Is IVF a human right? Should prisoners receive it?

(excuse the length, I will edit posts down in the future)

Earlier today I was sent the following article by Crocoduck, http://www.abc.net.au/news/stories/2010/05/04/2889821.htm (please do read it before reading on)

While brief in detail I found the article/case raised a couple of interesting questions:
1. Should prisoners be allowed to continue IVF while in custody?
2. Is IVF a human right?
Following is my initial thoughts and response:

" Would she have the right to conjugal visits?

Was she trying IVF before she went in?

Is it a key human right to fall pregnant?

If she was 23 would the court even entertain the idea?

Without thinking to hard about it I think it should not be allowed.

Going to Jail isn’t simply about being put in a cell to sleep while you carry on with your plans. You are being punished, missing out on life while in there is part of that punishment, it is part of the deterrent.

Ok I guess the argument is she is going to miss out by a matter of months, that the punishment shouldn’t hang over her head for the rest of her life. But where do you cut it off? If she had 18months remaining? 3 years? 5 years?


I would need to see the full case details.
Eg. Lets say she has been undergoing IVF for a number of years, she was sent to prison yesterday for a 12month non parole period. She goes over the age barrier in 7 months. Does the punishment of potentially missing out on falling pregnant make the punishment not fit the crime?

I think she should apply to the IVF (board? Hospital? Judge) to allow to undergo 7 months of IVF once she gets out.

I am pretty certain she can go overseas and have IVF after age 46… so the right is still there. However her crime may make travel difficult"


I then sent the email to two female friends. Both in their mid twenties, both well educated and luckily for me and you, both quite opinionated.

The first replied with this:
"hmm I know it may seem obvious that she's been trying for a kid her whole life but I would still first ask - has she had kids before?

can she even afford to have kids/ a kid if she's in court for welfare fraud?

If the answer is she hasn't ever been able to, has been waiting for yrs, spent all her money on IVF etc... then I'd be sympathetic to allowing her out for IVF.

But if she already has a few and can't afford to keep them then it's a nay from me"

The second friend pulled out the big guns:

"She definitely shouldn't get access.

Women seeking access to IVF can be split into two groups.
1) women who have healthy eggs but need IVF for other reasons (i.e. can't conceive naturally, partner has poor sperm count);
2) women who could conceive (healthy womb) but aren't producing eggs any more or whose eggs are damaged

Given she is 46, it is highly likely she is in the later category and would require egg donation. This is where the issue gets more complicated.

The demand for egg donors greatly outstrips supply in Australian clinics (women reluctant to donate eggs).

At the moment, we ration this imbalance of supply / demand, by basically putting women on a wait list, which means younger women can wait a very long time before receiving an egg. I think that's a poor approach. I think if you are single or over 40, you should be much lower preference to a woman who is younger and in a stable relationship. If there was an excess of eggs, maybe you wouldn't have to think like that, but the fact is that woman taking an egg from a more worthy recipient.

To avoid confusion, by "worthy" I don't mean that woman is less moral or a worse person than others (I don't know the circumstances around her sentence), however she clearly doesn't have the capabilities to provide a safe and stable environment for child. The government should be discouraging women getting pregnant in those circumstances, not funding them."

I then sent friend 2 my response (as shown above)"

Friend 2 continued,
"Agree very much on this point "Going to Jail isn’t simply about being put in a cell to sleep while you carry on with your plans. You are being punished, missing out on life while in there is part of that punishment, it is part of the deterrent."

In response to your questions: is it a key human right to fall pregnant? I say no.
I think it is a human right to be able to conceive without government interference, however I don't believe the government is in any way obligated to facilitate your pregnancy. Given the limited supply of resources for both money (to fund IVF) and donor eggs, I think the government needs to take a view as to who they should assist in falling pregnant and who they shouldn't.

Regarding the recent email you just sent, let me explain what I mean by my view that "she clearly doesn't have the capabilities to provide a safe and stable environment for the child".

