Preface
I was born a few days before Elizabeth Carr, the first American baby conceived by in vitro fertilization (IVF). Her parents—Judy and Roger— desperately wanted a child, one who’d share their genes. But they couldn’t reproduce on their own. A decade of failed attempts left Judy with pregnancy complications that required removing her fallopian tubes. That made it impossible for any fertilized egg to get from her ovaries to the uterus, where it develops. The couple put their faith in the country’s first fertility clinic. A team of pioneering doctors and scientists made an end run around Judy’s missing tubes by surgically removing her eggs and then combining them with Roger’s sperm in a laboratory, before implanting the resulting embryo back into Judy’s uterus. In December 1981, this technological breakthrough gave the Carrs the child they had longed for. Critics decried Elizabeth’s arrival for defying nature and playing God. “The others have their opinions,” Judy said. “We have our baby.”1
Many aspiring parents aren’t so lucky, even a million IVF babies later. One fateful weekend in March 2018, hundreds of couples like the Carrs had their hopes for biological parenthood crushed when high-capacity freezers failed at two major medical facilities, University Hospital of Cleveland and Pacific Fertility Center in San Francisco. These subzero containers aren’t regulated any better than kitchen appliances or farm tools. The livestock industry developed the bulk vats in the 1960s to store animal semen for breeding. Now they’re used by almost five hundred fertility clinics nationwide to cryopreserve people’s eggs and embryos at a constant −196°C. Tank temperatures at the two facilities began rising on the same unstaffed Saturday, after remote alarms had inexplicably been turned off. By the time lab technicians returned on Monday morning, everything inside was destroyed.
Investigations are ongoing. So far, only coordinated cyberattacks have been ruled out. Center operators are pointing the finger at defective equipment, while the manufacturers have blamed laboratory staff for “forget[ting] to refill” the liquid nitrogen chambers in these “ever-dependable vessels.”2 The medical centers also could have used more reliable monitoring systems
that measure nitrogen levels with a specialized scale that can detect tiny fluctuations of even a few hundred grams. These weight-based methods can identify early signs of dangerous warming weeks sooner than the thermometer-based sensors that give mere hours’ warning before people’s reproductive materials are thawed beyond rescue or repair.3
The incidents devastated thousands of cancer survivors, injured veterans, and other would-be parents who now won’t be. Sacramento residents Megan and Jonathan Bauer had made plans to transfer the first of their eight embryos the very next month when they got word that every one had been lost forever. The couple grieved over their stolen “dreams of having children together.” Breast cancer survivor Rachel Mehl of Pittsburgh couldn’t imagine a future without kids. She had delayed urgent, life-saving chemotherapy—that would take her fertility—until she could freeze her eggs for later use. All nineteen were irrevocably damaged, dashing her only chance of genetic offspring—“that light at the end of a very dark tunnel. . . . has been extinguished.”4 Katelynn Gurbach lives in Wickliffe, Ohio. An only child, she lost her mother at thirteen and was diagnosed with ovarian cancer at twenty-three. The freezer failure took each of the four embryos she and her boyfriend had created before cancer treatment left her sterile. “I wanted nothing more than to be a mom,” she posted on Facebook the next day. “The unthinkable, the unimaginable, the unbelievable has happened. My worst fears and deepest nightmares made a reality.”5
An engraved bench now sits beneath an ash tree in the Woodvale Cemetery outside Cleveland: “Our Hopes and Dreams Lost: In Memory of the Unborn.”
National media called the recent malfunctions “inconceivable” and “utterly unprecedented.”6 They were neither. In October 2005, a mechanical crash at the University of Florida Health Center destroyed the reproductive materials that sixty men had saved before undergoing chemotherapy or deploying overseas. Technicians didn’t even notice the casualties until August of the following year.7 An April 2012 breakdown affected two hundred fifty patients and troops at Northwestern Memorial Hospital who had put their sperm samples on ice.8 Forty of the men filed a class-action lawsuit that took over six years to settle behind closed doors in October 2018.9 Legal proceedings against University Hospital and Pacific Fertility Center have only just gotten off the ground as this book goes to press. These catastrophic losses point to a larger phenomenon of procreation gone awry.
