HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Friday, August 14, 2020

Birth Rights and Wrongs: Reply to Critics

Dov Fox (University of San Diego), Birth Rights and Wrongs: Reply to Critics, 100 B. U. L. Rev. (2020):

Advances in medicine and technology promise to deliver us from the vagaries of the genetic lottery. But the pandemic hasn’t spared reproductive freedom. School closures and clinic restrictions make birth control and fertility treatment harder to get, while new regulations put abortion, surrogacy, and genetic testing out of reach for many in need. My book charts the landscape of harms like these and hundreds of other less familiar ones scattered across American jurisprudence—from lab accidents to contraceptive sabotage. I mine this cross-cutting body of law and organize it into three discrete categories. Some cases, like botched vasectomies, impose unwanted pregnancy. Others deprive people of the baby they long for—take the recent spate of IVF freezer meltdowns. Lastly are the examples involving donor mix-ups that confound parents’ hopes for a baby born free of disease or one who shares their DNA.

"Birth Rights and Wrongs" traces a moral culture and political economy that resists meaningful regulation of the shoddy practices that leave couples with empty cradles or turn them into parents against their will. Reproductive injuries like these can upend people’s core identities and lived experiences. Yet they fall through the cracks of available contract, property, and tort protections in the United States. When reproduction goes awry, courts almost always let doctors, pharmacists, and sperm banks off the hook, rarely willing to grant that the plaintiff was harmed. Some say: "Babies are blessings." Others insist: "You can’t always get what you want." Or: "No physical intrusion? No property loss? No damages." And: "It’d open the floodgates to fraud." The result is a legal system resigned to treat these transgressions as inevitable or natural, and at any rate unworthy of recognition or remedy. My book diagnoses this problem and tries to solve it, by rethinking reproductive controversies from abortion funding to gene editing.

Boston University Law Review has brought together an exceptional and diverse panel of scholars to wrestle with these ideas in this special symposium issue dedicated to the book. I owe a special debt to Professors Appleton, Cahill, Dolgin, Robertson, and Ziegler for their critical engagement and searching insights. Each appraises the book from a unique and rich lens: philosophy, sociology, politics, economics, and history. I’m humbled by what good they find in the book. My reply here will focus on their challenges—sometimes by clarifying the themes I’d developed; other times by taking this occasion to revise or elaborate on them. It's true that today’s plaintiffs missed the heyday of personality torts: It’s been more than a century since courts last flexed their common-law muscles to establish new torts like slander, privacy, and defamation. But lost embryos, bungled birth control, and switched sperm samples give reason to recover that muscle memory. These mix-ups seem like “first world” problems, especially in the midst of a public health crisis that has transformed even parts of our lives we used to take for granted. Yet reliable health and child care have never mattered more than since stay-at-home orders, broken supply chains, and clinic restrictions stymied dreams for family life.

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