Privatizing procreative liberty in the shadow of eugenics

Abstract

Professor John Robertson was a giant. A towering bioethics scholar and public intellectual, he was beloved by so many whose lives and thinking he enhanced. And Robertson was inexhaustible: he wrote over 200 original articles, book chapters, book reviews, and op-eds in addition to two landmark books on the legal and ethical implications of medical and scientific advance. He was ‘one of the earliest law professors to consider medicine from an ethical and policy perspective’, as Professor Rebecca Dresser remarked on the occasion of his lifetime achievement award from the American Society for Law, Medicine, and Ethics in 2010. ‘He showed the rest of us how it could be done, and done well.’¹ Professor Glenn Cohen captured Robertson's influence and legacy in noting that he gave bioethics ‘legitimacy as a real and important area of focus within law schools’.² Professor Robertson was also famously big hearted. He counseled scores of rookies like me who were captivated by the field that he built. ‘Though John was much more accomplished than I was, he never acted that way’, Professor David Magnus recalls. ‘He treated me as a respected peer, took my views seriously, and his generosity with advice and argument made me a better scholar.’³ How richly deserved that the Journal of Law and the Biosciences is honoring him in this special issue. I am delighted for the opportunity to contribute.

Professor Robertson is known best for his theory of ‘procreative liberty’, first introduced in a Virginia Law Review article⁴ and expounded in his pioneering book, Children of Choice.⁵ Procreative liberty captures the ‘freedom to reproduce without sex’ above and beyond the ‘freedom to have sex without reproduction’ that are recognized by existing rights to access abortion and birth control.⁶ Robertson advocated a new constitutional ‘right to become pregnant and to parent’ that would protect ‘the freedom to reproduce when, with whom, and by what means one chooses’.⁷ He argued that ‘[t]he interests and values supporting the right to reproduce by sexual intercourse extend to external conception and the need to contract with donors, surrogates, and physicians for the creation, gestation, and rearing of children’.⁸ Robertson limited this freedom to reproductive decisions that enlist medical intervention—as opposed to controversies about, say, home birth, the assistance of midwives, or the presence of father during childbirth.⁹ And he was more concerned with hard-and-fast legal restrictions than the socioeconomic factors that constrain people's ability to realize procreative liberty interests.¹⁰ Robertson defended such nuances of his theory with characteristic dynamism and humility.¹¹ And courts have relied on his case for procreative liberty to adjudicate controversies ranging from fetal misdiagnosis¹² to forced cesarean surgeries¹³ to surrogacy contract disputes¹⁴ to frozen embryo disposition.¹⁵

‘Procreative liberty’ draws life from the constitutional rights to access birth control and abortion.¹⁶ The US Supreme Court has designated those practices among the handful of fundamental rights—like freedom of thought and movement—that demand the greatest measure of protection against government intrusion. So federal and state actors can’t ban contraception or abortion without the strongest possible justification. But neither right entitles a woman who can’t afford them to the ‘financial resources’ they’d need ‘to avail herself of’ those otherwise ‘protected choices’.¹⁷ These rights paradigmatically target the decision to prevent or end an unwanted pregnancy. But they also empower individuals to achieve wanted parenthood by refusing contraception or abortion.¹⁸ The court articulated these rights in not just negative but positive terms: ‘to accomplish … conception’¹⁹, ‘to conceive and to raise one's children’²⁰, ‘whether to bear or beget’.²¹ Robertson argued such protections should extend to reproduction with assistance from donors, surrogates, or technology. But he appreciated that the landmark privacy cases allow this broader reach just as surely as they don’t compel it.²² Indeed, the Supreme Court hasn’t yet spoken to the involvement of third parties in reproductive rights.²³ And state courts for their part almost always decline invitations to enlarge those rights beyond government restrictions on abortion and birth control. They’ve upheld restrictions on reproduction, for example, that range from probate conditions that forbid procreation²⁴ and judicial orders barring drug-using parents from having additional children until they get clean²⁵ to bans on donating sperm without pay²⁶ and rules barring prisoners from mailing their sperm to their wives for the purpose of insemination.²⁷ Professor Robertson weighed in on many of these questions over the years as advances in the methods and mores of procreation dramatically transformed the reproductive landscape over the quarter-century since his book's publication,²⁸ including recently in the pages of this journal on matters of egg freezing and uterine transplants.²⁹

Most controversial among Robertson's work on procreative liberty was its application to the prenatal selection of offspring characteristics.³⁰ People should have a constitutional right, in his view, against laws that limit the use of reproductive medicine or technology to have (or avoid having) a child who is (or would be) born with particular traits. If people are generally free to choose whether or not to reproduce, Robertson argued, and if the genetic characteristics of expected offspring will affect that decision, then they should also be generally free to use genetic information in making those decisions. He didn’t go as far as ruling out constraints on the use of reproductive technology to tinker with trivial traits like eye color or enhance characteristics like intelligence or diminish offspring senses or capacities. ‘[P]rocreative liberty would protect only actions’, he argued, ‘designed to enable a couple to have normal, healthy offspring whom they intend to rear’.³¹ This limit wasn’t absolute, however. It simply reflected Robertson's appreciation that many people who screen donors or fetuses are trying to select for the traits that they think would make raising a child more meaningful or gratifying. The question for Robertson was whether genetic selection for a particular attribute ‘is so centrally implicated with the decision whether or not to reproduce that it should receive presumptive protection as an exercise of procreative freedom’.³²

