Founding A Family Behind Bars

We have had two reports from Michael Farmer in recent years on the vital importance of maintaining family ties, its associated reduction in reducing reoffending, and yet in neither report – on men from 2017 and on women from 2019 – do the words ‘conjugal visits’ or ‘fertility treatment’ occur even once.

Long-term prisoners, and their female partners, often write to us at Converse and The Prison Oracle asking why if maintaining family ties is considered so important they cannot have conjugal visits as an earned privilege, and/or why so many barriers are put in their way of being able to go through fertility treatment before the female’s age makes pregnancy an unviable or unsafe option?

They are legitimate questions.

Recently the Ministry of Justice updated its policy on prison fertility treatment and last month it revealed that since the 1960’s a total of ten, yes just 10, prisoner applications had been approved for fertility treatment – and that is fertility treatment lest we forget, for which the prisoner and his or her partner have to pay all of the associated costs of going through.

Ten cases in 61 years.

The HMPPS policy on fertility treatment, last updated in March 2021, makes it clear that prisoners do not have a general right to access fertility treatment and fertility preservation facilities, but they are able to submit a request for HMPPS to facilitate access, via a central casework team.

The policy states:

Each request is assessed on its individual merits according to the criteria set out below, taking into account all evidence provided by the applicant, the Prison Service and other appropriate authorities, and with due regard for the rights of all relevant parties. Any resulting treatment is a matter for the National Health Service or private health care providers engaged by the applicant.

Applicants will need to submit evidence against criteria 1- 5 below, working with their healthcare provider and other relevant resources. The HMPPS central casework team will then consult with prison security colleagues, legal services and other appropriate authorities regarding the remaining criteria, before an assessment is made.

The policy differentiates between fertility treatment (considered as treatment intended to bear a child) and fertility preservation (storing of eggs, sperm, embryos or reproductive tissue for use at a later date) where appropriate. 

Consideration criteria

1. The prisoner (and/or their partner) is unlikely to be able to conceive at the time of release, either naturally or with the help of fertility treatment, taking into consideration factors such as age at time of release and pre-existing/ underlying medical conditions.

2. There is evidence that satisfactory arrangements are in place for the welfare and support of any child born as a result of fertility treatment and any other children of the family likely to be affected. This involves consideration of the prisoner’s personal records for past or current circumstances that may lead to any child experiencing any harm or neglect e.g. the risk assessment provided by the prison, child protection measures, or violence or serious discord in family environment. Applicants for fertility preservation will not be assessed against this criterion.

3. All relevant parties confirm independently that they want the procedure. For fertility preservation treatments involving egg, sperm or reproductive tissue freezing, the prisoner will be the only relevant party.

4. The prisoner ’s GP is satisfied that the prisoner is medically fit to proceed with fertility treatment and a Human Fertilisation & Embryology Authority approved clinic has confirmed that they are suitable candidates for fertility treatment or fertility preservation. As in the criteria above, for fertility preservation treatments involving egg, sperm or reproductive tissue freezing, the prisoner will be the only relevant party.

5. Any costs incurred by HMPPS such as escort and transport costs will be met by the prisoner.

6. There is due consideration of the prisoner ’s offending history and any other factors which suggest it would not be in the public interest to allow access to any form of fertility treatment, due to the risk of undermining public confidence in the Justice System.

7. There are no security concerns about escorting the prisoner to the clinic for this purpose. 

8. There is due consideration of the Public Sector Equality Duty and the need to ensure decisions are made free from discrimination or bias.

9. There is due consideration of the Article 8 and Article 12 rights of all relevant parties (nominally the prisoner and/or their partner), as set out in the European Convention on Human Rights and the Human Rights Act 1998. 

Article 8 provides for the right to respect for private and family life. Article 12 provides for the right to marry and found a family.

To me these unnecessary barriers work against maintaining family ties because they render the creation of a family nigh on impossible – and just 10 approved cases for fertility treatment in 61 years seems to make the point best of all.

My own preferred option is not for conjugal visits but instead increases in ROTL, but equally we have to accept there will be cases where that simply isn’t feasible because of the offence, length of sentence or security categorisation; but what about the rights of the partner outside, who has committed no offences, who has no security category and yet who is deprived of founding a family?

If we are serious about the importance of founding a family, a right remember protected by both Articles 8 and 12 of the European Convention on Human Rights, then we need to address these issues head-on and recognise the important part a family really does play in the lives of everyone.