Damage Awards

Abstract

Two questions should guide award determinations for procreation deprived, imposed, and confounded: First, how serious is a plaintiff’s reproductive loss? The answer goes to the nature and duration of that loss’s practical consequences for the plaintiff’s life. The second question asks how likely any future loss is to come about, and the extent to which its cause can be traced to a defendant’s misconduct, as opposed to some other factor for which the defendant isn’t to blame. The severity of reproductive injuries calls for objective inquiry into how a reasonable person in the plaintiff’s shoes would be affected. Permanent injuries tend to be more severe than temporary ones because they can be expected to cause greater disruption to major life activities like education, work, marriage, friendships, and emotional well-being. The question isn’t what plaintiffs would have done if they’d known that negligence would dash their efforts—it’s how much those injuries can be expected to impair their lives, from the perspective of their own ideals and circumstances. The causation element of this damages inquiry asks: What are the odds that plaintiffs would have suffered the complained-of reproductive outcome if it hadn’t been for the professional misconduct? Preexisting infertility, contraceptive user error, and genetic uncertainty can deprive, impose, or confound procreation just the same in the absence of any wrongdoing. Probabilistic recovery starts with the award total corresponding to the absolute loss in question, and reduces it by the extent to which the loss was caused by outside forces.