[I]ndividuals seek or avoid reproduction precisely because of the types of experiences, situations, and responsibilities that it will entail. A person who chooses to reproduce chooses to accept the experiences and responsibilities entailed in reproduction and child rearing, unknown and vague as they may be at the time of choice. If the package of burdens and responsibilities differs markedly from one she finds acceptable, then that person might choose not to reproduce.³³

‘[S]ome choices over nonmedical traits might also qualify for presumptive protection’, he concluded, ‘because the person seeking such information would base a reproductive decision on it’.³⁴ So Robertson likely would have opposed the recent slate of selective abortion bans that make it a crime for doctors to terminate a pregnancy they know is being sought for reasons particular to offspring traits. There's question that his theory of procreative liberty would accordingly have ruled out North Dakota's abortion ban based on the presence of a genetic anomaly like Down syndrome. But he also likely would’ve rejected the eight states that ban sex-selective abortion and even Arizona's law that bars abortion on racial grounds.³⁵ ‘If abortion is accepted generally’, he wrote in Children of Choice, ‘then it should be available for genetic selection reasons as well’.³⁶ As with procreative liberty more generally, Robertson's concern was constitutional liberty against government interference.³⁷ And aside from that handful of selective abortion laws, the US legal system indeed leaves prospective parents free to enlist fertility clinics, sperm banks, or OB/GYN practices to choose for this trait or that in a future child.³⁸ But how should American law protect against professional negligence that disrupts these efforts?

This essay seeks to extend Robertson's arguments about procreative liberty from public restrictions to private ones, from government officials to medical professionals, from constitutional law to contracts and torts. Courts have consistently held that the private ‘law does not recognize disruption of family planning either as an independent cause of action or element of damages’.³⁹ Contract or tort actions against wrongfully frustrated donor screening or embryo selection need ‘not [be] coextensive with or measured by the woman's constitutional right to decide the fate of her pregnancy’.⁴⁰ But reproductive interests in one domain of law can usefully inform the other. My focus lies with thwarted selection of offspring traits—what I have elsewhere called ‘confounded procreation’.⁴¹ The plaintiffs in these cases wanted a baby and got one, except that the defendant's negligence led them to get a baby with genetic traits that are different than those they’d used reproductive medicine to select for. What they wanted, for any number of reasons, wasn’t just any child, but a child of a particular type. So they review ultrasound images or peruse donor profiles that enable them to learn certain information about what potential offspring might be like. Their goal is to use that information to choose among possible cells or tissues or nascent human beings before deciding which will be born or implanted or conceived. But then professionals fertilize patients with the wrong sperm, implant another couple's embryos, misrepresent donor information, or misdiagnose fetuses. These kinds of errors lead patients to initiate, continue, or terminate pregnancies in ways that frustrate their preferences for a child of one kind or another. The most common thing that prospective parents are looking for when they use prenatal screening today is a child who's biologically related to them or who's free of some disease that they’re at risk of passing on. Other would-be parents are looking for traits other than health or heredity. Some people might try to have a girl or boy for nonmedical reasons; others a child who resembles their physical or other genetically influenced features that matter to them. Three examples will illustrate. The first one involves thwarted efforts to select for health. The second concerns the lost preference for heredity. The third controversy implicates race as well.

Case 1: Chaya and Menachem Grossbaum were devout newlyweds eager to start a family. Both had attended Jewish high school, where they learned they were carriers of a recessive disorder called cystic fibrosis that affects many Jews of Eastern-European descent.⁴² The disease fills a person's lungs with a thick mucus that often causing wheezing and restricts mobility. A person with cystic fibrosis is also prone to antibiotic-resistant infections. Chaya and Menachem didn’t have the disease themselves. Only a person with two mutated genes does. They had one each, making them healthy carriers. Any child of theirs, however, would have a one-in-four chance of both mutations.⁴³ Here's how one mother described what that means.

Time is important in describing life with cystic fibrosis: how many hours each day you spend on treatments (for my toddler son, two; for adults, up to four), how many weeks at a time you spend in the hospital (a couple, if you’re having a ‘tune-up’ for a lung infection), how many months since you last saw a doctor (during periods of relative health, three). How many years you can expect to live: In 2016, half of all reported deaths occurred before the age of 30. In the later stages of the disease, you might measure time between incidents of coughing up blood, keep track of how long you’ve been on oxygen full time, or, should you qualify for one, count the number of years you’re expected to live after a double lung transplant (about five). Most patients with [cystic fibrosis] die in a hospital setting, after a long, steady decline, of overwhelming lung infections.⁴⁴

