A doctor botches a vasectomy. Or says it’d be dangerous to keep a healthy pregnancy. Or misses a risk of passing along disease. Our laws do little to deter such reproductive negligence or compensate its victims. Some of this misconduct leaves people without the baby they desperately want. Other times, it foists on parents a child they’d set out to avoid. Or one with meaningfully different traits than what they were led to believe.
I call these three harms procreation deprived, procreation imposed, and procreation confounded.
Thousands of fertility patients were deprived of biological parenthood when their embryos were destroyed in a freezer meltdown. Pregnancy was imposed on hundreds of women whose birth control pills were packaged upside-down. And scores of parents had procreation confounded when the donor a sperm bank claimed was a Ph.D. genius with a spotless record had actually spent years bouncing between prison and psychiatric hospitals amid struggles with mental illness. American courts have long denied remedies for reproductive misconduct under the laws of contract, property, or torts. Birth Rights and Wrongs maps out this terrain, explains why it matters, and sets forth principled ways to respond to those losses, while curbing collateral damage to innovation, access, or values.
"Family Planning and Its Limits,"
The Journal of Contemporary Legal Issues: Vol. 23
, Article 6.
Available at: https://digital.sandiego.edu/jcli/vol23/iss1/6