Prison bars & the right to procreation

Children can be at the heart of many debates, without being a party to them. Decisions in the legal world reveal that social and legal norms may well be divergent at times. Though marriage  and procreation are matters to be decided by two individuals, yet that is rarely the case in India. Ironically, woman the creator will not have much leverage in making free and informed choices. Procreative autonomy in a prison setting is intertwined with questions about family issues, public policy, privacy, penology, human rights and law. A judgment of the Punjab and Haryana High Courtgenerated debate on conjugal rights of prisoners, underscoring complex policy considerations.
While the  question of prisoners being considered as persons and to be treated with human dignity is well settled, especially after the Sunil Batra judgment (1978). Justice Krishna Iyer held that “Imprisonment does not mean farewell to fundamental rights as laid down under Part-III of the Constitution”.  The ever-widening domain of Article 21 —the Right to Life and Personal Liberty has had implications for prisoner’s rights as well. Prison jurisprudence has developed to cover various rights of prisoners, like the right to speedy trial, the right to contact with family, protection against ill-treatment and torture etc. The debate on the extent and scope of human rights in prisons exists throughout the world.

Penal objectives
Prisons are paradoxical institutions that serve various penal objectives— incapacitation, punishment, deterrence, and also reformation of offenders. Imprisonment implies loss of liberty and restricts the rights and freedoms of prisoners. Autonomy, freedom of movement, association, and privacy are all very limited in a prison setting. It is indeed tough balancing competing public and private interests while dealing with prisoners’ rights.
The right to procreate is a sui-generis right, and raises many questions and issues.  What duty is cast upon the State to assist this right? Does it include the right of women prisoners  to get IVF? What are the consequences of this right for others? Is procreation in all circumstances just? Can we club all activities closely related to reproduction under the umbrella of fundamental rights?

Prisoners’ right to procreate
How far do prisoners retain the right to procreate? Prisoners have very little expectation of or right to privacy, and the right to procreate is derived from the right to privacy. The United States Supreme Court recognised the fundamental right to procreate in Skinner vs Oklahoma case in 1942. It was held that it is “One of the basic civil rights of man” and invalidated a state statute requiring the sterilisation of habitual offenders as an unconstitutional infringement on that right.
The US Supreme Court has, however, not taken a position on the parameters of this right for prisoners, and on whether the inmates have a right to procreate while incarcerated. Parents’ duties towards their children have also not beeen overlooked by the Court. The Oakley case presented the stark difficulties inherent in balancing individual freedoms with state needs, specifically the tug-of-war between individual reproductive rights and the rights of children to be financially supported by both parents. Here, the court upheld  a stipulation on Oakley who was on probation, to be required to avoid having children, until he could show the means to support them. This condition was held to be reasonably related to his rehabilitation. Similarly, in case of death- row inmates, it was held that  denial of the right to procreate does not represent cruel and unusual punishment.
In both the USA and the UK, prisoners' rights, especially procreative rights, are hotly contested areas of constitutional uncertainty. Protecting this right is one thing, but promoting or facilitating, private family life or the founding of family life is another thing. In Gerber vs Hickman (2002), the US Supreme Court denied a prisoner's request to procreate by sending a sample of his sperm to his wife. In the case of British prisoner Gavin Mellor, and his almost 50-year-old wife, approached the European Human Rights Court for an opportunity to conceive by artificial insemination.
The Court held that the right to respect for private life does not inhibit the Secretary of State in designing prison policies that prohibit prisoners from procreating by artificial insemination when the reasons are legitimately tied to important penological objectives. Jurisprudence has not yet definitively shaped prisoners’ procreation rights.

Normative limits to procreation
The present judgment of Punjab and Haryana High Court, may have overlooked the legal and normative limits of procreation. The right to procreate does not establish broadly the right to procreate at will. It is a right that is subject to derogation, weighed against aggregate of all competing rights, e.g. rights of children, and State interests.           
At the core of another debate is the question of whether the right to procreate is lost as a collateral consequence of imprisonment, not only for offenders but also for their partners. Untouched issues concern the women whose husbands are incarcerated. Suffering the stigma, shame and social exclusion, they are the silent victims as punishment impacts them as well.
It is indisputable that imprisonment removes or limits some rights of prisoners, but it is also indisputable that imprisonment does not automatically result in the forfeiture of all rights at the prison gate. Hence the right to maintain contact with family remains intact.