The Grossbaums didn’t want a child of theirs to suffer like they’d seen others in their community. And the couple strongly opposed abortion on religious grounds. So they underwent IVF to create embryos that could be screened for the disease before deciding which to implant. But their genetic testing facility cut corners that led it to clear an affected embryo as ‘OK for transfer’.⁴⁵ The doctors didn’t notice it had the two mutated genes that confer cystic fibrosis before using it to initiate pregnancy. Nine months later, Mrs. Grossbaum gave birth to a baby girl with the very condition they’d sought to avoid. The couple lost their home in the city while sorting out her medical care. By the time they got their lives in order enough to file a lawsuit, their daughter was two. That was too late, according to the 2011 New Jersey court. It dismissed their claims as untimely.⁴⁶

Case 2: Unlike reproductive negligence that leaves people with or without a baby, confounded procreation can sometimes go undiscovered for years. Pam and John Branum were a retired couple with a grown daughter, Annie. In 2013, they figured ancestry testing would be a fun family project. They never expected to learn that John and Annie weren’t biologically related—and certainly not that was the offspring of a convicted kidnapper.⁴⁷ The Branums had trouble conceiving the old-fashioned way after they got married. So they went to a local fertility clinic for help. This was back in 1991. Artificial insemination helped Pam get pregnant using John's sperm. Or so they thought. The genetic testing kit they got more than 20 years later revealed that there’d been a mistake: John wasn’t Annie's biological father.⁴⁸ Her DNA had come from another man. I’ve previously explained the social importance of parent–child heredity as follows:

For many, a ‘blood’ relationship manifests an emotional bond through physical resemblance of offspring. These parents value a shared biological identity that they anticipate being able to witness in the appearance or temperament of their children, whom they presume will take after various genetic relatives. Others seek to share with their children ostensibly inherited traits invested with symbolic meaning because they identify parent and child as members of the same group or prevent a loss of genetic continuity between a people's past and future. The father in the Baby M surrogacy case, for example, as the last Holocaust survivor in his family sought to ‘maintain[] the genetic line’ as ‘a chance to ward off existential loneliness.’ Likewise, certain communities credit biological connection to future generations as an important source of religious or cultural belonging.⁴⁹

A genealogist helped the Branums track down a Thomas Ray Lippert, who’d worked at the clinic at the time. The switch denied John the biological connection he’d sought out and otherwise would have shared with their only child. What's more is that Lippert had a sordid history of violence. He’d even served two years in prison back in 1970s for abducting a college student as part of an ‘experiment’ to make her fall in love with him. He’d give her rewards with a picture of himself, and electrocute her when she got photos of others.⁵⁰ ‘I was shaking when I found out’, said Pam. ‘I felt shock, anger, hurt, violated.’⁵¹ The Branums are coming to terms with the mix-up. But they aren’t holding out hope for legal relief or more details about what happened.⁵² Lippert died in 1991. So has the owner of the clinic, which closed in 1998. And its records were since destroyed in a fire.⁵³

Case 3: Parents tend to learn that a spouse's reproductive material was swapped with a stranger's only if the two have visibly distinct features. This third kind of mix-up usually adds a racial dimension. Nancy and Thomas Andrews, a married couple, were struggling to grow their family. They wanted to ‘have a child who would be biologically their own’ and share their light-skinned features. He's white; she's Dominican. They went to a fertility clinic to combine his sperm with her eggs. When their baby girl was born, the couple noticed that she was much ‘darker skinned’ than either of them, with ‘facial and hair characteristics more typical of African … descent’.⁵⁴ The doctor assured them that their daughter would ‘get lighter over time.’⁵⁵ But they were skeptical. So they had her DNA tested. The results confirmed that a mistake had been made. The court had little trouble finding that the clinic ‘negligently used someone else's sperm to fertilize [her] eggs’.⁵⁶ Not only was their daughter not biologically related to Mr. Andrews: ‘[D]ue to defendants’ negligence, they have been forced to raise a child who is not even the same race, nationality, color.’⁵⁷ Some prospective parents may accordingly seek to spare their child racial taunts, confused racial identity, or deficient access to racial culture. Others might fear that racially phenotypic differences make it harder to assimilate into mainstream society or even their own extended family. Mrs. Andrews made clear: ‘We love Jessica as our own. But we are reminded of this terrible mistake every time we look at her.’⁵⁸ The court found against them. It was ‘unable to hold that the birth of an unwanted but otherwise healthy and normal child constitutes an injury to the child's parents’. And it was unwilling ‘to adopt a rule, the primary effect of which is to encourage, indeed reward, the parents’ disparagement or outright denial of the value of their child's life’. This is the same public policy that dooms most claims against frustrated efforts to have offspring of a particular type. Providing recovery to parents would insult the child they have, the court reasoned, and disfigure the love between them. Having disposed of the case on these racially neutral terms, the court didn’t remark any further on the Andrews’ more contentious claim ‘that, due to defendants’ negligence, they have been forced to raise a child who is not even the same race, nationality, color’.⁵⁹

