Double Trouble: Legal Solutions to the Medical Problems of Unconsented Sperm Harvesting and Drug-Induced Multiple Pregnancies
New England Law | Boston
St. Louis University Law Journal, Vol. 44, P. 451, 2000
In two previous articles concerning the relation of the law to
problems of assisted conception, Professor Chester considered
legislation as a means of addressing the difficulties presented. These articles considered posthumous reproduction (33 Houston L. Rev. 967) and human whole-body cloning (49 Florida L. Rev. 303). In response to legislative inaction in the assisted conception field, Professor Chester's current article considers other forms of non-governmental regulation, including self-regulation by the medical profession, regulation by insurance companies, and private actions, chiefly in tort and contract, against doctors and fertility clinics. The article, "Double Trouble: Legal Solutions to the Medical Problems of Unconsented Sperm Harvesting and Drug-Induced Multiple Pregnancies" (44 St. Louis U. L. J. 451 (2000)) addresses the two problems indicated by the title in the title in light of the methods of regulation mentioned above.
Professor Chester concludes that unconsented sperm harvesting from dead or comatose males may involve several forms of tortious behavior (and in the case of the comatose male, breaches of both fiduciary duty and contract by the doctor), but also that potential damages do not seem either certain enough or high enough to significantly interest the private bar. However, interested parties may be able to obtain injunctive relief, if not against the actual harvesting of the sperm, then at least against its use. In the latter case, for example, expectant, living heirs may be able to stop the conception of additional claimants to the male's estate. Chester also discusses regulation by the medical profession and by the insurance industry and finds such regulation largely ineffective.
On the other hand, overstimulation by drugs of the ovaries of women unable to conceive, which stimulation causes troublesome and expensive multiple pregnancies, may trigger causes of action, particularly in tort, with damages sufficient to interest the private bar. In addition, although medical self-regulation has proved largely ineffective, health insurers may themselves regulate such procedures if, as projected, injuries to the mother (and in some ways to the father) and the production of multiple unhealthy offspring cause insurance costs to soar.
Date posted: July 26, 2000