Since Dobbs was decided, abortion rights advocates have been nervously looking around the legal landscape wondering what doctrinal domino is likely to fall next. At this very charged moment, Professors Dov Fox and Jill Wieber Lens bravely chose to write about the downsides of legally underestimating the ravages of reproductive loss post-conception. In their recent article, Valuing Reproductive Loss, they offer the first empirical study of jury awards in tort cases on reproductive loss, which they define as ranging from mismanaged embryos in the IVF context all the way to mismanaged pregnancies, including early miscarriages and late term stillbirths. The authors suggest that the legal system is not treating prenatal life in a coherent manner and hypothesize that racial and class biases may have a lot to do with the resulting awards in the cases they analyze. They also offer a normative framework for valuing such losses in the tort context, one that they hope will promote reproductive justice, but also bring doctrinal coherence to the treatment of reproductive loss.
Valuing Reproductive Loss starts with a striking example of seeming doctrinal incoherence. A couple in Texas lose their son, whom they had already named “Adam” in utero, at forty weeks of gestation because of a negligent delay in proper birth care. Texas law deems Adam to be an “unborn child,” but his parents cannot recover for his wrongful death. Texas law does not allow medical malpractice claims when the malpractice causes the death of an unborn child. Had the doctor in question been accused of performing an abortion even at five weeks of gestation, the doctor involved would have faced serious criminal consequences, ranging from a hefty monetary fine to significant time in prison. However, when it is time for the parents to claim compensation for the loss of a full-term baby via medical malpractice, the state blocks them from doing so, at least if what they want is compensation for the fetus as a separate individual. The gestating person can recover compensation for their own bodily injury, as though the lost fetus were another limb, despite the law’s panegyric characterization of the fetus as an “unborn child.” Taking it one step further, the authors highlight that if the loss of the embryo had happened in vitro, via the negligent destruction of someone’s embryos because of a clinic’s freezer malfunction, the would-be parents would only be able to seek compensation for their loss through the category of destruction to personal property. Similar inconsistencies can be found in states that allow abortion, where fetuses are also sometimes recognized as persons in the context of a wrongful death suit, while at other times they are merely described as body parts. Professors Fox and Lens thus show that reproductive loss is ridden with inconsistency, with a fetus being a lost limb in one case and a deceased person in the next and cases varying within but also between states.
The empirical part of the article consists of a database of jury awards in reproductive loss cases that satisfy two conditions: 1) reproductive loss must have occurred after conception, and 2) the plaintiff must have sought to have a child. The authors end up with 158 jury awards-out of more than a thousand initial cases, which they analyze along different explanatory axes.
Even though most awards are given in cases of stillbirth, the authors argue that the stage of pregnancy doesn’t explain why some of the highest value awards were given in cases of lost embryos via clinic mistakes. Similarly, they point to the fact that a stillbirth is valued at anything from less than $100,000 to over $10,000,000, without much discernible rhyme or reason. Professors Fox and Lens next examine whether the type of legal claim, negligence or wrongful death may explain the award levels. Even though they do find a 40% greater chance of a high value award in cases of wrongful death rather than negligence, they argue that the data yield incoherence on this axis as well. Last, they look at damage caps imposed by tort reform statutes and claim that the only effect of tort reform caps is to yield results that have nothing to do with the type of injury involved. High award if the defendant is not a doctor, low value award if the defendant is a doctor.
The next section offers perhaps the most important contribution of the article: a thorough discussion of the ways in which doctrinal criteria for compensating reproductive loss open the door to widespread implicit bias creep-in, especially regarding race and class. For example, returning to work soon after the loss occurs is often mentioned as evidence of injury that is likely minimal. As the authors rightly point out, the capacity to postpone returning to is directly related to income levels. Those who can afford to take time out because of relative wealth are judged to be more affected by pain and therefore more injured than their poorer counterparts who rush back to work to make ends meet. Often, juries are asked to judge how much a specific baby was wanted to decide whether and how much compensation may be needed. Here again, wealth related factors may creep in. Plaintiffs who are seeking compensation for IVF related reproductive loss can easily demonstrate the great lengths they went to to create embryos and attempt a pregnancy. A poor working mother of five on the other hand is often asked to prove how and why this additional pregnancy may have been wanted. Big family size counts against adjudicating damages, not only because it is harder to prove that a particular additional child was wanted but also because the presence of other children is said to mitigate the reproductive loss. As the authors note the correlation of family size to race creates a unique opportunity for racial bias to creep-in: “Black and Latino families…are twice as likely as white or Asian families to have four or more children.” (P. 82).