Professor Robertson might have wondered why controversies like these can’t be sensibly resolved under the law that governs broken agreements for the performance of particular procedures. He was a noted contracts scholar who brought insightful ‘precommitment strategies’ to bear on a range of bioethics disputes from gestational surrogacy, embryo disposition, and posthumous reproduction to organ transplantation and selective nontreatment at both the beginning and end of life.⁶⁰ Surely he would have noted that thwarted offspring selection happens after patients and providers had previously reached an agreement about the terms of monetary exchange for donor selection, embryo screening, or fetal diagnosis. Contract claims are rarely successful, however, in the context of confounded procreation. Reproductive specialists are savvy enough to secure liability waivers for even implied breach. And they generally decline to promise any specific results beyond perhaps the relative safety of those directly under their care. Breach of contract requires a formal promise ‘to effect a specific result or cure’.⁶¹ But reproductive specialists hardly ever make such assurances about the pregnancy or parenthood that their services are designed to help patients pursue, avoid, or shape. Most even insist that patients sign clauses that shield reproductive specialists from any liability for even implied breach. Courts routinely dismiss claims against prenatal misdiagnosis, for example, on the ground that patients had signed a clause declaring that providers ‘do not assume responsibility for the physical and mental characteristics of hereditary tendencies of any child born as a result of these procedures’.⁶²

There's another difficulty with applying contract law to resolve disputes when specialists fertilize or implant reproductive materials that differ from the ones that their patients had paid them to. Courts sometimes excuse a breaching party if its failure to perform causes little material harm. In the classic ‘Reading Pipes’ case, for example, a property holder refused to pay the builders he contracted with to build an upscale house. His reason was that they’d used a different brand of pipes than the one specified in their agreement.⁶³ The court held for the builders. Because the generic pipe brand was the same wrought iron quality, it reasoned, contract law wouldn’t protect against the ‘transgressor whose default is unintentional and trivial’.⁶⁴ Children aren’t pipes. But courts might borrow similar logic to limit recovery for a negligent switch in the reproductive context too. Say providers use material from the wrong donor, or from a stranger instead of a spouse. Patients might have to prove that a resulting child differs in ways that go to the heart of the contract for reproductive services. The Reading Pipes material-breach doctrine might bar contract recovery for such cases so long as patients got any child at all, and especially a healthy one. Even if the mix-up led the child they got to depart from their clearly expressed expectations in any number of ways that matter a great deal to them, a court might regard such departures, like the other brand of pipes, as incidental to the contract. Contracts isn’t as good a fit as tort law, with its emphasis on nondisclaimable obligations of care by professionals entrusted to carry out a cherished social practice with far-reaching life consequences. These reproductive duties to patients or clients do more than fill in contractual gaps in the name of justice or modify agreements for good faith or fair dealing. Torts is better equipped to accommodate new forms of wrongfully inflicted harm that merit protection in the absence of any explicit or implicit warranty or when it's difficult or unseemly to prove material breach.

My focus on family planning specialists leads me to set aside discussion of otherwise similar misconduct by sexual partners. Some may, for example, carelessly misrepresent a genetically influenced trait or fail to disclose a medical condition that might lead them to have a child who inherits it. That's not my concern here. A companion's deceit, however vile, doesn’t violate any formal obligation to care for the reproductive interests of their intimate partner. Besides, both are presumed equally capable of affirming their own individual interests, at least in the absence of special power imbalances. Courts have accordingly chided the man who resists paying child support for a child he unwittingly conceived that his partner's having lied about using birth control ‘in no way limited his [own] right to [have] use[d] contraception’.⁶⁵ Not so with procreation specialists ranging from obstetricians, pharmacists, and embryologists to sperm bank operators, fertility doctors, and OB/GYNs. All assume a professional duty to care for the reproductive interests of their patients. Medical malpractice law doesn’t impose this obligation on every such professional, however. A Florida couple was barred from bringing a malpractice action, for example, against the ultrasound technician who negligently misadvised them during pregnancy. He’d assured them after reviewing their sonogram that ‘their fetus had ten fingers and ten toes’. And then their daughter was born missing an arm. The 2009 court dismissed their malpractice claim. A medical sonographer doesn’t qualify as the kind of ‘health care provider’, it held, who can be sued for malpractice in the state of Florida.⁶⁶ And yet, ‘[i]f there are no legal consequences for slipshod, even misleading, genetic counseling’, a Rhode Island court implored, ‘what legal duty is there for counselors to meet any standard of professional care?’⁶⁷

