Public Actors Archives - Columbia Law Review

Introduction In March 2018, a freezer malfunction at an Ohio fertility clinic resulted in the destruction of thousands of eggs and embryos that clients had stored with the business.[footnote]See Michael Cabanatuan, Nitrogen Failure at S.F. Fertility Clinic; Damage to Frozen Eggs Unknown, SFGate (Mar. 11, 2018), https://www.sfgate.com/bayarea/article/Nitrogen-failure-at-SF-fertility-clinic-damage-12745335.php [https://perma.cc/3TZB-29S5]; Nicole Wetsman, Will Fertility Clinic Disaster Redefine Personhood, Daily Beast (Apr. 13, 2018), https://www.thedailybeast.com/will-fertility-clinic-disaster-redefine-personhood?ref=scroll [https://perma.cc/2XLE-WVEJ].[/footnote] For some of these clients, the malfunction meant that they had lost their last chance of having a genetically related child. A couple of years prior, an Illinois woman, who is a carrier for sickle cell anemia, entrusted her doctor to perform a tubal ligation on her. She and her husband, who is also a carrier for sickle cell anemia, decided against having children after they learned there was a twenty-five-percent chance that any child that she conceived with her husband would have the disease.[footnote]Katie Moisse, Mom Sues for Wrongful Pregnancy After Failed Sterilization, ABC News (Mar. 17, 2014), https://abcnews.go.com/Health/woman-sues-wrongful-pregnancy-failed-sterilization/story?id=22946272 [https://perma.cc/SKQ4-A5ZB].[/footnote] After her physician incompetently performed the tubal-ligation procedure, she became pregnant and gave birth to a baby with sickle cell anemia.[footnote]Id.[/footnote] When legal scholars have taken interest in events like these, it is usually to weigh in on debates about whether the individuals who have had their reproductive goals thwarted by the negligence of others should be allowed to recover for the harm that they have suffered.[footnote]See, e.g., Wendy F. Hensel, The Disabling Impact of Wrongful Birth and Wrongful Life Actions, 40 Harv. C.R.-C.L. L. Rev. 141, 143–45 (2005); Mark Strasser, Yes, Virginia, There Can Be Wrongful Life: On Consistency, Public Policy, and the Birth-Related Torts, 4 Geo. J. Gender & L. 821, 822 (2004); Sofia Yakren, “Wrongful Birth” Claims and the Paradox of Parenting a Child with a Disability, 87 Fordham L. Rev. 583, 588–90 (2018).[/footnote] The philosophical stakes of these debates are incredibly high. Does awarding damages to a couple after a fertility clinic negligently destroys the frozen embryos that they paid the business to retrieve and store represent an unjustified boon to the couple, inasmuch as there are no guarantees that the embryos would have been successfully implanted and subsequently developed into healthy babies? Does recognizing the claim of a woman who becomes pregnant after her gynecologist botches a tubal ligation—leaving her with an unexpected and unwanted pregnancy—construct a child as a legal injury? Professor Dov Fox’s Birth Rights and Wrongs: How Medicine and Technology Are Remaking Reproduction and the Law offers the most comprehensive treatment to date of these issues and debates.[footnote]Dov Fox, Birth Rights and Wrongs: How Medicine and Technology Are Remaking Reproduction and the Law (2019).[/footnote] Fox puts a name to the phenomenon (which he calls “reproductive wrongs” or “reproductive negligence”[footnote]E.g., id. at 160, 165.[/footnote]), schematizes it, and defends the position that the law ought to recognize claims involving reproductive plans that have been upended by the negligent acts of private actors[footnote]See id. at 97.[/footnote]—all while wrestling with the thorny philosophical questions that have filled law reviews and bioethics journals since scientists first began developing assisted reproductive technologies (ART) in the 1960s and 1970s.[footnote]See id. at 34 (noting “the scientific development of in vitro fertilization in 1969” and “the rise of commercial sperm banking in 1972”).[/footnote] The insights that Fox offers in Birth Rights and Wrongs are invaluable. But his primary interest is to define the contours, and defend the legitimacy, of a tort (or a bundle of torts) that would allow an individual to recover when a private actor’s negligence dashes his reproductive desires.[footnote]See, e.g., id. at 165 (observing that the “American legal system protects against professional negligence” when “auto crashes are traced to defective brakes[] or food poisoning to unsanitary farming,” and arguing that “[r]eproductive medicine and technology shouldn’t be any different”).