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SAN FRANCISCO – A California inmate has no right to mail his sperm from prison to impregnate his wife, a divided federal appeals court ruled Thursday. 

The 9th U.S. Circuit Court of Appeals, in reversing its September decision, said inmates have no constitutional right to procreate. Ruling 6-5, the San Francisco-based court put a halt to inmate William Gerber’s plans to ship his sperm to his wife in Southern California. 

“A holding that the state of California must accommodate Gerber’s request to artificially inseminate his wife as a matter of constitutional right would be a radical and unprecedented interpretation of the Constitution,” Judge Barry G. Silverman wrote. 

Gerber’s effort to impregnate his wife got national attention last year when a three-judge panel of the same circuit said Gerber had a right to mail his sperm to his 46-year-old wife, Evelyn. 

Silverman, the lone dissent in that September opinion, said the majority’s opinion allowed Gerber “to procreate from prison via FedEx,” and added that the majority “does not accept the fact that there are certain downsides to being confined in prison.” 

The U.S. Supreme Court has said prisoners have a right to marry and be free from forced sterilization. But neither the high court nor any lower court has resolved circumstances presented in Gerber’s case, which reached the courts when the California Department of Corrections balked at Gerber’s proposal. 

“The close 6-5 decision is obviously very disappointing to the Gerbers, and disturbing to anyone troubled by a government that can dictate who may or may not have children,” said the Gerbers’ attorney, Teresa Zuber. 

Evelyn Gerber declined comment through her attorney. 

Still, a five-judge circuit minority said the prison is not harmed by a prisoner ejaculating in a cup and mailing it to his wife. 

Judge Alex Kozinski said the process neither compromises security nor places a strain on prison resources beyond that required to mail any other package. 

“The prison has no penological interest in what prisoners do with their seed once it’s spilt,” Kozinski wrote. “A specimen cup would seem to be no worse a receptacle, from the prison’s point of view, than any other.” 

He wrote that the majority’s rule could encourage curtailing prisoners’ rights. 

“Does the term imprisonment also implicitly abridge the right to speak? Or the right to own property? The right to marry? To practice a religion?” he asked. 

Gerber would be able to try to father a child the old-fashioned way if he was not serving a life term. 

For three decades, California inmates with good prison records have been granted almost unsupervised overnight visits with loved ones in prison cottages. Prisoner rights groups say conjugal visits foster good prison behavior. 

But in 1995, California banned conjugal visits for prisoners convicted of sex crimes, crimes carrying life sentences or violent crimes against family members or minors. 

Gerber is serving a life term in a state prison in Blythe for illegally discharging a firearm and making terrorist threats, and was sentenced under California’s three strikes law. 

The case is Gerber v. Hickman, 00-16494.