The closest action to reproductive malpractice is the embattled claim for ‘wrongful birth’ or alternatively ‘wrongful life’. These emerged in the USA after abortion was legalized there in 1973.⁶⁸ They enable injured parties to bring lawsuits against medical specialists who fail, for example, to offer carrier screening or prenatal diagnosis in the face of increased risks, such as advanced maternal age for Down syndrome⁶⁹ or Eastern European Jewish for Tay-Sachs disease.⁷⁰ Other wrongful birth and life cases involve mistakes in interpreting⁷¹ or communicating the results of those tests.⁷² The difference between these two actions has to do with who—the parents or the child—claims the injury. For ‘wrongful birth’, it's the parents who sue a negligent provider. It's the child, by contrast, who argues that he's been harmed by his own ‘wrongful life’. Wrongful birth and wrongful life claims have been targets of vigorous prolife challenges in state legislatures since the early 1980s.⁷³ Wrongful birth claims are banned by statute in a dozen states, and by common law in another 10.⁷⁴ Wrongful life is prohibited in all but California, Maine, New Jersey, and Washington.⁷⁵ All four of these states narrowly limit damage awards to medical expenses required to treat the resulting impairment. Where wrongful birth and life actions survive, courts are quick to note their uncomfortable fit within the bounds of ‘traditional torts analysis’.⁷⁶ The main problem is that neither speaks to the real loss when procreation is confounded. Wrongful birth suits require proof that a woman would have ended her pregnancy had she not been misinformed about it. And they peg damages on the monetary costs of raising the resulting child.⁷⁷ So these actions ‘require a mother to testify that she would have had an abortion’, Professor Wendy Hensel points out, or else ‘if properly informed of her child's defect’. But framing the mother's harm as the ‘lost opportunity to abort the impaired child’ pits the ‘goals of tort law’ against ‘the meaning of life itself’.⁷⁸ Courts worry that wrongful life actions require a hopeless comparison between life and nonexistence, while wrongful birth suits offend vulnerable groups or children who’ll receive a message that their parents would have been better off without them.⁷⁹ Some judges deny compensation so that children won’t be cast ‘emotional bastard[s]’.⁸⁰ Others dismiss claims outright to avoid the ‘unseemly spectacle of parents disparaging the “value” of their children or the degree of their affection for them in open court’.⁸¹ The effect is to insulate doctors who fail to disclose fetal anomalies to their pregnant patients—indeed, even if they actively withhold that material information from them.⁸²

Another difficulty with both medical malpractice the wrongful procreation torts is their focus on physical and economic harms to persons or their possessions. It's only bodily injury or financial losses that usually qualify for pain-and-suffering damages under these claims—or that provide the hook required to recover under negligent infliction of emotional distress. If that wrongfully inflicted anguish isn’t tied to some physical or economic setback, courts tend to be wary that the thwarted reproductive interests that Robertson defended are too slight, squishy, or subjective to warrant liability and monetary damages. They require that plaintiffs show that bodily injury, physical impact, or at least its risk from within the so-called zone of danger accompanied or manifested any resulting mental harm.⁸³ Even jurisdictions most genial to its compensation set high bar for which kinds qualify for compensation.⁸⁴ They single out such harm for demanding special proof not only that it does serious and lasting damage. A bystander who witnesses a horrific accident still can’t recover, however grave or clearly manifested his panic or shock, unless he's ‘closely related’ to the victim, immediately ‘present at the scene of the [physical] injury’ and fully ‘aware’ of its real-time occurrence.⁸⁵ These more tangible harms and immediacy conditions are precisely what's missing, however, when donors or embryo get misrepresented, mislabeled, or misplaced. So the ‘parents of a child [born] with a serious disease cannot recover for emotional injury’ related to his prenatal misdiagnosis any more than they can ‘for mental distress arising from having a child who is not [their] biological offspring’.⁸⁶ Failure to conform to these strictures makes the harms of thwarted offspring selection ones that, as Robertson himself nearly 30 years ago observed in a footnote, ‘the tort system does not usually recognize’.⁸⁷

Were tort law to remedy confounded procreation, that loss would be difficult to quantify for purposes of determining damage awards. The magnitude of that injury should depend on its practical meaning and repercussions for the lives of individual families. And this is a function of context. Any generalized classification or grouping is bound to admit of no small measure of arbitrariness and more than a few exceptions. But that doesn’t mean these reproductive injuries can’t be evaluated in a systematic way. When negligence is proven to have thwarted parents’ interest in selecting for their child's future health, a court might focus on the implications for offspring lifespan, impairment, medical care, and treatment options. It might begin by asking: (1) How long does a person with the condition usually live? (2) In what ways does it impair the body or mind? (3) What kind of medical care does living with the condition require? and (4) To what extent is treatment likely to mitigate its hardships? Answering these questions requires not only tending to the values and circumstances specific to individual families. It also requires predicting the probable expression of genetic disorders whose symptoms and outcomes can vary. The impact of switched gametes and misimplanted embryos makes this harm a decidedly objective one. The measure of that injury isn’t just a subjective matter of the views that victims happen to hold, or how disappointed feel, about their frustrated efforts to have a child of one kind or another. But it’ll still depend importantly on what kind of child they wanted and why. Is the reason that prospective parents opted for the reproductive procedure they did, for example, that they were looking to continue a bloodline? Or avoid a hereditary disorder. Had they hoped to share some cultural identity by choosing a sperm donor advertised with specified characteristics? Was their goal to have a girl with mom's red hair or a boy who's tall like dad? In certain cases, it may be reasonable to infer these reasons even if reproductive patients hadn’t made explicit to their fertility provider that they had sought to avoid a specific debilitating disease in their offspring. Courts have acknowledged, for example, ‘it is difficult to conceive that parents, concerned about whether the[ir] egg donor had freckles and with the size of her eyes and ears, would not have expected full disclosure of information regarding whether she carried cystic fibrosis.’⁸⁸

