87 Pages Posted: 4 Apr 2016 Last revised: 15 Jun 2017
Date Written: August 1, 2016
A pharmacist fills a prescription for birth control pills with prenatal vitamins. An in vitro lab loses a cancer survivor’s eggs. A fertility clinic exposes embryos to mad cow disease. A sperm bank switches a selected sample with one from a donor of a different race. An obstetrician predicts that a healthy fetus will be born with a debilitating condition.
These errors go virtually unchecked in a profession that operates free of meaningful regulation. Private remedies meanwhile treat reproductive negligence more as trifle than tragedy. Courts do not deny that specialists are to blame for botching vasectomies or misimplanting embryos. But in the absence of property loss or physical injury, existing law provides little basis to recognize disrupted family planning as a harm worthy of protection.
This Essay sets forth a novel framework of reproductive wrongs. It distinguishes misconduct that (1) imposes unwanted pregnancy or parenthood; (2) deprives wanted pregnancy or parenthood; and (3) confounds efforts to have or avoid a child born with particular traits. It also introduces a right to recover when reproductive professionals perpetrate these wrongs.
This new cause of action would measure the injuries of imposed, deprived, and confounded procreation as a function of their practical consequences for victims’ lives and the probability that wrongdoing was responsible for having caused those harms. Damages would accordingly be reduced, for example, by the plausible role of user error in cases of defective condoms; by preexisting infertility in cases of dropped embryos; and by genetic uncertainties in cases of prenatal misdiagnosis.
Keywords: intangible loss, material breach, probabilistic recovery, expectation damages, malpractice insurance
JEL Classification: D63, D74, D81, J13, J17, J33, K12, K13, K41
Suggested Citation: Suggested Citation
Fox, Dov, Reproductive Negligence (August 1, 2016). 117 Columbia Law Review 149 (2017); San Diego Legal Studies Paper No. 17-289. Available at SSRN: https://ssrn.com/abstract=2758208
By Dov Fox
By Dov Fox
By Samuel Bray
By Keith Hylton