The moral obligations of a just society as it pertains to the right to access prison nurseries is an imperative, yet sparsely explored topic. In order to evaluate whether such a right may or must exist requires one to synthesize both medical and legal literature. To that end, this work aspires to first evaluate the evidence of medical benefit posed by prison nurseries, followed by a discussion of whether precedent exists to consider access to these programmes a right, and finally whether a state has moral duty to protect that right. This discussion will demonstrate that legal precedent indeed exists and serves to provide some guidance for existing maternal clinical infrastructure to operationalize prison nurseries to a tangible effect.

Evaluating the Evidence of Medical Benefit

A discussion of whether the state may have a legal duty to permit maternal–child bonding through access to prison nursery care depends upon establishing its medical value. Healthcare has long been an established right of incarcerated persons, as guaranteed by the United States Supreme Court’s 1976 decision in Estelle v. Gamble (429 U.S. 97 [1976]). This landmark ruling stipulated that the deprivation of healthcare signifies cruel and unusual punishment, thus constituting a violation of the Eight Amendment to the Constitution (Paris 2008). In practice, the Estelle v. Gamble decision underscores the importance of ensuring access to healthcare while in carceral settings. While Americans outside of the prison system do not have constitutional rights to healthcare, the unique circumstances of incarceration necessitate such protections for individuals who are confined and reliant on the state for their basic needs. Thus, establishing that prison nurseries offer essential healthcare services that cannot be provided in another manner situates them within an existing framework of constitutional guarantees.

Considering this legal context, we can explore the medical evidence supporting the value of maternal–infant bonding and its significance within the context of healthcare rights for incarcerated individuals. The literature provides strong evidence to support the medical value of maternal–infant bonding (de Waal et al. 2023; Kommers et al. 2016; Flacking et al. 2012; Kanaboshi, Anderson, and Sira 2017; Lutkiewicz et al. 2020). Secure attachment, as measured by the Strange Situation Procedure (SSP), has been widely recognized (Solomon and George 2008; Van IJzendoorn and Kroonenberg 1988) as a key facet of healthy socialization in a developing infant. SSP assesses the attachment relationship between a child and a caregiver through a series of separations and reunions in a controlled setting. Children are categorized into attachment patterns such as secure, insecure-avoidant, and insecure-resistant, providing insights into their socioemotional development (Ainsworth et al. 1978). Utilizing this approach, one study found evidence of comparably secure attachment rates for babies who spent longer than one year in a prison nursery and those in the community, both of which significantly exceeded those of babies who spent less than one year with their mothers (Byrne, Goshin, and Joestl 2010).

The value of postpartum bonding has also been well established generally in non-incarcerated populations. For example, a meta-analysis showed that breastfeeding offered children protection against both infection and diabetes, and even increased intelligence (Victora et al. 2016). Nursing mothers have also been shown to benefit directly from breastfeeding by reduced incidence of breast cancer and improved birth spacing (Victora et al. 2016). National U.S. Organizations including American College of Obstetrics and Gynecology (ACOG) and the National Commission on Correctional Healthcare (NCCHC) yield recommendations for maximal contact and for the right of incarcerated women to pump breast milk. ACOG specifically advocates for allowing contact visits, working with infant caregivers to facilitate infant transport, and supporting community-based alternatives to incarceration that allow women to be with their children. In addition, NCCHC advocates for a high-caloric diet for breastfeeding mothers as well as provision of manual or electric breast pumps, a private place to pump on a frequent basis, proper storage, and when possible transfer to the infant. (American College of Obstetricians and Gynecologists’ Committee on Health Care for Underserved Women 2021; National Commission on Correctional Healthcare 2-23).

The literature shows that the benefit to the mother extends beyond the postpartum period. A descriptive study of 139 women who co-resided with their infants between 2001 and 2007 in a New York State prison nursery reported reduction in recidivism for new offenses when people were released from a prison nursery (Goshin, Byrne, and Henninger 2014). Further, the study population reflected a group of women with clinically significant depressive symptoms and substance dependence who were convicted of nonviolent crimes with multiple prior arrests, each of which serves as its own risk factor for recidivism (Yukhnenko, Blackwood, and Fazel 2020). After three years of release, 86.3 per cent of individuals who had participated in the prison nursery remained in the community, contrasting with the general prison population where 30–45 per cent are likely to return to prison within the same timeframe. Similar reports of decreased recidivism rates have been observed prior to this study in New York state as well as in other states such as Nebraska (Staley 2002; Carlson 2009).

