little consideration by prison officials or by government authorities. 4 Table of Contents STATEMENT OF ORIGINALITY 2 ABSTRACT 3 TABLE OF CONTENTS 5 ACKNOWLEDGEMENTS 12 TABLE OF CASES 13 AUSTRALIA 13 ENGLAND AND WALES 13 EUROPEAN COURT OF HUMAN RIGHTS AND EUROPEAN COMMISSION OF HUMAN RIGHTS 13 UNITED STATES OF AMERICA 14 TABLE OF STATUTES AND NATIONAL LEGAL SOURCES 16 AUSTRALIA 16 ENGLAND AND WALES 16 SWEDEN 16 THE UNITED STATES OF AMERICA 17 THE UNITED STATES CONSTITUTION 17 FEDERAL STATUTES 17 STATE STATUTES 17 TABLE OF INTERNATIONAL LEGAL INSTRUMENTS AND RECOMMENDATIONS 18 TABLE OF ABBREVIATIONS 18 CHAPTER ONE: INTRODUCTION TO THE THESIS 19 5 METHODOLOGY 21 DEFINING THE QUESTION: DO PRISONERS HAVE A FUNDAMENTAL RIGHT TO PROCREATE WHILST IN PRISON? 21 THE LITERATURE REVIEW: IDENTIFYING THE ISSUES AND DOCTRINAL RESEARCH 23 CATEGORIES, CODING AND DATA ANALYSIS 26 COMPARATIVE ANALYSIS 28 SUMMARY 30 CHAPTER TWO: LITERATURE REVIEW 31 INTRODUCTION 31 HUMAN RIGHTS 44 POSITIVE AND NEGATIVE RIGHTS 46 AUTONOMY, PRIVACY AND HUMAN RIGHTS 48 EUGENICS: CONTROL OF OFFENDER’S FERTILITY AND MODERN BIOLOGICAL CRIMINOLOGY. 49 DEVELOPMENT OF THE EUGENICS MOVEMENT IN THE UK 51 THE DEVELOPMENT OF THE EUGENICS MOVEMENT IN THE USA 53 BIOLOGICAL CRIMINOLOGY AND THE LEGACY OF EUGENICS 60 SUMMARY 65 CHAPTER THREE: THE PRISON 69 INTRODUCTION 69 PUNISHMENT AND THE HISTORICAL CONTEXT OF IMPRISONMENT 70 PUNISHMENT AND PENITENCE: THE DEVELOPMENT OF THE MODERN PRISON 74 THE ‘PRISON’ BEFORE REFORM 74 PUNISHMENT AND PENITENCE: THE VICTORIAN PRISON 78 THE PRISON TODAY 80 6 THE PAINS OF IMPRISONMENT 83 THE DEPRIVATION OF LIBERTY 83 THE LOSS OF POSSESSIONS AND SERVICES 84 THE DEPRIVATION OF HETEROSEXUAL RELATIONSHIPS 85 THE DEPRIVATION OF AUTONOMY 85 DEPRIVATION OF SECURITY 85 OTHER PAINS’ OF IMPRISONMENT: PSYCHOLOGICAL ASSESSMENT AND UNCERTAINTY 86 SUMMARY 89 CHAPTER FOUR: CASE LAW REVIEW- ENGLAND AND WALES 92 INTRODUCTION 92 LEGAL BACKGROUND TO PRISONER PROCREATION IN ENGLAND AND WALES 94 THE MELLOR CASE 96 HIGH COURT: FIRST INSTANCE REFUSAL 97 COURT OF APPEAL DECISION 99 THE DICKSON CASE 100 THE COURT OF APPEAL JUDGMENT 102 DICKSON V UK 104 CHAMBER RULING 104 GRAND CHAMBER RULING 107 SUMMARY 112 CHAPTER FIVE: CASE LAW REVIEW- THE UNITED STATES OF AMERICA 114 INTRODUCTION 114 LEGAL BACKGROUND TO PRISONER PROCREATION IN THE UNITED STATES OF AMERICA 116 THE GOODWIN CASE 118 7 THE DISTRICT COURT RULING 119 COURT OF APPEAL RULING (EIGHTH CIRCUIT) 121 THE PERCY CASE 123 THE RULING 124 GERBER CASE 125 GERBER 1 126 GERBER II 129 GERBER III 132 SUMMARY 143 CHAPTER SIX: JOINT ANALYSIS OF CASES 146 INTRODUCTION 146 THE RIGHT OF THE PRISONER TO PROCREATE 150 THE RIGHTS OF THE PRISONER’S PARTNER 157 LEGITIMATE PENOLOGICAL OBJECTIVES 161 WELFARE OF THE CHILD AND JUDGMENTS ABOUT PARENTAL SUITABILITY 167 GENDER AND PRISONER REPRODUCTION 173 PUNISHMENT AND CIVIL DEATH 179 SUMMARY 183 CHAPTER SEVEN: PUNISHMENT 187 INTRODUCTION 187 DEFINITIONS OF PUNISHMENT 192 THE PURPOSE OF THE INSTITUTION OF PUNISHMENT: WHY PUNISH? 194 UTILITARIAN JUSTIFICATIONS 195 RETRIBUTION 202 8 REHABILITATION 206 LEGALISTIC JUSTIFICATIONS OF PUNISHMENT 208 FACTORS AFFECTING THE APPLICATION OF PUNISHMENT 210 PRISON, DEGRADATION AND THE PURPOSE OF PUNISHMENT 215 PUNISHMENT AND CIVIL DEATH 220 SUMMARY 227 CHAPTER EIGHT: REPRODUCTION AND PARENTING OUTSIDE OF PRISON 230 INTRODUCTION 230 AUTONOMY AND THE RIGHT TO PROCREATE. 