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Birth Rights and WrongsHow Medicine and Technology are Remaking Reproduction and the Law$
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Dov Fox

Print publication date: 2019

Print ISBN-13: 9780190675721

Published to Oxford Scholarship Online: July 2019

DOI: 10.1093/oso/9780190675721.001.0001

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Procreation Imposed

Procreation Imposed

(p.113) 8 Procreation Imposed
Birth Rights and Wrongs

Dov Fox

Oxford University Press

A negligently failed abortion, birth control, or sterilization foists on plaintiffs the very pregnancy or parenthood they enlisted professional assistance to avoid. Courts refuse to remedy these reproductive injuries on the ground that babies are blessings. But this repudiates plaintiffs’ moral agency to decide what’s good for their own lives. It’s specious and patronizing to think that all unsuspecting parents will come to be glad that misconduct rode roughshod over their decisions to be sterilized, use contraception, or have an abortion. And courts shouldn’t dismiss complaints in which causation is uncertain, provided that plaintiffs can show that negligence increased the chances of unwanted procreation by a non-insignificant degree. But it’s only fair to hold defendants liable for whatever portion of the reproductive injury their negligence caused, or the corresponding chance that their misconduct is to blame for causing it. Plaintiffs shouldn’t be denied the compensation they’re entitled to just because they exercised their protected liberties to decline abortion or adoption. Insisting that negligence victims cut off ties with a fetus or child as a condition of recovery disrespects their interest in making reproductive decisions for themselves. Forcing their hand yet again only exacerbates that injury to such a meaningful part of their lives that specialists had previously given them legitimate reason to expect. Raising the unplanned child may be worse for them than the childless future they’d hoped for—but abortion or adoption may be worse than either of those.

Keywords:   birth control, abortion, childrearing, unwanted pregnancy, unwanted parenthood, regret, sterilization, mitigation duty, benefit-offset rule, loss of chance

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