Children need stability, both financially and emotionally, so they are able to develop in a safe environment. It's also clearly advantageous if they are raised by a parent who respects societies laws, as that respect tends to be inherited and creates more law-abiding citizens (conservative view, but true).
Given this woman was conducting welfare fraud and has been in jail, she
- is unlikely to be financially stable
- is unlikely to be in a committed relationship
- clearly has little respect for society and other citizens (i.e. tax payers who funded her)
The "committed relationship" point isn't because I have an issue with unmarried women (clearly), but because children whose mothers have a high turnover of partners (and this women certainly falls into this demographic) are considerably more likely to be sexually abused.

In short, whilst you can never 100% predict how some one will perform as a mother (i.e. she could clean up her act and be a wonderful mum), the indicators point to that fact she will likely provide terrible conditions in which to bring up a child. I don't want a government to go out and sterilize her, but should community resources be put towards assisting her conceive? Clearly not"

I forwarded this reply onto Crocoduck, whose reply to friend 2 was:
"You have extrapolated so much presumed history about this woman from absolutely no information other than she is serving a sentence for welfare fraud that it is bordering on the fantastic (in the true sense of the word). And besides, whether she fits your presumed demographic or not, the legal issues aren’t anything to do with the suitability of her as a parent. The government doesn’t means test the baby bonus after all! Never one to go the ad hominem, but as an aside, your comment that a high turnover of male partners means that a child is “considerably more likely to be sexually abused” is intellectually insulting.

There is no issue here that the effect of prohibiting her access to IVF is akin to state-sanctioned sterilisation. The considerations are focused on whether the state ought to allow those incarcerated to enjoy the liberties of the free. Curtailing civic rights (beyond mere imprisonment) of prisoners is not foreign to Australia where prisoners serving sentences for three years or more aren’t allowed to vote in government elections. The question remains: Is IVF something a prisoner is entitled to receive?"

This is where I stopped the discussion in a quest to find out more information. This is what I have found.

The prisoner was sentenced to 3 years in prison with a non parole period of 18 months.

She had "At varying times from 1984 to 1998, Ms Castles claimed single parenting payments while living with her husband.

From 2000-2006, she also claimed Newstart Allowance under a fake name while receiving payments in her own name." http://frankston-leader.whereilive.com.au/news/story/frankston-woman-jailed-for-welfare-fraud/

The prisoner already has two children, one of whom appears to live with her in the jail. She has had 24 unaccompanied visits outside the prison. She is allowed conjugal visits and can go home accompanied once every four weeks. She will be eligible for home detention in 6 months. http://www.theage.com.au/victoria/trial-to-decide-prisoners-right-to-ivf-treatment-20100504-u5gi.html

There has been four births inside the jail this year. The prisoner "alleges authorities have broken the Charter of Human Rights.

"It is unlawful for (prison authorities) to act in a way that is incompatible with a human right," lawyers for Castles argue. "The charter provides that Kimberley has the right not to have family unlawfully or arbitrarily interfered with ... It is unlawful discrimination to prevent Kimberley from accessing the treatment which she requires to conceive." Further submissions say the charter gave Castles the right to choose the size of her family despite her imprisonment. It also gave her daughter the right to have a sibling and her partner the right to have another child. Ms Castle's barrister, Ron Merkel QC, argues Castles' infertility is a medical condition and should be treated through IVF. "The power the department has is the ability to destroy her reproductive health and to bring it to an end for no reason. This power is being abused.The Department of Justice seems to have a adopted a one-child policy," Mr Merkel said.
http://www.heraldsun.com.au/news/jailbird-pleads-for-ivf-chance/story-e6frf7jo-1225860814603

I am interested to hear what Crocoduck, friend one and friend two have to say about this new information. Personally I think the barrister's arguments are ridiculous. The prisoner systematically abused the welfare system for a number of years. She knew it was illegal, she knew if caught there would be consequences. She now needs to deal with those consequences. As I said above- Going to Jail isn’t simply about being put in a cell to sleep while you carry on with your plans. You are being punished, missing out on life while in there is part of that punishment, it is part of the deterrent.

Instead of changing the rules inside the prison, why doesn't she instead challenge the cut off being set at 46? or is that another bag of worms for another day?