On September 10 at 4:00 PM, join Prof. Fox in a discussion of his new book, Birth Rights and Wrongs: How Medical Mix Ups Are Remaking Reproduction and the Law (Oxford University Press, 2019). Learn more here.
By Dov Fox
Every year, millions of Americans rely on the likes of birth control, IVF, and genetic testing to carry out decisions as intimate and important as 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 life on their own terms. But 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. More often it’s human failures and flawed quality controls to blame. But political and economic forces conspire against meaningful regulation to prevent those errors from happening in the first place. 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: (1) no baby, despite reliable efforts to have one; (2) any baby, after having set out to avoid pregnancy and parenthood; or (3) a particular baby with different genetic traits – health, affinity, looks – than the ones that her parents had selected for her to be born with.
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 a century ago that 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. It’s the one that wrestler Hulk Hogan asserted, for example, to win the $140 million judgment that bankrupted Gawker in 2016 after the media giant posted his sex tapes online.
But American law wasn’t much concerned with the exposure of secrets until cheaper and quicker printing techniques ushered in a competitive tabloid industry that used salacious reporting to sell papers. Yellow journalism made natural bedfellows with advances in picture-taking. The 1888 invention of handheld cameras let amateur Kodakers pry into the personal spaces of others and memorialize their guarded moments for the whole world to see.
Yet these privacy incursions found no redress in the existing law of contract, defamation, copyright, or otherwise. Judges initially rejected appeals to recover for such intangible intrusions don’t involve any unwanted touching, broken agreement, or damaged belongings. In 1902, New York’s high court protested that even the “[m]ention of such a right is not to be found in Blackstone, Kent or any other of the great commentators upon the law.” But judicial parsimony met social resistance from mainstream papers and law reviews. And slowly but surely, judges began exercising their common-law powers to recognize the now-familiar right of privacy.
Not a single new such tort has been adopted in nearly a century since. The time has come.
A similar story can be told about reproductive negligence today. Just as click-camera incursions placed privacy interests in sharp relief, defective pills and switched donors bring to fuller expression the meaning and significance of the interests that people have when it comes to family planning. Three separate rights should protect against procreation that’s wrongfully deprived, imposed, and confounded. Tort law is no less equipped than it was in Pound’s era to accommodate these real and substantial setbacks to reproductive freedom and equality.
We’re used to blaming randomness or cosmic injustice when we don’t get the child we want, or when we get the one we don’t. Yet cutting-edge interventions now promise to deliver us from the vagaries of natural conception and the genetic lottery. Sometimes things don’t work out—but that’s no reason to turn a blind eye to bad behavior with far-reaching consequences. Failed abortions, switched donors, and lost embryos may be first-world problems. But these aren’t innocent lapses or harmless errors. They’re wrongs in need of rights.
Dov Fox is Professor of Law and Herzog Endowed Scholar at the University of San Diego School of Law, where he directs the Center for Health Law Policy & Bioethics. He is the author ofBirth Rights and Wrongs: How Medical Mix Ups Are Remaking Reproduction and the Law (Oxford University Press, 2019).