Fox on Reproductive Negligence

Should a fertility clinic have to compensate for negligently losing a person’s frozen eggs? Or for implanting more embryos than a couple had asked for, leading them to have an extra kid? Should a doctor be liable for misadvising a woman that keeping a pregnancy would endanger her health, leading her not to have the child she wanted? Or for botching a vasectomy that foists on a couple the one they had sought to avoid? Should a sperm bank owe damages for using genetic material from a stranger instead of a spouse, or from a donor who looks nothing like the one that a couple had chosen, or from a pre-sorted sample that would create girls instead of one for boys? For the thousands today who turn to health care specialists to help avoid or pursue parenthood, the most serious external threat to their reproductive lives comes not from any government policy, but from professional errors that destroy embryos, switch donors, and leave tubes untied. These wrongful frustrations of control over procreation inflict distinct and profound injuries even when unaccompanied by physical harm or property loss. It is not as if those who would tolerate such setbacks can defend them by reference to their ostensible promotion of socially valuable purposes. Yet public law does not regulate reproductive negligence any more than private law remedies it.

This Article makes three contributions. First, it introduces a right that entitles individuals to recover for procreative misconduct, independent of tangible harms to other protected interests. This right protects individual interests in those expectations of control over pregnancy, parenting, and pre-selection that professional assistance make reasonable and public policy leave legitimate. Second, it develops a framework to understand and apply the right in terms of whether negligence (1) imposes procreation on individuals who enlisted support from specialists precisely to avoid it; (2) deprives those who pursued procreation of opportunities for pregnancy or for parenthood; or (3) confounds more particular procreative goals for a child with or without certain genetic traits. Third, it concretizes such intangible injury as a function of (a) the severity in setbacks to specified interests, and (b) the probability that professional misconduct is responsible for having caused it. Damages for the frustration of reproductive interests would accordingly be reduced, for example: where procreation is imposed, in proportion to the role of user error over and above birth control malfunction; where it is deprived, based on the role of patient infertility beyond embryo loss, and; where it is confounded, to uncertainty in genetic testing, independent of its substandard execution.