Prison nurseries may also reduce the risk of adverse health events for the mother, which ultimately decreases the burden upon prison staff. For example, some prison nurseries require mothers to undergo substance use counselling which can help decrease possible complications, such as overdose, while incarcerated. Additionally, prison nurseries stand to mitigate postpartum depression. Mothers who are incarcerated are more likely to suffer from postpartum depression and experience increased levels of symptoms as compared to the general population (Friedman, Kaempf, and Kauffman 2020; Howland et al. 2021). However, incarcerated women who were admitted to mother and baby units experienced greater reduction on the Edinburgh Postnatal Depression Scale (EPDS) compared to those who were not (Dolan, Shaw, and Hann 2019). By acknowledging the vulnerabilities of incarcerated mothers and minimizing these various medical challenges, there is reduced reliance on staff to transport the mother to external medical facilities, for possibly psychiatric or emergent care, which helps mitigate the consequences of decreased postpartum bonding time.

Although this paper primarily focuses upon cis-gender women, it is important to also consider how these policies may impact transgender males as well. After all, incarcerated trans men may also become birthing parents whose needs should be accommodated. One solution, which would mitigate these concerns, is to offer parental rights broadly to both males and females. In fact, several countries including Finland, Germany, Portugal, and Sweden, currently permit children to live with their fathers or their mothers while incarcerated (Robertson 2012). It stands to reason a trans man who had become pregnant would likely experience the same benefits as the pregnant cisgender woman and the detriment to the child from lack of bonding with this biological parent would not be expected to differ.

Despite the well-established medical and social benefits highlighted above of increasing postpartum contact for both mothers and offspring, access to such crucial bonding opportunities is frequently denied within prisons for incarcerated mothers. New York was the first state to establish a prison nursery as early as 1901, and remained the only jurisdiction to have one until the 1990s. Currently, ten states offer prison nursery programmes: California, Indiana, Illinois, Nebraska, New York, Ohio, Washington, South Dakota, West Virginia, and Wyoming (Kanaboshi, Anderson, and Sira 2017; Villanueva, From, and Lerner 2009). Therefore, the denial to participate in a prison nursery programme can be attributed to insufficient resources (even within existing programmes), restrictive institutional policies (especially depending on why the person is incarcerated and therefore the security level of their prison), and lack of prioritization of maternal–child bonding within the prison system. Further, although the importance of maternal–infant bonding is well established, medical evidence does not definitively say whether this increased time outweighs potential negative consequences of an infant being in a carceral setting. Without conclusive evidence, it still stands to reason that increasing contact through prison nursery programmes may alleviate many of the harms from decreased maternal–infant bonding time.

A State’s Duty

As introduced above, the duty of the state to provide healthcare to incarcerated persons was announced in the United States Supreme Court’s 1976 decision in Estelle v. Gamble (Estelle v. Gamble 1976). That ruling stipulated that the deprivation of healthcare signified cruel and unusual punishment, a violation of the Eighth Amendment to the Constitution (Paris 2008). In practice, Estelle v. Gamble established the right to healthcare for all people in custody, whether convicted or in pre-trial detention. The case established a standard of “deliberate indifference to serious medical need” as the basis for Constitutional claims. This legal definition prohibits intentionally delaying or denying medical care for a known injury or condition (Rold 2008). Correctional staff and other authorities who stand in the way of this care do so with risk of prosecution in federal or state courts.