In the penultimate section, Fox and Lens offer a three-step normative framework to counter the current chaotic state of the field. The first step in the process is an inquiry into the “individualized subjective injury,” which they contrast with the seeming blanket pronouncements in tort law about the meaning of reproductive loss. What is it exactly that the plaintiff lost in losing this chance to have a baby according to their own subjective judgment? In this step, various kinds of evidence could be introduced, with a heavy emphasis on the plaintiff’s own testimony about the meaning of the loss and additional evidence of specific life impacts, such as disrupted health, or relationships. The heavy emphasis is on allowing plaintiffs to define the meaning of their loss, whether that is understood as emotional pain and suffering for the loss of a pregnancy or an embryo rather than the loss of person or a limb. At this stage, the authors also recommend extensive jury instruction in potential biases to avoid the unconscious implicit bias creep-in that they believe is likely rampant in the field.
The second step would be a judgment about the probability that the plaintiff would have taken home a baby but for the wrongful behavior of the defendant. The obvious result of this step is that plaintiffs would only be able to recover for the realistic chance of reproductive success. Stillbirth cases would yield higher value awards, since the chance of a live birth increases with the progression of a pregnancy, while the lowest values would be found in instances of embryo loss. Finally, the Fox and Lens analysis suggests that there should be a third step for accounting for specific types of traumas imposed by wrongful behavior such as enduring the birth of a stillborn child or losing your final chance to reproduce (at least using your own genetic materials).
The very last part of the article explicitly discusses Dobbs. At a moment in time when the judicial politics of the anti-abortion advocates seem to be carrying the day, a framework that proposes to group together under reproductive loss such disparate events as a full-term stillbirth and the destruction of an embryo on a clinic tray is bound to be read as stemming from a concept of the embryo as a human person. The authors insist that their approach is instead inspired by the idea that different people have different notions about what it is exactly that they lost in losing a frozen embryo or an early-stage pregnancy and that it is these subjective notions that should guide the inquiry into the injury rather than the monolithic conceptions of anti-abortion .
Still, the implications of their proposal are worth considering more, perhaps in future articles, not only from the perspective of potential interaction with abortion rights, but also from the perspective of further considering questions raised by their initial definition of reproductive harm as well as by their normative framework. For instance, why start at conception? Is losing your ovaries in a botched operation any less harmful to the chance to have a genetically related baby than losing any one embryo in an IVF cycle? If it is not a concept of the embryo as human person as such, then all kinds of different reproductive losses could fit into the category of reproductive loss. Wouldn’t broadening the definition of reproductive loss partly deal with anxieties about the potential use of the very concept for post-Dobbs anti-abortion rhetoric?
Regarding the normative framework, the inquiry into the subjective notion of the injury in step one, seems in direct contrast to the generalized probabilistic accounting of chances of live birth in the second step. Many IVF patients with a 30% chance of a successful cycle don’t usually see themselves as being part of that statistic. They may imagine that this time is their time, this time, it’s going to work for sure. Why not let their subjective sense rule? Would surrogates be able to sue for their reproductive loss if they defined their loss as such? How do we draw the line between which kinds of subjective understandings we will take seriously and which ones we will discount in step two of the process?
The authors draw some lines already, arguing that statistical data that closely reflect race and class disparities should not be baked into the step-two probabilistic discount of damages. I believe they are correct; we should not allow the system to reinforce systemic racism by punishing the people who are already disadvantaged by it. By the same token, why should we allow the same system to reinforce systemic age and gender-based discrimination by applying a huge discount to potential damages for older women using IVF based on their reduced chances of a pregnancy? That would be letting clinics off the hook too easily. Some of those clinics already base their business model on cycling as many older patients as they can in endless out-of-pocket IVF cycles. The proposed framework would still allow these clinics quite a bit of room for wrongful behavior, in the knowledge that they are only dealing with people whose chances of actual success at any given cycle are not great.
All of these questions simply highlight the richness of the framework that the authors have come up with. The article is a huge step forward in directly discussing reproductive losses and undoing the usual stigma associated with them, as well as in highlighting the class and race disparities that are likely to creep in the field. But defining reproductive loss in the manner that the authors have brings in inevitably charged questions around abortion politics, which merit further discussion.
