It used to be that whether you got the child you wanted — or one you hadn’t planned on — was left to cosmic fate or genetic randomness. Now, new powers of reproductive medicine and technology promise to deliver us from the vagaries of the natural lottery.
A pharmacist fills a prescription for birth control pills with prenatal vitamins. An in vitro lab loses a cancer survivor’s eggs. A fertility clinic exposes embryos to mad cow disease. A sperm bank switches a selected sample with one from a donor of a different race. An obstetrician predicts that a healthy fetus will be born with a debilitating condition.
These errors go virtually unchecked in a profession that operates free of meaningful regulation. Private remedies meanwhile treat reproductive negligence more as trifle than tragedy. Courts do not deny that specialists are to blame for botching vasectomies or misimplanting embryos. But in the absence of property loss or physical injury, existing law provides little basis to recognize disrupted family planning as a harm worthy of protection.
The best way for courts to think about this new right is in terms of whether professional wrongdoing (1) imposes unwanted procreation, (2) deprives wanted procreation, or (3) confounds plans either to have or to avoid having offspring, not just of any type, but with traits that parents project would make their experience of raising a child more worthwhile or less gratifying.
This new cause of action would measure the injuries of imposed, deprived, and confounded procreation as a function of their practical consequences for victims’ lives and the probability that wrongdoing was responsible for having caused those harms.
Recovery in all three categories face the difficult problem of how to determine dollar awards for intangible losses. Arbitrary and excessive compensation risk unfairly disadvantaging reproductive professionals and restricting access to the valuable services they provide.
In any case, mind, that where the law weighs in on conflicts about selective procreation, it should give voice to the conflicting sentiments that pervade it. But these concerns don’t justify categorically treating professional misconduct in procreation as a vicissitude of life no different from a spontaneous miscarriage or roll of the genetic dice. These transgressions are wrongs in need of a right.
Based on Columbia Law Review
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