Prison Need not Worry|About Ejaculate Problem

PHILADELPHIA (CN) - Reversing a ruling about his "fundamental right" to procreate, the Third Circuit threw out an inmate's lawsuit to treat his decreased ejaculate condition.

Shemtov Michtavi, a federal inmate in Allentown, Pa., found that his ejaculate had reduced, a condition called "retrograde ejaculation," after undergoing a prostate operation.

His physician, an outside surgeon used by the prison, suggested that the prison administer a drug to prevent his semen from leaking into his bladder, but the prison refused, claiming that ejaculation was a "prohibited sexual act."

When Michtavi filed suit pro se under the Eighth Amendment, a federal judge adopted a magistrate's recommendation that "prisoners retain a fundamental right to preserve their procreative abilities for use following release from custody."

Michtavi had alleged that retrograde ejaculation could make him sterile, and that he wanted to have "normal sex" after he was released from incarceration.

Though the Middle District of Pennsylvania denied the Bureau of Prisons summary judgment and qualified immunity, a three-judge panel of the Third Circuit reversed Monday.

There is precedent barring states from sterilizing prisoners, but this case law does not establish a right to what the bureau is calling a medically unnecessary treatment, according to the ruling.

Finding that the bureau's obligation to treat reduced ejaculate - as well as erectile dysfunction - was not clearly established at the time of Michtavi's operation, the court said it has immunity as a governmental entity from suit.

"The District Court defined the right at issue as either the Eighth Amendment right to treatment of serious medical needs or the fundamental right to procreate," Judge Marjorie Rendell wrote for the court. "We find both of these definitions of the right to be too broad, as neither focuses on the conduct at issue."

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