More and more Americans are turning to health care professionals to help plan their family lives.
Nearly two in seven women of childbearing age in the United States now rely on surgical sterilization or long-term birth contraception to prevent pregnancy.
Almost two percent of all babies born in this country today are conceived using reproductive technologies like in vitro fertilization (IVF).
And advances in genetic selection among donors and embryos afford many prospective parents increasing measures of control over offspring traits.
Few of these procedures are well regulated,
however, and patients are ill equipped to bargain, litigate, or insure against bad outcomes.
Botched vasectomies, IVF mix-ups, and abortions based on erroneous information are shockingly common.
The most comprehensive study of U.S. fertility clinics, for example, found that more than one in five report errors in diagnosing, labeling, and handling donor samples and embryos for implantation.
Stigma associated with infertility, childlessness, and premarital sex keeps many of these mistakes in the shadows.
Coming forward would reveal that victims had resorted to abortion, voluntary sterilization, or assisted reproduction.
And until recently, “most . . . were unwilling to discuss such an intimate matter in public.”
But now, a “new wave of lawsuits against sperm banks,” clinics, doctors, pharmacists, and counselors pose “an array of challenges beyond . . . undetected genetic problems.”
This grab bag of grievances for the negligent provision of reproductive care has quietly developed into a striking body of law.
The doctrinal landscape of reproductive negligence can be charted across the three wrongs that its fact patterns reflect. The first category of cases imposes unwanted pregnancy or parenting; the second deprives people of the chance for wanted pregnancy or parenting; the third confounds efforts to select for or against a child with particular genetic features. Recent cases illustrate each:
Case 1: “Procreation Imposed.” A young single mother got a prescription for birth control pills. The pharmacist gave her prenatal vitamins instead. She became pregnant and had another child.
Case 2: “Procreation Deprived.” A cancer survivor stored sperm before chemotherapy left him infertile. When he and his wife wanted to use it to conceive, the clinic said it was gone.
Case 3: “Procreation Confounded.” A couple risked passing on a devastating X-chromosome-linked disorder to a son. They screened out male embryos. A mix-up led to the birth of an afflicted boy.
Courts almost always refuse recovery in cases like these.
They have no trouble finding professional misconduct to blame for having imposed, deprived, or confounded procreation.
The problem is that our legal system does not recognize a conception of injury that accommodates the disruption of reproductive plans apart from any unwanted touching, broken agreement, or damaged belongings.
Malpractice actions, for example, call for precisely these more tangible setbacks to the injured party’s person or possessions.
Tort law more generally declines to remedy even the negligent infliction of emotional distress without associated physical or economic harms.
Contract suits are plagued by the refusal of procreation-related specialists at hospitals, clinics, and sperm banks to assure any specific results of their care.
And property claims misrepresent and devalue reproductive injuries to decisional autonomy and individual well-being in ill-fitting terms of the lost market or symbolic value of entities like eggs and embryos or the costly procedures required to extract or create them.
Courts routinely decline to grant remedies when reproductive professionals negligently deprive, impose, or confound procreation. When pregnancy or parenthood is wrongfully deprived, the obstacle to recovery is that these injuries often do not involve physical harm or property loss.
When procreation is imposed, courts more often than not insist that any burdens of parenthood are offset by its inevitable “joys and benefits.”
And when procreation is confounded in ways that frustrate plans for a child of a particular type, courts typically deny redress under the law for fear of validating “‘parents’ disparagement . . . of their child’s life.’”
Judges unwilling to dismiss such claims altogether have little success trying to shoehorn them into theories that are alternatively cramped (e.g., lost property,
), jarring (e.g., wrongful life,
), or disingenuous (e.g., intentional infliction of distress for mere accidents,
breach without any warranty
). However egregious the “deviation from the recognized standard of acceptable professional practice” in reproductive care, the “law does not recognize disruption of family planning as either an independent cause of action or an element of damages.”
The result is a legal system that treats heedlessly switched sperm, lost embryos, and misdiagnosed fetuses not as misconduct that it protects against and compensates victims for, but as misfortune that it tolerates and forces them to abide.
Reproductive negligence inflicts a distinct and substantial injury, however, that goes beyond any bodily intrusion or emotional distress. The harm is being robbed of the ability to determine the conditions under which to procreate. Determinations about having children tend more than most decisions in life to shape who people are, what they do, and how they want to be remembered.
Many people find profound meaning and fulfillment either in pregnancy and parenthood or else in the aims or attachments that freedom from those roles facilitates.
That is why the wrongful frustration of reproductive plans disrupts personal and professional lives in predictable and dramatic ways.
This puzzle—that the thwarting of reproductive plans, however egregious or devastating, invades no “legally protected interest,” violates no right
—has gone all but unnoticed in the case law and the literature.
The only scholars to have identified this oddity are two prescient law students and a recent graduate, writing over a decade ago in view of the earliest suits involving these emergent technologies.
And no other commentator or court has proposed treating reproductive negligence—not just in high-tech procreation, but birth control, abortion, and sterilization too—as the violation of a right.
Legal academics who engage with the implications of reproductive advances for private law tend to focus either on disputes between patients, as when couples disagree about what to do with their embryos,
or on complaints against patients, as when decisions to use a deaf donor or implant multiple embryos lead to children born with impairments.
Scholarly immersion in these questions about embryo disposition and offspring disability has crowded out reflection on the professional misconduct that denies people control over reproductive life.
Existing causes of action lack the narratives required to appreciate the richness of reproductive interests as well as the vocabulary with which to articulate the magnitude of reproductive injuries.
And constitutional law, for all its lofty pronouncements about the centrality of procreation to human life, has never gestured toward a corresponding private right against reproductive negligence or provided guidance as to what form or function such protections might command.
The Supreme Court long ago named “procreation” among “the basic civil rights of man” so “fundamental to the very existence and survival of the [human] race.”
These musings are mere dicta, however, written seventy-five years ago by Justices who could hardly have imagined modern-day powers to conceive by means other than sexual intercourse, let alone to pick and choose offspring traits.
Besides, abortion and birth control protections extend only as far as government mischief and so do not reach wrongdoing committed by private reproductive professionals.
These limitations on the rights that equal protection and due process afford do not, however, rule out the possibility of private law protections against reproductive negligence.
Indeed, the constitutional privacy claims on access to abortion and birth control emerged in part from precursory rights of recovery against nonstate conduct.
For most of American history, our laws did not punish people for publicly exposing the secrets of others.
By the Industrial Revolution, newspapers that had reported principally on matters of economics, politics, and art found that, with the urban dislocation of traditional values and shared institutions, “there was more journalistic money to be made in recording gossip.”
The invention of the telephone, telegraph, and “[i]nstantaneous photographs” at the same time made it far easier to capture people’s intimate moments and conversations.
Writing in 1890, Harvard Law School classmates Samuel Warren and (future Supreme Court Justice) Louis Brandeis feared that “what is whispered in the closet shall be proclaimed from the house-tops.”
They proposed a right of “retreat” from the intrusions of modern life that would protect control over “to what extent [a person’s] thoughts, sentiments, and emotions shall be communicated to others.”
Courts in most states recognized this claim by the 1930s.
It is this right whose vindication recently won Hulk Hogan the $140 million judgment that bankrupted Gawker for posting his sex tapes.
A similar story can be told about reproductive negligence today. Just as incursions by the snap camera and penny press placed privacy interests in sharp relief, donor switches and embryo losses bring to fuller expression the scope and significance of interests related to reproduction. Twentieth-century antimiscegenation and sterilization mandates were designed to purge the gene pool of social ills from disease, degeneracy, and feeblemindedness to criminality, indigency, and alcoholism.
As the eugenic fervor faded, bans on abortion and contraception still forced people who wanted to avoid pregnancy to abstain from sex or break the law.
Then came limits on adoption, surrogacy, and other ways for single people and gay, lesbian, or infertile couples to become parents.
Now these too are going the way of same-sex marriage bans.
As formal restrictions on family-planning tools fall away, however, an elusive new threat to reproductive freedom has come into view.
For the millions of Americans who rely on medicine or technology to have or avoid having offspring, accidents such as lost embryos, switched donors, and untied tubes imperil the control individuals have over their reproductive lives.
We have long blamed randomness or fate when people did not get a child they wanted or got one they did not. It is like having an unflattering nose: A person could pay to try and have it fixed, but a good surgeon knows better than to promise that the patient will be satisfied with the outcome.
And without any such agreement, she will lack legal recourse if the nose does not come out how it was supposed to—for courts are reluctant to recognize any compensable claim to an attractive nose.
Courts tend similarly to treat interventions in the process of procreation not as needs but wants and treat the transgressions that these professional services and medical procedures risk not as tragedies but trifles for which the law affords no protection.
When it comes to professional misconduct that impairs reproductive plans or more attractive noses, the U.S. legal system tends to treat even avoidable injuries as acceptable byproducts of consuming these market services. “You can’t always get what you want.”
Reproductive advances promise to deliver us from the vagaries of nature, however, in the same way that historic developments in medicine and technology have in many other contexts, this time by transferring the reins of control over procreation from chance to choice.
And with that transfer comes new and plausibly legitimate expectations.
A patient can reasonably expect, namely, that the specialists whom she pays handsomely and trusts implicitly will apply their knowledge and skills in a manner that avoids negligent mistakes that disrupt her plans about whether and how to have a child. Legal protection of these legitimate expectations of competent care in matters of procreation marks the next frontier of reproductive freedom.
This Essay makes three contributions to this field of study. First, it identifies core reproductive interests in exercising control over decisions about pregnancy, parenthood, and the selection of offspring traits. Part I distinguishes the injuries that correspond to the wrongful frustration of these distinct interests. This Part also shows why existing actions for malpractice, emotional distress, contractual breach, and property loss cannot adequately remedy reproductive negligence.
Second, the Essay develops a comprehensive new way to think and talk about misconduct in matters of procreation. Part II charts this landscape of reproductive wrongs in terms of whether practices impose unwanted pregnancy or parenthood, deprive wanted pregnancy or parenthood, or confound plans to have not just any child but one who is born with particular genetic traits.
Third, the Essay introduces a private cause of action for reproductive negligence. This right to recover situates embryo mix-ups and defective birth control within a legal history of technological advances that have driven common law reform. Part III sets forth two factors to determine damages for violations of this right. The first is the severity of reproductive injuries as a function of their practical consequences for the lives of victims. The second factor, adapted from the loss-of-chance doctrine in medical malpractice, is the extent to which misconduct (and not some other factor) is responsible for having caused those injuries. This latter prong would reduce awards, for example, in cases in which user error compounds faulty birth control, infertility predates lost embryos, and genetic uncertainties complicate prenatal misdiagnosis. The final Part also sets forth measures to minimize the risk that the right might operate in untoward ways to penalize professionals unfairly, restrict access to the valuable services they provide, routinize selection for trivial traits, or authorize selection for debilitating ones.
I. The Puzzle and Its Stakes
The United States is rare among developed countries in its hands-off approach to assisted methods of reproduction.
In the United Kingdom, for example, a national agency dedicated to reproductive regulation approves all fertility clinics before they may operate and any proposed procedure before clinics may offer it.
Even under this comprehensive regime of rigorous and ongoing inspections of laboratory processes, sometimes with no notice,
the agency still reports that mistakes like the destruction, contamination, and switching of reproductive materials are not exceptional.
Such errors are almost certainly more common in the United States, where these practices go virtually unregulated.
However, this country’s sparse reporting requirements
—combined with reluctance to disclose errors that out people as having sought out abortion, emergency contraception, voluntary sterilization, or infertility treatment
—make it impossible to know just how frequently reproductive negligence takes place.
A. Inadequate Protections
Existing legal remedies cannot protect the interests that reproductive negligence threatens. “Plaintiffs rarely succeed” in “tort actions arising out of fertility treatments.”
This section begins by describing why public law does not regulate professional wrongdoing in matters of procreation. Then it exposes the deficiency of private law safeguards. Professional malpractice law protects solely against the physical or economic harms that are often missing in the reckless provision of IVF and similar procedures.
The same goes for negligent-infliction claims about emotional distress; mental anguish misrepresents the character of reproductive harms to decisional autonomy and individual well-being.
Contract claims are unavailing as well because specialists take care to avoid promising any specific result of the reproductive care they provide; they usually secure liability waivers for implied breach too.
Property law might be thought to apply to the fraction of reproductive-negligence cases involving material that is misplaced, damaged, or destroyed, but even under those limited circumstances, it diminishes the meaning and significance of that loss.
This section will explain the problems courts face in trying to apply these private law remedies under torts, contracts, and property to the problem of reproductive negligence.
1. Regulation. — Elected officials decline to regulate procreative conduct outside abortion and surrogacy.
The single federal statute that deals with reproductive technology asks practitioners to do no more than report the rates at which patients get pregnant, and even then imposes no penalty for refusal.
Few states regulate assisted reproduction either.
One reason for this regulatory vacuum is that interventions in the processes of procreation invoke values about sex, family, and parenting that are often charged, complex, and even contradictory. These interventions implicate the blessings of parenthood as much as freedom from it, for example, and dreams of having children with particular traits as much as wishes for offspring without those very same features.
Such questions tend to divide voters not only across traditional political constituencies but also within them.
The “historical stigma of infertility” might also relieve what political pressure might otherwise be applied by keeping reproductive negligence “a secret between an individual and her physician.”
