Family Planning and its Limits

Dov Fox


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 them one they’d set out to avoid. Or a child with different traits—ones that matter to them—than what were led to believe. I call these harms procreation deprived, procreation imposed, and procreation confounded. Thousands of fertility patients were deprived of biological parenthood after 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 related to struggles with mental illness. American courts have long denied remedies for reproductive misconduct under the laws of contract, property, or torts. My book, Birth Rights and Wrongs: How Medicine and Technology are Remaking Reproduction and the Law, maps out this terrain, clears up its stakes, and sets forth principled ways to respond to those losses, while curbing collateral damage to innovation, access, or values. I'm grateful to Robin West, Richard Epstein, Ellie Bublick, David Wasserman, Reuven Brandt, and Peter Schuck for their searching engagement with these ideas. West is wary of valorizing an intentional approach to reproductive life she says marginalizes people who don’t plan out their family lives, or can’t. Bublick and Wasserman don’t object to my proposed rights to avoid or pursue parenthood. What gives them pause is entitling parents to select genetic traits, because of the damage they think it’d do to norms of social equality and inclusion. Brandt argues my proposals don’t go far enough, specifically when it comes to anonymous donors and lovers who lie. Epstein argues mishaps are an inevitable price worth paying for extraordinary advances in reproductive medicine. Schuck distills and reviews these challenges in a soaring introduction to the volume. They are far richer than I can do justice to in the pages that follow. This essay replies to the most pressing concerns they develop.