233 FERTILITY TREATMENT 239 RIGHT TO BEAR 240 RIGHT TO REAR 243 THE MOTHER 248 THE FATHER 252 SUMMARY 256 CHAPTER NINE: PRISONERS AND PARENTHOOD FROM PRISON 258 INTRODUCTION 258 CHILD WELFARE 261 CAUSES OF ADVERSE CONSEQUENCES IN CHILDREN FOLLOWING PARENTAL INCARCERATION 265 TRAUMA THEORIES 265 STRAIN THEORIES 266 LABELLING/ STIGMA THEORIES 267 MODELLING AND SOCIAL LEARNING THEORIES 268 EFFECTS OF PARENTAL INCARCERATION ON CHILDREN 269 9 RISK OF IMPRISONMENT 269 MENTAL HEALTH PROBLEMS 273 POORER ACADEMIC OUTCOMES 275 PRISONERS PARENTING FROM PRISON 275 WOMEN PRISONERS AND OBSTACLES TO PREGNANCY 278 WOMEN PRISONERS AND OBSTACLES TO PARENTING 280 MALE PRISONERS AND OBSTACLES TO PARENTING 282 AMELIORATING THE EFFECTS OF IMPRISONMENT 284 ATTACHMENT BASED INTERVENTIONS 284 STRAIN THEORY BASED INTERVENTIONS 289 INADEQUATE PARENTING/ STRAINED CARE GIVING INTERVENTIONS 290 INTERVENTIONS BASED UPON STIGMA THEORIES 292 SUMMARY 293 CHAPTER TEN: CONCLUSIONS 297 INTRODUCTION 297 MAIN CONCLUSIONS 299 HUMAN RIGHTS AND THE RIGHT TO PROCREATE 300 COMPARATIVE ANALYSIS 301 THE LEGAL RIGHTS OF PRISONERS AND THEIR FAMILIES 302 WELFARE OF THE CHILD CONCERNS 306 EUGENICS AND BIOLOGICAL CRIMINOLOGY 307 LESS ELIGIBILITY AND THE PAINS OF IMPRISONMENT. 309 PUNISHMENT 311 CIVIL DEATH 314 PARENTING FROM PRISON 316 10 SUGGESTIONS FOR REFORM 319 FUTURE POLICY IMPLICATIONS OF THIS RESEARCH 323 APPENDIX FREEDOM OF INFORMATION REQUEST 326 BIBLIOGRAPHY 331 11 Acknowledgements Firstly I would like to thank Queen Mary, University of London for giving me the opportunity of studying for the PhD and for providing me with funding and support. I would also like to thank my principal supervisor Professor Richard Ashcroft for his patience, encouragement and thoughtful ideas. My thanks also goes to Dr Leonidas Cheliotis, my secondary supervisor who provided me with invaluable guidance in the field of penology. I would also like to remember my first medical law teacher Stuart Andrews. He was an inspirational teacher who always went out of his way to help and who inspired me to continue my studies after graduating from my LLB. I would also like to give my thanks to Arthur, Evelyn and Isaac who have been with me for the whole of my PhD journey and whose support has kept me going. 12 Table of Cases Australia Castles v Secretary to the Department of Justice & Ors [2010] VSC 310 (9 July 2010) (Supreme Court, Australia) Patient Review Panel v ABY & ABZ [2012] VSCA 264 (Supreme Court, Victoria) England and Wales A (Medical Treatment: Sterilisation) Re, [2000] 1 FLR 549 Associated Provincial Picture Houses v Wednesbury Corporation [1947] 1 KB 223 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 CP (A Child) v CICA [2014] EWCA Civ 1554 D (A Child Appearing by Her Guardian Ad Litem), Re (Respondent) [2002] 2 FLR 843 D (A Child Appearing by Her Guardian Ad Litem), Re (Respondent) [2005] UKHL 33 Dickson and Dickson v Premier Prison Service Ltd and Secretary of State for the Home Department [2004] EWCA Civ 1477 F (Mental Patient: Sterilisation), Re [1990] 2 AC 1 R v Secretary of State for the Home Department,