Another explanation is that the multibillion-dollar fertility industry in America mounts powerful lobbying forces against occasional calls for regulation.
Private organizations that oversee the field do not meaningfully enforce their guidelines except by revocation of membership.
The absence of external surveillance or effective self-policing leaves little by way of deterrence against reproductive negligence.
This leaves potential victims to rely instead on nonpolitical, after-the-fact forms of protection.
2. Malpractice. — At first blush, misconduct by reproductive specialists looks like professional malpractice. This doctrine holds specialists like doctors, lawyers, brokers, accountants, and engineers accountable if they fail to adhere to applicable standards of reasonable care.
After all, reproductive health providers, like all other medical practitioners, owe a duty to acquire and apply the skills and knowledge expected of any professional member in good standing.
A fertility patient injured by misdiagnosis or mistreatment—say, the negligent failure to screen sperm donors for some infectious disease that leads a woman to contract it—can sue her doctor for malpractice and recover damages no different from any other medical context.
But the malpractice tort usually affords recovery only in cases like this one, in which a plaintiff suffers physical injury. Medical malpractice actions in particular tend to require proof of bodily harm that is missing in many devastating cases of reproductive negligence.
The physical-harm requirement looms large, for example, in actions for so-called wrongful birth, wrongful life, and wrongful pregnancy. These are, in essence, malpractice claims against health care providers who either fail to offer prenatal tests
or erroneously interpret
or communicate results.
When a reproductive specialist’s misconduct results in the birth of a child with an anomaly, parents can bring wrongful-birth suits (allowed in most states),
while children may be able to bring wrongful-life suits (barred in all but three states).
For negligent sterilization or provision of birth control that results in the birth of a healthy child, there is also a “wrongful pregnancy” action available for parents to recover the costs associated with gestation, delivery, or (in rare cases) child-rearing.
And a “wrongful abortion” action involves the nonbirth of a wanted child due to a false positive about the risks associated with continuing a pregnancy.
These malpractice actions cannot redress reproductive negligence because they address only tangible harms sustained to bodies or bank accounts.
These material injuries of course matter too.
But physical and economic setbacks fail to capture another important kind of injury to both autonomy and well-being that the disruption of reproductive plans inflicts when it robs people of their legitimate expectations of control over whether, when, and how to undertake the life roles of pregnancy and parenthood.
The wrongful-birth cause of action comes closest to recognizing this injury.
On closer look, however, it does not vindicate lost opportunity to make meaningful decisions about whether to continue a pregnancy.
Even if wrongful birth recognizes this injury to autonomy and well-being in theory, it fails to in practice.
To fit tort law’s conventional focus on tangible harms, courts fasten damages for wrongful-birth actions to the costs of raising a child.
This computation of damages that requires a woman to prove that she would have ended her pregnancy had she not been deprived of material information about it misses the distinct injury to her reasonable expectation of control over procreation—whatever its outcome.
Reckoning damages in terms of child-rearing expenses also risks implying that parents do not want the child they now have or that they would have been better off had that child not been born.
That plausible and caustic (if misleading and intended) message explains why so many courts have rejected such suits outright, whether to avoid casting children as “emotional bastard[s]”
or to avoid forcing doctors to subsidize the “invaluable ‘benefits’ of parenthood.”
Accordingly, twenty states refuse to consider the merits of such professional-malpractice actions against forced procreation.
These barriers to recovery make it important how courts characterize the harms borne of reproductive negligence, over and above how they assess damages for those harms.
Wrongful-birth actions fail to fully consider the separate and serious harm that victims of reproductive negligence suffer. Their complaint is not that the child they received is undesired or undesirable; it is that they have been denied the chance to decide whether to gestate or parent.
3. Emotional Distress. — A similar problem besets the tort action for negligent infliction of emotional distress.
Courts hardly ever let plaintiffs recover for standalone emotional harm. A rare exception is when an undertaker mishandles a loved one’s remains by, for example, cremating a body intended for burial.
The harm to those mourning family members is not material but sentimental.
Yet this type of harm is not the kind that our law expects people to steel themselves against. Instead, torts hold liable the specialists who “are in a better position than the plaintiffs both to try to prevent” misconduct “and to pay for [its] consequences.”
Barring relief for family members would leave “no one to hold defendants accountable for their negligent handling of dead bodies,” as they owe no “duty of care to the decedent, who is not himself actually harmed by the defendant’s actions.”
The three features that courts emphasize to justify recovery for freestanding emotional harm in “dead body” cases—(1) the gravity of the valued social practice, (2) the trust delegated to professionals to carry it out competently, and (3) the lack of better-positioned plaintiffs or other legal deterrents to misconduct—are no less salient in the context of reproductive negligence.
As to the gravity of family planning, efforts to have or avoid having children often occupy as central a place in a person’s life as those to honor departed loved ones.
As to the delegation of trust, fertility doctors and surrogacy brokers, much like coroners and cremation technicians, “undertake a special task, sometimes perilous,” from which they “expect to profit” and “must therefore carry it out with a high degree of diligence and deliberation in order to avoid harm to participants in the undertaking.”
And as to absence of alternative protections, few born or unborn children who result from reproductive negligence are injured in ways that would justify their bringing suits for such conduct themselves if their (prospective) parents were prevented from doing so.
Those who object that wrongful-birth actions treat the creation of life as an injury might not resist a parent-centered focus on emotional distress in matters of reproductive negligence.
Dead-body doctrine resembles cases in which people are wrongfully denied the offspring they wanted.
A few outlier courts have indeed allowed recovery for stand-alone emotional harm when lost eggs, misimplanted embryos, and fetal false-positives deprive procreation.
In addition, the most recent Restatement of Torts advises that courts might, in an unidentified cluster of negligent-infliction contexts, forego a physical manifestation requirement in favor of a “credible evidence” showing that the plaintiff did (and a reasonable person would) suffer “serious harm.”
Accordingly, lawyers who represent victims of reproductive negligence would do well to present evidence of emotional distress and argue that disrupted family plans fit squarely within those exemptions for this action.
Although this action may be available, it should not mask the deficiencies discussed below.
Most critical is that mental forms of harm cannot speak to the enduringly disrupted life plans and transformed life experiences, especially when procreation is imposed or confounded.
Cramped appraisal of these injuries in subjective terms of emotional distress misconstrues their objective harm that robs negligence victims of the capacity “to determine [their] life’s course.”
Emotional-distress torts also saddle plaintiffs with evidentiary requirements to verify their psychological suffering in ways that, in this context, are gratuitous at best and prohibitive at worst. Wrongfully imposing or depriving offspring can reasonably be expected to impair a person’s well-being enough that compensation should not be conditioned on a doctor’s note.
The ordinary limits on recovery for mental harm respond to concerns that it is too easy to fake, too hard to measure, or too slight to justify penalizing defendants on that basis.
These concerns are overstated or misplaced, however, when it comes to reproductive negligence: The disruption of family planning disrupts people’s core attachments and aspirations in predictable ways that are impractical to distort or falsify.
This is not to suggest that every claim of reproductive wrongdoing is legitimate or should be compensated. Part II details several less worthy grievances and makes clear how courts ought to identify them and limit remedies accordingly.
Negligent-infliction torts cannot, however, sort deserving claims from undeserving ones because reducing reproductive injuries to emotional harm simply confuses the injury at stake.
4. Breach of Contract. — It is tempting to think that courts could resolve these disputes between procreation patients and providers as broken agreements about the performance of medical services or procedures.
The problem with applying the logic of contract law to wrongdoing in this context is that the action for breach requires a “[p]romise to effect a specific result or cure”
that reproductive specialists seldom make.
Most insist that patients sign liability waivers for even implied breach and courts usually enforce these agreements.
This tendency is illustrated by Frisina v. Women and Infants Hospital of Rhode Island, in which a hospital lost three couples’
Each couple signed a consent form stipulating “that despite the Hospital. . . proceeding with due care, it is possible that a laboratory accident. . . may result in loss or damage to one or more of said frozen embryos.”
The court found that this particular language was too vague to distinguish acts of man from acts of God.
Except for this technicality, however, the court made clear that it would have upheld the sweeping “exculpatory clauses” that appear in the vast majority of “agreements between IVF clinics and progenitors.”
This reluctance to void such liability waivers is surprising given judicial concern about unaccountability in the medical profession.
The leading case on liability waivers in health care explains that a patient “does not really acquiesce voluntarily in the contractual shifting of the risk” because medical services are a “crucial necessity” that the patient “is in no [real] position to reject” or negotiate.
In other words, patients’ vulnerability and ignorance about relevant medical facts so limit their bargaining power relative to providers that agreements about their own care do not carry the robustly voluntary quality that contract law assumes on conventional theories in order to justify enforcement.
One reason that courts tend to tolerate liability waivers in the reproductive context might be that the greater wealth and education assumed to typify fertility patients lessen the informational and power disparities between patients and providers, making the circumstances they contract under less one sided.
Or perhaps judges suppose that reproductive therapy blurs the line between health care and mere “cosmetics”
that are less essential and worthy of protection than traditional medical procedures.
American law’s tendency to treat reproductive procedures as more luxury than necessity makes it difficult to imagine a U.S. Supreme Court Justice calling fertility treatment, in the way an Australian High Court Justice recently did, “a legitimate medical treatment for a legitimate medical condition . . . necessary to enable people to live dignified and productive lives, unencumbered by the effects of disease or impairment.”
Another contracts problem arises in “switch” cases involving the mistaken use of gametes or embryos that differ from those the providers agreed to fertilize or implant in ways other than the number or health of any resulting offspring. Courts sometimes excuse a breaching party if its failure to perform causes little material harm. In the classic “Reading Pipes” case, for example, a property holder refused to pay the builders with whom he contracted to build an upscale house on the grounds that they had used a different brand of pipes than the one specified in their agreement.
Because the generic pipe brand they installed comprised the same wrought iron quality, however, Judge Cardozo held that contract law afforded him no protection against the “transgressor whose default is unintentional and trivial.”
Children are not pipes. But recovery for a wrongful switch might likewise require that the genetic traits of any resulting offspring differ from what parents had intended in ways that are not merely incidental to the contract they signed but that go to its very purpose. Accordingly, patients might have to prove that a breach implicated a critical part of the agreement itself when they got material from, for instance, a sick embryo rather than the healthy one they selected, or a short donor instead of a tall one, or a blonde not a brunette. The material-breach doctrine could bar recovery for such cases involving negligently switched donors, so long as they got any child at all, and especially one who is born healthy, even if the mix-up led that child to depart from their expectations in any number of other ways that matter a great deal to them.
5. Loss of Property. — Property law is no better equipped than contract law is to resolve disputes about reproductive negligence. The problem is not that the law cannot treat sperm, eggs, or embryos as property subject to being owned. “Property” and “ownership” are just legal terms of art that designate the ways in which people exercise control over the disposition of entities.
A person “owns” her kidneys, for example, and might consider them her “property” in that she is free to donate one, even as federal law forbids her from selling it.
Courts have similarly held that people’s “interest in the nature of ownership” over embryos lies in “decision-making authority concerning [their] disposition.”
It is easy to think that the harm of lost embryos amounts to something like the misappropriation of property.
But this theory would not apply to the majority of reproductive-negligence cases—from failed sterilizations to misdiagnosed prenatal tests—that feature no loss of genetic material.
Even in negligence disputes that do involve the loss of eggs, sperm, or embryos, damages awards would be unduly constrained by treating embryos as the “property of [the] progenitors.”
In Frisina, the court allowed plaintiffs to recover for their missing embryos “based on the loss of irreplaceable property.”
But what could such property damages be? The price of replacing them would be relatively paltry—a few dollars for sperm, a few thousand for eggs, another couple for medicines needed to obtain them, and a few more for procedures to create new embryos.
And if not the cost of replacement, how would the court determine the value of the “interest in the nature of ownership” that plaintiffs enjoyed in the embryos?
The Frisina court treated the damages of embryo loss in terms of the “discomforts and annoyance” of being denied use of one’s home after a basement flooding.
Yet the loss of one’s embryos is a distinct and far weightier kind of injury. Plaintiffs have reason to care more about their reproductive prospects than the conveniences that a roof enables or the symbolism it evokes. Consigning this denial of control over procreation to the nuisance of lost property distorts and devalues the discrete and serious injuries that reproductive negligence inflicts. The next section spells out the meaning and significance of such setbacks.
B. Procreation Interests
Reproductive negligence implicates control over the multiple dimensions of procreation: conception, gestation, childbirth, as well as child-rearing, a characteristic and meaningful extension of the reproductive experience.
Advances like surrogacy, gamete donation, IVF, and embryo selection enable people to separate out the pursuit or avoidance of procreation into any of its components related to pregnancy (gestating a fetus), parenthood (raising a child), and particulars (selecting offspring traits).
These severable interests in pregnancy, parenthood, and particulars are implicated together when people are either forced to have a child
or kept from having one they wanted.
These interests can also come apart, as in cases in which one woman’s embryos get implanted into a second woman who then gestates and gives birth before returning the resulting child to the first woman.
Such mix-ups deprive the first woman of pregnancy (but not parenthood), while imposing pregnancy (but not parenthood) on the second.
This section will also discuss a third reproductive interest in the prenatal selection of offspring particulars. A person’s interests in making these decisions about pregnancy, parenthood, and offspring particulars vindicate not just decisional autonomy (how freely she chooses), but also individual well-being (how well such outcomes help her live).