IVF isn’t the only reproductive innovation that came of age as I did—so did abortion pills (e.g., RU-486), long-lasting birth control (e.g., Norplant), and non-invasive blood tests (e.g., AFP Plus) that screen for fetal risks of neural tube defects.
Today, tens of millions of Americans rely on these advances to help them carry out decisions more personal and far-reaching than almost any other they’ll ever make. They use birth control or abortion to delay or avoid having children; surrogacy or tissue donation to start or grow a family; and genetic diagnosis or embryo selection to have offspring who survive and flourish. Two in seven American women of childbearing age undergo surgical sterilization or long-term contraception to prevent pregnancy—one in four have an abortion by forty-five.10 One in nine adults are treated for fertility problems like blocked fallopian tubes or low sperm counts.11 And 62,000 babies—nearly 2 percent born in the United States each year—are conceived using reproductive technologies.12 Surrogates carry three thousand annually to term. Many thousands more are screened—even before pregnancy—for conditions like Tay-Sachs, cystic fibrosis, and sickle cell disease. This is no less than the medicine of miracles. It fills empty cradles; frees families from debilitating maladies; and empowers them to plan a life that doesn’t include parenthood. But accidents happen.
Embryologists miss ailments. Egg vendors switch donors. Obstetricians tell pregnant women that their healthy fetuses will be stillborn. The aftermaths can last a lifetime. Yet political and economic forces conspire against regulation to prevent negligence from happening in the first place. After the fact, social stigma and lawyers’ fees stave off lawsuits. And legal relief is a long shot. Judges and juries are reluctant to designate reproductive losses as worthy of redress when mix-ups foist parenthood on patients who didn’t want it, or childlessness on those who did. Some courts insist that even unplanned babies are blessings, and shrug over the fact that infertile couples weren’t assured offspring anyway. Others are resigned that these tragedies are just part of modern life, like the “betrayal, brutal words, and heartless disregard” that lie beyond “the power of any judicial system” to do anything about.13 The result is a society that lets badly behaving specialists off the hook and leaves broken victims to pick up the pieces. Failed abortions, switched donors, and lost embryos may be First World problems. But these aren’t innocent lapses or harmless errors. They’re wrongs in need of rights.
This book is about the fragility of family planning and the promise of law to vindicate its expression. I have profited from opportunities to present these ideas at the American Law and Economics Association Conference, the Clifford Symposium on Civil Justice, the International Baby Markets Congress, and the World Life Sciences Convention, and with faculty and students at Harvard Law School, NYU School of Law, Pennsylvania Law School, and Stanford Law School. Portions of Part I appeared in much earlier form in “Reproductive Negligence,” 117 Columbia Law Review 149 (2017). So did a section of Part II in “Making Things Right When Reproductive Medicine Goes Wrong: Reply to Robert Rabin, Carol Sanger, and Gregory Keating,” 118 Columbia Law Review Online 94 (2018). I thank the Columbia Law Review for permission to incorporate these pieces, and Professors Rabin, Sanger, and Keating for their searching engagement in the pages of that journal and beyond.
My colleagues at the University of San Diego (USD) have been steady sources of camaraderie and conversation. I owe special thanks to Larry Alexander, Jonathan Anomaly, Jordan Barry, Laurie Claus, Margaret Dalton, Miranda Perry Fleischer, Vic Fleischer, Adam Hirsch, Bert Lazerow, Miranda McGowan, Frank Partnoy, Ted Sichelman, Steve Smith, Mila Sohoni, Ed Ursin, Mary Jo Wiggins, and Matt Zwolinski. I am particularly indebted to my Dean, Stephen Ferruolo. I received exceptional support from USD law librarians Jane Larrington, Melissa Abernathy, Dan Kimmons, Ruth Levor, Sasha Orman, and Liz Parker. I’ve been fortunate for superlative research assistants during their legal studies at USD: Lauren Friedenberg, Thang Hoang, Veneeta Jaswal, Alex Niebling, Thomas Rainey, and David Rao. It was a pleasure to explore these themes with the law students and medical residents in my courses on “Medical Malpractice” and “Health Law and Reproduction.”
