1.
Birth Rights & Wrongs
HOW MEDICINE AND TECHNOLOGY ARE
REMAKING REPRODUCTION AND THE LAW

2.
Reproductive Revolution
Long-term contraception In vitro fertilization Non-invasive screening

3.
Too Many Mistakes
Parents Sue Doctors Over ‘Wrongful Abortion’
A test told a couple their child might be intersex
and have a genetic disorder. The test was wrong.

4.
How Xytex profiled:
 Neuro-engineering Ph.D.
 160 IQ (e.g., Einstein, Hawkins)
 Clean bill of health: colorblindness
is only reported medical condition
What families got:
 Dropped out of college
 Convicted of burglary etc.
 Diagnosed with schizophrenia
& bipolar disorder among others
Donor 9623 26 families 36 children

5.
Fertility Freezer Failures
Video Source: Second Fertility Clinic Reports Equipment Failure, Hundreds of Embryos May Be Damaged,
CBS (Mar. 12, 2018), https://youtu.be/vY4hFIRaPv0.

6.
Birth Control Blunders
Video Source: Lawsuit Alleges Birth Control Packaging Error Led to Unwanted Pregnancies, NBC Nightly
News (Nov. 12, 2015), https://youtu.be/pye10UFmbWs.

7.
Reproductive Never Events

8.
Regulatory Vacuum
 Federal
 State
 Professional

9.
Nothing Quite Fits
Medical
Malpractice
Loss of
Property
Breach of
Contract
Products
Liability
Emotional
Distress

10.
Categorical Rejection
 “[The] law does not recognize the
disruption of family planning either
as an independent cause of action
or as an element of damages.”
Rye v. Women’s Care Ctr. of Memphis,
477 S.W.3d 235, 271–72 (Tenn. 2015).

11.
BABY
AnyNo Particular

12.
Personality Torts
Privacy Libel Informed Consent

13.
Wrongs and Rights
Procreation
Confounded
Procreation
Imposed
Procreation
Deprived

14.
No Baby
 Missing Embryos  Rx Abortion Mix-up  Fetal False Positives

15.
Procreation Deprived
Intangible harms
Adoption option
Preexisting infertility

16.
What Might Have Been

17.
A(ny) Baby
 Missed Pregnancy  Botched Vasectomy  Failed Patches

18.
Procreation Imposed
Fear of fraud
Babies are blessings
Duty to abort/adopt?

19.
Parental Ambivalence
Image by Elinor Carucci // Jen Gann, Fighting for My Son With Cystic Fibrosis,
New York Magazine: The Cut (Nov. 27, 2017), https://perma.cc/3TA7-GHUJ.
Loving Children.
Shaming Mothers.

20.
Particular Baby
 Mislabeled Donors  Misdiagnosed Fetus Switched Embryos

21.
Procreation Confounded
Got what you wanted
Words can wound
Fraught remedies

22.
It’s a Wonderful Life
Atlanta Obs. & Gyn. Group v. Abelson,
398 S.E.2d 557, 561 (Ga. 1990)
Taylor v. Kurapati, 600 N.W.2d 670,
688 (Mich. Ct. App. 1999)

23.
Ballpark Awards
"But why should the
law measure in
monetary terms a loss
which has no
monetary dimension?"
--Louis L. Jaffe, Damages for
Personal Injury: The Impact of
Insurance, 18 LAW & CONTEMP.
PROBS. 219, 222 (1953).

24.
Measuring Damages
1. How much is misconduct to blame? 2. How serious is the injury?

25.
Genetic Affinity
Image by GlynLowe.com/Flickr // G. Owen Schaefer, In a World First,
Singapore’s Highest Court Rules That Parents Deserve Kids With Their Genes,
The Conversation (Apr. 3, 2017 2.00am EDT), https://perma.cc/GL7Q-8JRJ
“[The] biological experience — heredity — carries deep
socio-cultural significance. For many, the emotional
bond between parent and child is forged in part
through a sense of common
ancestry and a recognition
of common [] temperament
and physical appearance.”
ACB v. Thomson Med. Pte Ltd. [2017]
SGHC 20, at para. 128 (Sing.)

26.
Social Interests
Offspring Welfare
Family Dynamics
Racial Equality

27.
Wronged. But Harmed?
Zelt v. Xytex, No. 18-11164, at *15 (11th Cir. Feb. 4, 2019)

28.
Donor Misrepresentation
Video Source: Nicole Carr, Sperm Donor Lies on Profile, Leaving Georgia Families with Few Options,
WBS-TV.com (May 9, 2018), https://youtu.be/KfZ8WnGFfdU.

29.
Abide or Vindicate

30.
Thank You