Book Talk | Birth Rights and Wrongs: How Medicine & Technology are Remaking Reproduction and the Law

All right good, afternoon everybody.
Welcome to the opening event of the Petrie Flom Center’s 2019 to 2020
academic year event calendar. I think I see a lot of familiar faces so most of
you are well aware that we keep events and facilities at HLS very very busy.
We’re very good returning customers. We have a lot of events coming up in this
semester and the following semester that we think will be really exciting. Please
keep your eyes and ears open for these coming events the best way to do that
would be to sign up for our newsletter. It comes out only twice a month, so it’s
not going to spam your inboxes and you can do that by going to our Center
website and scrolling all the way down to sign up for our listserv. If you like
book talks we can definitely satisfy that itch because next week, on September
16th, we have a book talk for our book on transparency and health and health care
in the United States this is an edited volume coming out of one of our annual
conferences. It’ll also be a really exciting discussion then we have, coming
up on December 6, our eighth annual year in preview, which looks at both health
policy stories that were big and interesting in the past year, as well as
what we think is going to be big in the coming year, so that’s a series of
rapid-fire talks, some panels it’s very topical, it’s really fun. In between that,
we’re bringing two Mexican Supreme Court Justices to campus to talk about
abortion jurisprudence in Mexico, as well as we’re partnering with a variety of
other programs to talk about PEPFAR, which is the program that provides low
cost HIV drugs to the global South primarily in Africa and that will be on
October 7th. In the meantimem a few housekeeping things: the most important
thing bathrooms, go out make a right, make a right, and
you’ve got your bathrooms right there. After this talk we have our open house
and we strongly, strongly encourage all of you guys to come we have snacks more
importantly we will buy you guys all a drink, so better than a pizza lunch even
and we’ll introduce ourselves a little bit more as well as some of our sister
centers and programs around Harvard. It’s a great way to understand all of the
resources that are available here as well as just have a casual drink with
some cool people. Glenn, myself, but more importantly the
rest of the Petrie-Flom community so but you guys are here for the book talk. We
are going to be discussing Dov Fox’s “Birth Rights and Wrongs” I’m going to
keep this very short because I think the quality of this panel will speak for
itself, but first of all we have the author himself Professor Dov Fox who’s
going to give some remarks on this project and he is Professor of law and
director of the Center for health law and policy and bioethics at the
University of San Diego School of Law. Then we’re going to have a panel respond
with their reflections of kind of thoughts that occurred to them as they
read this book and first we’re going to have Katie Kraschel, who is a former
Petrie Flom student fellows, so for those of you who are incoming 1L’s who are
checking us out or maybe 2L’s who haven’t become Petrie Flom student
fellows, a plug to consider that program and she is a lecturer in law, clinical
lecturer in law, research scholar in law, and executive director of the Solomon
center for health law and policy at Yale Law School. Following her will be Louise
King, assistant professor of obstetrics gynecology and reproductive biology at
Harvard Medical School and then last, but certainly not least, will be our own
faculty director, Professor Glenn Cohen and so with that I won’t take up too
much more time from the substantive portion of the day so let’s welcome Dov
to the stage. Well thank you so much for that
introduction and Glenn for an awfully good time yesterday engaging with your
health law students. It is wonderful to be back at Harvard among so many friends
and fellow travelers. This is where I fell in love with bioethics and the law
amidst revolutionary advances in reproduction. From long-lasting birth
control to babies conceived in petri dishes and genetic screening early in
pregnancy using nothing more than a simple blood test. This is the medicine
of miracles. It fills empty cradles, frees family from terrible disease and
lifts pregnant infertile people onto more equal footing, but it’s never been
well regulated and accidents happen, a lot. One of the many couples I talked
with are Janet and Wendy Norman from Peachtree Georgia. They were looking to
start a family but they needed working sperm, so they poured over hundreds of
anonymous profiles finally settling on donor 9623.
The sperm bank called Xytex, cast him as a Tom Cruise look-alike but half a foot
taller. The twenty six-year-old neuroscience engineering PhD student was
an internationally acclaimed drummer who played five sports and spoke four
languages. He boasted a love of nature and an IQ of 160. The Norman’s wired
Xytex 3,000 dollars for six vials of his sperm
and a year later they had a boy, let’s call him Henry. He was 12 when Xytex
leaked his donor’s identity. It turns out he was nothing like the Normans were led
to believe. When they googled his name the first thing that popped up was a
public court document that showed he’d been convicted of burglary and dropped
out of college after a history of serious mental illnesses, including
schizophrenia. That gave any offspring he had about a 1 in 8 chance of having it too –
and Henry wasn’t the only one there are 35 other progeny of donor 9623. Other mix-ups robbed people of the
ability to reproduce at all. These are cancer survivors, injured veterans and
same-sex couples, who pay tens of thousands of dollars for painful medical
procedures in order to make it possible for them to have a child of their own
flesh and blood. Fertility clinics keep their dreams of biological Parenthood on
ice in big vats containing thousands of reproductive materials from would-be
families. VIDEO: The incident at Pacific fertility Center in San Francisco
happened on the same day as University Hospital’s in Cleveland. the level of
liquid nitrogen in a cryostorage tank used to preserve eggs and embryos
dropped, raising the temperature in the tank and putting the eggs and embryos at
risk. DOV FOX: This wasn’t the first time. Freezers failed in 2012 at Northwestern Hospital
in Chicago and in 2005 at the University of Florida Medical Center in Gainesville.
Reproductive errors also happened to people who are trying not to have kids.
In 2015, more than a hundred women found themselves pregnant when their birth
control pills were found to be packaged wrong. VIDEO: For generations women have
relied on the pill to avoid pregnancy but a new lawsuit says eight brands of
birth control pills failed, putting 113 women in danger of unintended
pregnancies because the pills were defectively and dangerously designed,
manufactured, packaged, sold, and distributed. The defendants : Endopharmaceuticals of Ireland and its subsidiary Qualitest based in
Pennsylvania. The suit alleges the pills were packaged upside-down, reversing the
order, so the placebo pills were taken at the start of the woman’s 28-day cycle
rather than the end and that left the women without adequate contraception and
at risk for unwanted pregnancy. DOV FOX: This isn’t an isolated incident. It was the fourth nationwide recall of birth
control pills in just the last decade and these calamities aren’t unique. A
recent survey of U.S. fertility clinics found that more than one in five had
lost embryos, switched donors, or contaminated samples. The problem is
there’s no meaningful federal or state oversight of reproductive medicine and
professional guidelines are completely voluntary and routinely ignored. Nail
salons and toasters are better regulated and courts don’t do anything after the
fact either, they say that reproductive negligence falls through the cracks of
existing protections under the law of torts or contracts or property, leaving
judges to throw up their hands. The Supreme Court of Tennessee explained in
2005, quote “The law does not recognize the disruption of Family Planning either
as a cause of action or as an element of damages.” This puzzling void is what
motivated my deep dive into this body of law. My inquiry turned up three very
different kinds of controversies. Some like the freezer malfunctions leave
desperate couple with no baby. Other cases like the busted
birth control, hand individuals the very baby they tried to avoid having. Other
still, give people not just any baby, but one whose particular genetic traits are
different than the ones they had chosen where lawmakers neglect these injuries, I
argue that courts should step in to vindicate the reproductive interests at
stake. It’s been a century since judges last flexed their common law muscles to
create now-familiar rights to privacy and libel and informed consent. The time
has come to recover that muscle memory and establish three new rights of
reproduction. I call these procreation deprived, procreation imposed, and
procreation confounded. Let’s start with procreation deprived. The facts vary. It’s
not just labs that lose people’s embryos you might have heard about the clinic
this summer that implanted them into the wrong people. In other cases a pharmacist
swaps a prescription for prenatal vitamins with abortion pills or an
obstetrician tells a woman that the healthy pregnancy she longs for is too
risky for her to keep. Victims who sue in these cases always lose. For one, they
were never promised a baby to take home and however devastating their loss they
can’t point to the kind of physical or economic injury that the law typically
requires to hold the floodgates of litigation at bay. Judges also say that
victims can still adopt and it’s not like the error left them anymore
childless than they were before it. But for those who want to reproduce
being denied that chance is a real and substantial injury. This is the memorial
that people who lost their eggs and embryos and one of the two most recent
fertility tank malfunctions had inscribed on a cemetery bench outside of
Cleveland. “We toiled to get you, we celebrated to have you, we wept when we
lost you, will never forget you. Dedicated to the memory of our hopes and dreams
lost” These losses deserve a remedy. Courts face very different questions
when procreation is imposed. That is when doctors fail to diagnose an unwanted
pregnancy until it’s too late to safely or legally end it or when they botch a
vasectomy or leave tubes untied or when contraceptive rings or patches
don’t work how they are supposed to. In these cases,
courts are suspicious of people who forgot to use a condom and are now
trying to make someone else pay for their own reproductive recklessness. But
corroborating evidence can weed out sham suits. Judges also press plaintiffs, if
you really didn’t want a baby why didn’t you just do something about it?