Fellow travelers provided uncommonly generous comments: Paula Abrams, Rene Almeling, Susan Appleton, Russell Blackford, Michael Boucai, Khiara Bridges, Naomi Cahn, Steve Calandrillo, June Carbone, Andrew Coan, Glenn Cohen, Mary Crossley, Judy Daar, Teun Dekker, Bernard Dickens, Carter Dillard, Janet Dolgin, Richard Epstein, Martha Ertman, Colin Gavaghan, Michelle Goodwin, Adam Grant, Michael Green, Jessie Hill, Karla Holloway, Lisa Ikemoto, Josh Kleinfeld, Wendy Kramer, Saul Levmore, Kristen Loveland, Jody Lyneé Madeira, Kaipo Matsumura, Elaine Tyler May, Max Mehlman, Jennifer Mnookin, Seema Mohapatra, Lyria Bennett Moses, Doug NeJaime, Lars Noah, Christine Overall, David
Partlett, Philip Peters, Nicky Priaulx, Dara Purvis, Natalie Ram, Richard Re, Rachel Rebouché, John Robertson, Liz Sepper, Jane Stapleton, Steve Sugarman, Sonia Suter, David Wasserman, Ellen Wertheimer, Jonathan Will, Mary Ziegler, and Ben Zipursky.
My editors at Oxford University Press, Jamie Berezin, and David Lipp, believed in this project from its earliest stirrings and infused it with their insight. Balamurugan Rajendran at Newgen Knowledge Works Pvt. Ltd. managed an impossibly smooth production process, dynamic and obliging at every turn. My teachers made philosophy, science, and the law come alive—Christine Jolls, Michael Sandel, Julian Savulescu, Peter Schuck, Reva Siegel, and Alex Stein, currently a justice on the Israeli Supreme Court. G.A. (Jerry) Cohen and (Judge) Stephen Reinhardt were more than mentors to me. At key moments in my life, Jerry and the Judge were the father I needed. My greatest disappointment about this project is that they didn’t live to see it finished.
My deepest thanks go to my family: To my mom, who raised three boys while working multiple jobs, and never let us want for love. To my brothers, my best friends. To my grandparents, who took us in and lit our way. To my in-laws, who treat me as their own. To my kids, who filled these seasons of writing with joy. And finally, to my wife, who did more than anyone to shape this book, which I dedicate to her with love.
Introduction
How many little girls dream of being a nun? “I always wanted to be a mother, but the marriage part didn’t appeal to me,” Angie Collins explains. “I thought if I was a nun, I could live at an orphanage, and those could be my kids.” It wasn’t the life of solemn contemplation that appealed to her. Sisterhood fit two things she knew about herself from an early age: She wanted children, and she wasn’t attracted to men. She ended up trading a religious habit for phys ed sweats. At thirty-two, the spry gym instructor fell in love with a soft-spoken music teacher named Beth Hanson. The couple made a home in Port Hope, Ontario, and decided to start a family together. They looked into adoption, but worried that lesbians like them would have trouble gaining legal recognition as parents. Besides, Collins wanted to experience pregnancy and give birth. What they needed was a man, or at least his sperm.1
“I didn’t have a friend in mind,” Collins recalls, “and my doctor was actually discouraging of using a known donor.”2 It turns out asking a relative or social contact can risk unwelcome involvement in the couple’s parenting. Known donors have even sued for legal custody based on a genetic connection to the child. Transacting at arm’s length “seemed simpler, more clear-cut.”3 But Canadian donors are in short supply, in part because the country makes it a crime to exchange reproductive samples for money. So Collins and Hanson looked to the United States, where sperm banks pay. The couple settled on Georgia-based Xytex. Its catalog features over five hundred donors, recruited with the promise of an “easy, anonymous way to make some serious money—up to $1,800 a month, so you can say goodbye to ramen and hello to steak.”4
Despite its dystopian name, Xytex projects itself as more community clinic than multinational conglomerate. A cheery representative told Collins over the phone that donors complete an extensive personal and family history and undergo physical exams every six months. The company’s website
Birth Rights and Wrongs. Dov Fox. © Dov Fox 2019. Published 2019 by Oxford University Press.
