| Tort Law and In Vitro Fertilization: The Need for Legal Recognition of "Procreative Injury" |
| Joshua Kleinfeld [View as PDF] |
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115 Yale L.J. 237 (2005) Even when the facts are humanly grievous, plaintiffs do not often win their in vitro fertilization (IVF) tort suits. In Utah, an IVF clinic fertilized a woman's eggs with the wrong man's sperm; she ultimately bore a stranger's rather than her husband's children. A New York clinic mistakenly implanted one woman's embryos in another's uterus. A Florida clinic implanted a woman's embryos after possibly exposing them to Mad Cow Disease. Nonetheless, these plaintiffs, along with others like them, lost--not before juries and not because their doctors were careful, but because their claims were adjudged legally incognizable. Their claims failed because the law lacks a category of injury fitted to the harm parents and prospective parents endure when IVF goes wrong. Put another way, of a tort's four elements (duty, breach, causation, injury), it is with the last--injury--that existing law falls short of the demands of the new technology. What is needed, then, if IVF plaintiffs are to recover, is a new category of injury--"procreative injury"--based on the legal recognition of the human interest in procreation. I will argue that tort law should recognize and protect this procreative interest. In practice, the right to have this procreative interest protected would be the basis for a new cause of action. Call it the tort of "reprogenetic malpractice" : Where a doctor undertakes a duty to care for a patient's procreative interest, and negligently breaches that duty so as to cause the patient procreative injury, the law should provide a remedy. A word is needed about why the IVF context is important--why the "embryo switching," "wrong sperm," and other cases discussed below are more than isolated curiosities. The extra-corporeal manipulation of gametes and embryos is the first, indispensable step in genetic engineering, genetic screening, embryonic stem cell research, the creation of human-animal hybrids and chimeras, certain forms of sex selection, and human cloning. Consequently, IVF doctors and clinics are the gatekeepers to these much-publicized activities at the border of medicine, research biology, genetics, and eugenics. And individual IVF-related injuries, even if they are rare now, are not going to stay rare for long. The field is young, large, growing, prone to experimentation, and relatively unregulated. With no theory of rights fitted out for IVF, tort law is trailing the new technology, unprepared to perform either of its two functions: individual justice or social regulation. |