Whatever satisfaction a person gets from knowing that the reproductive experiences she prizes are of her own making, it matters at least as much the ways in which those experiences help her to live well, for example, by leading a life that is more valuable to her or by fulfilling her informed desires about what would make her happy.
1. Pregnancy. — The average American woman spends five years pregnant (or trying to be) and thirty years trying not to get pregnant by avoiding sex or using birth control.
Women have varied reasons to pursue or avoid gestation, an undertaking that they may experience and understand in complex and even contradictory ways.
Pregnancy characteristically constrains a woman’s freedom and comfort, but it can also affirm or even empower her: People “may treat [a pregnant woman] with love and respect,” Professor Reva Siegel explains, or “abuse her as a burden, scorn her as unwed, or judge her as unfit for employment.”
On the one hand, courts credit the claim that “being pregnant” affords those who long for it a valuable “bond” that makes “the ability to have a biological child and/or be pregnant a distinct experience from adoption.”
And yet unwanted pregnancy subjects women to a distinct form of distress that exposes them to fetal-protective restrictions including forced Cesarean surgeries, hospital deliveries, drug testing, and life support.
Pregnancy accordingly occasions a diverse array of responses and aftermaths ranging from elation, social esteem, and fetal bonding to panic, bitterness, contempt, and utter ambivalence in between.
The exercise of control over decisions about whether or not to carry a child matters a great deal to women, and to a lesser extent to their partners. This control matters not only because pregnancy carries, as one U.S. court noted, “a litany of physical, emotional, economic, and social consequences” associated with unwanted or risky miscarriage, abortion, adoption, childbirth, and prenatal or postpartum care,
but also because pregnancy or its absence can, as one Canadian judge elaborated, “deeply reflect the way the woman thinks about herself and her relationship to others and to society at large.”
Professor Khiara Bridges describes this injury as “the fact that the woman thinks of herself differently,” in a disorientating transformation “from ‘woman’ to ‘pregnant woman.’”
Denying a woman’s ability to construct the experience of pregnancy for herself separates her from her reproductive capacity and at the same time reduces her to it.
This is why negligent contraceptive or infertility treatment can create and enforce a “perceived identity” for a woman by depriving her of authority over this part of her life in ways that can “forcefully reshape and redirect” it “in the minutest detail.”
These serious and gendered harms to the interest in controlling decisions about pregnancy warrant protection.
2. Parenthood. — What most victims of reproductive negligence care about even more than being pregnant or not is whether they have a child to raise as their own.
Among the most “important and commonly given reasons” for having children are people’s expectations that the experience of sharing “specially intimate [parent–child] relationships of mutual knowledge, care, and dependence” will be “interesting, rewarding, challenging, and fulfilling.”
The decision about whether to be a parent is similarly important to justify a right to recover when professionals wrongfully frustrate a person’s interest in making that decision. When such errors result in the birth of a child, victims undertake the “demanding task of bringing up [the] child or arranging for its upbringing to at least that level which will minimally fit the child for independent adult life in its society.”
Roe v. Wade explained the abortion right in part by reference to just these kinds of consequences that unwanted parenthood foists upon the pregnant woman and her family: “[B]ringing a child into a family already unable, psychologically and otherwise, to care for it” could “force upon the woman a distressful life and future.”
While pregnancy by itself can limit social, educational, and professional prospects for nine months and beyond, raising a child can constrain such opportunities for eighteen years or more.
Childcare responsibilities may entail losing sleep with a fussy baby, passing on travel opportunities while breastfeeding, and keeping the child in one’s immediate sight at all times. The England and Wales Court of Appeal expounded on the responsibilities of parenthood “to provide or make acceptable and safe arrangements for the child’s care and supervision lasts for 24 hours a day, 7 days a week, all year round, until the child becomes old enough to take care of himself.”
Violations of this interest implicate the wrongful loss of one’s reasonable expectations to realize decisions about whether or not to assume the consuming and enduring role as a parent. Courts err in overlooking these far-reaching consequences to personal identity and well-being when unwanted parenthood is imposed or wanted parenthood is deprived.
The loss of control over whether to become a parent is an injury that extends beyond any other associated physical, financial, or emotional consequences.
3. Particulars. — The parenthood interest paradigmatically protects people’s decisions about whether to have a child at all. But sometimes it also matters whether the child they have is likely to be born with certain traits. Reproductive technology lets people choose among embryos or donors.
Those who create embryos using IVF can, for an additional fee, test the embryos before deciding which to implant based on traits from disease to eye color.
Prospective parents typically screen out anomalies, but in rare instances “select an embryo for the presence of a disability” like deafness or dwarfism that parents share.
Sperm banks and egg vendors offer choices among donors based on height, physical appearance (even celebrity likeness), SAT scores, educational background, and race or religion.
It must be emphasized that countless traits that parents may care about—intelligence, personality, behavior—have causes that are too complex to infer much from embryos, gametes, and especially donors in seeing how such attributes might develop in a resulting child.
Yet traits like facial features, stature, and skin color are significantly heritable.
Prenatal testing can reliably reveal susceptibility to many diseases or biological sex.
Preconception sex selection even enables screening within a genetic sample for sperm to yield either boys or girls.
Why should the law care when professionals thwart efforts to select particular traits in offspring? For certain genetic trait preferences—for a child related by blood, for instance, or one who is born free of disease—it is easy to appreciate the practical significance of their wrongful frustration. Consider the biological relationship of children to parents. This kind of heredity carries great social importance.
For many, a “blood” relationship manifests an emotional bond through physical resemblance of offspring.
These parents value a shared biological identity that they anticipate being able to witness in the appearance or temperament of their children, whom they presume will take after various genetic relatives.
Others seek to share with their children ostensibly inherited traits invested with symbolic meaning because they identify parent and child as members of the same group or prevent a loss of genetic continuity between a people’s past and future.
The father in the Baby M surrogacy case,
for example, as the last Holocaust survivor in his family sought to “maintain the genetic line” as “a chance to ward off existential loneliness.”
Likewise, certain communities credit biological connection to future generations as an important source of religious or cultural belonging.
Would-be parents also have an interest in selecting for offspring health. The birth of a child with a genetic disease will predictably inform the sorts of experiences that raising him will involve, perhaps even for how long.
At the extreme is a debilitating untreatable disease like Tay-Sachs, which destroys a child’s central nervous system before recurrent seizures and loss of muscle and mental function leave her nonresponsive until an early death.
Diseases this devastating make clear the impact of raising a child with limited ability to move about or participate in family life. These effects are correspondingly less severe for conditions whose effects tend to be milder or come about only later, bearing in mind their inevitably variable expressions. For example, conditions like spina bifida, cystic fibrosis, and Down syndrome will usually shorten life or impair basic activities to a greater extent than those like ambiguous genitalia, Tourette syndrome, or Huntington’s disease.
And any of these disorders disrupt well-being more than conditions like colorblindness that scarcely disturb life in the developed world, short stature that falls within population norms, or near-sightedness whose hardships can be readily repaired.
Parents might try to explain selection efforts as serving the best interests of the child to be. But failing to select a healthy embryo or donor can be said to harm the resulting child, in the usual sense of harm, only if that child’s life is worse for her than never having been born at all.
The child herself could not have been born without that genetic condition, and any healthy child who might otherwise have existed in her place would have been a different person altogether.
Even for prenatal misconduct that can be said to have harmed a specific, individual child—when, say, a doctor’s failure to respond to fetal distress causes abnormality at birth—there remains a separate interest, over and above concern for a resulting child, that adults have in shaping their families.
II. Mapping Reproductive Wrongs
Reproductive wrongdoing—whether by governments, professionals, or intimates—can be divided into three categories that vary according to the interests that it frustrates. The first imposes pregnancy or parenthood on people seeking to avoid those dimensions of procreation. The second deprives those pursuing these reproductive goals of the chance to be pregnant or have a child. And the third confounds efforts to have or avoid having a child of a particular type (say, a girl, not a boy) and for a particular reason—to prevent sex-linked disease, for example, or balance offspring gender. In the first category the imposition of procreation violates interests in avoiding unwanted pregnancy or parenthood. The deprivation of procreation, by contrast, impairs the pursuit of wanted pregnancy or parenthood. And when specialists confound procreation, the injury is to reasonable expectations of control over the selection of offspring particulars that people project would make the parenting experience more worthwhile for them. This Part considers these three reproductive wrongs in turn.
A. Procreation Imposed
Reproductive negligence that imposes unwanted pregnancy or parenthood violates interests in decisions to decline these roles. Interference in the diagnosis of pregnancy, in the dispensation of birth control, and in the performance of abortion or sterilization foists these consuming statuses on people who enlisted reproductive medicine and technology to avoid them. The injury in these cases is the wrongful deprivation of control over decisions not to become pregnant or not to become a parent, whether on a particular occasion or at all. In a straightforward example, people undergo voluntary sterilization so that having sex would no longer risk conception. The negligent performance of a vasectomy or tubal ligation results in the conception they had sought to prevent.
In a variant on these cases, a woman told the surgeon who would be removing her ovarian cyst that she and her husband were relying on an intrauterine device to prevent pregnancy.
The doctor assured her that if the procedure required removal of the device, he would replace it.
He forgot and failed to inform her, and she became pregnant with a (healthy) child that the couple could not afford.
This class of cases also includes negligently failed abortions or misdiagnosed pregnancies that force a woman to gestate or deliver a child.
Other instances of imposed procreation involve procedures that are less invasive than a botched abortion. Procreation is also wrongfully imposed when a clinic transfers a greater number of embryos than the would-be parents agreed to have implanted.
For instance, in one Australian case, a couple wanting just one child asked that only a single embryo be implanted, while the unknown use of two resulted in their having twins.
Similar cases arise when doctors prescribe fertility drugs without informing patients that their use increases the chances of producing high-order pregnancies that place resulting children at a higher risk of premature birth and associated complications.
A recent U.S. case involved a clinic’s failure to inform a man before using semen obtained from his appropriated condom, thereby turning him into an unwitting sperm donor.
The Texas Court of Appeals summarized the facts:
[Joseph] Pressil and Anetria Burnette were involved in a sexual relationship. The couple used condoms for birth control. Pressil later learned that Burnette had surreptitiously collected samples of his sperm and taken them to the Clinic. Burnette apparently told the Clinic that she was Pressil’s wife and that the couple needed help conceiving a child. The Clinic successfully inseminated Burnette, and Burnette eventually gave birth to healthy twin boys.
Pressil, now a father twice over against his will, sued the clinic for “failing to investigate and obtain [his] consent.”
The court refused recovery for lack of physical harm or otherwise cognizable injury. It explained that “no medical procedure was performed on him,” while “the medical procedure performed on Burnette was apparently a rousing success, resulting in the birth of healthy twin boys.”
And the court held a “plaintiff cannot recover damages related to the support and maintenance of a healthy child born as a result of the medical provider’s negligence . . . because the intangible benefits of parenthood far outweigh the monetary burdens involved.”
Pressil therefore had no legal recourse or source of recovery against the fertility clinic. This is indeed a common outcome when professionals wrongfully impose procreation.
1. Illuminating the Harm. — The prominent feature that botched vasectomies, defective condoms, failed abortions, and unconsented embryo transfers share is their negligent imposition of pregnancy and/or parenthood. Courts have long denied recovery for this injury under available tort remedies.
Wrongful-birth actions focus narrowly on discrete bodily or economic harms, ignoring the weighty repercussions such misconduct wreaks on the well-being of victims whose procreative lives it turns upside down. Nor would it be enough to try cramming recovery for this distinct injury into the tort for negligent infliction of emotional distress.
One court sought to adopt this approach over twenty years ago, characterizing a doctor’s failure to inform the mother that sonograms showed “the possibility of giving birth to a child with severe multiple congenital abnormalities” as having “deprived her and, derivatively, her husband, of the option to accept or reject a parental relationship.”
By misstating their injury as the “mental and emotional anguish upon their realization that they had given birth to a child [thus] afflicted,”
the court demanded precisely the demonstration of emotional distress that is an at-best gratuitous and at-worst misleading expression of so plain and radical a setback to individual well-being.
The lack of protection for interests against imposed pregnancy or parenthood leads courts to misconstrue the harm that such negligence inflicts.
The wrongful denial of control over decisions about whether to assume those roles is a serious injury that does not depend on whether forced reproduction ends in live childbirth.
Recognizing this injury does not require courts to pretend that a child was herself harmed by an act without which she would not otherwise have existed.
It need not imply anything objectionable about the meaning of pregnancy, the worth of children, or the dignity of parenthood. Nor need it force negligent doctors “to pay for the fun, joy and affection” that their patients get to enjoy in “rearing and educating” their own children.
Acknowledging the injury for lost control over reproductive plans would not force courts to “plac[e] a value on a [child’s] smile”
or weigh “the costs of rearing” her relative to the benefits “conferred by” that experience, when the child “may turn out to be loving, obedient and attentive, or hostile, unruly and callous.”
The futility of such determinations is the reason courts give for refusing relief under torts that compensate for tangible harms alone.
These actions offer victims of defective birth control or misimplantation of extra embryos scarce consolation for the wrongful disruption of such important life plans.
The harms incurred by imposed procreation go beyond out-of-pocket expenses associated with the failed procedure, medical costs of childbirth, wages lost while pregnant/nursing, and care of a resulting child.
