Procreation Deprived

Abstract

When professional negligence renders sex cells unusable or reproductive capacities inoperative, shattered dreams of pregnancy and parenthood find little solicitude under American law. Our legal system fails to recognize reproductive suffering from which a plaintiff’s body and bank account emerge unscathed—because tort law usually compensates for intangible losses only if they’re closely connected to material ones. But people deprived of procreation can’t point to any bodily harm or financial setback that’s tied directly to the injury they’ve suffered. Claims almost always fail because patients don’t incur any property damage (eggs and embryos aren’t considered property) or physical intrusion (aside from whatever medical procedure they freely agreed to). Besides, courts point out, even if fertility treatment goes as planned, patients might not have been able to conceive or carry a pregnancy to term anyway—and they can still adopt. Judges who don’t dismiss these suits outright keep a tight rein on damage awards; these courts miss the centrality of procreation to aspiring parents and the magnitude of its wrongful deprivation. Still, badly behaving specialists shouldn’t be liable for the infertility that patients already suffered from, or other reproductive complications they would have anyway, no matter what quality medical care they received. Probabilistic recovery offers a principled way to compute damages for the wrongful destruction of gametes or embryos under these circumstances. The availability of adoption doesn’t negate this reproductive loss or the need for our laws to redress it. Genetic affinity assumes profound meaning in American family life and law.