In recent weeks, a female prisoner in Queensland lost her fight to have her eggs frozen while incarcerated. Rachel Smith is currently serving a ten-year sentence for drug trafficking. She will be between 39 and 41 years of age when she is released. Smith's fertility will decline significantly while imprisoned. Smith was 33 when she first applied to freeze her eggs and was prepared to fund the treatment herself. She applied to Queensland Corrective Services, the Brisbane Supreme Court and the Court of Appeal. Each application failed. By denying her access to egg freezing, the state may have denied her the chance to have a child. This goes beyond the intended scope of criminal punishment and should be reviewed.
Your Rights Depend on Which State You Live In
Queensland prisoners are prohibited from accessing assisted reproductive technology under the Corrective Services Act 2006. In Smith's case, the court ruled that the processes of extracting and freezing eggs was a form of assisted reproductive technology and therefore fell within that prohibition. The court also justified the ban on grounds of consistency. It applied a blanket ban to ensure prisoners were treated equally and avoid correctional authorities having to make judgements about which prisoners should be permitted to have children.
The outcome may have been different had Smith been imprisoned in a different jurisdiction. In Victoria, for example, access to assisted reproductive technology is a recognised human right. In 2010, the Supreme Court of Victoria ruled that a prisoner was entitled to access assisted reproductive technology, specifically IVF, recognising it as a legitimate medical treatment and a human right necessary for the preservation of health. In 2024, another Victorian prisoner was granted the same right.
The Welfare of Children
There may be legitimate concerns about the welfare of children born to incarcerated parents. This may justify restricting access to assisted reproductive technology for prisoners, which could result in pregnancy while serving time. The state, however, has not acted consistently on these concerns. Women have been incarcerated while pregnant, and children have been born and raised in custody.
But these concerns don't apply to Smith's case. Egg freezing does not result in pregnancy. It doesn't result in a child being born or raised in custody. It's a procedure that preserves the opportunity to have a baby after release. Whatever concerns one might have about prisoners reproducing while incarcerated, none of them apply to egg freezing.
Sex Discrimination
The consequences of denying access to egg freezing don't end on release. Once someone has served their time, they're entitled to reintegrate into society with most of their freedoms and rights restored. Whatever limits incarceration places on reproductive freedoms, those limits are presumably intended to end upon release. However, for some, this will not be the case. Women's fertility declines with age. By age 30, women have around a 20% chance of falling pregnant each month. This chance drops to less than 5% by the age of 40. A woman incarcerated during her reproductive years may lose the ability to conceive before she is released.
While age also affects men's fertility, it doesn't typically lead to infertility. A male prisoner denied access to assisted reproductive technology will probably still be able to father children after his release. The same denial to female prisoners is much more likely to permanently prevent them from having a biological child. A rule that produces categorically different consequences by sex warrants serious scrutiny.
The Purposes of Criminal Punishment
While incarcerated, people lose fundamental liberties and rights, including freedom of movement, privacy and the ability to make many decisions about their daily lives. Reproductive freedoms could be argued to fall within this category. Denying access to assisted reproductive technology for incarcerated people might reasonably be understood as consistent with the restrictions of prison life. But there is a crucial difference between restrictions that apply within prison and harms that persist beyond it.
Some might even endorse the negative effects on prisoners' reproductive prospects as part of the punishment itself. The problem with this view is that, in Australia, criminal incarceration serves recognised purposes: punishment, deterrence, rehabilitation and community protection. Retribution is not on that list. Even if we think it is right that prisoners suffer for their crimes, not all punishments are equal. Those with permanent bodily consequences have been abandoned. We no longer brand, mutilate or forcibly sterilise prisoners. No Australian court has prescribed the loss of a person's reproductive capacity as a legitimate sentencing objective. Nor should they accept policies that make this the default outcome.
