Dov Fox and Jill Wieber Lens’ 2023 prescient article, Valuing Reproductive Loss, could not have arrived at a more important time. In February 2024, the Alabama Supreme Court held that a state law permitting parents to recover for the wrongful death of a minor child also protects cryopreserved in vitro embryos. The case sparked vigorous nationwide debate about its implications for access to medical services like assisted reproductive technology and abortion. Broader debates like these are absolutely essential, but according to Fox and Lens, they risk crowding out the core question posed in the Alabama lawsuit and many others: What legal remedies should be available to intended parents when a defendant’s wrongful conduct results in the loss of their desired child before birth? Fox and Lens tackle this challenging issue head-on, and directly counter the narrative that rights to abortion will inevitably be jeopardized by legal recognition of reproductive loss.
This article reports on the results of the authors’ empirical study of jury verdicts in cases brought by intended parents who have suffered losses as a result of mishandled embryos, mismanaged pregnancies, or general negligence (for example, a car accident that causes a miscarriage). They find “wildly erratic outcomes” that do not correlate with the factors one might think are most likely to impact damages awards–such as the plaintiff’s age at the time of loss, the gestational age of the fetus, the type of legal action brought, or the nature of the defendant’s wrongdoing. Instead, they suggest that the outcomes in these reproductive loss cases may be driven by jurors’ unconscious biases about race and class, about who qualifies as a “deserving parent,” and about whether a child is truly “wanted.” To counter these biases and the resulting disparities in damage awards, the authors present a novel and more principled framework for valuing reproductive loss in civil litigation.
Fox and Lens’ findings about the biases that impact outcomes in reproductive loss cases are a valuable addition to the literature on racial and class biases in both economic and non-economic damage awards. They highlight striking language from verdicts in cases where damage awards were limited–comments that a plaintiff did not exhibit “the conduct of a mother who wanted her baby,” that plaintiffs were unmarried, that a plaintiff “had had two previous voluntary abortions,” or that a plaintiff returned to work shortly after the pregnancy loss. (P. 72.) Fox and Lens note that jurors’ concerns about whether intended parents are “responsible” and whether a child is “wanted” often come down to the plaintiffs’ socioeconomic status. For example, they highlight the dramatic racial and wealth disparities in access to in vitro fertilization, which can cost tens of thousands of dollars. If jurors consider a parent’s investment in fertility treatment as evidence of the child’s “wantedness,” then “almost all the eye-popping emotional distress damage awards in embryo-destruction cases end up going to plaintiffs who are wealthy and white, not poor people of color.” (P. 74.) The authors offer several other examples of how systemic and individual biases lead to disparate outcomes in pregnancy loss cases, and forcefully argue that a more principled approach is needed.
The model Fox and Lens offer looks to three factors for assessing the severity of a plaintiff’s injury and the extent of their non-economic damages. First, they advocate for an individualized assessment of the plaintiff’s subjective experience, untainted by biases and focused instead on the plaintiff’s own lived experience and understanding of the loss. Importantly, they highlight that a focus on subjective loss in this context may help support abortion rights advocacy, because deference to a pregnant person’s subjective beliefs about the loss of an embryo or fetus is “fundamentally irreconcilable with the antiabortion premise that legal personhood objectively begins at conception.” (P. 107.)
Second, they would consider the objective chance of reproductive success in the absence of negligence. For example, because success rates of in vitro fertilization drop significantly by age, there would be good reason to award reduced damages to a forty-five year old woman whose cryopreserved embryo is negligently destroyed as compared to a twenty-five year old woman. Here, too, however, the authors caution that efforts need to be made to ensure that biases don’t creep into these calculations. In analogy to cases like GMM v. Kimpson (E.D.N.Y. 205) rejecting race-based wage statistics in civil damage awards, the statistical fact that Black women are 43% more likely than white women to miscarry reflects widely racial documented disparities in medical care during pregnancy that should not be reinforced through damage awards.
Finally, they would recognize that the significant traumas that may accompany a reproductive loss deserve special compensation. People who have no experience with stillbirth may not realize that when a fetus dies in the womb after 20 weeks of pregnancy, the gestating parent must still give birth to them. The “physical, emotional, and cognitive trauma” accompanying this experience has not, to date, been adequately recognized. (P. 98.) Other examples of distinct traumas may be when parent chooses to terminate a desired pregnancy based on negligent medical advice, or where a plaintiff suffers reproductive loss and is incapable of producing future offspring.
Taking these factors into account, the authors argue, will result in more just and principled outcomes in these difficult cases. Ultimately, Fox and Lens describe the goal of their project as “promot[ing] reproductive justice and recover[ing] principle in how the law treats prenatal death across the landscape of civil awards and criminal restrictions.” (P. 61.) This finely written article moves us closer to that goal.
Editor’s Note: For a previous review of Valuing Reproductive Loss in the Family Law section, see Philomila Tsoukala, How Much Is The Lost Chance To Reproduce Worth? (May 23, 2024).