A critical and discrete injury is the negligently inflicted denial of interests in avoiding unwanted pregnancy and/or parenthood.
Forced pregnancy, for example, not only foists upon a woman the unwelcome identity as pregnant. It also renders her unable to be pregnant in a way that she does desire—at a different time, for example, or with a different partner—at least until that compelled pregnancy is over.
How serious that injury is might depend on whether reproductive misconduct imposed many years of parenthood atop nine months of pregnancy. It might also matter the extent to which thwarted efforts to use more effective or permanent contraceptive measures reflect the strength of victims’ “intent to prevent pregnancy.”
Likewise, imposed procreation that results in a child when none was intended might be a more serious injury than when parents already want one child and the transfer of a greater-than-agreed-to number of embryos results in twins or triplets.
And the reproductive harm may be too slight even to recognize if, say, the negligent provision of emergency contraception does not ultimately result in pregnancy at all.
2. Causation Complications. — In certain cases, professional misconduct makes unwanted pregnancy or parenthood more likely, but cannot be shown by itself to have imposed procreation on those who sought to avoid it. This does not refer to the negligently faulty sterilization, birth control, abortions, or embryo transfers that, by virtue of familiar uncertainties in the reproductive process, could not guarantee that sperm would fertilize, that an embryo would implant, or that a fetus would develop to birth. The real complications with causation lie in cases like the class action suit recently brought by 113 women in twenty-six states who got pregnant after their birth-control packs switched the placement of active pills with the placebos to be taken only when not ovulating.
Even though the defendant pharmaceutical manufacturer admitted the mistake in a product recall of 500,000 mislabeled packages, the plaintiffs will find it difficult to prove with sufficient certainty that it was the transgression, not user error or the small chance of pregnancy even when the packaging is free of defects and pills are taken as directed, that led them to become pregnant.
For these cases to be actionable, it should be enough that wrongdoing made the unintended pregnancies that ensued far more likely to happen. This kind of causation would require non-insignificant probabilities that professional misconduct was to blame for imposing procreation.
Consider the following fact pattern: Two days after unprotected sex, a woman goes to the drugstore for the morning-after pill (Plan B), a time-sensitive treatment whose delayed administration after intercourse reduces its chances of preventing pregnancy.
A pharmacist accidently waits another two days to provide the Plan B, now beyond the seventy-two-hour window in which it is effective.
The woman becomes pregnant and gives birth to a healthy child. (The next section explains why her entitlement to sue is unaffected by any decision she makes to decline abortion or adoption.
) The delay in dispensation of the morning-after pill made the unwanted procreation more likely. But she may have gotten pregnant even if she had been given the drug right after she asked for it, still two days after intercourse. Timely supply of the drug would have made it more likely she would have been able to avoid pregnancy, but it would not have guaranteed her that more favorable result.
Suppose the competent provision of the drug would have given the patient a sixty-percent chance to avoid pregnancy, while delayed access reduced that probability to fifteen percent. Applying proportional recovery would warrant reducing whatever damages correspond to the absolute injury incurred by that seventy-five-percent loss of chance. To give a sense of possible compensation, the U.K. Supreme Court in a 2004 negligent sterilization case awarded £15,000 (about $18,000 U.S today) that, one Lord elaborated, applied “not for the birth of the child, but for the denial of an important aspect of their personal autonomy, viz the right to limit the size of their family.”
Taking the emergency contraception case above might call for awards of one quarter that total, or $4,500. This proportional-recovery approach would deny recovery outright, notwithstanding patent negligence, only if defendants could prove that a plaintiff had herself used the birth control improperly anyway or if she did not seek morning-after pills until it was too late for their use to have offered any chance of preventing her from getting pregnant. Wrongdoing cannot in these cases be blamed for having caused any cognizable harm to interests in avoiding unwanted pregnancy or parenthood. This fact does not, however, make those weighty interests any less worthy of protection more generally.
3. Abortion/Adoption Option. — Whatever other sources of recovery patients might be entitled to in these cases should not obscure the separate injury they pose to control over decisions not to have children. Courts have adopted three positions as to recovery for the costs of raising a child. Most deny relief;
others limit awards against offsetting benefits of parenthood;
just a few redress child-rearing expenses, including those for special needs.
Recovery for costs associated with raising a child should depend in these cases on the extent to which those costs are “the natural and probable result of the negligent act or omission.”
This is the approach that an Illinois court recently adopted to resolve the case of a couple that discovered they carried the sickle-cell trait after a child was born with the disorder.
The wife underwent surgery to close her Fallopian tubes, but the doctor left one of her tubes open, leading to the birth of a second affected child.
The court held the “parents may assert a claim for the extraordinary costs that they will incur in raising their child,” if his birth was “a foreseeable consequence of a negligently performed sterilization,” as when the “desire to avoid contraception precisely for that reason has been communicated to the doctor performing the procedure.”
Some might wonder at this point whether the law might require plaintiffs to minimize any harms of unwanted pregnancy and parenthood that reproductive negligence imposes on them. Courts have indeed asked whether “parents who seek to recover for the birth of an unwanted child”
must first seek to “avoid the consequences of a negligently performed surgical sterilization” by, for example, “avoid[ing] the resultant parenthood [through] abortion . . . or [by] plac[ing] the child for adoption.”
The tort doctrine that applies this duty to mitigate insists that victims undertake reasonable efforts to limit damages, limiting compensation to those harms they could not thereby have avoided.
One might suppose that abortion or adoption constitutes a reasonable requirement for recovery, for example, if she believed that a woman’s legal ability to prevent a child’s birth or relinquish responsibility for the child’s care offsets her singular exposure to unwanted gestation.
The idea here is that the woman’s power to end her pregnancy or put a child up for adoption effectively counteracts whatever harm imposed procreation might exact.
That idea is unconvincing.
The invocation of duty mitigation in these cases misses the mark. First, when it comes to child-rearing expenses recoverable under alternative torts, victims have no duty to mitigate. That duty requires only that they act reasonably. Most courts have held that abortion and adoption “are so extreme as to be unreasonable” requisites to qualify for any relief that is otherwise due.
(Nor have courts treated decisions either to continue an initially unintended pregnancy or to keep a resulting child as breaking the causal chain between the negligence and the imposed procreation or as rendering harm to pregnancy or parenthood interests harmless.
) Why is it unreasonable to expect a woman, as a condition of recovery for wrongfully imposed procreation, either to extinguish the fetus growing inside her or to relinquish legal responsibility for the child to which she gave birth? Expectations of abortion or adoption ignore emotional bonds and risk an “invasion of privacy of the grossest and most pernicious kind.”
And requiring parents to “choose between the child and the cause of action” offers choice only among morally wrenching options.
Insisting that victims terminate either their pregnancy or parental rights as a condition of recovery utterly neglects the injury to interests in reproductive autonomy. Forcing their hand yet again only exacerbates the loss of that measure of control over such a meaningful part of their lives that specialists had previously given them legitimate reason to expect. This imposition of unwanted pregnancy or parenthood is the first category of reproductive wrong. The second, involving the deprivation of wanted pregnancy or parenthood, again opens with a case that exemplifies the human stakes and the legal puzzle of reproductive negligence.
B. Procreation Deprived
The second category of professional wrongdoing in matters of procreation denies patients the chance to be pregnant or have children. In these cases, clinics, laboratories, or sperm banks negligently contaminate, destroy, lose, or otherwise render reproductive materials or capacities unusable or inoperative. Typical cases involve mishandled sperm,
that infertile patients froze for the purpose of later using to have children. In others, specialists fertilize eggs with strangers’ sperm or implant embryos into the wrong person;
or negligently performed medical procedures leave patients permanently unable to conceive.
Other cases do not involve harm to reproductive materials or capacities: Reproductive health specialists sometimes misadvise women based on erroneous information that failure to terminate a pregnancy would carry medical risks.
Such negligent counseling prompts many women to opt for abortions, thus depriving them of continued pregnancy and parenthood.
In one recent case, a woman alleged that her doctor performed an abortion without her consent after realizing that he had implanted another couple’s embryos inside her.
A representative example from this category of wrongs involved a fertility clinic’s exposure of a couple’s embryos to a devastating disease.
The clinic stored a couple’s three remaining IVF embryos in a contaminated product whose manufacturer sent a withdrawal notice to the clinic “advising that they ‘immediately discontinue its use.’”
The court reviewed evidence that the clinic “knew, or should have known that certain lots of” the embryo storage product could “cause a fatal neurological disorder” that is “the human equivalent of . . . ‘[m]ad [c]ow [d]isease.’”
But it dismissed their negligent-infliction claims for lack of physical injury: “With all due respect to their situation, it appears to the Court that Plaintiffs can prove no set of facts that would entitle them to relief. Their Complaint does not allege a physical injury from which a claim for emotional distress can be traced.”
The court explained that “the implantation procedure [itself] is not an injury caused by Defendants’ actions, but is an elective process [that] Jane Doe chose to undergo for fertility treatment” and would have undergone just the same even had the clinic not contaminated the resulting embryos.
Tort claims for negligently deprived procreation almost always fail because plaintiffs manifest no physical harm.
1. Intangible Losses. — Courts have accordingly been swift to dismiss not just when IVF embryos are infected with disease but when they are implanted into the wrong person. In one such case, the court held that “the initial intrusion into the wife’s body to extract her ova” necessary to create the embryos “was not a cause of the subsequent improper implanting of the wife’s fertilized ova into the other woman. . . .”
And yet it is hard to deny the meaning or magnitude of the harm that deprived procreation imposes on people who desperately want children. The expensive and often painful efforts that many undertake to carry a pregnancy or raise a biological child “provide ample evidence of the weight, depth, and sincerity of the interest in genetic affinity” that this class of reproductive negligence wrongfully frustrates.
Three courts have let patients recover for intangible harms inflicted by negligently deprived procreation. In Witt v. Yale-New Haven Hospital, a cancer patient, having learned that the chemotherapy she needed would leave her infertile, had reproductive tissue removed and “frozen and stored” so that she would still be able to have a genetically related child.
The hospital “unilaterally discarded” that tissue, however, “without consulting or even notifying” the couple, thus “foreclos[ing] the potential for the plaintiffs to ever conceive a child together.”
The court said the hospital could be held liable for having “creat[ed] an unreasonable risk of causing emotional distress.”
Next, in Perry-Rogers v. Obasaju, a doctor implanted a couple’s embryos into another woman, who gave birth to their biological child.
The court held against the doctor. His breach of care, it explained, led the couple to fear “that the child that they wanted so desperately . . . might be born to someone else and that they might never know his or her fate.”
The court ordered redress for the “emotional harm caused by their having been deprived of the opportunity of experiencing pregnancy, prenatal bonding and the birth of their child” but again, only when medical affidavits so substantiated.
Finally, in Martinez v. Long Island Jewish Hillside Medical Center, misinformation led a woman to abort despite “deep-seated convictions” that abortion is a sin “except under exceptional circumstances.”
Indeed, she badly wanted the child and terminated the pregnancy only based on bad advice from her genetic counselor that, due to a medication she had taken, “her baby would be born with the congenital birth defect of microcephaly (small brain) or anencephaly (no brain).”
The court here allowed her to recover for the “psychological injury” that the breach of duty foreseeably caused by leading her to submit to an abortion “contrary to her firmly held beliefs.”
There is no need to belabor the inadequacies of this negligent-infliction approach.
Suffice it to say that recovery for wrongfully deprived procreation should not require attestation of emotional distress.
The Supreme Court waxed eloquent about the consequential injury of forced sterilization: “There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty.”
This injury of deprived procreation is especially bad when the government inflicts it, deliberately no less, and by intruding on a person’s body in ways that leave him unable ever to conceive at all. But that deprivation is also serious when a doctor negligently thwarts a single pregnancy or when a clinic recklessly destroys frozen sperm or eggs.
Courts should worry less about whether deprived procreation is actionable than about award size, depending on facts that distinguish more serious expression of this injury from less serious ones.
One court distinguished severity in this way as justification for denying class certification to 240 patients whose embryos a clinic lost.
The court held that putative class members lacked the required commonality due to the disparate severity of injuries among those with active and immediate plans to use the embryos, as opposed to those who had gotten divorced, since had children, or grown too old to do so.
The harm of deprived procreation is also worse if the misconduct, in a case like Martinez, violated a patient’s deeply held religious belief—provided that defendants had reason to foresee such violation.
2. Preexisting Infertility. — There is one other glaring difference between the contexts of compulsory sterilization and reproductive negligence. In that same pre–World War II case, the state of Oklahoma sought to sterilize a one-footed chicken thief named Jack Skinner.
In 1935, the state passed a law allowing it to sterilize a “habitual criminal,” defined as one thrice convicted of crimes “involving moral turpitude.”
Skinner challenged the three strikes law to the Supreme Court even though the Court had just a few years earlier upheld a similarly eugenic Virginia law to sterilize the “feeble-minded.”
This is the case in which Justice Holmes infamously pronounced: “Three generations of imbeciles are enough.”
The problem with the Oklahoma law, Skinner argued, was not that it authorized sterilization at all but that its reliance on the vague idea of “moral turpitude” singled out blue-collar crimes like his, while exempting white-collar crimes like tax evasion or embezzlement.
The state could not use such arbitrary distinctions, Justice Douglas held, to “forever deprive” Skinner “of a basic liberty.”