Conjugal rights in other countries  
The phrase “conjugal visit” has a “deviant connotation,” according to Dr Chris Hensley, a criminologist who has advised American prisons.  There are some countries which view the practice as inconsistent with the ethic of punishment against those who view the visits as improving inmate behaviour and maintaining family bonds. Once a common practice in US prisons, now only California, Washington and New York state prisons permit conjugal visits. Even there these rights do not exist in Federal prisons.

Family visits
Originally, prison conjugal visits were used as an incentive to motivate working prisoners to be more productive. They were scheduled visits that allowed the prison inmate to spend one-on-one time with his or her legal spouse. Today, the main purpose of these visits is to preserve the family unit. That is why they are now called Extended Family Visits. These visits can include the legal spouse, but are also open to other immediate family members, including the inmate's children. Usually, up to three visitors are allowed at a time. Visitors are allowed to cook and have meals together as a family. Depending on the country's policy, these visits can be anywhere from a few hours to 72 hours, and usually take place over the weekend. Developed countries, and even developing ones, now offer better contact facilities.
In fact, during a correctional administrators conference in Vietnam, I was pleasantly surprised at the facility being offered to prisoners’ families. There were restaurant-like facilities for the visitors and private rooms for eligible prisoners. Play areas for children in meeting areas in the UK prisons make for a conducive  meeting environment.

Mulaqat behind bars
Contrast this with “mulaqat” behind bars, the normal way of conducting contact with family in most Indian prisons. The meeting lasts around 20 minutes at the most, it is impersonal and inhumane. The mulaqat room is almost like a fish market in most prisons. “Na Jee bhar ke dekha, na kuchch baat ki.” This is also because most prisons are overcrowded, and mulaqat is a barely audible and a rushed affair. However, people would be surprised to know that under the colonial rule, the Britishers had arranged for two kinds of meetings for some categories of the prisoners: kacchi mulaqat (temporary meeting) and pakki  mulaqat. In the latter, a convict was allowed to spend time with his wife in isolation, ensuring they were in a better frame of mind. The Sanganer open camp which permits prisoners to stay with their families and undertake family responsibility is a sustainable model of reintegration. We need to streamline the present mulaqat system and make it more humane for the family. Visits by women and children to a prison are not only difficult but also embarrassing and uncomfortable. Prisoners and not just prison staff have expressed reservations regarding conjugal visits in a prison complex. Prisoners want the Right to Vote more as they feel it's more empowering and will lead to prison reforms.

Little change, no transformation
While prison reforms have been much talked about in India, there has been little change and no transformation. There has been no dearth of committees set up by the government either at the national or state level to look at the issues of prison reforms, yet no radical changes have taken place. A most comprehensive set of 658 recommendations on prison reforms came when the Government of India constituted an All-India Committee on Jail Reforms in 1980  under the Chairmanship of Justice Mulla, which submitted its report in 1983.  Structural and policy changes suggested have yet to take place.
 Do we still need another committee to tell us what is wrong with our prisons? In fact, a feeling of déjà vu overcomes one when one reads about constituting of another committee on prison reforms by the Punjab and Haryana High Court to look into the issue. Two, three-member committees were set up both for Punjab and Haryana on the basis of the PIL filed in 2010. What were the recommendations made and what was the implementation? Too many committees and little action reflect the dichotomy of rhetoric to reform and implementation. The question arises what needs to be prioritised in terms of prison reforms. For dealing with prison reforms it is essential to tackle the elephant in the room.

Victims rights and interests
While new prisons have been recently constructed, yet the problem of overcrowding continues, and undertrials still constitute nearly 66 per cent of the prison population. We have yet to tackle the elephant of overcrowding, due to a large proportion of undertrials. “Bail not jail,” was held to be principle by Justice Iyer, but it seems to have been reversed now. Prison reforms are ultimately tied up with criminal justice reforms. As far the right to family life is concerned, the system of parole is available to the convict prisoners, which allows them to visit their home and meet family obligations. It can be made more liberal and a better system of supervision can ensure it is not misused. There is no cost on the state, and it meets various needs of the prisoner and his family.
 Undertrials’ right to speedy trial should become an actuality. The debate over the prioritisation of rights gets more accentuated when we have to balance various rights, particularly victims’ rights and their interests. Finally, holding and discharging parental responsibilities is much more challenging than procreation itself, and  shifting sands of responsibility may not be in the best interests of the child.
The writer is Deputy Director,
Institute of Correctional Administration, Chandigarh.

Countries permitting  conjugal  or extended family visits
Canada, Germany, Russia, Saudi Arabia, Denmark Spain, Belgium. Also three State prisons in the USA  —State of California, New York, and Washington

Same-sex conjugal visits
Brazil and Israel. Mexico has ended them recently.