In order to discern if prison nurseries fall under this definition of the reasonable provision of healthcare, one must consider whether the medical evidence outlined above establishes a “serious medical need.” Lower federal court rulings in Ramos v. Lamm (U.S. District Court for the District of Colorado 1980) and Duran v. Anaya (U.S. District Court for the District of New Mexico [1986]) further defined “serious medical need” to encompass a physician’s diagnosis that mandates treatment or, alternatively, lay recognition of the necessity for medical attention. In Dean v. Coughlin (U.S. District Court for the Southern District of New York [1985]), United States District Court for the Southern District of New York classified medical conditions as serious if they “cause pain, discomfort, or threat to good health” (15). Therefore, a condition does not have to be life-threatening to be acknowledged as serious.

It is important to note that the Eighth Amendment narrowly protects the right to healthcare for incarcerated individuals. It does not, however, impose liability for malpractice or accidents upon correctional authorities, nor does it seek to resolve disagreements about the best course of medical treatment. It only serves to protect the basic right to access healthcare, receive the care that is ordered, and access to professional medical judgement (Rold 2008). The lack of liability and institutional environment compounds pressure to tailor choices and depth of medical treatment to the needs of institutional security, discipline, work, and staff convenience. This highlights a critical administrative impasse: how should correctional facilities navigate the tension between maintaining security and ensuring adequate healthcare for those incarcerated? A prison nursery for example, would require ensuring proper care for not only the mother but the child, thus requiring increased resource allocation, staff training, and adaption of existing safety protocols. The added challenges lead correctional leadership to preference infrastructure that possibly infringes on the healthcare rights of the mother. The dilemma is perhaps no different than a conflict for general medical practice where the need to prioritize safety protocols may contradict the perceived best interest of the patient. In such situations, protocols which are evidence-based should of course be followed but questioned when evidence is not available. This underscores the ethical question as well as the need for highly lacking empirical evidence regarding whether institutional “security” and protocols should outweigh the right to healthcare for incarcerated individuals.

Jail based (as opposed to prison) nurseries are perhaps an appropriate initial investment point for nursery programmes. The shorter length of sentences yields a higher likelihood for reunification given the decreased time the parent is separated from their children. The number of women who enter jails pregnant are proportional to those who enter prison pregnant (Sufrin et al. 2020), thus warranting the same infrastructure to support their postpartum needs. Despite this equal need, there remains a lack of jail-based programmes. The most notable existing programme in the United States is at the Rose M. Singer Center on Riker’s Island which still requires pregnant people to apply and be accepted to participate.

Outside of the United States, prison nursery care is already common (Smith Goshin and Woods Byrne 2009). When determining the placement of a child whose parent is incarcerated, many nations examine the child’s case individually, weighing the best interests of the offspring along with the prison conditions and potential external alternatives (Melanie Paurus 2017). In France, infants can live with their mothers in a prison nursery until they reach the age of eighteen months. Several qualitative studies have been done within prisons in France that illustrate an incongruence between motherhood and incarceration (Blanchard et al. 2018; Ogrizek, Moro, and Lachal 2021; Ogrizek, Lachal, and Moro 2022). Of note these studies did not discuss health benefits of prison nurseries, though one may exist given the body of evidence presented prior.

Claims to new rights within the justice system are not novel. In fact, judicial decisions from as early as the 1970s, including Newman v Alabama (U.S. District Court for the Middle District of Alabama) and Morales v Turman (U.S. District Court for the Eastern District of Texas [1974]), specifically address the rights of pregnant women to be accommodated for a healthy pregnancy, including the access to specialized care (Chambers 2009). Given this legal recognition of access to care and healthy pregnancy, it should follow that the specific provision of prison nursery access ought to fall under the umbrella of those accommodations.

The Right to Parent

The legal infrastructure for reproductive and parental rights stands at the cornerstone of the potential right to prison nurseries. The courts have long recognized a “right of every individual to the possession and control of his own person” (Harvard Law Review 2021). A series of court precedents have also suggested a Constitutional right to have a baby. Notably, in Skinner v. Oklahoma (316 U.S. 535 [1942]) the court declared unconstitutional, on narrow legal grounds, an Oklahoma law that allowed the sterilization of persons “convicted two or more times for crimes amounting to felonies involving moral turpitude” (1). Early case law to the contrary, such as the now infamous sterilization case, Buck v. Bell (274 U.S. 200 [1927]), although never formally overturned, is likely no longer operative in law since Skinner v. Oklahoma. However, despite these developments, instances of sterilization without consent persisted among women of colour, as exemplified by the case of Relf v. Weinberger (372 F. Supp. 1196 [D.D.C. 1974]) consent. Additionally rulings limiting the right to abortion, such as Dobbs v. Jackson Women’s Health Organization (597 U.S. [2022]) as well as recent and proposed state and federal laws, have also placed varying limits on the right to reproduce.

