Monday, July 26, 2021
Dov Fox (University of San Diego), Family Planning and its Limits, 23 J. Contemp. Legal Issues (2021):
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 fail to deter such reproductive negligence or compensate its victims. Some are left without the baby they desperately want. Others end up with one they’d set out to avoid — or a child with different traits than what they 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 Wrong," maps out this terrain, clarifies why it matters, and sets forth principled ways to respond to those losses, while curbing collateral damage to innovation, access, or values. Robin West, Richard Epstein, David Wasserman, Reuven Brandt, and Peter Schuck engage searchingly 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. Wasserman argues that entitling parents to select genetic traits would endanger key norms of social equality and inclusion. Brandt makes the case that my proposals don’t go far enough when it comes to anonymous donors and “lovers who lie.” Epstein contends that reproductive mishaps are a price worth paying for the extraordinary advances in medicine and technology. Schuck pulls these challenges together in his introduction to the volume. This essay replies to these concerns.