Millions of Americans rely on the likes of birth control, IVF, and genetic testing to make plans as intimate and far-reaching as any they ever make. This is no less than the medicine of miracles. It fills empty cradles, frees families from terrible disease, and empowers them to fashion their lives on their own terms. But every year, thousands of accidents happen: Pharmacists mix up pills. Lab techs misread tests. Obstetricians tell women their healthy fetuses would be stillborn. These mistakes can’t be chalked up to reasonable slips of hand or lapses in judgment as often as human failures and flawed quality controls.
But political and economic forces conspire against meaningful regulation. And however egregious the offense, no statute or doctrine says that these injuries matter, legally speaking. The American legal system treats reproductive negligence less like mischief than misfortune. Some courts insist that thwarted plans are too easy to contrive and too hard to verify. Others wonder why victims didn’t just turn to abortion or adoption instead. Most are unwilling to risk characterizing any child’s birth as a legal injury. So judges throw up their hands when professional misconduct leaves patients with no baby, when they undertook reliable efforts to have one; any baby, when they set out to avoid pregnancy and parenthood; or a baby with different genetic traits than the health, sex, race, or resemblance they’d carefully selected.
This isn’t the first time that technological advances have outpaced the slow churn of the legislative process and existing tools of the common law. It was exactly one century ago, the legal scholar Roscoe Pound, then dean of Harvard Law School, published the new edition of his treatise, On the Law of Torts. What made the textbook remarkable was its inclusion of a prescient chapter that set forth an emerging right for the “Interference with Privacy.” That right is well-established today. But American law wasn’t much concerned with the exposure of secrets until advances in picture-taking made natural bedfellows with professional muckraking.