Skinner was a healthy man in his twenties,
which meant sterilizing him would have robbed him of the expectation that he would otherwise have been able to conceive.
It is different for most fertility patients who are deprived of procreation by professional negligence. Even when fertility treatment goes just right, these patients usually have no more than modest prospects for a successful pregnancy or childbirth.
Their low chances of procreation owe to preexisting fertility problems ranging from low sperm count to aging eggs.
For women thirty-two and younger, for example, just forty percent of IVF cycles result in babies, and by age forty, the live birth rate drops to under twenty percent.
This means that when misconduct renders reproductive materials or capacities unusable, it deprives fertility patients of what aging, cancer treatment, or accidents had already left an uncertain chance to procreate.
Specialists should be held responsible only to the extent that their negligence—as opposed to these other factors—is what plausibly deprived chances for procreation. Their fault should be discounted accordingly by the extent that preexisting infertility left patients’ chances of reproducing unlikely, negligence aside.
Probabilistic recovery can help in cases like Witt or Perry-Rogers involving the negligent destruction or misplacement of gametes or embryos.
Suppose, for example, that a couple’s age and other circumstances would have given them a thirty-percent chance of achieving a pregnancy and live birth had a clinic not lost their materials; the loss dropped the probability to three percent. Damages would accordingly be one-tenth of whatever damages would have been for the absolute deprivation of procreation had competent care all but guaranteed it. So if a jury were to calculate their wrongfully deprived pregnancy and parenthood at, say, $20,000, then probabilistic recovery would reduce the total to $18,000 for the ninety-percent loss of what chance they had to procreate. Plaintiffs in a case like this would have to show that the lost chance was not insignificant and that there is a reasonable possibility competent treatment would have enabled them to reproduce. For some, such as women over forty-four or men who have no working sperm count, their potential to have biological children is already so low that even the most egregious transgression would not itself thwart possibilities they otherwise could have expected, provided they were not misled into thinking that their chances of reproducing were better.
If a botched procedure “had no chance of [reproductive] success and this was known and understood by the plaintiffs,” the Witt court noted, “the plaintiffs might not be entitled to recover.”
A Louisiana Court of Appeals recently adopted this loss-of-chance approach in considering damages owed for clearly negligent obstetric care that deprived the patient, a middle-aged diabetic woman with fibroid problems, “of an admittedly less-than-even chance of becoming pregnant.”
While misconduct dashed her sincere “hopes to triumph over [infertility] by successfully bearing a child,” the court found no “facts to support the conjecture that even if [the obstetrician] had not deviated below the standard of care [the patient] would have been able to conceive.”
That loss owed less to malpractice than to her age and preexisting health for which the doctor was not to blame. He might have kept her reproductive hopes more grounded by better advising her, as another doctor had, that she “needed a hysterectomy [and that] without a uterus, conception is impossible.”
But since she “had no real chance of becoming pregnant” anyway, whether her obstetrician had treated her negligently or not, the court refused compensation “for a speculative loss of a [small] chance to become pregnant” beyond any “damages award for the [proven] injuries and their [physical or emotional] effects” on her.
This would-be deprivation of procreation is different from cases in which professionals negligently confound people’s efforts to select prenatally for offspring with or without more particular traits.
C. Procreation Confounded
The last category of cases involves plaintiffs who received the child they wanted, except that the child was born with different genetic traits than those they used reproductive medicine to select for. The reasons that people might have for choosing a child of one sort or another—to continue a bloodline or enact a cultural custom, to avoid social stigma, achieve family balance, or share valued experiences or identities—can influence parental well-being in more or less acute ways that correspond to the severity of injuries this final category of reproductive negligence includes. Procreation is negligently confounded when reproductive professionals fertilize patients with the wrong sperm,
implant another couple’s embryos,
misrepresent donor information,
or misdiagnose fetuses,
leading patients to initiate, continue, or terminate pregnancies in ways that frustrate their preferences for their offspring’s health or other genetic traits.
A paradigmatic case involves Nancy and Thomas Andrews, light-skinned IVF patients whose goal to “have a child who would be biologically their own” was dashed when the clinic “negligently used someone else’s sperm to fertilize [her] eggs.”
The couple noticed that baby Jessica was much “‘darker skinned’” than either of them, with “‘facial and hair characteristics more typical of African, or African American descent.’”
Unassuaged by their doctor’s assurance that Jessica would “‘get lighter over time,’”
the couple pursued DNA tests, whose results confirmed that Mr. Andrews was not Jessica’s biological father, and thus the couple had “to raise a child that is not . . . the same race, nationality, [or] color” as they are.
State precedent nevertheless left the court “unable to hold that the birth of an unwanted but otherwise healthy and normal child constitutes an injury to the child’s parents” and unwilling “to adopt a rule, the primary effect of which is to encourage, indeed reward, the parents’ disparagement or outright denial of the value of their child’s life.”
This is a common fate for claims alleging confounded procreation.
1. Reasons and Repercussions. — Wrongfully frustrated attempts to select offspring traits can yield more or less serious injuries depending on parents’ reasons for wanting to choose or avoid particular attributes. This injury tends to be most serious, warranting correspondingly greater damages, for misconduct that thwarts efforts to select for heredity and especially health.
For wrongdoing that confounds efforts to choose for offspring health, the acuteness of this reproductive injury varies with the projected impact that thwarted decision has on parental well-being.
The typical case involves the negligent failure to identify a disease for which a couple knew they were at risk.
That injury is more severe when misconduct results in the birth of a child with disorders that are usually life threatening and debilitating—like a severe anemia requiring regular blood transfusions
—than for many others whose effects tend not to incapacitate so acutely. The injury is less severe still when a child is born with cancer susceptibilities whose manifestation is less certain, or with Huntington’s or Alzheimer’s whose effects will not manifest until later in life.
In contrast to all these, parents will incur less serious injuries when equally wrongful misconduct frustrates efforts to have a child born with behavioral associations for traits like intelligence, strength, and artistic or musical ability, or nonmedical traits like dimples or male-pattern baldness.
Even among efforts to select an ostensibly nonmedical trait—sex is the most common—the injury of thwarted selection can vary based on whether the reasons parents wanted a boy or girl in fact relate to the child’s health.
Some enlist professional assistance to avoid a sex-linked disorder they risk passing along only if they were to have either a girl or, more often, a boy.
Others seek to even out the representation of sexes among the other children they already have.
For others still, cultural or religious norms prize boys over girls.
Frustrated efforts to select offspring sex injure the at-risk couple more than the couple that sought to balance the genders among their children. Similar rankings of severity apply to wrongfully stymied efforts to select for offspring height: It incurs greater harm to substitute a donor who has a stature-stunting genetic disorder than it does, with equal negligence, to swap in an otherwise healthy donor who is just as short.
The injury of confounded procreation is by the same token more serious when it denies genetic kinship beyond just physical resemblance. A common instance of confounded procreation involves fertilizing a woman’s egg with sperm from a stranger rather than her husband.
The mix-up in many of these cases is apparent only because the stranger has racially or ethnically different features, potentially complicating the resulting injury in ways that the next Part will explore in detail.
The point for now is that these switches deny the biological connection the partner would otherwise have shared with the child.
The prominent place that genetic relatedness holds in social mores and legal culture
suggests that heredity-robbing mix-ups cause a more serious injury than a switch from an unrelated donor who resembles a spouse to a different donor who does not.
Victims of the latter type of switch could rebut this presumption of lesser injury and lower damages by substantiating the unusual strength of the reasons why they selected for resemblance and the unusually substantial harm that this mix-up has wreaked on their lives.
Precisely because the genetic tie is prized, the parent–child resemblance that a similar-looking donor makes more likely can help to “legitimize the child as part of the family and is part of the process of constructing the child’s identity within the family.”
Persisting stigma against infertility drives some different-sex couples to seek out a sperm or egg donor who shares an infertile partner’s coloring or build.
These couples may seek to improve the chances that any resulting child will be able to “pass” as related by blood, whether to avoid conspicuous confrontation with their inability to conceive on their own or to forestall the perceived or prompted need to explain to those they meet why their child does not look like they do.
Others, including same-sex couples that face different expectations about biological affinity, might choose a donor who looks like a nongenetic parent in hopes that resemblance might help enrich parent–child bonds or depart less strikingly from norms of traditional family formation.
One gay parent, reflecting on his experience raising a child in a racially mixed home, warns queer couples looking to have children
to be very aware of how race and gender play into things, at the playground, at the store, on the bus. Our family is a transracial family. I’m Asian, my son is black, and my partner is white. People make assumptions based on race and gender, even in our own LGBT community. Race shouldn’t matter, but it does.
Among the harms that victims of negligent donor switches or embryo mix-ups might claim is the stigmatizing impact of an unwanted status as a racially diverse or otherwise nontraditional family. On the other hand, defendants could argue that any injury their misconduct caused is so slight that its infliction warrants nothing more than token or symbolic damages. For example, if a clinic negligently used the wrong gametes or embryos, but the only apparent difference between those materials and the right ones is that they carry genes for left-handedness or red curly hair,
the resulting harm may be too minor to merit much, if any, compensation.
2. Prenatal Genetic Uncertainties. — Sometimes reproductive negligence confounds procreation in ways that are indeterminate. Uncertainty pervades prenatal testing and donor selection wherein doctors or clinics convey or act on imperfect genetic information about what kinds of traits might materialize in future offspring. Prenatal testing of gametes, embryos, or fetuses can pose uncertainty as to whether or in what ways even perfectly testable genetic conditions might manifest at birth.
That uncertainty is far greater for frustrated attempts to choose from among multiple embryos one to implant that will be less susceptible to some cancer that cannot be reliably diagnosed before birth. And some cases of thwarted selection will have targeted traits like appearance or intelligence whose expression in offspring cannot be reliably predicted at all.
There is of course no guarantee that traits like looks or smarts or dispositions to disease that come about from scores of genes working in concert with other factors will actually show up in children.
A recent case in point: A number of couples alleged that a sperm bank negligently misrepresented the characteristics of a donor whose sperm was so popular that it was rarely available.
Touted as an acclaimed drummer and neuroscience engineering PhD candidate with an IQ of 160, the couples chose him for the chance their child would inherit his purported intellect and musicality.
The sperm bank reassured them of the rigorous screening procedures it used to verify such information before making donor profiles available on its website.
It turned out the donor was actually a convicted felon with no college degrees who had been diagnosed with schizophrenia among a number of other mental disorders.
Were a court to compensate for the negligent frustration of the couples’ interests in offspring particulars, considerable uncertainty would complicate any damages as to either mental health or relative intelligence. Awards related to thwarted selection against genetic susceptibility to schizophrenia should account for the probability, for example, that a child with a parent who either has or is a genetic carrier for the disease has a twelve percent chance of developing schizophrenia.
This risk would cut back the absolute injury severity that accounts for such factors as schizophrenia’s chronic effects, in addition to its average age of onset (sixteen for men and twenty-five for women) and shorter life span (by eighteen years for men, by sixteen for women).
As for the donor’s lower-than-promised IQ, the notoriously indeterminate genetics of high intelligence
make sound estimates of probabilistic loss of the chance to select offspring for that trait all but impossible.
Mix-up claims should not be dismissed outright, however, simply because the features that distinguish the misidentified donor, gamete, or embryo from the intended one cannot be “reliably predicted.”
Less-than-certain chances that competent care could have satisfied people’s interests in offspring particulars is no good reason to deny them a cause of action altogether.
That is instead reason to reduce awards in proportion to the causal role of factors other than professional wrongdoing.
This is a natural extension of loss-of-chance principles that decline to immunize broad swaths of professional practice from liability just because misconduct cannot be the proven but-for cause of adverse effects.
It is enough, on this account, for reproductive patients to show that negligently confounded procreation made their thwarted selection of offspring traits substantially more likely. Compensation for that loss should then be adjusted to the estimated contribution of negligent care.
Further uncertainty accompanies frustrated efforts to choose traits ranging from offspring height to intelligence. These would not show up until later due to genetic complexities and postbirth contributions besides delayed onset. In such cases, courts should likewise reject an all-or-nothing approach, whether it would allow full recovery or deny it on the traditional view that the threat of not-yet-realized future harm is not acute enough to establish liability.
Better than these is the partial-recovery approach courts have begun to allow under the doctrine of increased risk for a “reasonable” fear that the unwanted condition will (or the wanted condition will not) develop in the future, even if plaintiffs cannot prove a greater-than-even likelihood that a worse outcome will ensue.
To instead refuse “compensation unless a plaintiff proves that a future consequence is more likely to occur than not” would deny damages “for consequences that later ensue from risks not rising to the level of probability” and award them “for future consequences that never occur”—a result at odds with the goal of redressing “tort victims fairly for all the consequences of the injuries they have sustained, while avoiding, so far as possible, windfall awards for consequences that never happen.”
Although it is possible that an affected child may not ultimately develop a condition, this should not bar recovery when a negligent mix-up or misdiagnosis causes some vulnerability.
The level of damages should reflect the proportionate role of professional wrongdoing as a percentage of total awards had the condition materialized.
III. Procreation Rights and Remedies
What is needed is a new cause of action against reproductive negligence. This right, while no panacea, is an important and necessary part of the solution. It is true that vigorous safety standards, procedure testing, facility accreditation, and compliance monitoring would be better at preventing reproductive injuries from happening in the first place; tort law gets triggered only after a claim gets brought for an injury that has already taken place. But the American political climate and the economics of the reproductive field make the prospect of robust regulation by the government, industry, or professional associations a long shot.
