TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Thursday, March 7, 2019

Two by Billauer on Wrongful Life and Wrongful Birth

Barbara Pfeffer Billauer has posted two pieces on wrongful life to SSRN.  The first is The Sperminator as a Public Nuisance:  Redressing Wrongful Life and Birth Claims in New Ways (AKA New Tricks for Old Torts).  The abstract provides:

Faced with an increase in sperm bank “accidents” – the lacuna of suitable legal redress for sperm-bank imposed harms begs to be filled. This article demonstrates for the first time that some sperm-bank generated harms transcend violating the personal goals of the parent and the rights of the child. In addition, sperm bank errors infringe on societal rights by, for example, saddling it with health costs for children born with genetic diseases. Moreover, introducing inherited diseases into the gene pool in large numbers sets the stage for a public health crisis. To address these harms, I propose repurposing an old of cause action, the private claim of a public nuisance. This harm-driven approach expands the class of would-be plaintiffs, broadens the spectrum of allowable claims, and bypasses restrictions imposed by traditional negligence law. Insofar as punitive damages are also allowed, the claim also has the potential to act as a deterrent of a host of sub-par sperm bank practices. I also discuss the implications of holding the sperm bank to fiduciary standards.

The second is Wrongful Life in the Age of CRISPR-CAS:  Developing a Legal Fiction for Wrongful Gamete Manipulation Cases.  The abstract provides:

Virtually all wrongful life claims (those brought by children harmed prior to gestation), are denied. The basis for these holdings pivots around refusal to allow recompense for actions which result in the child’s being born, an offshoot of cases where parents are denied the right of abortion. We therefore are faced with a legal lacuna, where children suffering serious harms as a result of wrongful genetic manipulation (WGM) caused by the latest reproductive technologies are legal orphans. This article details avenues of potential harm generated by the latest technologies before proceeding to create a legal fiction, “the conceptual being” which would enable these children to bypass current restrictions and claim an expanded class of damages, including pain and suffering, emotional injury and unjust enrichment.

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