Confounded procreation is most serious for misconduct that results in ailments so debilitating that they shorten life or prevent child from ever ‘being able to live on his own or function in society without constant care’.⁸⁹ Reproductive interests in prenatal selection are weaker, by comparison, for conditions whose symptoms or effects are either milder, treatable, uncertain to manifest, or certain to do so but only much later in life. Ambiguous genitalia impede the ability to engage in sexual relationships, for example, just as anti-social personality disorder does for social ones—the effects of both may be mitigated through surgery or therapy. For something like near-sightedness, glasses or contacts offer a less grueling and fuller proof fix. Then there are genetic susceptibilities for cancers of the colon, prostate, or breast that may possibly cut life painfully short—or never manifest at all. Neurodegenerative diseases like Huntington's or Alzheimer's are fatal, but their symptoms usually don’t manifest until adulthood. There's another reason that it's hard to generalize about the relative severity of birth-related disorders. Most express themselves in meaningfully variable ways that can’t be known before birth. For example, people with achondroplasia (commonly referred to as dwarfism) usually enjoy a normal lifespan with few health complications, but some develop painful and even life-threatening bone problems.⁹⁰ Down syndrome can, in a similar vein, cause markedly more or less significant growth and developmental delays.⁹¹ A person with the condition ‘may be profoundly mentally retarded and severely restricted in motor functioning’, notes Professor Wendy Hensel, ‘or may be capable of meaningful employment, relationships, and community engagement’.⁹² These capabilities in turn vary based on the evolving services available to support associated needs and challenges. Or take the cystic fibrosis that the Grossbaum's daughter was born with. The disease confines some people to a wheelchair and much of their lives in the hospital, while others with it have no problem playing most sports. And the average lifespan for people with that condition has progressively improved, from just 10 years in the 1960s to almost 40 today.⁹³ The injury of confounded procreation is appreciably weaker for wrongfully frustrated efforts to choose offspring for characteristics that are unrelated to health. That's because those like short stature, color blindness, and ‘bat’ ears that stick out to the side typically don’t obstruct basic capacities or require the hospital visits, medical expenses, and special education that caring for a child with special needs can entail. Mix-ups involving traits whose effects on family life tend to be negligible or skin-deep incur correspondingly modest harms.

Take the Harnichers, David, and Stephanie. He was all-but infertile. So they sought to have his sperm mixed with working sperm in order to give them a real chance at conceiving. The couple pored over the donor profiles in search of one who ‘closely matched David's physical characteristics’. He and Stephanie wanted to ‘believe and represent’ to themselves and the outside world that any ‘child born as a result would be’ genetically related to him as well as her.⁹⁴ The sperm catalog turned up a doppelganger. And the insemination process gave the couple not one, but three healthy kids—except they looked nothing like David. Genetic tests confirmed that the sperm bank had used the wrong donor. The switch didn’t deprive David like John Branum, of any biological connection he otherwise could have had enjoyed. His ‘low sperm count and decreased sperm mobility’ would’ve kept any children that the Harnichers had from being related to him in that way even if the sperm bank had sent them material from the lookalike.⁹⁵ His grievance was instead that they ‘do not look as much like him as different children might have’.⁹⁶ The sperm bank's ‘mistaken use of the wrong donor’, the Utah Supreme Court clarified, ‘thwarted their intention’ of holding David out as their ‘biological father’.⁹⁷ A majority disparaged that that foiled desire as the ‘destruction of a fiction’. And they reasoned that ‘[e]xposure to the truth about one's’ genetic relationship with one's family ‘cannot be considered an injury’ real or worthy enough for the law to recognize.⁹⁸ The two dissenting justices took the couple's reproductive goals more seriously. Were it not for the ‘mixing [of] sperm from the wrong donor’, they argued, that fiction ‘would simply have been an “alternative reality” for the Harnicher family’.⁹⁹ Physical resemblance would have afforded cover—within and outside their family—for David's fertility as well as his biological relationship with his children. In a moral culture that privileges families connected by biology, it isn’t hard to appreciate why parents who reproduce with assistance from technology or intermediaries might seek to ‘pass’ as sharing blood ties. But some biological offspring don’t look like their genetic parents anyway. And the negligent thwarting of these features is unlikely to disrupt family life in as far-reaching ways. The loss of resemblance probably inflicts too slight a parental setback to warrant more than symbolic compensation.