These courts would condition remedies on an abortion or adoption that victims
wanted even less than being pregnant in the first place but that only
exacerbates the reproductive injury they’ve already suffered. Other courts in
these cases express a deeper kind of concern: even if you didn’t plan on
having a baby, they say, once you hold him in your arms and hear him coo, how
do not appreciate him as a gift and a blessing? One who makes your life better
not worse. This objection purports the sound in the register of parental love, but listen closer and you’ll hear
misplaced mother shaming standing up for your reproductive interests doesn’t mean
you love your child any less and loving the child that you have doesn’t mean you
weren’t injured when procreation was imposed. Finally, our thwarted efforts to choose a
child’s features this third group is the most controversial one, least familiar.
The group involves people who wanted a baby and got one, except an embryo switch
or misdiagnosis, gave them a baby who’s not genetically related to them or not
free of the disease that they took careful measures to avoid passing on. A judge has denied remedies in these cases too. They fear sending an intolerable
message: that parents wish their own child had never been born
or that people with the condition that parents targeted are too defective in
their very DNA to justify their existence. Courts conclude we are
unwilling to say that life may ever amount to a legal injury and accordingly
they wholly forbid these claims as no less than eugenic, but these parents
aren’t trying to eliminate people with disabilities they’re making
heart-rending decisions in a society that’s often inhospitable to
vulnerability and difference about whether their family has the wherewithal
to care for a child with particular needs. Courts that are willing even to
entertain these grievances, usually under the pejorative of wrongful birth, usually
insists that damages are too speculative to award anyway. They say it’s impossible
to predict how a baby’s life will turn out, even more so how his arrival might
impact his parents. Well sure, but just because we can’t calculate the harm of
confounded procreation with any kind of precision, doesn’t make it any less
harmful. That reproductive injury is moreover no more difficult to define
than the loss of life that courts remedy all the time and cases involving
wrongful death or the loss of Liberty in cases about wrongful conviction or the
loss of dignity in wrongful imprisonment. Courts should determine awards for
reproductive injuries in two steps. First they should ask: to what extent was the
misconduct to blame? For example, fertility patients might not have ended
up with a baby even if they got perfectly competent care, but they had a
chance. The lab that destroys their embryos should be responsible, not for
the loss of a child, but for whatever chance of reproducing its negligence
robbed them of. The second question Court should ask has to do with the severity
of that injury. Think of a workers compensation table that breaks down the
harms based on objective facts that makes them more or less serious, so the
permanent denial of procreation warrants greater awards
than a temporary one and foisting a baby on a single mother who’s forced to give
up her education calls for less than the same would for a married couple with
already established careers. Likewise, some thwarted conditions are
more debilitating than others. These harms may also be offset by
countervailing benefits. American judges should look for guidance abroad.
Singapore’s highest court recently found a fertility
clinic liable for switching a husband’s sperm with a stranger’s. The justices
awarded about eighty thousand dollars for that loss. That’s far less than had a
child been born with a disease that the couple had tested for and that total, was
I think, appropriately offset by the profound joy that the IVF mix up
simultaneously brought them. The court called this the hardest case in its
history, even though the decision was unanimous, in part because the couple
discovered that mix-up only because their child was born with much darker
skin than either of them had. There’s no easy way to resolve these controversies.
They implicate matters as profound and intimate and divisive as race and family
and life itself, but vindicating the critical interests at stake demands this
delicate case-by-case balancing. We shouldn’t be resigned to an absolute
immunity that lets badly behaving specialists off the hook and leaves
those in need of reproductive help to assume the risks and steal themselves
against after math no matter how it up ends
their lives. This brings us back to the case of donor 9623. The
Federal Court of Appeals for the Eleventh Circuit condemned the sperm
bank Xytex as reckless, reprehensible and repugnant for failing even to ask
the donor for any medical records or criminal history, let alone a school ID
and yet, the three-judge panel refused to recognize a negligent thwarting of
offspring selection as an injury under the law. Tell that to Henry’s parents. VIDEO:The rage started early collapsing on the floor in kindergarten, not responding to
anyone, screaming fits in first grade with signs
of bipolar disorder, disappearing into the woods in third grade. WENDY NORMAN: And then we
found on his phone that he was searching how to kill myself and how to kill my
perfect stepbrother. NARRATOR: But it wouldn’t be until March of 2017 that Wendy Norman
would discover her 15 year olds behavioral and mental issues likely tied
back to his birth and sperm donor number 9623. NORMAN: For me, I’m scared how do I help my son. DOV FOX: They should have been entitled to recover. We’re used to blaming bad luck
or cosmic and justice when we don’t get the kid we want, when we get one we
hadn’t planned on. The recovery in a case like this one isn’t for a bad kid or for
a wrongful birth but for the harm of confounded procreation. Advances in
reproductive medicine and technology now promise to deliver us from the vagaries
of the natural lottery. Freezer failures and birth control blunders may be first
world problems, but these aren’t innocent lapses or harmless errors. They’re wrongs
and need of rights. Thank you. KATHERINE KRASCHEL: Great thank you and first I just want to
thank everyone at the Petrie-Flom Center for inviting me to share my remarks
today. It’s always sort of a surreal experience when you share the stage with
the professor whom you wrote your law school admissions essay about, so I’m
just really delighted to be here today and I also just wanted to preface my
remarks was saying that I’m going to challenge you, Professor Fox to think
about some critiques of your book, but overall everyone should go out if you’re
interested in this field and buy this book. It’s very well written and it would
be an amazing resource for any students thinking about doing research in this
area or if you’re just interested in the field. It was a really excellent
addition to the literature, so thank you for that.