boasts: “You can rest easy knowing right up front, every Xytex donor ranks in the top 1% of the population in health and wellness.” The sperm bank prides itself on being “an industry leader in reproductive services with a commitment to unsurpassed quality controls.” The screening process was so thorough, the rep assured Collins, they’d learn more about any Xytex donor than they ever could about an acquaintance—or even each other. They were sold.5
After poring over hundreds of profiles, they found The One. Donor 9623 had everything they were looking for: He was fit, gifted, and easy on the eyes. His lean frame, warm smile, and fetching eyes reminded Collins of the “male version of my partner.” Xytex said his “celebrity lookalike” was Tom Cruise, but a foot taller. Donor 9623 also shared Hanson’s love of literature and music and Collins’s for sports and hiking. The Renaissance Man was an “internationally acclaimed” drummer who spoke five languages and read four books a month (“non-fiction mostly”). The couple knew hobbies aren’t inherited—still, DNA might give them a nudge. And lots of medical conditions have a stronger genetic component. Donor 9623’s six-page family questionnaire checked “no” for all 143 diseases or disorders but one. His father was colorblind.6 It wasn’t just the donor’s diverse talents and clean bill of health.
His 160 IQ placed him in the company of Albert Einstein and Stephen Hawking among the top 0.1 percent of the world’s population. The thirtyyear-old had earned his bachelor’s degree in neuroscience and master’s in artificial intelligence. He was currently studying for a Ph.D. in neuroscience engineering, on his way to become a professor of biomedical robotics. A Xytex counselor referred to him as the “perfect donor.” Hanson recalls, “All the other donors vanished as soon as we saw his profile.” The couple wired the company $3,000 for six units of sperm from Donor 9623. Two weeks later, frozen samples arrived in the mail. Collins got pregnant on the first try. She and Hanson were elated to welcome a son. Seven years passed.
As he grew from baby to boy, his parents took Xytex up on its offer to join a “sibling group” of families who’d selected the same donor to have children. They were hardly the only ones charmed by Donor 9623. Twentyfive families had used his genetic material to have thirty-six offspring by 2014.7 That June is when Collins and Hanson got a Facebook message from a woman in the sibling group. It said that Xytex had inadvertently revealed Donor 9623’s email address in a correspondence with her. It’s company policy to keep donor contacts and identities a secret. Donors supply their
sperm to the bank on the condition of anonymity. The leaked address for Donor 9623 also included the man’s last name: Aggeles. A social media profile linked his email to a James Christian Aggeles, who goes by Chris. His plump frame and facial mole looked nothing like the Top Gun features of his donor photograph. Okay, the couple thought, so what. But other discrepancies took them aback.
A Google search turned up documents from a Georgia court that had convicted Aggeles of burglary in 2005, shortly before Collins and Hanson had picked his profile from the catalog. He’d broken into a home and stolen musical instruments. Aggeles pled guilty and spent eight months in jail, another ten on probation. That wasn’t his first run-in with the law either. He’d been arrested several times before for offenses including trespassing, drunk driving, and disorderly conduct.8 His educational career had started out promising, but he never enrolled in the touted doctoral program, or even finished college. Aggeles graduated high school as an honor student and got a full scholarship to the University of Georgia. But he dropped out a few months in, at age nineteen. That was when his psychotic breaks began.