The Harnicher majority also erred to deny recovery on the ground that whatever particulars distinguish the ones that were supposed to be used from the ones that were can’t be ‘reliably predicted’.¹⁰⁰ It's true that the effects of donor mix-up or prenatal misdiagnoses can be indeterminate or hard to know for some years to come. Guesswork pervades embryo screening and embryo selection even when specialists make egregious mistakes in passing along or acting on incorrect information about how offspring are likely to turn out at birth. Genetic dispositions are notoriously difficult to diagnose. Testing of gametes, embryos, or fetuses rarely if ever guarantees whether or how particular conditions will manifest. It's true that a handful of the most severe medical conditions are caused by variants in a single, identifiable region of a person's DNA. But most involve unspecified contributions from variants in many different regions that affect no more than the rough chances of being born with a given condition. That uncertainty is even greater for frustrated attempts to pick and choose for susceptibility to complex traits like height and cancer that can’t for now be reliably detected with much confidence before birth. And some cases of thwarted selection will have targeted traits like appearance or intelligence whose expression in offspring can’t be reliably predicted at all. There's of course no guarantee that traits like looks or smarts or dispositions to disease that come about from scores of genes working in concert with other factors will actually show up in the children that people have. So competent care wouldn’t have assured that a child would be born with the selected traits—this doesn’t justify immunizing professional misconduct or refusing legal relief to its victims. It's reason instead to reduce awards in proportion to the causal role of factors other than wrongdoing.

The jumbling of biological and environmental contributions throws an added wrench into liability determinations for more complexly genetic conditions. The limits of susceptibility testing, for example, make precise and accurate predictions impossible for conditions like multiple sclerosis, type I diabetes, heart disease, obesity, and alcoholism. How should courts determine damages where professional misconduct frustrates prenatal efforts to avoid passing on a family history of predispositions like these? Suppose that a husband and wife decide to have kids. The wife's father was recently diagnosed with Alzheimer's, which usually results in dementia and eventually death. The wife undergoes a risk analysis. She tests positive for a variant of the APOE gene that makes her four times as likely to get Alzheimer's. Other mostly unidentified genes also affect a person's chances of developing the disease, as do environmental factors like head injuries or accumulate education can significantly increase or decreases. And if she gets it, any genetic child she has would be three times as likely to get it too.¹⁰¹ She and her husband decide to use IVF and preimplantation screening so that at least they can weed out the APOE mutation. But the clinic negligently implants an embryo with that mutation instead. The error increases the likelihood that the resulting child will develop Alzheimer's. But it doesn’t guarantee that fate.¹⁰² Courts should in such cases reject an all-or-nothing approach that would allow full recovery or none. Damages should instead reflect the best-estimated role of professional wrongdoing relative to other plausible causes. That percentage would come out of what the award would have been for the absolute loss if the condition had in fact materialized. A child may not ultimately develop the disease—either at all or as severely as anticipated. But this uncertainty shouldn’t bar recovery when wrongdoing caused or exacerbated that susceptibility. Courts can simply fashion protective remedies like a judicially supervised guardianship or reversionary trust that disburses funds only as the repercussions of that mix-up or misdiagnosis are felt.¹⁰³ Anything that's left over if and when those consequences dissipate would be returned to the defendant.¹⁰⁴

Computing awards is one thing. Authorizing remedies is another. Judicial recovery for confounded procreation risks reflecting or reinforcing ‘quality control’ over the next generation. For courts to redress thwarted offspring selection, on this view, would override the unconditional love and openness that parents should bear toward the unpredictable ways in which their (future) child's life might unfold. ‘Parental love is not contingent’, as Professor Michael Sandel puts it, on the ‘talents and attributes a child happens to have’.¹⁰⁵ By contrast, consider the ‘[n]orms of particularity’ that ‘prompt us to choose among potential [dating or marriage] partners on the basis of whatever characteristics—a quick wit, straight teeth, or shared racial background—we find desirable’.¹⁰⁶ The discriminating manner in which people pick romantic partners strike a disconcerting chord for the law to embolden or encourage prospective parents to create offspring. Even scholars like Professor Hank Greely who argue that ‘[g]enetic selection’ is unlikely to increase the [inevitable] mismatch between [parental] hopes and reality’ grant that it “may increase the parents” confidence in their hopes’.¹⁰⁷ Should courts protect against confounded efforts to have a child of a particular sex, height, and intelligence? Would recognizing such a right make prenatal selection for less significant traits a routine matter of legal entitlement?¹⁰⁸ There's reason to be skeptical. Some point to our still-limited powers of genetic knowledge and to the relatively restrained aspirations that most American parents tend to have for offspring born with good health and shared heredity, nothing more.

In the near future, at least, the fear of ‘genetic consumerism’ seems greatly exaggerated. Not only is the detection of genetic variations predisposing to [desired] traits likely to remain elusive, but parental expectations for their children's biological endowment are generally modest—‘as long as it has ten fingers and ten toes.’¹⁰⁹

It's of course possible that reproductive science advances more rapidly than anticipated, and parental expectations along with them. Even so, others think, it doesn’t make sense to ask parents to accept baby before he emerges with traits that they come to value.¹¹⁰ ‘Before the existence’ of a new child, Professor Frances Kamm claims, ‘there is no person yet with certain characteristics that we have to accept if we love him and do not want to impose’ psychological pressure or ‘undue burdens necessary for changes’. Kamm fundamentally agrees with Professor Robertson on this point that it is altogether ‘rational and acceptable to seek good characteristics in a new person, even though we know that when the child comes to be and we love him or her, many of these characteristics may come and go and we will continue to love the particular person’.¹¹¹