So just a quick overview of where where my remarks will head today, I’ll
just talk briefly sort of giving a little more color to the regulatory
vacuum that Professor Fox mentioned and then I’ll discuss sort of my take on why
I think a regulatory scheme side by side or maybe in lieu of tort claims might be
a good way to remedy or perhaps more importantly, prevent some of the wrongs
that have been discussed in the compelling stories that Professor Fox
has compiled in his book. First I’ll talk about what I think is an example of
a way to establish regulations that could strengthen the tort claims that Professor Fox
presents in his book and then a second to consider if there are, is there some
instance particularly in the context of bringing claims, under the the premise of
there being some professional misconduct, what that means for if the role of
licensing is critical in order for claims to prevail, as Professor Fox has
proposed. And then finally to sort of query, especially in the context of procreation confounded, if since there would be these sort of small
amount judgments, because of the way that procreation is frustrated in these
particular cases, is it really the case that tort claims would be wildly
inefficient in this in this context. So to give a little color to the regulatory
vacuum that Professor Fox very concisely and describes in his book, in
the federal context there is sort of one legislative act that was put in place by
the federal government to govern IVF or Reproductive clinics and it requires IVF
clinics to report their pregnancy rates but there’s no incentive and no penalty
no carrot or stick as Professor Fox describes and it requires the FDA to
screen for infectious disease that is one of the sort of wins in this space is
that it is a regulation requiring that disease won’t be spread through
provision of gametes, but there’s a big carve out that touches a lot on these
negligence claims which is that they cannot control the practice of medicine.
We see the same similar vacuum in the states. There’s some regulation of stem
cells regulate some states have enacted legislation regarding what to
do with embryos in the event of a dispute, usually as part of divorce
proceedings. Some have addressed surrogacy, others have insurance mandates
to cover IVF, and I mentioned sort of, Utah and Louisiana are examples that
Professor Fox provides as well and also describes a very lax seeming
Californian Medical Board in which there is a physician who has had multiple
claims against his practice and yet the Medical Board has not taken any actions.
Finally, we have the professional organizations, American Society for
Reproductive Medicine and the college for American pathologists. As Professor
Fox mentioned, these are completely voluntary and have no enforcement
mechanism. So I would gladly sort of pick apart my critique of these in further
discussion if we’d care to go down that road, but simply note: that there are some
drivers that Professor Fox proposes are informing this regulatory vacuum and
in the book sort of says that this is part of why we should go down the tort
path. And so, I think that regulation may be a way in which, do we don’t
have to you have to choose one path or the other and that’s actually a question
I’d love to explore more in our discussion is the extent to which we
could do both in this context and if both would actually help. So one example
that Professor Fox mentions throughout the book is sort of this ideas about
intangible claims, such as claims to privacy and one example of how we could
create these types of claims is by relying upon other statutes, a regulatory
statute, as illustrative of a standard of care which has been violated. We’ve seen
this happen in a few states in regards to HIPAA which is a federal law
regarding privacy and doesn’t allow covered entities or health care
providers to share your personal medical information and there it’s a the
enforcement mechanism for HIPAA is the Office of Civil Rights, so there is no
private right of action there is, under HIPAA, there is no right for you to go
over to Brigham and Women’s and say I’m going to sue you because you sent my
neighbor my medical records. The state of Connecticut actually recently heard a
case that brought a suit against a center for obstetrics and gynecology and
the Supreme Court of Connecticut found that there is the HIPAA requirements
that were violated could be used as evidence was that to establish a
standard of care so the question I’d like to pose us or do you think that
regulatory schemes would help to establish claims that you whether it be
for confounding procreation or than any of the claims
that you proposed. The other way that it could help, when we think of sort of
what we the ingredients that are required for a successful tort claim,
would be if we had some you know microchips tracking mechanism that was
required for vials of sperm or vials of eggs, maybe there could be about an
easier way to pinpoint where the breach happened. So if we think of,
especially for any first-year law students, we think of a duty that’s
breached, we need to identify when the breach occurred so that we can, you know,
identify who caused the harm. So if we have this, perhaps maybe your claims
could be would be stronger because you could point to that in that moment when
your procreation was confounded because they took the wrong vial of sperm out of
the freezer. And one of the one of the more sort of complicated questions that
comes to mind throughout the book professor Fox mentions that in neg so in
these claims of negligence when we think about medical malpractice and similar
claims, there’s a requirement that there be a professional standard of care and
that’s how we litigate med mal claims and it’s how some of the cases that are
described in the book come down one way or the other. And so you’ll see I excerpt
some of some of some pieces of Dov’s work in the book, and you know so the
question then becomes how do we define perfect professional. It’s
usually through some sort of licensing statute at the state leve. So is it the
case that in order to prevail for example against a California Cryobank,
which is not a medical institution as we generally think of, it’s not a typical
med mal claim, do we need – is a prerequisite to establish these claims
for professional misconduct of some kind, some sort of anointing of this group as
a profession and in the book professor Fox also notes that that’s
sort of how we would define the contours of claims that can be brought. So for
example, the the sexual partner who decides to
use a knowingly defective condom would not be sued under the way that Professor
Fox conceptualizes procreation imposed. That, that’s how we could sort of draw
those contours is by saying it would be professional misconduct and we wouldn’t,
for example, hold an intimate partner liable for you know, procreation imposed.
Cutting the other way however, maybe we don’t and maybe that would make these
claims more likely to succeed because we don’t have to license them. But if
because, in one of the cases that Professor Fox mentions is a case against
Yale New Haven hospial, for just full disclosure, my former employer in the
General Counsel’s office. That in fact was a mislabel when a patient’s
reproductive materials were improperly disposed that in fact it was this
labeling incident, it wasn’t it all a med mal claim, there is no standard of care
to consider, it’s just negligence and on those grounds the patient can prevail. So
it seems like this need for licensing sort of cuts both ways and I’d love to
sort of tease that out further in discussion. I’ll wrap up quickly because
Carmel is tell me I have two minutes thirty seconds ago. So finally, I’ve just
similarly sort of, provocative questions to say: you make a compelling case,
professor Fox, for sort of thinking very carefully about how we compensate these
people who have confounded their procreation because their sperm the
vials of sperms were switched or for whatever reason the traits that they
wanted to select for weren’t the traits that they ended up having in their child
and if that’s the case usually we think of, in our system of torts, is it being a
really inefficient way to address a harm with only you know a small damages award because the cost of litigation is very high. So wouldn’t
it maybe be the case that instead a regulatory scheme or some sort that
would specify amounts or maybe like HIPAA, actually not allow for private
rights of action, and allow the government to regulate it in a way that
assesses fees might be a whole lot more efficient. So finally, I returned back to
one of the cases that you discussed in your talk today as well, and just, you
know, sort of think all these types of claims that were brought brought against
Xytex: negligence, fraud, false advertising, breach of warranty, battery by
insemination… if any of those were legislatively defined or if there were
regulations that described these types of errors as, you know, a violation of a
standard that a state would set, how could the result be different? And I’d
love to talk about that in our remarks, thank you very much. LOUISE KING: So thank you so much.
I’m not sure what to plug that into, so I I’m waiting to see if anybody can help
me, but in the interest of time I’ll get started. My name is Louise King and thank
you so much for inviting me, I greatly enjoyed reading your book, Professor Fox.