How Incarceration Effects Parental Rights

The rights of incarcerated persons to reproduce, may be limited under additional circumstances, as is the nature of carceral punishment. For instance, limits on contact with individuals outside prison may include restrictions on conjugal visits or communication with partners or family members, thereby curtailing opportunities for reproductive autonomy while incarcerated. Furthermore, practical impediments to accessing maternity care in the prison system have been widely documented and supported via legal precedent in the courts (Sufrin et al. 2021; Kelsey, Thompson, and Dallaire 2020). In Southerland v. Thigpen (1986) a person incarcerated in a Mississippi prison was denied injunctive relief from a decision made by the state to remove the plaintiff from the hospital after the birth of her child, thereby limiting her ability to breastfeed. Here, the medical harms of discontinuing breastfeeding were not considered within the scope of plaintiff’s right to healthcare, and they did not present a substantial case on the merits (of breastfeeding) for this purpose . Further the decision was made to prevent the “disruption of the prison system” (3) but indeed concedes Southerland ought not lose her protected liberty interests as is guaranteed in Estelle v. Gamble (1976) (Southerland V. Thigpen 784 F.2d 713, 714, 5th Cir. [1986]). The right to parent one’s biological child, therefore, stands in stark opposition to the lack of infrastructure for mothers to exercise that right. This disparity paves the way for prison nurseries to mitigate the infringement on the right to parent. However, if an extended stay in the hospital is ruled a disruption, it follows that the carceral system, and courts alike, might view the implementation of a prison nursery as an even greater disruption.

Despite precedent, careful attention is still needed towards the scope of parental rights within the confines of custody. While incarcerated, both mothers and fathers generally retain their parental rights, although some states deem extended “physical separation” as grounds for the termination of these rights (Gheaus 2012). Most states without these laws still retain the right to file to terminate parental rights based upon the seriousness of the offense. Additionally, if the child does not enter the care of a relative while the parent is incarcerated, but is instead placed in foster care, parental rights are often lost. In the event that these rights are retained, foster care agencies may still hold the right to terminate them if the parent does not contact the child for a specified period of time while incarcerated (Vainik 2008).

Prison nurseries provide a means to allow mothers to parent their biological offspring without putting the burden on family members to drive children to facilities for visitation. The geographic inaccessibility of many prisons, high travel expenses, and required time off work for caregivers all serve as barriers to women seeing their children. Given carceral institutions themselves have a responsibility to uphold the rights of incarcerated individuals, denying access to children or creating barriers to visitation could be seen as violating these rights. Broader recognition of the moral imperative to support familial bonds and parental responsibilities by addressing these challenges is especially salient for women who give birth outside of custody but are incarcerated soon afterward. Despite having infants within the age of prison nurseries, the states with these nurseries do not assume the responsibility of their care. The debilitating effects of separation and barriers to contact remain unchanged despite the difference in birth timeline. In such cases, the advantage of having the child placed into a prison nursery with their mother over foster care should also be considered.

Community-based alternatives to incarceration provide perhaps the most cost-effective, realistic, and beneficial framework for fulfilling the rights of the mothers and their children. In considering the benefits of postpartum bonding as well as the barriers previously discussed in bringing children to visit incarcerated parents, Minnesota erected the Healthy Start Act (HSA) in 2021 (Minnesota Department of Corrections 2022). HSA is the first piece of legislation in the United States to allow the department of corrections to place women who are pregnant or immediately postpartum into community alternatives. Under supervision, participants undergo treatment and programming throughout the duration of their pregnancy and for up to one year postpartum alongside their child. The results of this act are yet to be evaluated. Like prison nurseries, these alternatives allow critical postpartum bonding and perhaps supersede institutional programmes in their divestment from harmful carceral settings. Nonetheless, until such a time where those alternatives may come fully to fruition, prison nursery programmes appear an urgent interim necessity to protect the rights of mothers.

