Prisoner denied right to father child

The court of appeal has decided that a serving prisoner does not
have the right to facilities that would enable the artificial
insemination of his wife. The deprivation of such facilities was a
justifiable interference with the rights of a prisoner. That was
the decision in R -v- Secretary Of State For The Home Department,
Ex Parte Gavin Mellor.

Mr Mellor took his case against the home secretary (started in
November 1998) to the court of appeal in an effort to gain access
to facilities for artificial insemination. In February 1995 he had
been convicted of murder and sentenced to life imprisonment in
February 1995, his tariff being due to expire in 2006 and his
earliest possible temporary release would have been in 2004.

In 1997 Mr Mellor met and subsequently married a member of the
prison staff, who resigned from the prison service. They asked for
facilities for artificial insemination. The home secretary refused
the request because there was no medical need for it and because
there were doubts over the stability of their relationship. His
longstanding policy to refuse such requests in the absence of
exceptional circumstances was because:

– imprisonment was intended to deny the opportunity to father a

– public concern would have opposed such opportunity and

– it was better for children to be able to have contact with
both parents

Mr Mellor used the following arguments:

– his right to artificial insemination had not been expressly
removed by his sentence

– the prison order would not be affected by the grant of the
facilities requested

– public concern should not affect prison policy and

– concern for creating a single parent family was irrelevant

The court’s view was that the policy was not irrational:

(1) The rules for the management of prisons were contained in
the prison rules which dealt with outside contact for prisoners,
this making Article 8 and Article 12 relevant. These articles are
set out in the European Convention on Human Rights [ECHR] and
outline the right to family life and to marriage.

(2) Lawful imprisonment could constitute a justifiable
interference with Article 8. Article 12 did not confer on a man an
absolute right to be able to procreate, and a lawfully convicted
prisoner was responsible for his own situation

(3) There is no case law in favour of a prisoner’s right to
found a family by artificial insemination.

(4) The right to found a family does not extend to the right to
do so by artificial insemination when justifiably excluded from the
enjoyment of family life and conjugal rights.

(5) Domestic law indicates that a prisoner retains all his civil
rights unless they are removed from him expressly or by necessary

(6) It was legitimate for the home secretary to have regard to
public perception when considering the characteristics of a penal
system. He was entitled to consider all the consequences when
deciding whether prisoners should ordinarily be accorded facilities
to create children.

(7) It was legitimate and desirable for the state to consider
the consequences of creating a single parent family in these

Comment: The judges seem to have considered the angles from all
sides and a challenge from a female prisoner to have the right to
procreate is as unlikely to succeed as Mr Mellor.

Bernadette Livesey

Human Rights Solicitor

Walker Morris Solicitors

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