I read it twice and I found it so compelling that I came up with pages and
pages of notes of things that I wanted to discuss with everyone here, but I’m
going to only focus on two points obviously in the interest of time. Just a
point of introduction I’m a physician I also have a law degree and I’m the
director of reproductive bioethics at the Center for Bioethics, so I I have my
feet in a lot of the different areas that are raised in this book, whether it
be the legal constructs that are proposed or the ethics that underlie our
considerations here, but also as a medical provider, I thought I should
really share that perspective with you and what this would mean for me as
somebody who actually works with infertile patients, most specifically as
a surgeon more so than in any other capacity. A lot of the cases raised in Professor
Fox’s book address things, for example like a sperm bank, that typically doesn’t
involve any medical professionals whatsoever and we as providers would
have no ability to control the information that that sperm bank was
collecting or the product liability issue with oral contraceptives would
also be something completely out of our control unless we notice that it was
packaged correctly, so my comments are directed more what this would mean for
me in terms of the practice of medicine and how tort liability would affect me
as a provider. As a disclosure, my husband is a partner and a reproductive
endocrinologist, a partner one of the largest REI groups in the country, if
not the world and he’s also the chair of the ASRM Practice Committee, so I should
share that with you because it’s very relevant to this talk. He would also
wring his hands because he spends hours and hours and months and months writing
up guidelines on professional conduct that he has no way of enforcing, so he’d
be very much in favor of further regulation and I have proposed in many
different arenas that we need much more regulation so I’m definitely on the same
page as you in terms of that being the solution forward and my argument for you
today is that litigation would actually potentially hold us back. This was a
paper that I commissioned from Baroness Ruth Deech who was the head of the HFEA
in England, which I think it serves as an excellent model for effective regulation
that’s done, not just from a legal perspective, not just from policymakers
perspectives, but it engages physicians scientists and the public in creating
regulation that is effective in addressing the ills that are very
beautifully outlined and professor Fox’s books. So as mentioned ASRM has no
oversight, CDC has very little. There’s a poll that’s cited in the book
that is very interesting and and I’m gonna start talking to you really
quickly about medical error, because from my perspective we’re talking about
litigation based on my medical error and I want to just share with you very
honestly the huge problem of medical error that we’re all facing as
today, so this fertility IQ and ONOS poll sighted in professor Fox’s book
said that there was a 30% clerical error rate in IVF procedures, mixing up the
sperm, writing down the wrong test results. That number sounds incredibly
high, but it’s actually completely in keeping with the same rates that are
reported in general medicine from the IOM reports. This is the level of medical
error that we are facing in our country today, even in the setting of incredibly
rigorous regulations for like hospitals and the like. So medical error in the
United States based solely on estimates is the third leading cause of death in
our country. It it’s less in other countries where they have national
health services, but not by much actually and it’s actually a function of how
complicated medicine is. Other contributing factors actually probably
are the electronic medical records that we’re all forced to battle with day after
day. I spend half my day inputting data into a medical record. So half of my time
is spent doing that instead of taking care of the people who are coming
through my door and I get tired and I get burned out and I don’t do it very
well and I make a lot of mistakes and I’ll acknowledge that right here. I make
a ton of mistakes in the medical record. I can’t help it it’s just overwhelming
and so this is from the National Academy of Medicine and they’re doing a lot of
work around physician burnout and noticing that our clerical duties are
actually contributing to this. We need to address it and there are certainly many
many efforts underway to make it better. So I’ve taken some quotes from your book
Professor Fox, only insofar as I wanted to respond to them not to call them out
or anything but just, I’ll read them quickly… “Doctors rarely make
explicit promises…” I don’t. “Reproductive specialists are savvy enough not to
assure patients they’ll get pregnant or avoid Parenthood.” We’re careful to
decline promising. The language implies that I’m intentionally holding back. I’m
not, I’m just telling you the truth. In the setting of a 30% error rate, I
can’t even guarantee your safety in my OR. I do 300 procedures a year and I
personally, because I track it myself, have a complication rate of one to two percent. The national rate is 11-40% in my
specialty so my rate is awesome yet you could still die on my table. So I can’t
guarantee your safety as a physician, ever. I can’t guarantee anything and I
never will be able to. There’s a certain innate aspect of medicine that is just
not open to getting to that level of perfection so I just wanted to share if
I have time and feel free to stop me, if I don’t, but a cautionary tale that came
to mind as I read this quote. So it says, “most obstetricians recommend cesarean
surgery for difficult vaginal deliveries – but enough still use forceps or vacuum
extraction and then escape charges of malpractice based on ‘custom.'” And I was
struck by this this language and again I’m not it I may have misunderstood it
but it seems to imply that the use of forceps or vacuum extraction and in
obstetrics is a bad thing and the reason I want to bring this forward as a
cautionary tale is litigation was used in obstetric injury, birth injury, or
obstetric violence as the new term for it, to push forward for changes in
obstetric practice which is actually backfired and let me explain why. I think
forceps and vacuum deliveries are exceptionally important in the safety of
women’s health and they’re safe deliveries and safe delivery of infants.
But the maternal mortality rates in the United States are abysmal and it’s
partly because we can’t use forceps. Let me explain why. So we have an appalling
rate of maternal mortality. There are other factors: we have much higher rates
of obesity, we have race related factors that are associated with underlying
medical conditions, we don’t do enough good work on preventative health, we have
an ageing maternal age, like mothers are coming to pregnancy older, but that’s
true everywhere. That’s true in the Netherlands so that’s not it.
The maternal mortality rate has been creeping up since the 80s.
