Litigation’s Limits

Even negligence victims who can afford the legal fees often don’t think that suing is worth the risk, given what any good lawyer will tell them is a slim chance of recovery. Reproductive plaintiffs have had little success trying to shoehorn their complaints into a grab bag of ill-suited actions under available theories of civil liability. Some of these are cramped, like deeming lost embryos “property” or “persons”; others are jarring, as when they call a child’s birth or life “wrongful.” Courthouse claims for medical malpractice and emotional distress require showing some physical or economic harm that procreation plaintiffs can’t point to when their test results get switched or sperm samples go missing. These misadventures fall through the cracks of a legal regime that’s reluctant to recognize reproductive losses as real or serious. Facilities make few assurances that would enable victims to sue for breach of contract, and doctors are careful to decline promising any result beyond the safety of patients directly under their care—so there’s seldom any agreed-upon clause for courts to enforce against badly behaving defendants. Besides, most reproductive professionals insist that patients sign clauses shielding them from liability, whether express or implied. Half of all states bar “wrongful birth” suits against medical professionals who fail to inform pregnant women, or give them bad advice about fetal development and prognosis. Even states that allow this malpractice action fail to capture the deeper harms that reproductive negligence inflicts—and they rarely compensate psychological or dignitary harms, standing alone.