Volume 112

Valuing Reproductive Loss

by Dov Fox & Jill Wieber Lens

Our legal system characterizes the unborn in a multiplicity of conflicting ways—from persons to property, from body parts to medical investments. The law of civil wrongs is instructive. It weighs in when misconduct deprives aspiring parents of the child they had hoped to have, whether the transgression takes place during pregnancy or before it. The torts and remedies that govern these cases are riddled with a confusion that comes from treating prenatal life as anything but coherent. The overturning of Roe v. Wade has cast new light on the neglected doctrine of reproductive loss and deepened a tension about the meaning of prenatal life in both private and public law.

This Article undertakes the first study of jury verdicts for mismanaged pregnancies and mishandled embryos. This original empirical analysis reveals wildly erratic outcomes. And it lends insight into the influence of racial and class biases about “wanted” children and “deserving” parents. We introduce a framework with which juries should appraise these losses according to three factors. First is the subjective experience of losing a wanted baby. Second is the objective chance of having that baby if not for misconduct. Third is accompanying traumas, such as delivering a dead baby in a stillbirth. Each factor operates to promote reproductive justice and recover principle in how the law treats prenatal death across the landscape of civil awards and criminal restrictions.

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