Pritish Desai*

Source : National Herald

This piece delves into the right to procreate of prisoners in India while specifically focusing on the rights of women prisoners. Recently, Indian Courts have held that the right to procreate of prisoners survives incarceration. However, all such cases concern the right to procreate of male prisoners. Consequently, it begs the question whether such rights extend equally to female prisoners. Through this piece, the author contends that the right to procreate extends to female prisoners as well. In spite of the Constitutional right of
prisoners, it is contended that the State has failed in its duty safeguard the rights of the prisoner. This contention is in light of the poor state of the prisons and the living conditions of the prisoners since it would not be in the ‘best interests of the child’ to grow in an environment lacking the basic facilities required for the effective growth of children. Further, the author explores the rights of the non-inmate spouse of the prisoners. It is contended that the State’s inaction not only violates the rights of the prisoner but also, their spouses. Consequently, the author calls for a proactive approach to address the shortcomings of the criminal legal system emphasizing the need for gender equality and accountability in prisoner’s rights.

I. INTRODUCTION

Incarceration does not take away the right of an individual to live with dignity. The Supreme Court has noted that there exists a multiplicity of factors that could result in the commission of a crime, but nevertheless at all times, a prisoner is  entitled to all the basic human rights, human dignity and human sympathy.

The right to procreate of prisoners reflects a delicate balance between the rights of the prisoner as protected by the Constitution of India (‘the Constitution’) and the interests of the State. The right to procreate refers to an individual’s right to reproduce while being in prison. In recent times, Indian Courts have held that the right to procreate of prisoners survives incarceration. This is evidenced by the recent spike observed in the number of children born in the jails of West Bengal and the abysmal conditions under which these births occurred.

Through this paper, the author seeks to explore the constitutional protection extended to the procreation rights of women prisoners, their spouses and its violation due to the State’s inaction. Moreover, the author shall only discuss the right to procreate by artificial means or In-Vitro Fertilization (‘IVF’) since first, the prisoner’s right to procreate through means of artificial insemination has already been recognised by Courts as observed in Part II of this piece and second, alternate forms of procreation raise questions concerning the conjugal rights of prisoners which is outside the scope of the author’s argument.

This blog shall be divided into four parts. Part II shall explore whether the right to procreate survives incarceration. In part III, the author shall contend that the right to procreate extends to female prisoners as well and subsequently, elaborate upon the State’s failure in safeguarding such rights. Additionally, the author shall explore the rights of a non-inmate spouse vis-à-vis procreation. Last, part IV shall extend the concluding remarks to the paper.

II.          RIGHT TO PROCREATE: DOES IT SURVIVE INCARCERATION?

A.    INTERNATIONAL PERSPECTIVE

Procreation rights have endured a long and complex history across the world. Certain jurisdictions have been rather conservative at recognising the procreating rights of prisoners. The author shall restrict the scope of analysis to American and European jurisprudence to contrast an extreme position of law, where the prisoner’s right to procreate has been denied absolutely,  with a position that the author seeks to propose in the following parts. 

 In the United States of America (‘the USA’) it is a settled fact that incarceration brings about a limitation of many privileges and rights but does not result in the forfeiture of all constitutional rights by reason of their conviction. The inmates retain certain rights that do not conflict with their status as prisoners and are not fundamentally inconsistent with the objectives of incarceration.

Notably, the controversy of the right to procreate surviving incarceration was addressed by the Court in Goodwin v. Turner. Considering the financial burden of allowing female inmates to get inseminated, the Court denied the right of male prisoners to artificially inseminate their wives to ensure equal treatment to male and female prisoners. Further, in Gerber v. Hickman , the Court held that the right to procreate survives incarceration subject to reasonable restrictions. However, the decision was reversed by an en banc panel that held that prisoners do not have the right to procreate.

To the contrary, if we look at the European viewpoint, a more progressive understanding of rights is observed. In Dickson v. The United Kingdom, the Grand Chamber of EcHR acknowledged the prisoners’ right to artificially inseminate his wife as a part of his right to private and family life. A similar stance can be observed across European States .

B.    INDIAN SCENARIO

Indian Courts have taken a progressive approach while dealing with prisoner’s right to procreate. In Jasvir Singh the Punjab and Haryana HC dealt with a case of a couple with both of them being prisoners. The couple requested for conjugal rights or artificial insemination for the purpose of procreation. The Court took note of the landmark judgement, Sunil Batra where the Court held that incarceration does not deprive the prisoner of all their rights and certain rights, including those under Art. 21, survive to an extent. Similarly, in Jasvir Singh, the Court held that the right to procreate survives incarceration to a certain extent and is protected under Art. 21. However, it is not absolute and is subject to reasonable restrictions and procedure established by law.

Further, a similar position was taken by the Court in Rajeeta Patel v. State of Bihar, and again in Meharaj v. The State of Tamil Nadu. However, in Meharaj, the Madras HC noted that conjugal rights are a privilege and its inclusion under Article 21 for prisoners will open a floodgate of applications and hence, did not identify conjugal visits as a fundamental right. However, the Madras HC clarified that conjugal visits for the purpose of procreation through artificial insemination is a part of Article 21.