Medical evidence in the burglary case revealed diagnoses of schizophrenia, bipolar disorder, and narcissistic personality disorder with “significant grandiose delusions.” Collins also found an online comment Aggeles had posted in 2012 to a YouTube video of a young woman describing her struggles with schizophrenia. Aggeles wrote: “It’s like my thought gets interrupted by a voice that tells me something that usually has nothing to do with what I was just thinking. It’s usually mean, and will say things that are derogatory and demeaning to me.”9 Collins and Hanson learned that having one parent with schizophrenia gives a boy a 12 percent chance of developing it by the time he can drive. That’s when the average affected male starts hallucinating. Half of young men with schizophrenia try to kill themselves—one in twenty succeed.10
“[M]y heart s[a]nk like a lead ball into my stomach,” Collins recalled.11 She wouldn’t have bought sperm that she knew came from a convicted felon with mental illness: “[A] hitchhiker on the side of the road would have been a [] more responsible option.”12
Aggeles is doing better today, with the help of medication and therapy. He made it back to college, got married, and even drums in an indie-rock band. Collins and Hanson don’t hold it against him that his donor profile was a lie. Aggeles had fallen on hard times that left him desperate for cash. “He’s not a bad man,” Collins says. “He’s a person who has an illness.” The
couple would support their son if he wanted to reach out to Aggeles.13 It’s Xytex they blame.
The corporation got rich by looking the other way on the truth about donors whose reproductive material it hawked to thousands of families. Its don’t-ask-don’t-tell policy exploited a lax regulatory regime to profit off of families who banked their futures on its false representations about Donor 9623. That’s how Collins saw it. “I didn’t feel they were selling perfection”— just “due diligence. Who would have thought that an industry that makes people would be like this?” she asked in April 2016.14 Two months later, the New York Times profiled “a new wave of lawsuits” against U.S. sperm banks, labeling the industry “buyer-beware.”15 A November 2018 story in the Washington Post detailed a slew of yet more recent cases ranging from “babies sired by the ‘wrong’ father” to “children who inherit serious, undisclosed medical issues.”16
Professional societies that oversee the fertility industry recommend screening donors for infectious diseases like HIV, hepatitis, and syphilis. The largest banks like Xytex also test samples for genes known to cause TaySachs, cystic fibrosis, and cerebral palsy—these are recessive disorders that offspring can inherit from people who don’t suffer from the condition themselves, and usually don’t find out that they carry it in their DNA until they have a child who does. But no public body or private organization requires that sperm banks conduct such analysis or reporting.17 And even the most scrupulous ones rely heavily on unverified information provided by donors themselves. Few ask for so much as a student ID or college diploma to back up their self-professed credentials, let alone run a background check or drug test. “If a donor says his Aunt Pearl died of a heart attack, we take him at his word,” a Xytex representative told Self magazine in 2006.18
People who reproduce the old-fashioned way can also pass along dangers lurking in their genetics. But sperm banks like Xytex multiply that risk to potentially scores of offspring. In 2011, news broke that one donor’s samples had been used to conceive over one hundred fifty children. None of the families had been warned that those genetic siblings could end up sleeping with each other or falling in love.19
Collins is open with her son, now ten, about where he came from. “I told him, ‘The man who helped create you and all your half-siblings has something wrong with his brain.’ ”20 The boy loves handball and geography—he knows all the street names in Port Hope and the shape of every American state. And he plays drums like Aggeles. Collins and Hanson are monitoring
his mental health closely and will do what they can to steer him clear of the drugs that could trigger psychotic episodes. “He’s the love of our lives.”21
Dozens of parents like Collins and Hanson sued the sperm bank. The final pages of this book take stock of how things played out for them in court. For now, it’ll do to remark just how unremarkable their story is. “In households across the country,” another New York Times exposé began, “children conceived with donated sperm are struggling with serious genetic conditions inherited from men they have never met.”22 New examples make their way into peer-reviewed scientific journals every few years.
