Valuing Reproductive Loss

50 Pages Posted: 3 Mar 2023 Last revised: 11 Jan 2024

See all articles by Dov Fox

Dov Fox

University of San Diego: School of Law

Jill Wieber Lens

University of Arkansas - School of Law

Date Written: March 2, 2023

Abstract

Our legal system characterizes the unborn as everything from persons to property, body parts to medical investments. So when tort victims are wrongfully deprived of the child they wanted, that harm gets remedied under disparate standards that generate wildly erratic verdicts. The fall of Roe casts new light on a doctrine that’s riddled with contradictory rules and confused outcomes.

This Article undertakes the first study of jury compensation for reproductive loss. It analyzes every plaintiff verdict in American history for mismanaged pregnancies or mishandled embryos. Our findings illuminate the outsized role of racial and class biases about “deserving” parents.

We introduce a three-part framework for juries to appraise these losses according to three factors: the subjective experience of losing a wanted baby; the objective chance of having one if not for misconduct; and accompanying traumas, like birthing a dead baby.

Each factor operates to promote reproductive justice and the principled treatment of prenatal death across the landscape of civil awards and criminal restrictions. Restoring moral coherence to this body of law helps to resolve a deepening tension about the meaning and significance of unborn life in the wake of Dobbs.

Keywords: Torts, remedies, stillbirth, miscarriage, reproductive justice, jury bias, pregnancy, abortion, IVF

Suggested Citation

Fox, Dov and Lens, Jill Wieber, Valuing Reproductive Loss (March 2, 2023). Georgetown Law Journal, Vol. 112, No. 1, San Diego Legal Studies Paper No. 23-010, Available at SSRN: https://ssrn.com/abstract=4376570

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: https://www.sandiego.edu/law/about/directory/biography.php?profile_id=3332

Jill Wieber Lens

University of Arkansas - School of Law ( email )

260 Waterman Hall
Fayetteville, AR 72701
United States

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