You can if you look here and then you drilled down, you’ll see that there’s
this little uptick around late 80s and that corresponds to about 1987 and if
you look into when there was the hardest biggest push for litigation and
obstetrics it’s around that time. It’s around that time that people
started leaving obstetrics practice. We have fewer obstetricians because of the
high malpractice rates, I have to pay two hundred thousand dollars a year in
malpractice and it’s because we couldn’t use certain tools that we knew were
important. And so looking at this graph, I don’t have… if I have a pointer, I don’t
know where it is so I’ll start talking loudly. But if you look here, this is spontaneous vaginal delivery. That’s is when you pull it off on your own and yay for you. This is episiotomy and we got rid of that and that’s a good thing. *inaudible* But this is where we and stop point in vaginal delivery using forceps and vacuums and this is cesarian delivery rate going sky high. This county’s cesarian delivery rate is massive and what is contributes to in labor deliveries is higher rates of a condition called placenta accreta or increta, placental
abnormalities that lead to maternal death. So if you push forward too hard on
litigation without cooperating with your colleagues in medicine, you might have
problems that you don’t fully understand. Fetal new fetal encephalopathy is the
condition of that leads to cerebral palsy and that is the equivalent of
birth injury, that’s the… thank you so much, two minutes, I’ll go fast I think I
can do it, pull it off. So the this is the taskforce that came together to try to
figure out what was really going on. Because our c-section rates went up, but
our rates of injury didn’t change. Our rates of maternal injury didn’t change
either. By the time we get to a c-section, if you’re having a difficult delivery we
could injure you still and frequently do. So this is what came out of that task
force. I’m putting it there intentionally to show you this is what
we now understand to be the cause of neonatal encephalopathy. It’s incredibly
complex. It has to do with all kinds of things related to many many different
things that could go on at birth and and all through the pregnancy not just at
the time of birth and we’re making great strides forward now, but it but now we’re
also having to try to pull our c-section rates back. So in I want us to become
more partners in this. More partners in in creating regulation that will address
all the ills that are beautifully articulated in professor Fox’s
book. And one last thought incredibly quickly and you raised it professor Fox
at the end of your talk. What kinds of influence can prospective parents… this
is a totally different direction from what I was just talking about by the way…
What kinds of influence can prospective parents reasonably expect over the
characteristics their child is born with? If any is what I would add to that. I
think we’re moving forward a little bit too fast and furious in creating
expectations for parents that we can’t ever achieve, especially in the context
of not fully understanding what we’re dealing with. So there’s a discussion in
the book about mosaicism and the transfer are not transfer of genetically
effected embryos. We really don’t understand all of this yet. We don’t
understand what it means when we take a single cell from a blastosphere and we
know that it’s that’s abnormal but another part of the embryo might be
normal. We do check for all 46 at every chance we can get, check all of the
chromosomes of every embryo, but that actually leads us to more false
positives and more instances when we will tell families there might be a
danger and because of the threat of or the potential threat of
litigation, reproductive endocrinologists are unwilling to transfer these mosaic
embryos because they don’t know what it means or when families have come to the
end of their reproductive journey, they may have one or two embryos in front of
them and only one let’s say is potentially viable, but it’s a trisomy 21
embryo or a down syndrome embryo. We’re working hard with reproductive
endocrinologists to encourage them to still transfer that embryo if desired by
the family, not to discriminate against families that wish to proceed forward
with a …and I’m using big air quotes here… a genetically affected embryo but
they’re reluctant to do so for fear of ligation. So you would, at the
end of the day, you might limit people’s options by pushing too hard for
litigation, whereas with concerted regulation, we might move forward in a
better way as partners, Thank you so much for your time. I do not have an excellent success rate and you cannot die on my operating table,
that is like badass what she said, right? Best I can say is well, you know I’m
pretty good teacher and maybe you’ll get the sweats by cold call you like that’s
the highest range of what I can do. But I’m here so I’m gonna try and do what I
can. So this book, I hated this book. Not True.
Wouldn’t that have been a dramatic way to start this talk? But I think the
perspective, yeah… it would have caught your attention, but I’m not just being
slightly facetious because I’m going to talk about the book and the perspective
of the kinds of people who will dislike this book and try to identify those
people and see whether Dov has communications or things that he can say
to them. First off, just disclosure, I too have a conflict of interest: I sit on the
American College of obstetrics and gynecology ethics committee and tiny
bits of what they do actually do influence some of this practice so,
they’re more focused obstetrics and gynecology than the Reproductive
Endocrinology. So, by the way the book is for sale out there after the talk, so if
it turns out you are so inspired, you might go buy one. Who are the people who
will have a hard time with Dov’s book, with Professor Fox’s book? So the first
question is: how do you feel about liberal eugenics? And what do I mean by
liberal eugenics? You know it sounds bad maybe it’s not. Liberal eugenics is the
view that while the old-school eugenics were terrible and bad, liberal eugenics,
the private decisions of particular individuals to make certain kinds of
trade selections or something that deserves honoring or at least toleration.
And I think the book’s kind of intersection with those who are
uncomfortable with liberal eugenics is quite interesting. So the book begins with a
discussion of donor 9623 whose sperm as you’re told is sold as
Tom Cruise-like, high q-, taller, PhD candidate, it turns out not to be true.
There’s another story in the book about a couple, a Portland jury who gave a
couple three million dollars when she had a child with Down syndrome that was
not caused because of incorrect chorionic villus sampling that was incorrectly performed. The unstated claim here though, of the
book, is that these are injuries and injuries that are quantifiable. Many
people will find themselves discomforted from that and the question is whether
one can really be neutral on whether that’s problematic and still endorse the
tort regime. Tort is, deep-down, extremely a normative moralized idea all the way
down and it’s hard to endorse the tort without moving to what we might consider
to be a consumerist kind of idea of reproduction. That just like the classic
Kingsfield cold call in of the Paper Chase about the hairy hand case, Hawkins v.
McGee, you were promised X and you were given Y and that’s a problem. And that
might be okay when you’re talking about a Chevy or when you’re talking about a
computer, but many people might fulfill themselves discomforted about that we’re
talking about a person and to me the illustration that takes this to the
place where I think I will stir up the most discomfort, is a question about an
incorrectly performed sex selection, you know sperm sorting for example.
You’re promised a boy it ends up being a girl. Do we think that ought to be
actionable? How much do we think the damages ought to be? And what way would
we feel about that? So that’s again a group of people who might feel
uncomfortable. Second group who might feel uncomfortable: those who have trouble
with genetic essentialism, right? This idea that we are our genes or that our
genetic connections to our children are what matters and professor Fox is very
careful the book book is very well written it’s very well put in this
respect not to slag adoption or to say there’s anything problematic of adoption,
but much of the impetus and much of the moral force of the book comes from the
idea that our genetic connection with our children matters a lot, therefore
when it is confounded, we have been injured a lot. That is once again you
might say, a contestable premise and a premise that people are uncomfortable
with. Now I don’t want to push this too far and that most of us who can
reproduce who are not infertile choose to have children who are genetically
related to rather than adopt. Some of us don’t. Many of us choose, even if we need
a sperm or egg donor, we choose to use our sperm or egg as the the counterpart,
so that at least one member of our reproductive couple will
reproduce. But you might wonder again for somebody who thinks genetic essentialism is exactly the wrong message to send a society that ought to be
disrupted, how the tort regimes intersection with it might be
problematic or not. The last group that I think might be discomfort or dislike the
book, and again it’s a challenge and again in all of these I think in some
ways are traps for Dov and for Dov to explain to these audiences why
nonetheless, his tort theory ought to prevail notwithstanding his concerns, I
don’t want to claim it’s open and shut. I’m just talking about the kinds of
people who’ll find this book maybe a resistant read at first. Has to do with
people who are concerned about reproductive rights in America in that
much of the tortafication, if you will, of losses of embryos in particular and losing here may strike people as uncomfortably close to legal theories
that would imbue personhood to embryos and the like and therefore restrict
abortion rights. Now to be completely clear, there’s nothing that logically
commits you to the view, if you believe that when a bank destroys your embryo
you ought to be recompense, that doesn’t logically commit you to the idea that
when you destroy your embryo or when your spouse destroys your embryo or when
your spouse has an abortion that you all to also be recompense. It’s not a claim
of a logical necessity, it’s instead of claiming about political
reality and whether the endorsement of these theories are the nose, the camels
nose under the tent and create an opening for political use of this to
build cases that are going to be ultimately restrictive of abortion
rights and the like. Now you might say, so what? That the
heavens fall we ought to do the right thing and we ought to do the right thing
for these families, but in particular I’m very interested also about the way in
which this rehabilitates an idea of paternal rights and fathers’ rights
because on Dov’s theory, it’s not just the mothers who get recompense for these
losses but also the fathers’. Once we say, and perhaps this is correct, gender
egalitarian, the fathers’ interest and mothers’ interest in these cases are
very similar. Then you start wondering where else we might think they are
similar and whether that is problematic or okay. The last people who might not
like this book, and this is when he directly engages with, is tort theorists,
right? And many tour theorists have some problems with this idea, in particular
this question about whether the claim of the book is that reproduction is special.