Even less probable in the United States is a government-administered accident-compensation scheme like New Zealand’s.
Besides, regulators can hardly be expected to anticipate or avert every avoidable injury to which new and risky products and services give rise. Amidst rapid technological changes, individual injury plaintiffs are agile and motivated enough to bring neglected social harms “to the attention of the legal system through private claims for damages.”
Yet the U.S. doctrinal landscape offers only a mixed bag of ill-fitting theories unequipped for the work that this growing challenge demands. Accordingly, it is time for a private right of procreation.
U.S. courts have long recognized “[t]ort law’s ability to accommodate new technologies” by filling “the regulatory gap”
and warning of neglected risks when technological innovation transforms “the nature of injuries.”
“[T]he law of torts,” Professor William Prosser noted in his classic treatise, is a “battleground of social theory.”
For example, mass transport by boat and rail gave rise to fare disputes between passengers and vessel operators, out of which developed the tort for intentional infliction of emotional distress.
Strict products liability emerged from the defects that novel goods from power tools to soft drinks unleashed on unsuspecting consumers.
And then of course there is the right to privacy that arose in response to prying cameras and gossip mongering.
Today, professional assistance in matters of procreation has reached a similar flashpoint.
The negligent performance of reproductive services and procedures from test tubes to tube ties generates harms that have outpaced the law’s ability or willingness to police them.
A tort is needed to protect against the grave repercussions for victims whose family planning is disrupted when procreation is wrongfully imposed, deprived, or confounded.
A. The Private Right of Procreation
Should a right to recover for reproductive negligence be understood as one general tort or multiple specific ones? Each approach has strengths and weaknesses.
Making the right monolithic underscores the central animating principle that it serves to protect people’s legitimate expectations to exercise a reasonable measure of control over decisions about having children.
A unitary tort strategy offers the convenience of a single place for citizens to locate their rights when they sense a violation of their interests in procreation. Its core also streamlines the sources of authority that lawyers and judges need reference to resolve such disputes. Most crucially, this high-level common law appeal facilitates adaption to changing conditions and norms within such a rapidly evolving context. A danger of this approach, however, is that reliance on such a dynamic principle could dissolve into disarray if its protections are too nebulous to implement.
By contrast, differentiating this tort into bundles of sticks sharpens its conceptual focus. Thwarted interests in pregnancy, parenthood, and particulars, while all plausibly designated as “reproductive,” resist consolidation into any one identical injury or claim of the kind that characterize class action suits.
The circumstances and stakes of these interests appear at least as diverse as those comprising other multidimensional torts like the privacy right that Professor Prosser split into “a complex of four” separate rights of disclosure, intrusion, false light, and likeness appropriation.
The comparative precision of a partitioned tort lends transparency to specific applications. Yet piecemeal protections risk purchasing such “order and legitimacy” at the price of making them too “rigid and ossifying” to accommodate the full range of fact patterns that implicate similar interests.
The complementarity of these approaches commends an overarching right of procreation that protects related but distinct interests in pregnancy, parenthood, and particulars. The cohesive nature of this action preserves its central focus on the centrality of family planning to many people’s lives. And the right’s discrete components enable it to craft remedies that are sensitive to the more specific injuries that arise in individual cases.
1. Why: Values, Compensation, Deterrence. — This private cause of action would serve not one but three goals: to affirm shared values, to compensate victims, and to deter professional misconduct.
First, the right to recover against reproductive negligence would confer social recognition on the special importance of control over decisions about procreation—for the sake of not just autonomy but also equality and especially well-being.
Affording legal protections against professional misconduct in the provision of reproductive care would thereby reflect and promote norms about the centrality of procreation in people’s lives.
This new right, by marking out the wrongful frustration of reproductive interests as harms worthy of remedy, would tell fertility patients what is reasonable for them to expect and, at the same time, tell providers how it is reasonable for them to act when they assume care of reproductive interests.
Second, the procreation right would compensate victims of negligently imposed, deprived, or confounded procreation. The point of damages for such injuries is not to make victims whole, as if money could somehow restore what they lost when a clinic destroyed their only embryos or when a failed sterilization left them with an unplanned child to raise.
Compensation under this cause of action would seek not to return victims to their pre-injury state but to approximate how much better off competent reproductive care would have made them.
Damages awards under the right would thereby operate as a function of: (1) the severity of injury to interests in the legitimate expectation of exercising control of pregnancy, parenthood, or selection of offspring particulars;
and (2) the probability that such injuries were caused by deficient care rather than other factors.
Finally, the right should discourage negligence by hospitals, clinics, and sperm banks that agree to help patients have or avoid having children or that allow patients to make the decision to have children on the basis of particular traits. The New York Times aptly brands the lightly regulated enterprise as “buyer-beware—for people banking their own sperm for personal use after cancer treatment, and for those relying on a sperm bank’s description of an anonymous donor.”
The new tort aims in this part to discipline fertility providers to adopt precautions that cost less than the harms those measures would have averted.
One straightforward idea is labeling sperm, eggs, and embryos with barcodes to prevent mix-ups.
Others include quality-control systems in fertility laboratories and reproductive medical practice.
The deterrent promise of this new action, however, is undermined if victims can recover too much or too easily. Requiring unduly expensive or onerous liability-protective safeguards would unfairly burden providers and could also chill the availability of valuable reproductive services.
Fear of frivolous or fraudulent litigation could price providers out of reproductive care or drive would-be entrants from the field.
Liability threats could even prompt defensive deviations from sound practice in the form of incentivizing tests or procedures that confer marginal clinical value.
Anxiety about prohibitive costs and moral hazard keeps insurance carriers from covering liability exposure for negligence in the provision of reproductive services. Scholars have referred to these as “triple risk activit[ies]” that directly implicate the well-being of not just an individual patient but also a partner in procreation and future offspring themselves, all of whom might be “interested in pursuing a lawsuit against the physician, nurse, and/or hospital for bad outcomes.”
The costs of litigation, award payouts, and safety devices will not be absorbed by health care professionals but will instead be passed along to other patients, making services more expensive.
Tort liability would spread these costs across patients rather than concentrate them in negligence victims, but providers might refuse high-risk services or treatment of certain patients at all.
The right should thus be crafted in a way—by capping damages, perhaps
—that balances the freedoms that reproductive treatment enables against the injuries that it can inflict.
2. Who: Professionals, Patients, Partners. — What entitles the recipients of donor, IVF, and other services to make enforceable claims against doctors, pharmacists, sperm banks, fertility clinics, embryologists, and genetic counselors who assist them is that these specialists voluntarily assume a duty of reproductive care.
It is not as if anyone forces them to. Indeed, state and federal laws protect reproductive professionals from being sued, fired, or disbarred for refusing to provide any services such as (emergency) contraception, abortion, tubal ligation, or prenatal testing whose provision would violate their moral conscience.
The only exception to the latitude that professionals enjoy to choose who to treat is that they may not deny service based on how a patient looks or lives.
Doctors face no sanctions, by contrast, for denying IVF treatment to single women, for example, or for refusing to sterilize younger ones.
That reproductive specialists are generally free to decline their fertility services underscores the reasonableness of expecting them to conform their conduct to professional norms for those patients they do agree to take on.
Plaintiffs seeking to assert the procreation right in a reproductive-negligence case would accordingly be required to show that the defendants not only owed them this duty but also breached it through conduct that fell below what is “reasonable to expect of a professional given the state of medical knowledge at the time of the treatment in issue.”
What counts as reasonable to expect of reproductive professionals will depend on the particular practices in question and will evolve based on relevant advances in medical research and technological innovation.
This basic reasonableness standard that applies to all professionals who take on the duty of reproductive care would not condemn mere slips of the hand or mistakes in judgment open to reasonable doubt. But neither would it immunize practitioners simply because their misconduct accords with prevailing custom in the field.
The importance-of-duty assumption explains why victims of reproductive misconduct by nonprofessionals could not bring the same claims against sexual partners who assume no such duty in circumstances like failing to disclose a venereal disease that causes their partner to become sterile
or deceiving a partner into thinking they cannot conceive.
Constitutional doctrine, in other ways, informs who is entitled to protection under the right. The abortion cases about spousal consent and notification suggest that any such right afforded to fertility patients should extend to partners intimately involved in a shared project to have or avoid having children.
Planned Parenthood of Central Missouri v. Danforth affirmed a woman’s right to an abortion over her partner’s objection, explaining that as the one “who physically bears the child,” she “is the more directly and immediately affected by the pregnancy.”
The Court has credited interests in procreation other than just bodily integrity.
The acts of gestating and giving birth privilege a woman’s interests over her partner’s opposition.
But her priority does not negate “the deep and proper concern and interest that a devoted and protective husband has in his wife’s pregnancy and in the growth and development of the fetus she is carrying.”
A partner generally has similar interests when a couple enlists reproductive medicine or technology. So long as patients and their partners agree on shared reproductive goals, there is no good reason not to extend protection to partners who do not themselves contribute either gametes or gestation.
The issue is not whether the partner is a “direct victim” or “bystander” whose presence during treatment means that the partner observed the injury take place. Rather, it is whether the partner’s participation in the treatment process triggers a duty like the one a psychiatrist owes a patient’s parents whose immersion in their child’s care makes them “active instrumentalities.”
Most courts have barred recovery for the partners of reproductive-negligence victims, holding, for example, that a doctor who misprescribed a drug that left a patient unable to provide sperm for IVF owed no duty of care to his wife,
while a doctor who refused to provide a post-vasectomy referral for a sperm count owed no duty to the patient’s wife who thereafter became pregnant.
But in the gestational surrogacy context, the Sixth Circuit has held that a “surrogacy broker and program participants” such as the “medical and legal assistants . . . employ[ed]” incur “an affirmative duty of protection, marked by a heightened diligence, aris[ing] out of a special relationship” with not only the surrogate mother and contracting father but also the surrogate’s husband who signed the contract and participated in his wife’s medical care during pregnancy.
And a Connecticut court recently adopted and elaborated on this view in a decision authorizing wrongful-abortion claims by a husband “who would have been the father of the child, if born.”
The man and his wife were told the fetus was diagnosed with ambiguous genitalia and associated risks of hormonal abnormalities and organ dysfunction.
Based on this information, the couple decided she would terminate the pregnancy despite their desperately wanting a child.
A secretary accidentally typed “XY” instead of “XX” in the field for fetal sex, a mistake that the lab, hospital, doctors, and genetic counselors failed to note until an autopsy revealed that the fetus was healthy.
The court let the husband sue due to the “binary relationship in the realm of procreation—biologically driven (required!), not merely societally or legally grounded” as via marriage.
[T]here is no sound reason why a spouse (father) cannot assert what amounts to a particularized form of derivative injury, one that is no less real and no less significant than derivative injuries arising from more typical loss-of-consortium-generating injuries. Undivided loyalty and confidentiality would be unaffected—no disclosures are required and there would be no involvement in treatment.
The court reasoned that recognition of “one and only one, clearly identifiable, additional claimant per incident” was “not likely to [drive] any appreciable increase in litigation”
either, since the (customarily female) patient’s “claim would essentially always be present and the likelihood of a paternal claim without participation of the mother seems vanishingly small (if allowed, at all).”
Accordingly, the court set aside any other possible objections to allowing the husband to sue:
There can be no concern about unidentifiable claimants or unlimited scope of potential claimants; there is unlikely to be a flood of additional litigation; there is no intrusion on the physician-patient relationship; there can be no concern about trivial claims being pursued; and the interests being invaded/harmed are substantial, having received recognition as a right with constitutional implications.
This reasoning provides forceful justification for extending a right to recover against reproductive negligence to reproductive partners, such as the husband in this case, who are not patients themselves.
3. What: Avoidance, Pursuit, Selection. — This new right of procreation would reconcile the shared reproductive interests at stake in tort claims against negligent professionals with the “non-tort contexts” in which “various forms of protection” for these same interests in pregnancy, parenthood, and offspring particulars “are found in constitutions, statutes and common law rules which do not involve tort claims.”
Most obviously, the well-being-focused interests in avoiding unwanted pregnancy and parenthood invigorate autonomy-based substantive due process rights to access birth control and abortion.
The Supreme Court called these decisions among “the most intimate and personal choices a person may make in a lifetime” without making clear
—as the injuries of imposed procreation do—their exceptional power to orient other aspects of life.
Gendered experiences of pregnancy and expectations for parenthood place demands on women’s bodies, time, and resources that compete with opportunities for education, employment, or politics so central to financial security and social standing.
It is precisely because women’s “ability to control their reproductive lives” facilitates their capacity “to participate equally in the economic and social life of the Nation” that their “suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman’s role” within the family and society.
Complementary interests in pursuing wanted procreation shore up why it is that those very same constitutional rights protect decisions about “whether to bear or beget a child”:
not just to escape procreation by obtaining birth control or abortion but also to seek out procreation by refusing them.
One court even struck down a fetal-experimentation ban based in part on the unelaborated opinion that “within the cluster of constitutionally protected choices that includes the right to access to contraceptives, there must be included . . . the right to submit to a medical procedure that may bring about, rather than prevent, pregnancy.”
Yet the existing reproductive rights, while permitting broader reach, do not compel it as a matter of constitutional doctrine.