A 2012 report in Human Reproduction uncovered a nameless donor who transmitted to five offspring a genetic condition that significantly increases the risk of brain tumors, leukemia, and other cancers.23 In 2009, the Journal of the American Medical Association published the case study of a Virginia donor with a heart disorder that he passed on to at least eight of his twentytwo offspring, including a toddler who died from cardiac failure.24 In 2006, the Journal of Pediatrics chronicled a network of half-siblings conceived from the same popular donor, all of whom inherited a rare blood disease known to cause cancer, seizures, and developmental delays. Affected families had notified the bank about these health problems years earlier, but it didn’t deactivate the donor or even red-flag his profile.25 Court documents in a 2003 case revealed that a sperm bank sold hundreds of vials from a donor with a family history of kidney disease—after it learned that at least one girl conceived from his material had already inherited the disorder, which threatens renal failure.26 The sperm bank settled the lawsuit to avoid further investigation into the unknown number of other children who came from the same donor.27
It’s not just sperm banks. A 2008 survey of half of all U.S. fertility clinics found that more than one in five misdiagnosed, mislabeled, or mishandled reproductive materials.28 A 2014 study reported that hundreds of women each year are persuaded to end pregnancies they’d wanted to keep, based on dire test results that sound “a false alarm half of the time.”29 And in 2016, a national ratings website found that 18–24 percent of fertility patients reported miscues including dropped embryos, switched donors, and contaminated samples.30 These failures can’t be chalked up to reasonable slips of hand or lapses in judgment as often as deficient quality controls.31 Just how often is hard to pin down.
In other areas of health care, most states make hospitals monitor and report any major avoidable errors, like mismatched blood transfusions or
surgery on the wrong body part. But no one tracks similar “never events” in matters of procreation—at least not in the United States. Most developed countries take reproductive negligence far more seriously.32 In the United Kingdom, the Human Fertilisation and Embryology Authority enforces rigorous and regular inspections of all fertility clinics “in line with the latest evidence.”33 Even under this strict oversight regime, the regulatory body reports that over five hundred procedures each year misplace, damage, or destroy people’s sperm, eggs, and embryos.34
In the United States, victims who take procreation specialists to court almost always lose. This puzzle has gone all but unnoticed in the case reports and academic literature.35 The only book that’s addressed it at all observes that policymakers and judges respond to “the startling consequences” of reproductive advances “with confusion and ambivalence.”36 Among legal texts, just one gives these controversies more than passing reference.37 Beyond government regulation of abortion or IVF, law and ethics scholarship has attended to different kinds of disputes: between former couples about whether or not to use their frozen embryos,38 or between children and parents whose prenatal decisions led them to be born with health complications.39 These questions about embryo disposition and offspring disability have crowded out broader inquiry into matters of procreation.