I want a small alteration to right a wrong in the area of the tort of
reproduction or whether the book is a much more radical claim than much of our
tort regulation or tort treatment of intangible claims about things like
emotional distress is wrong in a deeper way, such that it’s not just examining
this small piece but wanting to examine the big picture. And I think what’s
fascinating in the book is that it opens up a whole bunch of very interesting and
difficult questions I think will make, if this ever becomes the law, will make you
know decade’s worth of tort final exam questions, right. so here’s just a few of
them to think about, right. Imagine that there is a woman who has frozen her
embryos at age 25 and imagine in world one she the freezer failure happens that
when she’s 25 in world two the freezer failure happens when she’s age 60. Does
the amount of compensation she is due, should that be different, even though
it’s the same freezer failure based on the fact that her chance of reproduction
has decreased? And if the answer is yes is there a problem in terms of a gap
between the compensatory function of torts and the deterrence function of
torts? Because you might say, our interest in deterring the freezer failure is
exactly the same whether it happens now or later. Another interesting question: is
a woman who happens to be married to an infertile man, does her ability to
reproduce to recover here because again the chances of actually reproducing for
let’s say frozen eggs is less of her husband also had an infertility problem,
should she recover less than one who is married to her fertile man? What happens
is if in between the freezer failure she divorces and remarries, does her money
still go up now or go down? I can keep going but just to say that I think
what’s great about this book is that it opens up this generative thing. So while
I focused on four groups who might have trouble with this book, my goal is to
show you what a wonderful book it is because this book, I loved it, but even if
this is not the book for you even if you fall into one of these four categories
boys or other categories you will read it you will keep wanting to disagree
with it and then he’ll say something beautifully and persuasively and you’ll say maybe
I should think about that again and then you’ll get angry again and then once
again you’ll say maybe there’s something here there. It beautifully connects
pathos, human stories, legal theory, amazing amounts of research and it’s a
wonderful read, so I highly recommend it to you all and with that I’m done
thank you. All right we now have a short amount of time for audience Q&A so I’m
going to ask the panelists to take seats and Dov you can stand in the hot seat,
so to speak. Before I turn over the podium to Dov, I just want to remind
everybody that we are looking for questions and not statements. You can
generally tell if what you’re about to say is a question by whether it might
have a question mark in the first two lines of it and so with that caveat, I
welcome people to line up at the microphone and ask questions either of
the panelists of the responses of the book or to ask professor Fox questions
about this book. GLENN COHEN: Great and Dov you could stand there, no questions whatsoever? oh you want to say a word or two? DOV FOX: – yeah first of all I am a bit overwhelmed with
gratitude to Katie Kraschell, Louise King and Glenn Cohen for their generous and
careful engagement with this project and the ideas, thank you very very much. There
are a number of points you raise that I would be very glad for the chance to
answer either now or later but as we now have some questions, why don’t we start
here and come back, please. AUDIENCE MEMBER- so this was all really fascinating I
love the sort of the back and forth and the engagement that was great and as I
was listening to it all, I was thinking about and so I was thinking both about
the hairy hand case or bargaining for a donkey and getting a mule that kind of thing,
but and also some of the cases that you bring up things you know I don’t know if
it’s in the book with like there’s one of these cases the Harnacker case, where
you’re the it’s a similar kind of a sperm bank mix-up, which feels a little
less egregious than your Tom Cruise example. But trying to sort through then
some of the things about what what’s happening with your if you’re an OBGYN
versus the Tom Cruise Xylex or whatever that place is and the role the
commodification is playing in all of this and where then torts fits in,
because there is, and I just sort of want to get sort of just I guess just your
your sense of reaction to this anybody’s, about drawing a distinction between the
kinds of malpractice that might happen in a wrongful birth or wrongful life
case where there’s medical, you know you might argue there’s some sort of medical
malpractice, a misdiagnosis but in the context of a therapeutic relationship
where you know sure it’s fee-for-service but it’s it’s not you know the the the
traditional doctor patient relationship is not a commodified relationship. Well what’s
happened in the last 20 years – 20, 30, 40, years – is the emergence of the
commoditization of reproduction, right? The commodification of it in a new way
that’s not the same thing as simply a doctor charging for services. And do you
think different standards could or should be developed to apply to a a more
commodified context like Xylex or again whatever they were called versus what
happens when you just miss you know you miss a trisomy or something and the
people are born with a kid with Down syndrome that they may have or at
least they feel deprived of the choice of the ability to make a decision
whether or not to carry to term? So you know so it’s just basically about
thinking about is it all just sort of one regulatory or tort regime or should
maybe things be fleshed out whether it’s a fundamentally sort of commodified
Nexus or caregiving Nexus, whether that makes a difference? DOV FOX: I confess I don’t
fully appreciate the distinction that you’ve drawn, but I think one of the
challenges that I grappled with in the book is whether we think
about professional reproduction more broadly as traditional medical practice
or like a consumer good? And you know idiosyncrasies of our reproductive
politics emerging after the first birth the first IVF baby late 70s in the UK
saw to it that the industry, at least of assisted reproductive technologies,
developed much more like consumer good, like a market enterprise, that would
sound more in this commodification register than oncology or any other
area of medicine and I find it to be a mistake I think it is but it’s part of a
much larger conversation that we’re having in this country about the meaning
and character of health care as a right or a privilege or otherwise and where
reproductive health care or practices that help to avoid or enable or somehow
shape reproductive possibilities fits neatly within that scheme and
conversation or whether it’s something different. AUDIENCE MEMBER: Hi yes, perhaps somewhat relatedly,
I’m wondering about if you have a case against regulation, bearing in mind
colleagues from the comments from the medical side, or if it’s just that you
don’t think we’ll ever get it or if you think tort will get us stuff the
regulation just wouldn’t and we should go forward with tort, even if we could had a
good hope for regulation? DOV FOX: Regulation in this area I think would be fantastic and
I confess, I don’t understand the resistance or at least I don’t
understand the justification for the resistance to regulation by professional
societies. I think the claim is something like we
do good enough already on our own by self regulating or that
it would be much much more costly for us to be required to undertake certain
safety protocols and other sorts of mechanisms and then we would pass those
costs along to our patients, who would in turn be less able to access these
valuable activities in the first place. Or that regulation might somehow stifle
innovation in this area that is so cutting-edge and requires, really… you
know, fast advances. But I think right greater regulation than we have to
prevent the sort of, what strike me as, really shocking errors and mix ups that
take place would at a minimum be wonderful. Just very basic licensing and
reporting and inspection mechanisms for starters and I think that would be great.