That individual liberties “sound in personal autonomy,” the Court has warned, “does not warrant the sweeping conclusion that any and all important, intimate, and personal decisions are so protected . . . .”
Indeed, it has denied protection to decisions as personal as whether to live with a nonrelative
or to end one’s life with the help of a physician.
Viewed through the lens of individual well-being at stake in deprived procreation, however, the likes of IVF, surrogacy, and donor insemination assume importance far beyond pregnancy-specific interests in bodily integrity and sex equality.
Few practices drive so many to undergo procedures that are painful, expensive, invasive, exhausting, and that risk their health, peace of mind, and livelihoods.
Decisions about whether to be pregnant or a parent “have such great significance for personal identity and happiness,” Professor John Robertson argues, “that an important area of freedom and human dignity would be lost if one lacked self-determination in procreation.”
Protection from reproductive negligence can also promote critical new forms of social equality.
Rights to secure competent IVF and surrogacy help even out reproductive disadvantages faced by different-sex couples whose medical status leaves them infertile, as well as those faced by single, gay, lesbian, and transgender people whose nonmedical circumstances some have referred to as “dysfertile.”
Without such rights, they could not access the prized marks of “moral and civic obligation, marital and sexual success, personal maturity, and normality” that having children can confer.
The interests in selecting offspring particulars also inform constitutional consideration of open questions that courts will soon face about the constitutional status of selective abortion bans, such as that enacted most recently in Indiana, that forbid abortion following testing for sex, race, or genetic abnormality.
The reproductive wrong of confounded procreation elucidates interests in selecting for traits that parents think would make raising a child more meaningful or gratifying. Professor Robertson explains:
[I]ndividuals seek or avoid reproduction precisely because of the types of experiences, situations, and responsibilities that it will entail. A person who chooses to reproduce chooses to accept the experiences and responsibilities entailed in reproduction and child rearing, unknown and vague as they may be at the time of choice. If the package of burdens and responsibilities differs markedly from one she finds acceptable, then that person might choose not to reproduce.
Having not just any child but one with or without particular characteristics—like genetic affinity, physical resemblance, absence of disease, presence of shared features, or donor compatibility to save a dying would-be sibling—can facilitate parents’ ability to support a partner or existing children or connect with familial or cultural histories that matter a great deal to them.
That is why courts might extend protections, beyond efforts to avoid or pursue procreation, to methods of fetal testing, donor selection, and embryo screening that enable offspring selection for genetic traits.
Pregnancy, parenthood, and particular interests inform more than just these constitutional questions about the justification and scope of the reproductive rights to birth control and abortion. A statutory example from Supreme Court jurisprudence is the question of what conditions qualify for antidiscrimination protections under the Americans with Disability Act.
Bragdon v. Abbott held that asymptomatic HIV qualifies.
That an “infected woman risks infecting her child during gestation and childbirth” makes HIV an impairment that substantially limits the major life activity of “procreation with the normal expectation of bringing forth a healthy child.”
But the majority lacked the conceptual resources to give an account of why procreation counts as a major life activity, managing only to assert that “[r]eproduction and the sexual dynamics surrounding it are central to the life process itself.”
The interests in pursuing pregnancy and parenthood and in selecting for the particular trait of genetic health in offspring would have supplied a more compelling rationale. The typology of imposed, deprived, and confounded procreation helps more clearly to identify and evaluate the reproductive interests at stake in a wide range of other contexts beyond professional negligence.
These range from the constitutionality of refusals to fund abortion,
insure birth control,
or grant same-sex couples equal access to fertility services,
to family or contract law disputes involving surrogacy,
and the deception of sexual partners regarding the ability to have children.
This framework for analysis can also press such areas of law in more sound and promising directions.
B. Determining Damages
The remedy for violations of the procreation right takes form in damages awards. And yet, injuries to the right’s interests in pregnancy, parenthood, and the selection of offspring particulars appear to defy monetary correction. Dollars cannot restore the control that victims have lost over their reproductive lives any more than money can restore the loss of life or liberty in actions for wrongful death or wrongful conviction and imprisonment.
There are several reasons why recovery for intangible injuries like these is vulnerable to charges of arbitrariness, unfairness, and abuse: the lack of any clear way to translate imprecise, case-specific harms into determinate fiscal terms; the lack of any objective test to measure the severity of injuries the appraisal of which tends to depend heavily on subjective testimony; the lack of obvious mechanisms to channel legislative or judicial deliberations about corresponding awards; and the lack of market value to confine damages within a ceiling or floor.
These are difficult challenges that admit of no simple solutions. As the comparisons to wrongful death and conviction suggest, however, they are not exceptional, and they need not be decisive.
Incommensurability is no greater problem for reproductive negligence than it is in other contexts in which juries determine recovery for intangible losses.
These losses include tort actions for the humiliation of the privacy intrusion, the betrayal of fiduciary breach, and the lost choice of uninformed consent.
Another example is a “wrongful living” case, in which medical providers negligently breach their duty to know and honor a patient’s expressed wish to forgo lifesaving treatment.
These cases typically involve resuscitation despite the “do-not-resuscitate” order displayed in a patient’s chart.
These cases involve a loss of decisional autonomy and have practical effects such as prolonging patients’ suffering and causing family members to witness that suffering. People may be less familiar with harms related to procreation.
But it is not so much harder in the reproductive context, as compared to similarly intangible losses in the others above, to affix awards for negligently thwarted interests that vary in systematic ways based on plausible judgments about the relevant facts.
1. Tailoring Injury Severity. — Damages awards for reproductive negligence should correspond to how much better off plaintiffs could have been had competent professional services honored their decisions about whether and how to procreate. For example, compensation levels might correspond to the chance that competent care would have enabled them to have a wanted child (procreation deprived), not have an unintended one (procreation imposed), or have or not have a child born with or without different genetic traits (procreation confounded).
This damages inquiry operates in two steps. The first step determines the severity of injuries sustained to interests in pursuing or avoiding pregnancy, parenthood, or offspring particulars.
The second step determines the extent to which professional wrongdoing is responsible for having caused that injury.
The first step spells out the severity of reproductive injury in terms of how seriously the misconduct impairs plaintiffs’ interests in pregnancy, parenthood, or offspring particulars.
Part II showed how this determination turns not only on whether negligence interfered with the pursuit or avoidance of these reproductive interests, or even on whether it frustrated just one as opposed to more of them. The relative severity of reproductive injuries also depends on more case-specific factors including plaintiffs’ life plans and social identities or the individual consequences and durations of time those injuries implicate.
This still leaves a great deal for decisionmakers to fill in. The pages ahead elaborate on the conditions under which participants, lawmakers, judges, or juries are best equipped to make these determinations and how.
The severity of injuries to the interest in selecting offspring particulars will likewise depend on the impact those injuries have on the reproductive lives of victims in particular cases. Those consequences for the well-being of plaintiffs should in turn be understood in terms of which trait preferences were wrongfully frustrated and why they preferred those traits in the first place. The issue is not whether plaintiffs would have decided otherwise about whether to have children, in a subjective counterfactual sense, had they known that negligence would thwart their efforts to have offspring of a particular type. If a parent refuses to have a child with traits that are different from the ones they had selected, it might reflect simple intransigence, which is itself unworthy of special protection. The severity of these injuries is not a function of how much distress it caused the plaintiffs. It is instead about the extent to which the wrongful frustration of efforts to have or avoid having a child of a certain type can be expected to impair their lives, from the perspective of their own (not illegitimate) values and circumstances.
2. Loss-of-Chance Probabilities. — It is not just the severity of injuries to interests in pregnancy, parenthood, and particulars that matters in determining the fitting size of monetary remedies under the procreation right. Also critical is the extent to which those injuries were caused by reproductive negligence and not some other force altogether for which the defendant professionals cannot properly be held accountable. The second determinant of awards under the procreation right is the probability that negligence is responsible for those injuries. The level of compensation for those injuries is reduced by the extent to which they were caused by factors besides professional wrongdoing like patient infertility, contraceptive user error, or genetic uncertainty.
This kind of remedy for lost chances has been adopted in “a substantial and growing majority of the [s]tates that have considered” it.
Loss-of-chance doctrine gives patients with preexisting conditions an opportunity to recover for the probability they lost “a chance to survive, to be cured, or otherwise to achieve a more favorable medical outcome.”
That patients were already disposed to some bad outcome means that it could still have happened even in the absence of any wrongdoing. This approach entitles those afflicted by such susceptibilities “to the same level of care as less-threatened patients.”
And it affords them an avenue for recovery by conceptualizing the relevant injury as their loss of a chance for a better outcome (like cure or survival) that competent treatment would have made more likely.
There is no reason that courts cannot recognize loss of chance as a harm beyond the medical malpractice paradigm.
The doctrine asks patients to prove that negligence more likely than not caused a substantially reduced probability of a more favorable outcome.
This sets a low bar for showing causation. Say competent care of a preexisting condition “would have given the plaintiff, at a minimum, a 60% chance to survive the illness,” while “the defendant’s negligence” is shown to have cut that chance “down to 40%.”
Even if the plaintiff survived, or if her estate could not prove malpractice caused her death, this doctrine would provide recovery for the resulting thirty-three-percent “reduction in her chances to stay alive”— that is, less by one-third when compared to her pre-negligence life expectancy.
So long as plaintiffs can demonstrate that the negligent conduct was at least as much to blame as other factors for the injuries to their reproductive interests, awards would be calculated based on this proportional-recovery rule that “apportion[s] damages consistent with the degree of fault.”
Whatever compensation would have attached for the injury to interests in pregnancy, parenthood, and particulars would be reduced accordingly by the extent to which other forces caused them.
The statistical uncertainty that these issues pose in the reproductive context is unlikely to be much more complex than the others in which loss-of-chance doctrine is readily and routinely applied.
3. Institutional Competence. — Which decisionmakers are best situated to determine the gravity and relative causation of reproductive injuries sustained in particular cases of negligence? Most straightforwardly, patients could themselves insure, in advance of any reproductive procedure, against the various kinds of injuries they care about preventing in the amount that corresponds to how much it matters to them. But insurers lack economic incentives to cover even reproductive care, let alone negligence.
So opportunities to insure against reproductive injuries are unlikely to be available anytime soon. Another way for patients to have a say in how much their interests under the procreation right are worth to them would be to let them give up the protections in exchange for lower-cost services.
This would encourage acquisition of valuable information about the rules that govern transactions for reproductive services.
But allowing waiver of the right would make it too easy for providers, given the power they wield over patients, to contract around their duties of reproductive care.
It will not do to let patients trade away protections so long as bargaining conditions remain lopsided. This is indeed why medical malpractice doctrine more generally bars enforcement of bargaining over liability in the event of negligence for treatments ranging from dental services to abortion.
These are decisions best left to “the voice of the community.”
Courts should fortify the power of the jury to enact reasonable judgments about the severity of reproductive harms and the probability that negligent conduct is to blame.
Generic instructions that jurors should gauge the impairment to interests in pregnancy, parenthood, and particulars are not enough to help juries adjust appropriate compensation levels based on more or less serious injuries.
But a number of strategies can help to distinguish such gradations in the severity of reproductive injuries.
First, judges could instruct juries about the damages awarded within the relevant jurisdiction for similar claims arising under the same cause of action. Using such award patterns or injury profiles as guidance would do little, however, to rein in arbitrary or excessive judgments in past cases, and might even risk reinforcing them.
Any such multifactor test need not mask a “pretense of analytical rigor.”
Insofar as jurors “vary in their estimate of the sum which will be a just pecuniary compensation,” judges can review jury awards for unwarranted variability or extravagance.
But this approach would not even be much use until a sufficient number and diversity of suits under the right come before the courts.
Elected officials are unlikely to issue contentious judgments about the worth of deprived pregnancy, imposed parenthood, or confounded efforts to select children with particular traits for the same reasons that assisted reproduction goes virtually unregulated in the United States.
But lawmakers could delegate this task and establish a special agency that operates like the Sentencing Commission, whose members the President nominates and the Senate confirms.
An agency of this kind designed to oversee the procreation right would guide determinations of damages awards for reproductive negligence (rather than criminal sentencing factors or recommendations). Workers’-compensation-type schedules would probably be too rigid to accommodate such varied reproductive harms, while more flexible scales that isolate relevant factors and convert them to dollars are too fluid to supply systematic enough guidance.
A better solution is to use tables of award ranges corresponding to subcategories of reproductive harm. This would be similar to the sentencing guidelines that prescribe punishment for various crimes.
This approach would anchor injuries like imposed pregnancy or deprived parenthood within benchmarks that would be tailored to reflect objective indicators of the losses sustained in particular cases.
This tailoring could take form in tests that weigh factors responsive to the reasons for reproductive plans or the aftermaths of their frustration.
4. Public Policy Concerns. — Public policy could also preclude recovery in some confounded procreation cases. These concerns might include empirical or normative judgments about sex ratios, newborn health, and secular values about group equality or offspring acceptance that are bound to be controversial.
Here, decisionmaking authority would shift from juries (as instructed by judges) to judges alone. For a judge to treat reproductive negligence as noncompensable, she would have to conclude that policy concerns outweigh the countervailing expression of values favoring interests in procreation. But there is nothing unusual about courts evaluating such policy exceptions to judge-made law.