Again, as recently as 2023, the Delhi High Court recognised the prisoner’s right to procreate under Art 21 in the case of Kundan Singh v. NCT of Delhi.. The Delhi HC acknowledged that presently, there are no particular specific grounds in the prison rules for granting such parole yet, it cannot bar a Constitutional Court to go beyond the grounds as provided in the rules. The Court took a more restrictive approach than Jasvir Singhand allowed prisoners the relief of parole in case they were not blessed with a biological child and required medical assistance for the same.

Presently, while it is settled that the right to procreate survives incarceration, the specific modalities of it have witnessed mixed responses. Courts have been given the discretion to decide without any fixed guidelines.

III. FEMALE PRISONER’S RIGHT TO PROCREATE: GROUND REALITY

In this part, the author seeks to focus on the right to procreate of female prisoners. Section A seeks to discuss the constitutional rights of female prisoners. Section B shall discuss the denial of such rights, and finally , Section C shall discuss the rights of the non-inmate spouse of prisoners.

A.    CONSTITUTIONAL RIGHT OF FEMALE INMATES

Indian Courts have recognised that the right to procreate survives incarceration.The development of jurisprudence through Jasvir Singh, Meharaj and Kundan Singh concern a situation ofan inmate husband and a non-inmate wife.  However, the extent of such rights has not been decided yet. A lingering point of contention, yet to be answered, is whether such right to procreate is limited to male prisoners or whether it extends to female prisoners.

While addressing international jurisprudence, the Court in Jasvir Singhbriefly took note of the question of whether the right to procreate extends to “all sorts of couples (for example, a man in prison and the woman outside, a woman in prison and the man outside […])” but failed to answer it. However, in 2023, a woman undertrial prisoner was denied permission to undergo IVF treatment for procreating since it would amount to an unreasonable logistical burden on the prosecution during the pendency of the trial when the proceedings are anyway likely to conclude soon. While the author concedes that the Court was justified in denying the request yet, if such an unreasonable burden on the authorities is considered sufficient for denying the right to procreate, then it can result in arbitrary denial of a female prisoner’s right to procreate. Prison authorities may arbitrarily deny any such request from a female prisoner by citing security concerns or administrative burden.

Similarly, the American position rejects a male prisoner’s right to procreate partly on the grounds of equal treatment, as extending the same right to female prisoners would be a burdensome task for the State, including care to be provided during and post pregnancy.Conversely, Indian Courts have adopted the European viewpoint and held that the right to procreate survives incarceration under Article 21 and creates a single class of prisoners. Consequently, the State shall not be allowed to discriminate against them.

Despite differing on the question of survival of rights, the argument of equal treatment is equally applicable in the Indian Context. Article 14 of the Constitution  extends equal protection of law to all. A right cannot be curtailed merely on the basis of an additional burden on the State. Instead, it is a positive obligation on the State to ensure the protection of such rights.  Withholding the right to procreate of female prisoners on grounds of additional burden on the prison authorities or security concerns amounts to a discriminative application of rights between male and female prisoners since there is a positive obligation on the State to protect this right. Thus, considering that the right to procreate survives incarceration and an individual is entitled to equal protection of law, the author contends that the right to procreate extends to both male and female prisoners.

B.    DENIAL OF FEMALE INMATES’S RIGHTS

The living conditions of female prisoners in India have been critiqued for decades. A recent study conducted by the National Commission for Protection of Child Rights highlights that there is a severe lack of female staff including guards, officers, doctors and nurses. The report noted that a considerable number of women inmates live with their children where no other adequate arrangements can be made for their care with insufficient medical, dietary and accommodation facilities. Further, there is a considerable amount of overcrowding in female prisons (see here).

Notably, the Supreme Court took note of the hardships of female inmates in R.D. Upadhyay v. State of Andhra Pradesh. The Court acknowledged the plight of female prisoners and their children and consequently, issued guidelines (‘R.D. Upadhyay Guidelines’) for providing various facilities to the children of women prisoners and asked the States to implement the said guidelines and make arrangements for food, shelter, medical care, education and recreational facilities as a matter of right. The Court cast a duty on the State to ensure the rights of prisoners as protected under the Constitution. Moreover, the report of the fourteenth finance commission notes that States have the necessary fiscal space to improve the conditions of prisons.

The State’s duty to safeguard the rights of prisoners thereby includes the prisoner’s right to procreate and specifically, the female prisoners for reason of its inclusion within Article 21 of the Constitution . The right to procreate is not an absolute right and is subject to reasonable restrictions as imposed by the State as noted in Kundan Singh. Generally, the prisoner or their spouse file a request before the Court seeking permission for procreation through IVF and the Court shall decide on numerous grounds including inmate’s behaviour, nature of crime, security concerns etc.

