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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.
This Essay sets forth a novel framework of reproductive wrongs. It distinguishes misconduct that (1) imposes unwanted pregnancy or parenthood, (2) deprives wanted pregnancy or parenthood, and (3) confounds efforts to have or avoid a child born with particular traits. It also introduces a right to recover when reproductive professionals perpetrate these wrongs.
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. Damages would accordingly be reduced, for example, by the plausible role of user error in cases of defective condoms, by preexisting infertility in causes of dropped embryos, and by genetic uncertainties in cases of prenatal misdiagnosis.
INTRODUCTION.151
I. THE PUZZLE AND ITS STAKES.161
A. Inadequate Protections.162
1. Regulation.163
2. Malpractice.165
3. Emotional Distress.169
4. Breach of Contract.172
5. Loss of Property..174
B. Procreation Interests.176
1. Pregnancy.177
2. Parenthood.179
3. Particulars.180
II. MAPPING REPRODUCTIVE WRONGS.184
A. Procreation Imposed.185
1. Illuminating the Harm.187
2. Causation Complications.189
3. Abortion/Adoption Option.191
B. Procreation Deprived.193
1. Intangible Losses.195
2. Preexisting Infertility.197
C. Procreation Confounded . 200
1. Reasons and Repercussions . 202
2. Prenatal Genetic Uncertainties.206
III. PROCREATION RIGHTS AND REMEDIES.209
A. The Private Right of Procreation.210
1. Why: Values, Compensation, Deterrence.211
2. Who: Professionals, Patients, Partners.214
3. What: Avoidance, Pursuit, Selection.218
B. Determining Damages.224
1. Tailoring Injury Severity.225
2. Loss-of-Chance Probabilities.226
3. Institutional Competence.228
4. Public Policy Concerns.231
CONCLUSION. 240
INTRODUCTION
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