Dov Fox on Reproductive Negligence: A Commentary

Abstract

This commentary offers three basic observations about Professor Dov Fox’s novel and illuminating conception of a new tort of reproductive negligence. In Reproductive Negligence, Professor Fox identifies three scenarios, categorically: imposition of unwanted parenthood, deprivation of wanted parenthood, and confounding of efforts to have expected traits. Drawing on these circumstances, Fox argues the case for a newly recognized tort of reproductive negligence that embraces all of these categories. My commentary proceeds as follows. From a historical perspective, Part I attempts to locate his claim for recognition of a more expansive version of recovery for stand-alone intangible harm in currently accepted tort duties. From a liability perspective, while finding much to be admired in this proposed new theory of recovery, Part II questions whether it is workable to view reproductive negligence as a single pathway rather than three distinct routes to recognizing new tort rights. And finally, from a damages perspective, Part III draws on expansive themes in other areas of recovery for intangible harm to suggest additional foundational support for Fox’s effort to push the frontier of recovery for intangible harm into new territory.