The Right to Prison Nurseries

States must make careful effort to outline the circumstances under which their authority supersedes the rights of the mother. The challenge for nursery placement is that each child has individual needs, thus necessitating that decisions for participation are usually made on a case-by-case basis. In the ideal scenario, children play a central role in the decision-making process: determining whether-or-not they want to participate in such programmes, if possible, and when they want to leave. This is limited by the notion that most children enter programming under eighteen months of age.

Twenty-two states and the District of Columbia list in their statutes specific factors that courts can use with the general population when making determinations regarding the best interests of the child. Factors vary from state to state but common considerations include emotional ties and relationships between the child and his/her parents; capacity of the parents to provide a safe home, adequate food, clothing, and medical care; the mental and physical health needs of the child; the mental and physical health of the parents; and the presence of domestic violence in the home (Children’s Bureau/ACYF/ACF/HHS 2020). In practice, these policies have led many states to prohibit child participation in prison nursery programmes if the mother has been convicted of a violent crime or child abuse (Villanueva, From, and Lerner 2009). State guidelines are not limited to prison nursery programmes as Minnesota’s Healthy Start Act also prohibits mothers with revoked parental rights from participating in the community-based alternatives (Minnesota Department of Corrections 2022).

The best mechanism for determining child participation in a prison nursery should thus remain a case-by-case determination via the court, although identifying the “best interests of the child” in an objective manner may prove difficult in individual cases. A prison authority may have a conflict of interest and would be an inappropriate decision-maker. Definitive factors that can be used to assess if these interests are being met include age, special needs or disabilities, primary language spoken, previous parental relationship with the child, the mother’s wishes, and existing prison nursery infrastructure. Factors such as the mother’s offense, length of sentence, and behaviour while incarcerated should be considered only when they affect the child’s best interests and should not automatically exclude parents from consideration.

Special consideration should be paid to the age of the child. In all countries and states that allow for children to be incarcerated with a parent, there is an age or stage of development codified into law or institutional practice beyond which children are not permitted to live in prison (Quaker United Nations Office 2011). Development stages can be a physical milestone, such as in Ghana, where children must leave after being weaned, or a stage of social development, like starting school, as is the case in Germany (Leonard 1983). In the United States, all states with nurseries have an age-based limit (Villanueva, From, and Lerner 2009). Though standardization of an upper age limit for participation eliminates concern over disjointed development, a strict age limit (or set of conditions) does not coincide with individual assessment needed to meet the best interest of the child.

Conclusion

It is imperative to recognize that, like other justice infrastructure, prison nurseries are indeed susceptible to disparities both race-based and otherwise. Brief literature review does not show any research specifically focused on disparities in prison nurseries. Rather published work touches on related topics such as the impact of maternal incarceration on families and effectiveness of programmes aimed at supporting parent–child relationships (Breuer et al. 2021). Understanding disparities in prison nurseries, though out of scope for this work, merits its own analysis as these are critical points of failure to understand while constructing prison nurseries. Nonetheless, a strong body of evidence shows that prison nursery programmes provide essential and beneficial care that could not be achieved in their absence within the context of incarceration. The status quo in the United States does not adequately meet the needs of incarcerated mothers or their children that a just society would demand.

Needless to say, the right to prison nurseries is one that needs to exist only when necessary. Although we have shown here that prison-based and jail-based programmes have been shown to facilitate bonding during a critical period of child development, allow for breastfeeding, and show decreased recidivism for its participants it is also important to support community-based alternatives to incarceration for pregnant individuals such as the HSA in Minnesota. However, so long as incarceration remains the predominant avenue for punishment and rehabilitation in the American justice system, the rights of those in custody and their offspring must be well protected. Law, ethics, and maternal–child welfare all strongly support the establishment of prison nursery programmes as an essential outgrowth of the existing right to healthcare for incarcerated individuals.