Introduction
A recent survey of half of all U.S. fertility clinics found that more than one in five misdiagnosed, mislabeled, or mishandled reproductive materials. These errors can’t be chalked up to reasonable slips of hand or lapses in judgment as often as deficient quality controls; and no statute or doctrine vindicates these injuries, or says they matter as a matter of law. Victims can’t point to any physical or financial harm they’ve suffered. Some courts point out that reproductive plans are easy to invent and hard to verify. Others wonder why plaintiffs whose plans were thwarted didn’t just turn to abortion or adoption instead. And most are unwilling to cast a child’s birth as a legal injury. The American legal system treats confounded procreation less like mischief than misfortune, closer to a star-crossed romance or a losing ticket in the natural lottery—the kind of adversity that, however fateful, you have no choice but to steel yourself against and move on from: You can’t always get what you want. This indifference is surprising in a country that’s constitutionalized rights to abortion and birth control since the 1960s and 1970s. But even this “fundamental rights” status hasn’t kept states from aggressively restricting access to abortion and contraception, and the Court hasn’t extended these reproductive freedoms to practices that introduce donors or surrogates into the mix. Besides, constitutional privacy applies only to misconduct by government actors: It offers no protection against wrongdoing by any nonstate clinic, pharmacy, or hospital.