One key consideration is the ‘best interests of the child’ as noted by scholars.The ‘best interests of the child’ has been regarded as a primary consideration in the Indian Constitution as evidenced through, inter alia, Article 15(3) permitting special provisions for children, Article 21A dealing with the right to education, Article 39 and Article 45. This principle has been applied while dealing with issues of the prisoners’ right to procreate in foreign jurisdictions. The key consideration is whether the environment is in the best interests of the child.  Considering the present state of female prisons and the quality of life of women prisoners, Courts will naturally be apprehensive in allowing prisoners to go forward with artificial insemination in the best interests of the child. Further, a report prepared by the National Commission for Women (‘NCW’) although restricted to prisons in Uttar Pradesh indicate that 62.05% of the children of women prisoners living in prison are not happy. Such unhappiness stems from insufficient provisions for the dietary, clothing and educational requirement of children. Again, in 2018, the NCW made similar observations concerning the status of the children of female prisoners. In light of such data, it is reasonable for the Court to decide that it is not in the best interest of the child and growing in such an environment may potentially violate the rights of the prisoner’s children. However, the argument of the ‘best interest of the child’ makes the women prisoner’s right to procreate redundant since the prison conditions are a result of the State’s failure in maintaining the basic living standards within the prison.

The State’s violation of its positive duty to maintain the prisons is thereby, obstructing the right to procreate of female prisoners under Article 21. Moreover, denying the rights of female prisoners at present to ensure that the rights of the child are not potentially infringed upon in the future allows the State to willingly violate the rights of prisoners. Consequently, the State shall be mandatorily required to follow the guidelines provided by the Court in R.D. Upadhyay to safeguard the right to procreate of the prisoner and the rights of the future children of the inmate considering the availability of the necessary fiscal space with the State to improve the conditions of prisons.

C.    RIGHTS OF NON-INMATE SPOUSE OF PRISONERS

The right to procreate of the non-inmate spouse has not been addressed by the existing literature. It would be unreasonable to contend that the rights of the non-inmate spouse of prisoners should be restricted merely on the basis of their spouse’s conviction. Although not with respect to the right to procreate, the rights of non-inmate spouses of prisoners have been recognised by  in Procunier v. Martinez.The  Court noted that the censorship of mails exchanged between inmates and their spouses was a violation of the non-inmate spouse’s freedom of speech. Thus, the Court held that even if the rights of a prisoner do not survive incarceration, their spouse’s right cannot be deemed restricted merely on the basis of such imprisonment. At the same time, it has been argued that rights of the non-inmate spouse as a part of their right to life are not violated so long the State allows for conviction as a ground for divorce since it will allow them to remarry and exercise their right to procreate. However, at present, the Hindu Marriage Act, 1955 and the Indian Divorce Act, 1869 do not recognize conviction of the spouse as a suitable ground for divorce. Thus, the right to procreate of the female prisoner’s non-inmate spouse comes into question, considering that they will not be entitled to seek divorce and, at the same time, will not be entitled to exercise their right to procreate.

As discussed already, the State is indirectly violating the rights of the female prisoners by failing in its positive duty to maintain the prisons. Alongside, it is imperative to note that the rights of her spouse are being infringed upon as well. By being prohibited from inseminating his wife, the husband must either forfeit his fundamental right to procreate or stray outside the realm of his marriage. However, the latter becomes improbable when conviction is not recognised as a ground of divorce. Consequently, the rights of the non-inmate spouse are being violated along with the rights of the women prisoner owing to the State’s failure.

 IV.          CONCLUSION

The discourse surrounding the right to procreate of prisoners faces conflict between the Constitutional safeguards extended to the prisoner and the harsh realities of prison conditions. Indian jurisprudence has taken a rather progressive approach in ensuring the rights of prisoners through Jasvir Singh and Kundan Singh. However, the realisation of this right, particularly for female prisoners, remains a distant goal due to systemic neglect and administrative ignorance.

Although there has not been a successful request of IVF from woman prisoners, through this paper, the author argues that the rights of procreation extend equally to both male and female prisoners. Additionally, the burden imposed on the State by extending this right to Women cannot allow the State to discriminate within the same class of prisoners especially when the State’s fiscal space allowed for development of prisons.

Taking into account the living conditions of female prisoners in India, the State has failed in its positive duty of safeguarding the rights of prisoners and consequently, indirectly infringed upon the right to procreate of the female prisoners. Such infringement is in light of the “best interests of the child” theory which requires the Court to consider the best interests of the Child while dealing with a request of procreation within prisons. Along with infringing upon the rights of the woman prisoner, the State is concurrently violating the right to procreate of the non-inmate spouse leaving him with no choice other than to forfeit his right to procreate since conviction is not yet recognised as a ground for divorce under the Hindu Marriage Act, 1955 and the Indian divorce Act, 1869.

Moving forward, ensuring gender-sensitive approaches in prison management and acknowledging the specific needs of female inmates are essential steps towards promoting gender equality within the criminal justice system. Last, in light of the R.D. Upadhyay guidelines , the State shall be held accountable to ensure that the rights of prisoners are safeguaded. While the guidelines were laid down in 2006, their implementation has remained dire. States must undertake to develop the condition of the prisons to ensure that the rights of prisoners are not compromised.

*Pritish Desai is a third-year student at the West Bengal National University of Juridical Sciences, Kolkata.
His research interests include commercial law, constitutional law and public international law.