I have nothing against regulation and I’m all whether… it is whether regulation
would authorize statutory by statute of cause of action, the way that
Professor Kraschel proposed, or more traditionally like the fertility fraud
statutes that we’ve seen recently in Indiana and Texas that say, wow that
turns out there was no law against a doctor you go do to have a donor sperm
used to help you create a child using his own sperm instead, not telling you
and that’s just okay and so these states then have passed some laws to address
that… to provide a cause of action in some cases or to make it a crime in
others… and there are there are there are goods and bads of each of these in this
particular context, but to suggest that this is a model for how regulation might
proceed in a limited sense, I think that would be great. The only reason that I’m
three cheers for tort law in this paper is really as a second or third best
solution. One would be regulation in a more traditional sense. Two would be to
use existing causes of action, but none of them are sufficient and all of those
avenues have been closed off for various
reasons, whether statutory carve-outs or legislative inaction or judges say it
just doesn’t fit quite right… and so this is really a you know then just the next
available option, That said, I do think that torts serves a pluralistic function
that can be useful and it doesn’t have to be so single-mindedly focused, as
Professor Cohen asked, on either deterrence or compensation. I think it’s
it’s very plausible to have a pluralistic view about the goals of tort
law to deter and to deter wrongdoing and to compensate victims and to
send the message.. to send a message to society about what kind of conduct we
regard is wrong and what sorts of remedies are demanded by way of rights. AUDIENCE MEMBER: Hey my name’s Kearney and I’m a 1L and I
wanted to thank you all for I build presentations you’ve given us a lot to
chew on and you’ve hit a lot of buzzwords that were in classes today.
So I think from what all of you have said, one of the things that really stuck
out to me was the under regulation of IVF clinics stands sort of in stark
contrast to what I’d call the hyper regulation of abortion clinics and when
they’re not you think that like either regulation or through tort law and
prosecution you’d have a better… if either of them sort of have pros or cons
for addressing that discrepancy and obviously there’s a very moral element
to like you know baby killers versus baby lovers, but kind of creating more of
an equal playing field between these two providers that are offering what I would
say are quite similar services, just some different sides of things?
DOV FOX: Awesome question I think it connects with professor Cohen’s concern, I think
this was the third group of people who won’t like the book about implication… GLEN COHEN: but
ultimately will love it they just efficiently won’t like it. DOV FOX: that a bad first
reaction and then come to appreciate the wisdom of everything really yeah. That I
think it is it’s a really it’s a really odd… it’s a really odd juxtaposition
and as I think you put it beautifully: the hyper-regulation of abortion clinics
and under-regulation IVF and yet they’re both kind of in the business of
something to do with reproduction and babies. Why is it? Well, that’s a very
complex question involving religion and morality and politics in this country.
But you’re right that if you put these rights of procreation on some kind of
even playing field in the way that I’ve suggested, to say that they all…
they’re different… but they all fundamentally implicate three really big
moral values and we should treat them generally sort of the same or at least
in the same category and I think that’s a really good question. And one way in
which I think the proposals gesture is precisely to treat these different areas
of reproduction, notwithstanding the very different kinds of implications they
raise on a more even playing field and to call out that bizarre transparency and
ask… I mean a disparity… and ask why it exists and what would justify it. Very
briefly, and I’d love to turn it to our professors Kraschell and King and
Cohen, I think it’s a really interesting question. It’s just the three goods at
stake in both these areas I think are… and this
also is a partial answer to Professor Cohen’s challenge about liberal eugenics… why…
in a case in which your reproductive choices for particular traits are thwarted well
then you’ve got a choice: are you going to provide a remedy or not? And should
you have a thumb on the scale of not and suggest, well no you shouldn’t be able to
pick your kids. Or an in favor of remedy, in a way that suggests: well you’ve got
some legitimate interest in the way that the law should stand up and protect you
and the reason why I think the default should be in favor, although there may be
some cases and sex selection maybe one where the policy reasons would suggest
not to, are because it serves one choice or autonomy or making life decisions in
a way that you call your life your own. You are the author rather than
just a protagonist of your life. But it’s not just about choices also I think
about well being a independent of you choosing these things
for yourself the choices you make about reproduction make your life better. Why
do you choose to have a child or to have one now or not to, or to have a child
of a particular type? It’s because that has a far-reaching impact on your life that
you think, and you’re probably right, is gonna make your life better or worse for
you. And finally, because people’s reprints of prospects both to avoid and
and to undertake reproduction are so very different by a virtue of our
different genetics and circumstances and so forth, it puts people on a more equal
playing field when these chances are equalized a little more to deprive them
of these kinds of remedies it suggests well that natural inequality is just
fine, leave it be. And so all those reasons I think suggest why these, just
to say, I think you’re right and I think we should treat them more equally the
least to the extent that these very basic fundamental human goods are
implicated. Would others like to weigh in? GLENN COHEN: I’ll say one word, which is
to say, I think what’s interesting is that when non progressive forces have
overreached like them as Mississippi personhood amendment. Part of what helped
defeat it, even though it’s aimed at abortion, it’s when you start you know…
don’t touch my embryos it’s kind of a feeling I think about. Many people and
even many conservative people and there’s a way in which almost everybody
in America now, not true years ago, has a sister or a brother who’s used a
reproductive technology and there’s a way in which I think the reproductive
technology community are an important ally but, and here’s where it gets
interesting I think and this is a little bit of controversial. That if you look at
the population that performs abortion and a population that performs
reproductive medicine, The abortion doctors are doing God’s
work everybody respects them, but they don’t particularly want to be closely
associated. And even in the terms we use like selective reduction, which is
essentially a form of abortion done as part of IVF. We call it something
different because it’s very important to have this distinction in this boundary
so I think there’s some interesting questions about respectability politics
here. KATHERINE KRASCHELL: yeah and I would say another one of the clinical lecturer
part of my title is because I co-teach the reproductive justice clinic at Yale
Law School and I would say if you look carefully at the
statutes are that were enacted over the summer, the you know what one ban after
another, at least one of them… I’m not replying which right now made it was
very explicit about the personhood right that they described, beginning at the
point of implantation and I don’t think there’s much of an explanation besides
the fact that they want to keep their IVF babies. And as far as just real
quickly about sort of over-regulation the right amount of regulation and not
enough, when I pick apart the different players in… if I was to do the doves book
I would my point of entry would be more to talk about the different players on
the sort of public facing side and I don’t think that necessarily IVF clinics
are under regulated. I think abortion clinics, you’re spot on that they are over
regulated in some states. And I think what’s terribly under regulated are the
for-profit gamete banks and I would just query the audience to consider the story
that we heard about the Xytex donor seller of his sperm. Would we feel
differently if they had still failed to screen for these things but that public
facing profile of the sperm that was being purchased had much, wasn’t so
glamorous, it was a non-profit bank and they just listed things that were
clearly heritable like height you know or eye color, things like that that are
that are less sort of sensational. How would you feel differently if you would
about claims against that Bank? AUDIENCE MEMBER: Hi my name is Issac, I’m another 1L, there’s a runt of us. I have a question probably relating to
Professor Cohen second class of people. My professor in undergrad just published a book on
private racism, called private racism and he shared a chapter with us
before it was published and I assume this chapter made it in where he argues
that sperm bank shouldn’t be allowed to
disclose the race of sperm donors at all because there are expressive you know
implications about a certain racism that’s being supported by that. I don’t
necessarily buy that but I think it’s convincing and if you allow torts to
enforce wrongs, you’re putting the courts in a position, right, where they’re like
you know defending this racism they’re they’re adjudicating that racism. How do
you respond to that? Is that problematic do you think? DOV FOX: That’s a really tough case
and a great question and it’s not a hypothetical one either. One of the cases
that the book takes up was from 2014 out of Ohio. A lesbian couple,
they were both white, they pick a donor who was like them, white, because they
didn’t have the kind of tracking mechanism that Professor Kraschell proposes.
