JOINT DISSENTING OPINION OF JUDGES CASADEVALL AND GARLICKI

We cannot agree with the majority ’ s finding that there has been no violation of Articles 8 and 12 of the Convention.

Since the U.S. Supreme Court judgment in Skinner v. Oklahoma (1942), the fundamental nature of the right to procreate has been recognized in constitutional jurisprudence; the European Court of Human Rights also conforms to t hat position ( Evans v. the United Kingdom , no. 6339/05, 7 March 2006 , not yet final, § 57). In consequence, access to artificial insemination also falls within the ambit of Article 8 (and – in relation to married couples – within the ambit of Article 12). The problem here is whether the State is allowed to deny such access to all, or some, prisoners. The majority was, of course, correct when it noted, “it is well established that prisoners continue to enjoy all fundamental rights and freedoms guaranteed under the Convention save for the right to liberty” (par. 26). But it also means that interference with the right to procreate is permissible only if it could be qualified as one of those limitations on private and family life that are inevitably entailed by the deprivation of liberty.

We think that the majority erred in three respects: 1) in classifying the nature of the prohibition of artificial insemination; 2) in assessing the United Kingdom general policy in regard to artificial insemination; 3) in assessing the particular circumstances of the case.

As to point 1, t he majority based its reasoning on the distinction between restrictions constituting interferences with the applicants ’ right to respect for their private and family life and restrictions constituting a failure by the State to fulfil a positive obligation in those respects. While the majority accepted that the prohibition of conjugal visits should be classified within the State ’ s negative obligations, it considered that the refusal of artificial insemination belongs to the area of positive obligations (see § 30), and that the State ’ s margin of appreciation was correspondingly wider. We cannot agree, because – in our opinion – there is no rationale for such a distinction. If conjugal visits were allowed, no problem of artificial insemination would emerge. The restrictions on artificial insemination become important only where there is a prohibition of conjugal visits. Artificial insemination, at least when, as in this case, the prospective parents are ready to cover the necessary expenses, does not require any particular assistance by the prison authorities (and also in this respect shows similarity to procreation resulting from a conjugal visit). Thus, there is no reason to assume a difference in nature between the prohibition of conjugal visits and the denial of access to artificial insemination. Both restrictions have the same “ antiprocreationist ” effect and should be assessed within the framework of “negative obligations”. In consequence, the margin of appreciation in decisions on artificial inseminations cannot be wider than in decisions on conjugal visits.

As to point 2, t he majority examined the general policy in regard to prisoners ’ requests for artificial insemination and did not find it to be arbitrary or not reasonably related to the underlying aims of the policy (§ 35). At the material time, this policy was based on six considerations (see § 8). We are ready to agree that those considerations were drafted in a manner consistent with the requirements of the Convention. What bothers us is the first paragraph of the “policy” stating that requests for artificial insemination “will only be granted in exceptional circumstances”. In our opinion, such an approach runs counter to the very philosophy of human rights. This philosophy is based on the assumption that the accessibility of a right constitutes a rule and limitation of a right is an exception. The “policy” reversed this assumption. What should have been a rule became an exception and what should have been an exception became a rule. It reversed also the burden of proof, because under that approach a justification must be produced for exercising a right and not for restricting such exercise.

We have doubts whether such an “inverse approach” is compatible with the general principle that prisoners continue to enjoy all the fundamental rights and freedoms save for the right to liberty. We have no doubt that it is not compatible with the rights of the non-detained spouse who was also affected by the refusal of artificial insemination.

