From Chance to Choice to Court

[Cross-posted from the Huffington Post Blog]

By Dov Fox

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 the randomness of reproductive biology. Now, new powers of reproductive medicine and technology promise to deliver us from the vagaries of the natural lottery.

The likes of voluntary sterilization and embryo screening give people who can afford them greater measures of control over procreation. Except, that is, when reproductive professionals make mistakes that frustrate efforts to pursue or avoid pregnancy or parenthood.

When, for example — just a few recent cases — a pharmacist fills a woman’s birth control prescription with prenatal vitamins. Or when a fertility clinic implants embryos carrying the hereditary disease that a couple underwent in vitro fertilization (IVF) to screen out. Just this week comes another report of losing IVF embryos.

Cases like these aren’t aberrations. That high-tech procreation goes largely unregulated makes mistakes in this area more common than you might think. The most comprehensive study of U.S. fertility clinics found that 21 percent report errors in diagnosing, labeling and handling genetic samples or embryos.

The patient victims of these transgressions have little recourse under the law. And they almost always lose in courts, when courts even allow their grievances to be heard.

Contract claims can’t vindicate patient interests where reckless providers haven’t broken any specific promises. Like all doctors, reproductive specialists are careful to avoid guaranteeing particular results of their care. And they usually insist that patients waive liability for even implied breaches of contract. Ordinary medical malpractice doesn’t apply either because patients in the reproductive context don’t sustain any bodily intrusion or impairment besides the treatment they agreed to.

Nor can recovery for economic setbacks or emotional distress directly or fully capture the deepest injury at stake. Indeed, it is one our law doesn’t recognize: namely, having been robbed of the ability to determine the conditions under which to become pregnant or have children.

Perhaps more than any other purpose we commit to or role we assume, our decisions about whether to pursue or avoid procreation characteristically shape who we are, what we do, and how we want to be remembered. Most of us find profound meaning and fulfillment in embracing either the commitments that procreation involves, or in the universe of alternative aspirations and attachments that freedom from pregnancy and parenthood can facilitate.

That the wrongful frustration of reproductive projects so predictably and radically disrupt people’s life plans and lived experiences helps to explain why Centers for Disease Control recently singled out “family planning” as among the “10 great public health achievements in the 20th century.”

That botched vasectomies, switched donors, and lost embryos are first-world problems doesn’t diminish the wrongs they constitute or the harms they inflict. But if lawmakers are unwilling and professionals unable to effectively regulate these practices, what can be done?

Here’s what I propose in a recent article: courts confronted with these disputes should announce a new right to recover for the harms borne of reproductive negligence. This judge-made right to procreation isn’t as radical an idea as it seems. Indeed, courts have announced new protections like this before, in response to similar transformations in technology and culture.

The most celebrated example is the right to privacy. For most of American history, our legal system didn’t regulate or remedy the unconsented exposure of people’s secrets. The 1884 introduction of handheld Kodaks, however, fueled media sensationalism that risked making people’s private moments public. By the 1930s, courts in most states recognized the right to privacy that allowed Hulk Hogan to sue Gawker for publishing his sex tapes.

Today, a similar story might be told about wrongfully thwarted plans for procreation. Just as incursions by the snap camera and penny press placed privacy interests in sharp relief, prenatal misdiagnosis bring to fuller expression the human significance and rich complexity of interests in procreation.

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.

Recovery in all three categories — procreation imposed, deprived and confounded — 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.

Juries are capable of sorting out damage amounts for reproductive harms in systematic ways. The injuries borne of professional mistakes in procreation are not so much more complex or intangible than the kind for which juries already determine awards for harms like the denied choices in deprivations of informed consent or the shattered trust in breaches of fiduciary duty.

And juries needn’t be left to make these determinations without guidance. They should be instructed to quantify damages as a function of two factors. The first is the severity of injuries to reproductive interests in a given case: the more severe those injuries, the greater the level of compensation. Flexible award ranges for injuries like imposed pregnancy or deprived parenthood could guide juries in these decisions like the sentencing guidelines prescribe for varying types and levels of criminal offenses.

Second, damages should also account for the extent to which some force other than professional misconduct is responsible for having caused that injury. This latter prong would reduce awards, for example, where negligence imposes procreation, in proportion to the role of user error, independent of contraceptive malfunction; where negligence deprives procreation, in proportion to the role of patient infertility, beyond embryo destruction; and where it confounds procreation, to uncertainty in genetic testing, apart from its substandard execution.

Many will worry that this right might reinforce exacting exercises of control over offspring traits or legitimate divisive ideals, for example, that children of certain kinds are less worthy than others, or that families ought to be set apart by race.

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.

Dov Fox

Dov Fox is Professor of Law and the Director of the Center for Health Law Policy and Bioethics at the University of San Diego School of Law, where he has been named Herzog Endowed Scholar for exceptional scholarship and teaching. He also won BIOCOM's Life Science Catalyst Award for "significant contributions to human health through research, discovery, and entrepreneurship." His work has been featured in CNN, ABC, NPR, NBC, Reuter’s, Bloomberg, Slate, Daily Beast, Today Show, Boston Globe, and Washington Post. His latest book project, "Birth Rights and Wrongs," is forthcoming with Oxford University Press.

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