Fraught Remedies

When negligence thwarts parental efforts to select for socially salient traits like sex, race, and disability, compensation risks cutting against public safety or morality. Mandated cash payments for the wrongful defeat of attempts to choose a child to be deaf or male or white have the potential to undermine public commitments to newborn health, gender balance, or racial equality. This chapter argues that these concerns will only under exceptional circumstances rule out any remedy for confounded procreation. Even in rare cases for which recovery is not valid but void, courts should still grant nominal damages for generalized reproductive injuries—to deter professional misconduct and vindicate broader interests in offspring selection. In cases involving the failure to screen or diagnose some offspring condition, it’s not just private individuals or couples deciding what’s best for their own lives. Tort awards can impart an existential insult to people whose conditions were singled out for elimination—that verdict reflects the binding conclusion that the judge or jury reaches in view of specific facts and applicable law. But that expressive power shouldn’t immunize professional wrongdoing that thwarts eccentric offspring selection. Concerns about “quality control” are essentially contested—whether framed in terms of parental love or playing God, these visions of reproductive restraint don’t reflect social consensus. The not-so-distant history of racial ordering across family units comes closer to voiding complaints for confounded race. But courts should still provide limited recovery, with explicit caveats—to affirm generic interests in offspring selection, while disclaiming any racial component.