Table Of ContentBirth Rights and Wrongs
Birth Rights
and Wrongs
How Medicine and Technology are
Remaking Reproduction and the Law
DOV FOX
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Birth Rights and Wrongs. Dov Fox.
© Dov Fox 2019. Published 2019 by Oxford University Press.
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© Dov Fox 2019
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Library of Congress Cataloging-i n- Publication Data
Names: Fox, Dov, author.
Title: Birth rights and wrongs : how medicine and technology are remaking reproduction
and the law / Dov Fox.
Description: New York : Oxford University Press, 2019. | Includes bibliographical references
and index.
Identifiers: LCCN 2018060423 | ISBN 9780190675721 ((hardback) : alk. paper)
Subjects: LCSH: Human reproduction—Law and legislation—United States. |
Medical personnel—Malpractice—United States. | Liability (Law)—United States.
Classification: LCC KF3760 .F69 2019 | DDC 342.7308/5—dc23
LC record available at https://lccn.loc.gov/2018060423
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Printed by Sheridan Books, Inc., United States of America
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Contents
Foreword vii
Preface ix
Introduction 1
I. REPRODUCTIVE FRONTIERS
1. “Basic Civil Rights” 11
A. One Family Tree 11
B. Three Branches 16
2. Missing Protections 25
A. Don’t States Regulate? 25
B. Don’t Americans Sue? 31
3. Litigation’s Limits 37
A. Contract Breach 37
B. Wrongful Birth 40
C. Wrongful Death 47
II. THE PRICE OF ACCIDENTS
4. Elusive Injuries 55
A. Past Is Prologue 55
B. Emotional Distress 64
C. Too Hard to Define 68
5. Courthouse Claims 73
A. Lump or Split 73
B. Lovers Who Lie 77
C. What Payment’s For 83
6. Damage Awards 87
A. Grading Harm 87
B. Tracing Blame 92
vi Contents
III. TO ERR IS TOO HUMAN
7. Procreation Deprived 99
A. What Might Have Been 100
B. Preexisting Infertility 105
C. The Adoption Option 108
8. Procreation Imposed 113
A. Babies Are Blessings 114
B. Accidents Happen 121
C. The Duty to Abort 123
9. Procreation Confounded 127
A. Reasons and Results 128
B. Unconditional Love 131
C. Prediction Problems 135
10. Fraught Remedies 141
A. Impairment and Identity 141
B. Biological Sex and Kin 147
C. Resemblance and Race 151
D. IQ, Height, Perfect Pitch 160
Conclusion 165
Notes 175
Index 225
Foreword
People’s reproductive choices improve and define their lives like few other
decisions they make in a lifetime. Some want biological children, more likely
to develop into their likes and keep their genes alive. Others are looking to
limit their family size, or to avoid having any kids at all. Many seek help
from reproductive medicines and technologies like birth control and abor-
tion, surrogacy and in vitro fertilization, embryo screening and fetal diag-
nosis. The proliferation of these interventions has shored up their efficacy,
driven down their costs, and made them accessible to millions. But they do
not always work how they were supposed to. It is not just that unavoidable
failures let patients down, upend their plans, and cause them emotional
distress. Sometimes, professionals are to blame for accidents that result in
unwanted pregnancies, genetic mismatches, birth defects, and mass de-
struction of eggs or embryos. These errors generate deep puzzles and prac-
tical challenges for divided democracies and modern systems of law.
Reproductive negligence does not translate comfortably into conven-
tional notions of injury, damages, or causation. Consider the straight
white couple who conceives a baby through artificial insemination when
a donor switch gives them a healthy non- Caucasian baby. Did the couple
incur an “injury” in the way that tort law recognizes this concept? If not,
can the couple sue the sperm bank or egg vendor for a breach of contract?
Or would contractual assurance to produce a particular offspring race be
unenforceable or noncompensable on public policy or other grounds? Or
take the woman who undergoes a tubal ligation procedure to prevent future
pregnancies only to find herself with a baby she could not support after her
physician left one of her tubes untied. Even if a court were willing to call her
child a legal injury, can she recover “damages” for the cost of raising him?
