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A View from the Cradle: Tort Law and the Private Regulation of Assisted Reproduction

63 Pages Posted: 17 Dec 2010  

Michele Goodwin

University of California, Irvine School of Law

Date Written: December 13, 2010

Abstract

In this article, Goodwin analyzes the viability of tort law to address harms to children born through assisted reproductive technology (ART). Goodwin uses the backdrop of recent cases involving high order multiple births resulting from ART to scrutinize the status of the law regarding ART and unpack the nuances of tort law as a platform to address harms committed by parents against their children. First, Goodwin analyzes the rise in reproductive technologies, placing the expanded use of such treatments in the context of demands to aid infertile couples and individuals. She argues that, reproductive technologies present some serious health harms, but also help facilitate some aspects of social justice. Second, Goodwin illuminates the hidden costs of ART, examining its less desirable features, which extend beyond economic costs, but include multiple births, low birthweight babies, and fetal birth defects. Third, Goodwin offers a critique of current federal policy, exposing its weaknesses and inefficiencies to reign in the undesirable externalities associated with ART. Fourth, Goodwin argues that ethical and legal problems emerging from ART illuminate not only physician-patient conflicts of interests but also parental-fetal and parental-child conflicts of interest, resulting in serious illnesses and even death. Goodwin further addresses a gap in socio-legal scholarship to unpack when, how, and why tort liability should apply to ART cases. Finally, Goodwin explains that greater emphasis on the fiduciary responsibilities of physicians to their patients and parents to their children could reduce adverse health outcomes for ART patients and their babies.

Keywords: law, society, economics, medicine, health care, gender, feminism, women's rights, torts, remedies

Suggested Citation

Goodwin, Michele, A View from the Cradle: Tort Law and the Private Regulation of Assisted Reproduction (December 13, 2010). Emory Law Journal, Vol. 59, 2010; Minnesota Legal Studies Research Paper No. 10-68. Available at SSRN: https://ssrn.com/abstract=1724922 or http://dx.doi.org/10.2139/ssrn.1724922

Michele Goodwin (Contact Author)

University of California, Irvine School of Law ( email )

401 E. Peltason Dr.
Ste. 1000
Irvine, CA 92697-1000
United States

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