[/footnote] Because Fox’s focus is on the domain of torts—a domain that primarily concerns itself with regulating the behavior of private actors vis-à-vis one another and enabling one private actor to be made whole after another private actor injures her[footnote]See Kenneth S. Abraham, The Forms and Functions of Tort Law 1 (5th ed. 2017) (noting that tort law “mainly concerns the right of private parties to obtain monetary compensation from those who have caused them injury or damage”). [/footnote]—he does not focus on the significance of the phenomenon that he analyzes beyond the private sphere. This Book Review extends Fox’s analysis by looking beyond the realm of private actors who upset an individual’s reproductive plans and interrogating how the stakes change when public actors —that is, the state—foil the reproductive plans that individuals have set for themselves. Further, this Review deepens Fox’s investigation by asking about the social significance of individuals’ thwarted reproductive desires. The analytical extension that this Review performs on Fox’s work corresponds to the analytical extension that the reproductive justice framework performs on the reproductive rights framework. As the individual stripped of social context occupies the analytical center of the reproductive rights framework,[footnote]To be precise, the error that the reproductive rights framework makes is its failure to consider that people with the capacity for pregnancy have different social contexts. Some are wealthy, while some are poor. Some enjoy race privilege, while others do not. Some are born within the borders of the United States, while others are immigrants. Some are members of groups whose procreation society values; others are members of groups whose procreation society considers to be a social problem and, as such, works hard to prevent. In its failure to consider the different social contexts in which individuals with the capacity for pregnancy are embedded, the reproductive rights framework centers one set of individuals—class-privileged, white, cisgender women—in its analysis. Thus, the rights for which reproductive rights advocates have fought only really “work” for class-privileged, white, cisgender women. See Zakiya Luna & Kristin Luker, Reproductive Justice, 9 Ann. Rev. L. & Soc. Sci. 327, 336 (2013) (stating that the “legal rights” on which “traditional reproductive advocacy focused” failed “to benefit all the people the women’s movement claimed to represent”). The other error that the reproductive rights framework makes is its insistence upon focusing on the right to an abortion and the ability to terminate a pregnancy, to the exclusion of other concerns that people with the capacity for pregnancy face. See id. at 338–39.[/footnote] the individual stripped of social context, for the most part, occupies the analytical center of Fox’s analysis. Because Fox’s central concern is with the formulation and defense of a tort that can make individuals whole when they find themselves victims of reproductive negligence, the social context in which individuals are embedded—as well as the social significance of the phenomena that he describes—largely falls away from his analysis. But the reproductive justice framework requires that one consider individuals as they are embedded in their environments. Indeed, the reproductive justice framework warns that essential aspects of the phenomenon being examined are missed when the analysis does not center individuals’ social, historical, and political contexts. The framework cautions that without this attention to inequality along the lines of race, class, ability, sexuality, immigration status, etc., one may misapprehend the full extent of the harms that have been imposed, and one may fail to understand why those harms have been imposed on some, but not others.[footnote]See generally Loretta J. Ross & Rickie Solinger, Reproductive Justice: An Introduction (2017) (providing a comprehensive description of the reproductive justice framework).[/footnote] So cautioned, this Review views the phenomena that Fox investigates through a reproductive justice–informed lens. Looking beyond torts—and guided by the reproductive justice framework when contemplating reproductive wrongs—one may see previously unseen insights about the reproductive coercion that states impose on their citizens. To be precise, applying Fox’s analysis to the public sphere reveals that there are multiple ways in which the state harms individuals when it comes to matters related to procreation.[footnote]See infra Part II.[/footnote] Further, analyzing the reproductive coercion that states impose on their citizens reveals previously unseen insights about the reproductive negligence that is Fox’s concern in Birth Rights and Wrongs .[footnote]See infra Part III.[/footnote] The goal of this Review is to excavate these previously invisible features. Part I of this Review describes the interventions that Fox makes in Birth Rights and Wrongs . It focuses on Fox’s schematization of reproductive negligence into three broad types: procreation deprived , procreation imposed , and procreation confounded . While Fox is concerned with identifying and calculating the appropriate level of damages for the harms that result when private actors deprive, impose, and confound procreation, Part II asks about the harms that result when public actors deprive, impose, and confound procreation. How do state-inflicted harms in this domain compare to private actor–inflicted harms? How does the nature of the harm change when it is the state that deprives, imposes, and confounds reproduction? Part III then returns to the arguments that Fox makes in Birth Rights and Wrongs and expands Fox’s project by centering social context in the analysis of the reproductive negligence that private actors inflict on other private actors. To be precise, this Part reconsiders the harm caused by private actors’ reproductive negligence in light of inequality along the lines of race and class. A brief conclusion follows.