The examples below illustrate the factors that might inform judicial determinations about the circumstances under which a remedy for reproductive negligence may be void for public policy. Reasonable disagreement about such policies will usually warrant allowing plaintiffs to bring suit and seek compensation for confounded procreation. Some might even raise public policy concerns against recovery for thwarted efforts to have genetically related children. Protecting such preferences for biological ties, they might argue, risks privileging genetic over meaningful social parenthood in a way that devalues devoted nonnuclear families.
Whatever the merits of this objection, it is unlikely to succeed given that so many accept and indeed applaud parents who want a genetic bond with their children.
a. Resemblance and Race. — Physical resemblance tends to be valued most as a byproduct of that genetic connection. In Harnicher v. University of Utah Medical Center, a couple with male-factor infertility selected a sperm donor to “closely match [the husband’s] physical characteristics” so that they could “believe and represent that any child born would be” genetically related to him.
After triplets were born who looked nothing like the husband, the couple learned that their clinic’s “mistaken use of the wrong donor thwarted their intention” that he could hold himself out as their “biological father.”
The negligent use of sperm from a different-looking donor did not deprive him of a genetic tie to any resulting offspring who could not have been biological kin even if the right donor had been used.
His distinct grievance was that his children “do not look as much like [him] as different children might have.”
The majority’s conclusion that existing protections offered no legal basis for the couple to recover sounded in the register of a policy objection to any such remedy at all. “Exposure to the truth about one’s [genetic relation to one’s children] cannot be considered an injury and has never been a tort . . . . [D]estruction of a fiction cannot be grounds for either malpractice or negligent infliction of emotional distress.”
The dissenting judge’s convincing reply was that but for the “mixing [of] sperm from the wrong donor,” that fiction “would simply have been an ‘alternative reality’ for the Harnicher family.”
Part II’s discussion of various rationales that animate parental selection for offspring resemblance suggests that the desire for this alternative reality is not illegitimate.
How should courts deal with negligence that thwarts not just physical but racial likeness? The Harnicher court implied in dicta that it would have been more sympathetic to the parents’ suit had they instead claimed “racial or ethnic mismatch.”
Frustrated efforts to choose for offspring “race” would indeed warrant considerable recovery under the procreation right when apparently race-based preferences actually reflect selection for health (for example, to avoid conditions like sickle cell anemia that correlate with black ancestry
) or heredity (to avoid using any genetic material other than one’s own).
But many parents might want a child’s race to match their own for other reasons. Racially phenotypic differences might, as in the case of the Harnichers, prevent a family from passing as genetically related.
Alternately, parents may seek to spare a child racial taunts, a confused racial identity, or deficient access to a racial culture.
In a recent such case, a white couple that chose a white donor was sent material from a black one.
[Jennifer Cramblett] and her partner, Amanda Zinkon, wanted their child to bear some resemblance to them—particularly Zinkon, who would not be carrying the baby. After hours spent poring over sperm donor profiles, they found a donor with blond hair and blue eyes who looked like he shared heritage with Zinkon. But they didn’t get the sperm they ordered . . . . “We love her—she’s [a] dream come true,” Cramblett said of her 2-year-old daughter Payton . . . . But because Payton isn’t completely white, Cramblett said the family will have to move away from their current home in . . . a place she described as white, conservative and too racially intolerant . . . . “Being a lesbian growing up in a small town, I went through a lot of things that were hard on me. I don’t want her to have to go through that.”
The couple argued that race mattered to them because they lacked the “cultural competency” to help their “obviously mixed-race baby girl” manage the challenges of racial bias and indifference in their all-white and racially insensitive community.
In a society that can be hostile to differences, it is easy to appreciate why some prospective parents might prefer a child of their own race or why negligence that frustrates such efforts might impair reproductive well-being (in terms of parenting experiences) or equality (in terms of enabling infertile couples, like others, to choose a procreative partner’s race).
The Supreme Court has even limited its general exclusion of racial considerations by the state when it comes to child placement decisions, explaining that “a child living with a [parent] of a different race may be subject to a variety of pressures and stresses not present if the child were living with parents of the same rac[e].”
Even so, judges might object to such actions on policy grounds.
Enforcing special protections for racial reproductive preferences could give legal effect to the judgment that race deserves a prized place in family formation, courts might argue. Compensation for thwarted race matching could also judicially sanction partiality for single-race families over multiracial ones.
Protecting such race-matching efforts could trade on or reinforce a racially essentializing assumption that people should have children of their own race, or the divisive notion that citizens should “be set apart by race across family units.”
It is unlikely, however, that such worries about racial sorting in family formation will garner broad enough support to sustain public policy objections.
The ostensibly “natural” origins of racial matching confer the appearance of legitimacy.
Concerns about family grouping by race are sufficiently contested that victims of confounded procreation should be allowed to argue the wrongful thwarting of their selection interests merits recovery.
b. Ability and “Disability.” — Similar policy objections might be raised against recovery for the negligent thwarting of selection for offspring health. A legal remedy that supports the elimination of potential lives based on the conditions they would have been born with could be understood to demean people with disabilities by suggesting either that they do not lead rewarding lives or that their entire existence can be reduced to their impairment.
Protecting offspring selection on this basis need not, however, reflect the disadvantaging impact of stereotypes or indifference.
Nor need it suggest that prospective parents with moderate coping skills would suffer lasting grief or family dysfunction were they to have a child with a disabling condition; indeed, most do not.
Instead, recovery need only imply that parents wish to forgo the emotional, physical, and financial pressures of hospital visits, medical expenses, and special education that caring for a child with special needs can entail.
That offspring disability implicates such parenting challenges makes it reasonable to think that decisions to avoid them “treat a disabled child as having exactly the same worth as a non-disabled child.”
Enforcing the procreation action for thwarted efforts to prevent some genetic anomaly that tends to incapacitate those who possess it vindicates people who envision their family life would be meaningfully different were it to include a child born with it.
There is a stronger policy rationale for refusing a recovery right to malpractice victims who seek to choose for rather than against disabling conditions like deafness, dwarfism, or Down syndrome.
One publicized case involved a deaf lesbian couple that set out to select a donor who was deaf too.
Sharon [Duchesneau] and Candy [McCullough]—both stylish and independent women in their mid-thirties . . . both holders of graduate degrees from Gallaudet University [for the deaf], both professionals in the mental health field—sat in their kitchen trying to envision life if their son [with whom Sharon was pregnant] turned out not to be deaf [like they are, born into their vibrant deaf identity and community]. It was something they had a hard time getting their minds around. When they were looking for a donor to inseminate Sharon, one thing they knew was that they wanted a deaf donor . . . . So Sharon and Candy asked a deaf friend to be the donor, and he agreed . . . . As Sharon puts it: “A hearing baby would be a blessing. A deaf baby would be a special blessing.”
It must again be noted that genetic conditions like deafness or Down syndrome vary in how traits are expressed: For example, most people with achondroplasia (commonly referred to as dwarfism) have a normal lifespan without notable health complications, while others develop severe, even life-threatening, bone problems. Still, the state has a strong interest in promoting the birth of offspring with basic capacities like hearing and avoidance of serious medical risks.
Federal mandates that grain manufacturers add folic acid to reduce the risk of offspring with neurological disorders reflects this policy to promote newborn health.
Selecting for incapacitating conditions works against this policy that the next generation of citizens suffer from fewer such limitations at birth. That such selection efforts are rare, however, diminishes their health implications for the general population.
Parens patriae interests face conceptual challenges that a child cannot be said to have been harmed by the prenatal conduct to which she owes her existence.
More critically, most people who choose offspring for deafness or dwarfism themselves live with these conditions (or have children who do) and reject the idea that a child who results suffers from a disability. Instead, these parents maintain that this child compared with a different unaffected one would be raised with more meaningful or rewarding experiences by virtue of sharing that valuable identity, language, or community with one’s family.
C. Sex, Height, Intelligence. — Other couples enlist reproductive assistance to choose a child’s sex for nonmedical reasons. One example involves a couple with four boys who were mourning the loss of their only daughter.
Alan and Louise Masterton . . . have four sons and want to use IVF and pre-implantation genetic diagnosis (PGD) to ensure their next child is a girl. Their daughter, Nicole, died last summer at the age of three . . . . “It is difficult to explain,” said Mr. Masterton. “We tried for Nicole for 15 years. We were blessed with her and she was a fantastic child. We are looking for the opportunity to try for another daughter, not another Nicole, but to bring a female dimension to our family.”
If sex-choosing parents face negligent sperm sorting, embryo selection, or selective abortion that thwarts that preference, should policy concerns bar their ability to recover? To provide relief for frustrated sex selection in parts of China, India, or South Korea would very likely exacerbate sex disparities and reinforce patriarchies that underlie preferences for male offspring.
That these concerns are comparatively less urgent in the United States gives less reason to categorically deny relief if parents’ sex selection is wrongfully thwarted in this country, where parental preferences for boys and girls run nearly even and sex ratios at birth fall squarely within population norms.
Many here argue that sex selection is still “steeped in the same kind of gendered social norms and expectations as preferences that lead to sex ratio imbalances in other countries”
and could, if it happens more, “contribute to a society’s gender stereotyping and overall gender discrimination.”
These are the concerns that courts must balance against those reasons to protect sex-selection interests.
People who reproduce using donated sperm or eggs can pick and choose among donors with or without genetically influenced traits like height, intelligence, or perfect pitch.
Some IVF clinics have even, for a time, offered embryo selection for eye, hair, and skin color.
Others test embryos for tissue matching to an existing sick child in need of cord-blood stem cell transplants:
Molly Nash was born with a severe type of Fanconi anemia, a blood disorder that almost always results in leukemia by the age of 10. It’s rare, but far more common among people of Eastern European Jewish descent like the Nashes . . . . The only treatment is a bone marrow transplant. The greatest likelihood of success is when the donor marrow comes from a sibling who has genetically identical tissue, called HLA. The Nashes thought they would never have more children—until . . . [learning] [t]hey could . . . produce several embryos, then genetically test all of them for both Fanconi anemia and HLA type . . . [and] use the infant’s umbilical cord blood as a source of new bone marrow for Molly . . . . “We were doing the right thing for our family.”
If misconduct were to thwart such selection, and the injured patients sued the negligent provider, judges might fear that authorizing recovery risks imparting a sort of “quality control” on procreation that could erode parental norms of unconditional love.
More than one court has even connected this anxiety about offspring acceptance to Nazi eugenics, worrying what will happen when advances in prenatal screening uncover genetic contributions for
psychoses, hypertension, diabetes, early- and late-appearing cancers, degenerative disorders, susceptibility genes for communicable diseases, genes for various mental deficiencies, aging genes, and other variations and disorders . . . . Will we then see the tort of wrongful birth extended to physicians who neglect or misinterpret genetic evidence and thereby fail to extend the option of a eugenic abortion to the unsuspecting parents of a genetically “unfit” or “defective” child?
Courts worry that to “allow the parents of every child” who exists due to a specialist’s wrongdoing to recover “for any perceived genetic [departure] no matter how slight,” so long as the departure “was a foreseeable consequence of the defendant’s negligence” would promote a disquieting impulse of control over offspring traits or reinforce intolerance of people who are born abnormal or different.
For people to intervene so actively and directly to enact particularistic preferences about offspring traits would, on this account, run roughshod over the moral posture of openness that they should adopt toward future children, and entertaining suits for their stymied attempts to exercise those preferences would troublingly reflect and strengthen that conception.
Reasonable people disagree, often sharply, however, about the ethics of prenatal selection, especially for nonmedical traits.
Far-reaching prenatal selection might be defended as a way to help parents form the families they want and help their children to lead lives more likely to go well.
Of course, we can easily imagine cases—setting out to create a child to suffer or be a slave—that manifest undeniably base reasons to reproduce. For many other unusual or idiosyncratic offspring preferences such as deafness or transplant compatibility, however, the reason they are not widely shared or appreciated may owe at least as much to general unfamiliarity with the experiences and perspectives of would-be parents who have unique values, backgrounds, or circumstances.
The contested character of this concern about parental values accordingly leaves precarious footing for a policy objection to leave otherwise compensable confounded procreation without remedy.
Transformations in the methods and mores of reproduction invite us to rethink the legal status of professional misconduct that bears profoundly on a person’s capacity to plan a life and experience it as good. Our legal system treats wrongfully disrupted plans concerning reproduction like one of those life adversities that people are expected to abide without any remedy. This Essay argues that such transgressions constitute a legal wrong in need of a right. It derives from the interstices of existing tort doctrine a cause of action against reproductive negligence that would protect distinct and important interests in procreation. The Essay grounds this right in the early-twentieth-century origins of privacy rights and in the traditional judicial responsibility to adapt the common law to advances in culture and technology. And it counsels calculating damages based on the severity of those injuries and the probability that professional wrongdoing as opposed to other factors caused them. It also considers the roles of judges, juries, and others in determining compensation and public policy objections under this new cause of action. Most critically, the Essay introduces an original comprehensive paradigm for understanding and addressing the reproductive injuries in both tort and nontort contexts when procreation is wrongfully imposed, deprived, or confounded. This anatomy of reproductive wrongs places constitutional rights to abortion and birth control on firmer footing. The focus on well-being explains the privileged status that procreation holds in our constitutional tradition better than predominant accounts based on autonomy or equality alone. And the connection it draws between unjustly frustrated plans to avoid unwanted pregnancy and those to pursue wanted parenthood for any offspring or certain types is uniquely equipped to meet emerging challenges about genetic modification that loom on the horizon.