CONCURRING OPINION OF JUDGE BONELLO

Essential Facts

1. The first applicant was convicted of murder and sentenced to life imprisonment. His earliest date of release could be 2009, but there is no certainty about this. In 1999 he met the second applicant who was also serving a prison sentence and in 2001 they got married. She already has three children from previous relationships. They applied for permission to have a child by artificial insemination, but the prison authorities refused and the courts endorsed this refusal.

The protection of the rights of others

2. Though I have considerable sympathy for the applicants ’ plight and for the minority view, I nonetheless opted for not finding a violation of Article 8. The reasoning of the judgement I regard as persuasive, even if I would have relied less heavily on the state ’ s margin of appreciation and on the government ’ s primary argument that the maintenance of public confidence in the penal system would have been undermined by allowing life prisoners to conceive children by artificial insemination.

3. The Convention enjoins states not to interfere with the enjoyment of family life; in fact it imposes a positive duty to promote it. This enjoyment not being an absolute right, interferences are permissible in the circumstances enumerated by Article 8(2), among them “the protection of the rights and freedoms of others”.

4. Nothing in the Convention guarantees to a person a ‘ right ’ to procreate. What the Convention more cogently guarantees is ‘ the right to found a family ’ (Article 12). I am hardly convinced that procreating a child through artificial insemination by a life prisoner is embraced in the right secured by Article 12. The concept of ‘ family ’ enshrined in Articles 8 and 12, in my view, requires more than the mere forwarding of sperm from a distance in circumstances which preclude the donor from participating meaningfully in any significant function related to parenthood. ‘ Family ’ necessarily implies at least the possibility of emotional and physical proximity, bonding, the assumption of parental responsibilities, together with a vestige of communal life. This, of course, only applies to the husband. In his case, the very nature of life imprisonment makes sure to pre-empt a priori all, or most, of these requisites.

5. The position appears substantially different in so far as the wife is concerned. She is now out of prison and should be presumed to be able to set in being a family life with her eventual offspring. In her case the test however still requires balancing her natural craving to found a family, on the one hand, with the rights of the child she desires to generate on the other. The particular circumstances of this case lead me to believe that permitting offspring to be born to the applicants would not be fostering the best interests of the desired child. It would, on the contrary, be injurious to the ‘ rights of others ’ .

6. In the architecture of the Convention, at least as fundamental as the right of a woman to be a mother, is the dogma of the supreme interest of children. In conflicts where the interests of a child are an issue, the ethic guiding domestic courts and this Court has been that the “protection of the rights of the child” should be paramount. I see no reason to depart from this hierarchy in the present case.

7. I am far from persuaded that kick-starting into life a child in the meanest circumstances, could be viewed as an exercise in promoting its finest interests. The debut of life in a one-parent family, deprived of the presence of the father and of a father-figure, offspring of a life prisoner convicted for the most serious crime of violence, would not quite appear to be the best way of giving a child-to-be a headstart in life. The Government have highlighted the applicants ’ “seeming insufficiency” of material resources to provide for the upbringing of the child that might be conceived. The wife has denied this, but has failed to produce any evidence to disprove it. In other words, it would seem that the parents are not totally averse from delegating to social welfare a good tranche of their parental responsibilities.

8. As far as the child to be born to the applicants is concerned, another factor that weighs against the ‘ best interests ’ priority is the fact that the applicants met and married in prison. Of course this is not, in itself, particularly determining or even influential, save for the following reason. Even assuming that the husband is released within a reasonable time (there is no certainty about that), the union of the applicants still remains that engendered in a dysfunctional ambience, where restriction and control are the rule and liberty the dream. It is highly speculative whether a union that has not been tested in the normal circumstances of daily life would be a preferred platform to ensure a fulfilling infancy for the desired child. Moreover, the precarious antecedents of a marriage firmly anchored in singularity are in no way counterbalanced by any support networks in place on the mother ’ s side.

9. I am not particularly impressed by the argument that society regularly allows children to be born in similar or worse circumstances. The present is not a case in which society would be ‘ allowing ’ a conception in unpromising conditions, but one in which the state is being asked to become an active accomplice and participant in this future conception. I believe a responsible state to be right to require of itself standards higher than those beyond its control in the free procreation market.