As to the point 3: But even if the “general policy” were found to be compatible with the Convention, its application, in the Dicksons ’ case, was not. The biological reality put the second applicant before an alternative: either she would be given access to artificial insemination or she would not be able to procreate within marriage. It would be difficult to find a situation more exceptional than that one. What was at stake was not a temporary limitation of the right, but its full and irrevocable destruction. Only very serious reasons can justify such interference. We are unable to discern such reasons from the Secretary ’ s of State refusal and some of his arguments sound a bit too paternalistic to us. It is not for the State to decide who may have children and when. We also have difficulty accepting that the refusal was necessary for the maintenance of public confidence in the penal system (see § 38 of the judgment). What both applicants really wanted was to plan their life for the future and not to reorganise the current execution of punishment. That is why we cannot share the majority ’ s assessment that the domestic authorities struck a fair balance between the competing interests. The limitation imposed on the applicants was not inevitably entailed by the deprivation of liberty. Leave for artificial insemination would not change anything in the timing and manner of execution of the prison sentence. But its refusal will affect the whole future life of the ap plicants since it deprives them of the possibility to found a family.

DISSENTING OPINION OF JUDGE BORREGO BORREGO

To my great regret, I cannot agree with the opinion of the majority.

In the first place, the present judgment contains numerous remarks about the first applicant, a man serving a prison sentence, about the priorities and resources of the State and “the moral and material welfare of child to be conceived”. However, I have not found a single remark about the second applicant, a woman at liberty, married to the prisoner, who at nearly 50 years of age is prepared to undergo an artificial insemination process in order to have a child by her husband. In my sincere opinion Mrs Dickson is the “forgotten person” in this case.

In an artificial insemination process the man ’ s role is essential but rather limited: it consists merely in supplying semen, which is then sealed in a small sterilised container. The first applicant could hand over this semen to his wife when she visits him in prison, and it could then be kept for several hours at room temperature. The woman ’ s role, on the other hand, is more complicated, and may involve a considerable amount of pain. Nor should it be forgotten that success is far from guaranteed.

That being said, and bearing in mind the very restricted role of the first applicant in such a process, it is difficult for me to understand how it can be asserted that “these considerations [the State ’ s priorities and resources] are particularly relevant in the present case” (paragraph 31).

Preventing the first applicant from donating his sperm to his wife without any physical relations between the two is justified in the judgment by:

(a) “The nature and gravity of the first applicant ’ s crime”

This argument amounts to a temporary de facto sterilisation of the first applicant until 2009, when he will be released.

That is a punishment not imposed by any court and one which, in my opinion, is rather absurd. From 2009 onwards the first applicant may have physical relations with his wife and, without any hindrance, attempt by that means to become a father. Does that mean that by 2009 “the nature and gravity of the ( ... ) crime” will have ceased to exist? In any event, what really is likely to have ceased to exist is the ability of the second applicant, who will be 51 in 2009, to conceive a child.

(b) “The welfare of any child who might be conceived, in the light of the prolonged absence of the father for an important part of his childhood years”

I do not wish to go into the debate about whether it is the father or the mother who plays the decisive role in the first years of a child ’ s life, but I do wish to say that once again in this case it is the second applicant, the potential mother, who has been forgotten.

I find the British authorities ’ approach, endorsed in the present judgment, paternalist. The same reasoning would militate against the conception of a child where one parent is suffering from a fatal illness and has very little chance of surviving later than its birth. The judgment is therefore hostile to the conception of a baby unless, among other conditions, the stability of the couple is guaranteed and so on.

(c) “The apparent lack of sufficient material provision and immediate support network in place, for the mother and child”

The possible future mother “maintained that she had sufficient resources to care for the child born as a result of arti ficial insemination” (paragraph 37). That assertion is not contested in the judgment, which merely states “ ... for the mother and child”. From whom? From the man? I prefer to refrain from any comment.

I consider that refusing to allow the first applicant to donate his sperm to his wife, thus preventing her, in view of her age, from trying to have a child with her husband through artificial insemination, is contrary to the rights guaranteed by Articles 8 and 12 of the Convention.

I hope that this judgment will be examined by the Grand Chamber. Were the Grand Chamber to rule that there has been a violation of the Convention, there would still be a chance for the second applicant. It really would be regrettable if a real problem became, through the passage of time, a purely theoretical one. The Convention guarantees rights which are “practical and effective”, not “theoretical or illusory”.

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