Procreation Confounded

Procreation is confounded when clinical professionals misdiagnose, misrepresent, or switch reproductive cells or entities. These errors lead patients to initiate, continue, or terminate pregnancies in ways that thwart their efforts to have a child of one kind or another: How serious is that reproductive injury? Do its benefits outweigh its harms? What are the chances of it manifesting within certain windows of time and at varying levels of severity? How likely is it that misconduct is what caused procreation to be confounded? Is some other factor responsible in addition or instead? To what extent was genetic randomness or diagnostic uncertainty to blame? The seriousness of that harm depends on its foreseeable impact on people’s lives—injury severity is an objective inquiry that begins by asking what kind of child the plaintiffs wanted and why. The variable expression of medical conditions or other targeted traits ratchets up the guesswork to forecast how a defendant’s negligence that thwarted their prenatal selection can be expected to affect the plaintiff. But all this uncertainty needn’t keep courts from assessing how serious confounded procreation is in particular cases: Just because any such determination is bound to admit of some arbitrariness doesn’t mean injury severity can’t be worked out in a principled and systematic way. For health conditions, relevant factors include foreseeable implications for offspring lifespan, impairment, medical care, and treatment options. Courts should reduce dollar awards by however much confounded procreation can be expected to simultaneously benefit plaintiffs, depending on its associated reasons and repercussions.