Dov Fox, ‘Birth Rights and Wrongs: Reply to Critics’

ABSTRACT
Advances in medicine and technology promise to deliver us from the vagaries of the genetic lottery. But the pandemic hasn’t spared reproductive freedom. School closures and clinic restrictions make birth control and fertility treatment harder to get, while new regulations put abortion, surrogacy, and genetic testing out of reach for many in need. My book charts the landscape of harms like these and hundreds of other less familiar ones scattered across American jurisprudence – from lab accidents to contraceptive sabotage. I mine this cross-cutting body of law and organize it into three discrete categories. Some cases, like botched vasectomies, impose unwanted pregnancy. Others deprive people of the baby they long for – take the recent spate of IVF freezer meltdowns. Lastly are the examples involving donor mix-ups that confound parents’ hopes for a baby born free of disease or one who shares their DNA.

‘Birth Rights and Wrongs’ traces a moral culture and political economy that resists meaningful regulation of the shoddy practices that leave couples with empty cradles or turn them into parents against their will. Reproductive injuries like these can upend people’s core identities and lived experiences. Yet they fall through the cracks of available contract, property, and tort protections in the United States. When reproduction goes awry, courts almost always let doctors, pharmacists, and sperm banks off the hook, rarely willing to grant that the plaintiff was harmed. Some say: ‘Babies are blessings’. Others insist: ‘You can’t always get what you want’. Or: ‘No physical intrusion? No property loss? No damages’. And: ‘It’d open the floodgates to fraud’. The result is a legal system resigned to treat these transgressions as inevitable or natural, and at any rate unworthy of recognition or remedy. My book diagnoses this problem and tries to solve it, by rethinking reproductive controversies from abortion funding to gene editing …

Fox, Dov, Birth Rights and Wrongs: Reply to Critics (2020). Boston University Law Review, volume 100, 2020, San Diego Legal Studies Paper No 20-461.

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