And if so, can the hospital offset from that total the value of parenting’s in-
evitable prides and joys? Then there is the wife and husband whose doctor
gave them too many fertility drugs. The resulting quadruplets are born
dangerously premature, one gravely infirm. Is the misadministered medi-
cine what “caused” the ailment? Their sick baby could not have been any
viii foreword
healthier herself. Had it not been for the overdose, the couple would have
had altogether different children instead, if they got any at all.
These are among the many hundreds of real- life cases that require a
special legal toolset to vindicate interests in procreation. Birth Rights and
Wrongs examines these cases and develops this much-n eeded toolset. The
book is that rare masterwork: beautifully written, astoundingly erudite,
comprehensively researched, and meticulously analyzed. It must be read by
anyone who wants to understand how the law treats emotions, love, race,
identity, and family, and how it grapples with controversies born of techno-
logical change. This book is also for every practitioner, policymaker, scholar,
or student of law, medicine, or science who is interested in navigating the
complexities of reproductive negligence, the concept that Professor Dov Fox
coined in his acclaimed article of that name. Months after it appeared in the
Columbia Law Review, my counterparts on the highest court of Singapore
relied on it in their unanimous judgment setting forth a new right of “ge-
netic affinity.” This book answers the questions that article had posed.
More than a century ago, the legal system stood on the cusp of a similar
revolution to protect individual privacy. In generations past, even the most
intimate images and sensitive facts were fair game for scandalmongering
tabloids, armed with click-c amera advances of the day. The law gave no
refuge to victims who had their pictures unwittingly used in business ads
or humiliating stories. Then Samuel Warren and future U.S. Supreme Court
Justice Louis Brandeis published among the most influential articles of all
time, in the 1890 Harvard Law Review, awakening courts to the urgency
of that lasting problem and their common law power to do something
about it. Just as invasions by prying Kodaks dramatized crucial interests
in being let alone, today’s reproductive mix-u ps lay bare the centrality and
richness of interests in matters of procreation. This book is The Right to
Privacy for the twenty- first century. It deserves to achieve what Warren and
Brandeis did.
Alex Stein is a Justice of the Supreme Court of Israel. He is the author
of four academic books, including Foundations of Evidence Law and Tort
Liability under Uncertainty, and scores of law review articles, including
“A Theory of Medical Malpractice” and “The Domain of Torts.”
Preface
I was born a few days before Elizabeth Carr, the first American baby
conceived by in vitro fertilization (IVF). Her parents— Judy and Roger—
desperately wanted a child, one who’d share their genes. But they couldn’t
reproduce on their own. A decade of failed attempts left Judy with preg-
nancy complications that required removing her fallopian tubes. That made
it impossible for any fertilized egg to get from her ovaries to the uterus,
where it develops. The couple put their faith in the country’s first fertility
clinic. A team of pioneering doctors and scientists made an end run around
Judy’s missing tubes by surgically removing her eggs and then combining
them with Roger’s sperm in a laboratory, before implanting the resulting
embryo back into Judy’s uterus. In December 1981, this technological
breakthrough gave the Carrs the child they had longed for. Critics decried
Elizabeth’s arrival for defying nature and playing God. “The others have
their opinions,” Judy said. “We have our baby.”1
Many aspiring parents aren’t so lucky, even a million IVF babies later. One
fateful weekend in March 2018, hundreds of couples like the Carrs had their
hopes for biological parenthood crushed when high-c apacity freezers failed
at two major medical facilities, University Hospital of Cleveland and Pacific
Fertility Center in San Francisco. These subzero containers aren’t regulated
any better than kitchen appliances or farm tools. The livestock industry de-
veloped the bulk vats in the 1960s to store animal semen for breeding. Now
they’re used by almost five hundred fertility clinics nationwide to cryopre-
serve people’s eggs and embryos at a constant −196°C. Tank temperatures
at the two facilities began rising on the same unstaffed Saturday, after re-
mote alarms had inexplicably been turned off. By the time lab technicians
returned on Monday morning, everything inside was destroyed.
Investigations are ongoing. So far, only coordinated cyberattacks have
been ruled out. Center operators are pointing the finger at defective equip-
ment, while the manufacturers have blamed laboratory staff for “forget[ting]
to refill” the liquid nitrogen chambers in these “ever-d ependable vessels.”2
The medical centers also could have used more reliable monitoring systems
