About 10 days ago, the New York Times had two fascinating stories about reproduction (on back-to-back days) I wanted to highlight and comment on. In this post I will take about the first concerning Palestinian prisoners in Israel who are smuggling sperm out of prison to get their wives pregnant. As the story reports:
“A Palestinian fertility doctor said Thursday that he was helping about 50 women conceive children using sperm smuggled out of Israeli prisons, that four of the women were now pregnant after in vitro fertilization, and that one delivered a boy last summer, named Muhannad. . . . Dr. Khaizaran said he decided to embark on his unusual fertility experiment because by the time inmates with long sentences are released, their wives are often too old to bear children, leading them to marry younger women. He said he received a fatwa, or legal ruling, from a Muslim cleric permitting the procedure, which he does free of charge. Neither the doctor nor several women interviewed would reveal details of how the sperm was smuggled out.”
Here are some thoughts: First, there are a series of questions about the welfare of the children born from fathers in jail. My own work (see this and this and this and this) has argued that these kinds of Best Interests of the Resulting Child arguments often do not work, but certainly some others have (and will continue) to disagree me.
Second, there are some very interesting issues about rights to procreate of prisoners. There have been cases about rights to do sperm donation in jail in cases where there is no conjugal visits allowed. Here I think, especially for those facing life sentences or the death penalty, there is an interesting question of whether one has a right to produce a child for whom one will be a genetic parent and a legal parent but not a rearing parent in any meaningful way. Is a prohibition on allowing sperm donation to one’s wife while one is in jail a violation of one of the prisoner’s right to procreate? His wife? A woman with whom he has no pre-existing romantic relationship that wants to produce a child with him? And oh, by the way, what if the prisoner is a female and wants to gestate in prison?
Third, the justification offered by the Palestinian doctor is particularly interesting, that this is about maintaining a certain kind of family structure and trying to discourage additional marriages to younger women in Palestine. If this was a culture where additional marriages were not possible or this trend did not apply would it make a difference?
Finally, and this is really just a question (my thoughts are very tentative and non-commital here), I wonder how this looks from an International Humanitarian Law/Law of War perspective? In the Israeli-Palestinian case we are in the murky world of non-state action/terrorism vs. occupation depending on your view of this particular conflict (definitely not taking a position on that here!) But imagine this was state actors actually at war. Should one side in a protracted conflict have a right to say “we want to win this, and allowing the other side to increase their population and produce a set of young men and women who hate us for what we have done to their fathers is against that interest”? Now if that was achieved by, for example, using sterilizing agents in munitions against the other side or trying to put it in the food supply that would clearly be wrong, in part because of its permanence. But what if instead they adopted the less invasive approach taken here where they “merely” (scare quotes purposeful to indicate uncertainty) prohibited prisoners from inseminating a partner. I wonder if any of the major documents governing the treatment of Prisoners of War speak to this issue (happy for commentators who know more to chime in, of course).