Making Things Right When Reproductive Medicine Goes Wrong: Reply to Robert Rabin, Carol Sanger, and Gregory Keating

Abstract

Why does U.S. law turn a blind eye when OB/GYN doctors foist unwanted procreation? Or when fertility clinics deny parenthood to those desperate to form a family? Or when sperm banks disrupt plans for offspring with particular genetic traits? This is a reply to three critiques of my essay on Reproductive Negligence, 117 Colum. L. Rev. 149. (2017), https://ssrn.com/abstract=2758208. Professors Robert Rabin, Carol Sanger, and Gregory Keating ask: Are these injuries too slight, squishy, or subjective to compensate? Are my proposed remedies doomed by the moral politics of abortion? Didn't fertility patients whose frozen sperm or eggs got destroyed already have low chances of conceiving? Can they really be said to have "lost" a child they never had? And can’t they still adopt anyway? Just like someone who's made pregnant against her will can still end it? Besides, aren’t children blessings? And don’t parents come to love the one they have? These are among the questions that I answer here by reference to recent cases involving botched birth control, dropped embryos, and donor mix-ups.

Keywords: intangible loss, material breach, probabilistic recovery, expectation damages, malpractice

JEL Classification: A00, A10