Tort Law and in Vitro Fertilization: The Need for Legal Recognition of 'Procreative Injury'

Abstract

Prospective parents who attempt in vitro fertilization, and who suffer in humanly grievous ways when the medical procedures go awry due to negligence, almost never recover in their tort suits. The problem is that their injuries are not cognizable under existing tort law categories. When, for example, a doctor implants the wrong person’s eggs in the uterus of a woman seeking to become pregnant, there is no obvious physical injury beyond that which the woman agreed to, nor loss of property, nor even emotional distress that would permit recovery under existing law. But plainly she has suffered a serious harm for which, assuming negligence, she ought to recover. This paper argues that, in response to new reproductive technologies, tort law must recognize a new category of injury - procreative injury - based on an unacknowledged human interest: the procreative interest. The paper attempts to define that interest and describe the kinds of suit it would authorize.

Keywords: Assisted Reproduction, In Vitro Fertilization, Reproductive Rights, Procreation, Tort Law, Jurisprudence, Legal Theory