Valuing Reproductive Loss

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

Document Type

Article

Year

2023

Publication Info

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, U Iowa Legal Studies Research Paper No. 2024-37, Available at SSRN: https://ssrn.com/abstract=4376570

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