This book develops a new way to think and talk about reproductive wrongdoing writ large. Some of these wrongs deprive people of the pregnancy or parenthood they want. Others impose those roles on people seeking to avoid them. Others still confound plans for not just any child, but for one born with certain traits. Recent cases illustrate each:
Case 1: “Procreation Deprived.” Justin Hollman was diagnosed with testicular cancer at twenty. He needed chemotherapy and surgical removal of a testicle that would leave him sterile. He knew he wanted kids one day, so he deposited sperm with a fertility clinic and made regular payments to keep it safely stored. But when he returned for the sample a decade later, happily married and eager to start a family, it had been destroyed.40
Case 2: “Procreation Imposed.” Shelby Nell, a young single mother, had found a job she liked and a man she loved. Nell wanted a healthy sex life, one that wouldn’t risk another child she couldn’t afford to raise. She got a prescription for birth control pills, but the pharmacist gave her prenatal vitamins instead. Her relationship couldn’t bear the
weight of the resulting pregnancy. Nell was forced on welfare to support and raise her toddler and infant on her own.41
Case 3: “Procreation Confounded.” Eve Rubell’s eye exam revealed a swirling pattern. It was a sign that she carried Fabry disease, a condition that’s debilitating for boys. Rubell didn’t suffer any symptoms herself, but any male child she had would. It’s a risk that she and her husband sought to avoid. They created six embryos in a lab, enough to get two females. But the hospital implanted one of the other four instead. Rubell gave birth to a baby boy afflicted by the disease.42
Hollman, Nell, and Rubell all sued. Each lost. Never mind that negligence was to blame. However egregious the transgression, no statute or doctrine says that their injuries matter, legally speaking. As one court put it, the “law does not recognize disruption of family planning either as an independent cause of action or element of damages.”43
Take procreation deprived. When misconduct shatters people’s dreams of parenthood, victims can’t point to any physical or financial harm they’ve suffered. And fertility patients were never assured biological children. Hollman, the cancer survivor, might not have been able to conceive, even if the clinic had kept his tissues safe. But since it was still altogether possible that his sample could have yielded offspring, shouldn’t he be compensated for whatever chance that he did have—before the clinic's misconduct took that chance from him, when it lost his only samples, making reproduction impossible? Proportional recourse is the norm when medical malpractice reduces a patient’s odds of recovery or survival, even if he (or his estate) can’t prove that a doctor’s misconduct is what led him to deteriorate or die, or that his preexisting condition wouldn’t have caused that outcome anyway. But courts don’t compensate for lost chances to reproduce. Some are content that adoption and other paths to parenthood remain open. Others worry that reproductive plans are too easy to contrive and too hard to verify.
Courts harbor similar suspicions against allegations of procreation imposed. The judge in Nell’s case expressed a similar concern that people might “invent an intent to prevent pregnancy.” It would “open the door to fraud,” she explained, were courts to credit “claims of inadequate directions, wrong pills or any ineffectiveness of the chosen contraceptive method.” However sincere Nell’s allegations, affirming them would invite sham suits by people trying to make someone else pay for their failure “to exercise restraint or take responsibility.”44 Besides, if Nell had really wanted to avoid
reproducing, why did she keep the baby? And having declined abortion or adoption, didn’t she nonetheless come to appreciate his birth as a gift, even if not one she’d asked for?45 Even though that arrival might disrupt her life plans, courts insist that those trade-offs are bound to be outweighed by “the intangible but all-important, incalculable but invaluable ‘benefits’ of parenthood.”46
Finally are thwarted efforts to choose a child’s sex, health, heredity, or some other feature that’s meaningfully influenced by the genetics he’s born with. Courts resist finding for plaintiffs like Rubell when professional misconduct confounds their offspring preferences. Donor switches, embryo mix-ups, and fetal misdiagnoses don’t produce unwitting parents, judges point out. These are people who’d set out to have a child, and got one— even if the experience of raising that child departs from their reasonable expectations. Courts refuse to rubber-stamp parental disappointment for fear of sending the intolerable message that any mother or father wishes a child hadn’t been born, or loves the child less than some other one who’s different. Most states are “unwilling to say that life, even life with severe [impairments], may ever amount to a legal injury.”47 The American legal system treats confounded procreation less like mischief than misfortune, closer to a star-crossed romance or a losing ticket in the natural lottery— the kind of adversity that, however fateful, you have no choice but to steel yourself against and move on from. You can’t always get what you want.
This indifference is surprising in a country that’s constitutionalized rights to abortion and birth control. In the 1960s and 1970s, the U.S. Supreme Court designated “decisions whether to accomplish or to prevent conception” as “among the most private and sensitive” that a person makes over the course of a life.48 But even this “fundamental rights” status hasn’t kept states from aggressively restricting access to abortion and contraception.49 And the Court hasn’t extended these reproductive freedoms to practices that introduce donors or surrogates into the mix. Besides, constitutional privacy applies only to misconduct by government actors. It offers no protection against wrongdoing by any nonstate clinic, pharmacy, or hospital.50
