Making Things Right When Reproductive Medicine Goes Wrong: Reply to Robert Rabin, Carol Sanger, and Gregory Keating

Columbia Law Review Online, vol. 118, pages 94-117, 2018

San Diego Legal Studies Paper No. 18-343

25 Pages Posted: 13 Apr 2018 Last revised: 9 May 2018

Dov Fox

University of San Diego: School of Law

Date Written: April 11, 2018

Abstract

Why does U.S. law turn a blind eye when OB/GYN doctors foist unwanted procreation? Or when fertility clinics deny parenthood to those desperate to form a family? Or when sperm banks disrupt plans for offspring with particular genetic traits? This is a reply to three critiques of my essay on Reproductive Negligence, 117 Colum. L. Rev. 149. (2017), https://ssrn.com/abstract=2758208. Professors Robert Rabin, Carol Sanger, and Gregory Keating ask: Are these injuries too slight, squishy, or subjective to compensate? Are my proposed remedies doomed by the moral politics of abortion? Didn't fertility patients whose frozen sperm or eggs got destroyed already have low chances of conceiving? Can they really be said to have "lost" a child they never had? And can’t they still adopt anyway? Just like someone who's made pregnant against her will can still end it? Besides, aren’t children blessings? And don’t parents come to love the one they have? These are among the questions that I answer here by reference to recent cases involving botched birth control, dropped embryos, and donor mix-ups.

Keywords: intangible loss, material breach, probabilistic recovery, expectation damages, malpractice

JEL Classification: A00, A10

Suggested Citation

Fox, Dov, Making Things Right When Reproductive Medicine Goes Wrong: Reply to Robert Rabin, Carol Sanger, and Gregory Keating (April 11, 2018). Columbia Law Review Online, vol. 118, pages 94-117, 2018; San Diego Legal Studies Paper No. 18-343. Available at SSRN: https://ssrn.com/abstract=3161620 or http://dx.doi.org/10.2139/ssrn.3161620

Dov Fox (Contact Author)

University of San Diego: School of Law ( email )

5998 Alcalá Park
San Diego, CA 92110
United States
(619) 260-4600 (Phone)

HOME PAGE: http://www.sandiego.edu/law/news/news_releases/newslist.php?_focus=44957

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