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The concept of reproductive negligence is probably not unfamiliar to men and women of child-bearing or child-begetting age. Many a restless hour has been spent worrying about the consequences of a skipped pill, an abandoned condom, or some other form of contraceptive carelessness. The general rule in such circumstances is that the injured party has no recourse in tort against a sexual partner whose negligence resulted, say, in a pregnancy. (Interestingly, liability may arise as the result of the negligent transmission of herpes.) To be sure, not all reproductive misconduct is negligent; some is intentional, as when a sexual partner tampers with his partner’s birth control or lies about the use of contraception. But here, too, no liability attaches for the harm of an unwanted pregnancy. As the New York Court of Appeals reminded a male respondent seeking to avoid a child support order, “[T]he mother’s conduct [misrepresenting her use of birth control] in no way limited his right to use contraception.” Assumptions about trust between intimates aside, it is every man and woman for themselves in the world of private procreation.

The focus of Professor Dov Fox’s recent essay, Reproductive Negligence, however, is not on conduct, intentional or otherwise, between intimates but on the negligent provision of reproductive services by medical professionals. Surprisingly – we are after all talking about the provision of medical care by doctor – we learn right off the bat that plaintiffs who suffer at the negligent hands of medical personnel from whom reproductive treatment has been purchased have no recourse in tort, except in the rarest of circumstances.


Law | Torts


This article originally appeared in 118 Colum. L. Rev. 29 (2018). Reprinted by permission.

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