Instead they use pen and paper to take down the the order as it were a donor
180 well it got scribbled out or smudged, and they ended up with donor 80 who was
African-American and then the baby came out with conspicuously African-American,
or stereotypically so you know conspicuous features, then they wanted to
sue this sperm bank for precisely the mix-up I think that you’re suggesting maybe
very problematic. In that case as a matter of state
doctrine it was pretty easy opening shot like it was in those Xytex cases in the
state of Georgia. No wrongful birth. You can’t complain
about anything to do with your birth of your child because your child is a
blessing… you don’t get to complain you should be grateful you have any child,
especially if you have a healthy child, so the courts say and that is that you
have no ground for a complaint not on to the complainant under the law. But I
would suggest a different answer. One that is nevertheless complicated I
think. It is to provide a cause of action to
sue for confounded procreation in service of those three goods I mentioned:
of choice, of well-being, and of autonomy. But only offspring selection simpliciter.
Only generally, only this kind of basic idea that you have some interest in
choosing certain traits of your child to be. And accordingly because it will only
be that very basic interest that would be appropriately remedied here, the
corresponding damages would be relatively low. It would be a small
baseline amount a very small amount of money that would specifically be
targeted and this also in part goes to your question about the implications for
fetal personhood because your implication is well if you’re gonna
provide a remedy, doesn’t that mean that the court is saying as a matter of law
that getting a black child is worse than having a white one? Or that multiracial
families are worse than mono-racial ones? Or some similarly offensive insulting
kind of message that we certainly don’t want to send as a matter of public law
in this country. And I think that’s a very worthy concern, but I think that we
can provide a small remedy to, impart to, serve that deterrent function of court
law and try to be really really clear about what that money, what the remedy is
for, and what it is not for. To say there’s a small amount of money we’re
giving for selection interest generally, this is not for the fact of your
thwarted efforts to have a child of a particular race because I do think the
policy interest would be too troubling to provide any kind of remedy for that
and I think that you can provide some deterrent function that does not say that
well sperm banks or egg vendors can make any mistakes they want
so long as the mistakes they make implicate interests that are implicated
by policy. But, nonetheless try to steer clear of some of those more troubling
messages that it would I think very plausibly send and I think we can do the
same with worries about fetal personhood, to say we protect somebody’s interests
in reproduction which is not because embryos are persons, but because we think
that that adults who are interested in having children have worthy interests
and we’re protecting those interests not because we value non-traditional
families any less or that they flourish any less by virtue of the families
through adoption or step Parenthood or whatever than, you know,
nuclear families that have genetic affinity, but that for people who value that they have
a not illegitimate interest in having those respective vindicated and and not
thwarted negligently without any regret. GLENN COHEN: So two things. first of all am i am I remembering this was the subject
of your Yale Law Journal or Hastings law piece ten years ago, right? This exact
topic of this chapter so that’s just gonna show you: when you’re a student you
write something good maybe ten years ago you write a book, so although your
students did it, consider publishing your writing. Second thing: Much less
interesting, which is to say we’re almost out of time so I’m gonna recommend we
take the last two questions together and then have an answer to everybody then
we’ll finish. You two should give your questions first and then we’ll have the
answer to both. AUDIENCE MEMBER: I’m an OBGYN nurse practioner in my field for 35 years and I have met many a parent who’s had a
child with something such as Down syndrome and would say yes, we were
shocked and yet we wouldn’t trade her for anything, she’s brought such joy to
our lives. I’ve had other patients went through the
heart-rending decision to terminate a pregnancy because they determined it
wasn’t right for them. My concern is that as we use more and more genetic testing,
people will have an even greater false sense of security from having whole exome sequencing, carrier typing, all these different genetic
tests that are done, that they’re gonna have quote unquote the perfect baby. And
when the athlete has a kid with two left feet, they’re gonna be really
disappointed and what’s what’s happening now is so many people have this
expectation, everything’s going to be perfect. Are we going to get to the point
where you’ll sue your providers because you have all the tests and everything
was supposed to be perfect and it isn’t? Where are we gonna draw the line?
I mean Finland is virtually on the cusp of eliminating down syndrome, I can’t
imagine what it would be like for a family in Finland that chose to carry a
pregnancy with Down syndrome because they have like 99% termination of
children or pregnancies affected with Down syndrome. GLENN COHEN: Let’s see the last question. AUDIENCE MEMBER: well taking a step further, if governments can regulate means and methods or compensate someone someone for the
consequences of malfeasance of malpractice or whatever, can governments
actually regulate reproduction itself? If a government, for instance, wanted to limit
procreation to one child per family or less for environmental or other reasons
would that be permissible? Is there any real inherent right to reproduction in
itself for human beings? DOV FOX: Great on the first question if I could defer to Dr.
King, I think that it’s a fabulous question and I share those concerns
maybe you can speak to them I I know much better than I could. LOUISE KING: well I think building on the comments that you made that were about the question about
condoning racism to try to summarize it a little bit it: would these legal
remedies somehow get into the realm of that? I think it does in that way. So as we protect a family’s ability, which I do personally protect, a family’s
ability to come to me and say I’m not ready for this pregnancy, I am also in
some sense buying into the the social decision that we are all
trending towards that we do want fewer people with that disability and I think
we’re losing something in that and something potentially intangible that we
are not able to fully quantify. You do a beautiful job in the conclusion of your
book of telling the story of one of the families that had a child affected with
schizophrenia and this girl was a pianist and she was incredibly talented
and then one day she sort of disappeared off the planet and was, there her family
she wouldn’t respond to them and they lost track of her for months and months
and months and then she ended up hospitalized. But what I think we’re
losing track of is that the there are many abnormalities within normal…
there are many abnormalities within the human existence that we described as
abnormal but we don’t fully understand what they mean, so that young woman may
have been exceptionally talented as a pianist from a neuro-psychology and
neurobehavioral standpoint in part because she was gonna develop
schizophrenia and we don’t know for sure that that’s not true. So again, these
the policies, whether they come through regulation, whether they come through
tort, or whether they come through the ways that we support families through
counseling in our practices translate into the situation in Finland eventually
and we need to think about where that’s leading us. DOV FOX: I think those are beautiful
reflections and just right. I would only echo them and to suggest I think there
are real costs, real costs of the proposals that I raised. In the case of a
race-related switch or a or sex selection gone wrong as as with thwarted
efforts to select against or even for you know some kind of what we would
refer to as a genetic disability. To recognize those efforts to choose as some kind of right under the law really sends
potentially a troubling message and and yet, where does that lead us does that
mean that then these interests must go unvindicated? Well I don’t think so.
It strikes me that there are a panoply of enterprises outside of the courts.
Certainly judges can use their words to articulate reasons that will try to
steer clear of the more troubling implications, but we also have public
education and regulation that can go a long way toward trying to moderate
parental expectations for their children and understandings about genetic
affinity or essentialism and efforts to make choices that we don’t think are
good for us or the people shouldn’t want or they shouldn’t at least have to feel
social pressure or soft coercion to make if that’s not what they would
independent of what choices others are making. These are real costs that I think
are worth facing head-on in the context of a larger scheme that I hope can
address them as we try to vindicate these worthy interests in the ways that
we can. Thank you all so very much again.

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