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Percy v. State

Decided: January 17, 1995.


On appeal from the Department of Corrections.

Before Judges King, Muir, Jr. and Eichen.


The opinion of the court was delivered by KING, P.J.A.D.

This pro se prisoner's appeal challenges the decision of the Department of Corrections (DOC) which refused to cooperate with his effort to artificially inseminate his wife. Appellant asserts a constitutional right to the procreation procedure despite his prisoner status. We disagree and affirm DOC's policy.

Appellant is age 45. He was sentenced for homicide in 1985 to a life term with a thirty-year term of parole ineligibility. The prison records show that his mandatory minimum sentence of thirty years expires on November 23, 2014, allowing for county jail time credits pretrial. Appellant claims that he will be eligible for parole in 2011, apparently relying on his anticipated commutation time and other institutional credits.

Appellant was married in 1986 while incarcerated in State Prison. His wife is age 36 and works as a bookkeeper in West Long Branch. She earns about $30,000 a year and has U.S. Healthcare medical benefits. The couple has one legal child, a daughter, now about age 15. Appellant's wife is self-supporting. She and the child receive no public assistance.

Appellant's wife has secured the assistance of a physician near her home for medical help with the artificial insemination procedure. Appellant's first request to artificially inseminate his wife was refused in 1988. He was turned down again by DOC in 1990. No appeal was taken from these denials.

On July 7, 1993 appellant applied once more to William H. Fauver, Commissioner of DOC, for approval and assistance in artificially inseminating his wife. Appellant requested DOC to "transport him to a nearby medical facility so that he could artificially inseminate his wife or provide him with a sterile plastic container in which to deposit his ejaculate so that his wife could swiftly transport the ejaculate outside the prison to a medical facility." He said that he and his wife would bear all cost for the procedure. He describes the proposed procedure in his brief:

The procedure, as far as Mr. Percy is concerned, is even more simple. A fresh semen specimen should be collected and tested at the Robert Wood Johnson Medical School, University Center for Reproductive Endocrinology and Fertility, 303 George Street, Suite 250, New Brunswick, New Jersey 08901. It could be delivered there at any time of the day. If it is collected by Mrs. Percy and transported to the center, it must be there within one hour, no more than two hours. Upon completion of this procedure, Mr. Percy will be returned to the Trenton State Prison (Vroom Readjustment Unit), in Trenton, New Jersey 08628.

Once sperm is ejaculated into a jar, that sperm remains potent for a short period of only two hours. Within that time frame the sperm must be processed (frozen etc) at the medical facility.

As an alternative to appellant going to the medical school, his wife could pick up the sperm specimen at the prison and take it for insemination purposes.

This request was denied on August 27, 1993 by Thomas D. Farrell, Supervisor, Health Unit Services, with the concurrence of Commissioner Fauver. Farrell relied on the previous turndowns in 1990 by Jan Troy, Special Assistant to the Commissioner, and in 1988 by Gary Hilton, Assistant Commissioner. The DOC has consistently ruled that the procedure is simply not available to inmates. No specific DOC regulation covers the matter. As Gary Hilton said in 1988, "insemination is considered to be an elective medical procedure, and without a court order, is not permitted by our departmental regulations."

To our knowledge, no court in the land has upheld the constitutional right of an inmate to procreate through artificial insemination. One appellate court has squarely declined to recognize such a right. In Goodwin v. Turner, 908 F.2d 1395 (8th Cir. 1990) (Judge McMillian Dissenting), the court upheld the policy of the federal Bureau of Prisoners that "sound correctional policy dictates against allowing inmates to artificially inseminate another person." Id. at 1397. The Eighth Circuit concluded that "the Bureau's restriction on inmate procreation is reasonably related to furthering the legitimate penological interest of treating all inmates equally, to the extent possible." Id. at 1400. The federal Bureau of Prisoners had stressed the problems involved in extending the service to the entire inmate population, both male and female, and, of course, expressed concerns because of security and limited available resources. Several trial-level courts have declined to recognize the right of an inmate to procreate. See Anderson v. Vasquez, 827 F. Supp. 617, 620 (N.D. Cal. 1992), complaint dismissed without prejudice on ripeness grounds, 28 F.3d 104 (9th Cir. 1994); Wool v. Hogan, 505 F. Supp. 928, 932 (D. Vt. 1981); see Southerland v. Thigpen, 784 F.2d 713, 718 (5th Cir. 1986) (right to breast feed outweighed by legitimate penological goals of the state).

In Turner v. Safley, 482 U.S. 78, 84, 107 S. Ct. 2254, 2259, 96 L. Ed. 2d 64, 75 (1987), the federal Supreme Court upheld the fundamental right of a prisoner to marry and struck down a regulation barring inmate marriages except for "compelling reasons" and then only with the warden's permission, which permission was usually only given in the prospect of illegitimacy. Notably, in Turner v. Safley, supra, 482 U.S. at 96, 96 L. Ed. 2d at 83, the Supreme Court declined to announce the right of prisoners to procreate as a fundamental right which trumped institutional concerns. The Court recognized a number of aspects of marriage which do survive custodial circumstances and justified inmate marriage: emotional and public commitment; religious or spiritual significance; consummation after release on parole or commutation; precondition to government benefits, like Social Security; property rights, and ...

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