Historical context is useful here. Robertson certainly wasn’t sanguine about the freighted genesis or flimsy doctrine from which to advocate broader rights related to having children. It wasn’t enough that judges had long opined on the centrality of reproductive decision making in human life. In Skinner v Oklahoma, a nearly unanimous Supreme Court struck down a 1935 sterilization mandate.¹¹² The majority called procreation ‘fundamental to the very existence and survival of the race’ and named it among ‘the basic civil rights of man’.¹¹³ This high-flying description of reproductive rights is nonbinding dicta, Robertson appreciated. So despite its rhetorical force, it carries no precedential value or legal authority. The controversy emerged between the first and second World Wars, when 33 states compelled sterilization as a genetic solution to social problems ranging from disease, depravity, and feeblemindedness to indigence, alcoholism, and criminality.¹¹⁴ Oklahoma's targeted ‘habitual criminals’, defined as people convicted of three crimes ‘involving moral turpitude’.¹¹⁵ This three-strikes law empowered the state to sterilize prisoners like the one-footed chicken thief named Jack Skinner who challenged the law's constitutionality all the way to the Supreme Court.¹¹⁶ Skinner faced an uphill battle.

So-called ‘progressive’ eugenics held broad cultural and political appeal in early 20th century America.¹¹⁷ This ideal sought to improve the gene pool through ‘[s]election of the fittest, or at least, rejection of the unfittest’.¹¹⁸ In 1916, Margaret Sanger opened the first birth control clinic in the USA in part to ‘limit and discourage the overfertility of the mentally and physically defective’.¹¹⁹ By 1920, 350 colleges and universities offered eugenics courses instructing students how to make wise reproductive decisions.¹²⁰ And from 1918 to 1927, the American Eugenics Society sponsored state-fair competitions for the finest genetic histories and highest medical, psychological, and intelligence test results.¹²¹ But it wasn’t all ‘Better Baby’ and ‘Fitter Families’ contests. Nazis drew inspiration and support from sterilization laws like Oklahoma's.¹²² ‘What we racial hygienists promote is not at all new or unheard of’, a leading German eugenicist affirmed in 1926. ‘In a cultural nation of the first order, the United States of America, that which we strive toward was introduced long ago.’¹²³ A California sterilization report was one of the first English books that the Führer translated into German.¹²⁴ The Third Reich cited it widely to justify mass sterilization as an effective and humane means of achieving what the report called ‘Human Betterment’.¹²⁵ And American commentators echoed the kudos for Hitler's own sterilization program. ‘Here, perhaps, is an aspect of the new Germany’, the Los Angeles Times wrote, ‘that America, with the rest of the world, can little afford to criticize’.¹²⁶ Progressive eugenics was championed by diverse causes from family planning to population control, and across the ideological spectrum, from liberal Democrats like Woodrow Wilson to conservative Republicans like Calvin Coolidge.¹²⁷ President Theodore Roosevelt heralded the ‘inescapable duty’ of every ‘citizen of the right type [] to leave his or her blood behind him in the world’ and prevent ‘the perpetuation of the citizens of the wrong type’.¹²⁸

This strong support for eugenics buoyed the infamous 1927 Supreme Court decision that upheld Virginia's sterilization of a poor white teenager named Carrie Buck who became pregnant after she was raped. The law targeted her for being ‘mental[ly] defective[]’, ‘feeble minded’, and ‘socially inadequate’. In the ignoble words of Justice Oliver Wendell Holmes, Jr.,

It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind…. Three generations of imbeciles are enough.¹²⁹

Justice Pierce Butler, the lone holdout amidst an eight-justice majority in Buck v Bell, didn’t even write a dissenting opinion. And he died before Oklahoma's sterilization law came before the Court 15 years later.¹³⁰ Little wonder that Skinner didn’t even try to argue that forced vasectomy infringed his individual liberty or inflicted cruel and unusual punishment. His claim was that Oklahoma's law treated him differently than others who were similar. The sterilization statute used the concept of ‘moral turpitude’ to single out Skinner's petty larceny, he argued, while exempting the corruption, embezzlement, and treason of ‘the Capones, the Ponzis and the Benedict Arnolds’.¹³¹ When the law ‘sterilizes one’ person who has committed the same quality of offense ‘and not the other’, Justice William Douglas wrote,

it has made as invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment. Sterilization of those who have thrice committed grand larceny with immunity for those who are embezzlers is a clear, pointed, unmistakable discrimination…. Embezzlers are forever free. Those who steal or take in other ways are not.¹³²

The Supreme Court agreed that Skinner had been denied the equal protection that he was guaranteed under the Constitution. But its musings about the meaning and significance of reproduction were incidental to its judgment. The constitutional defect was not, Justice Douglas made clear, that the ‘irreparable injury’ of sterilization leaves ‘no redemption for the individual’ who ‘is forever deprived of a basic liberty’. Nor was it that ‘[t]he power to sterilize’ can ‘[i]n evil or reckless hands … cause races or types which are inimical to the dominant group to wither and disappear’.¹³³ Despite these flourishes designating a ‘basic civil right[]’ to reproduce, the Court's rationale for striking down the Oklahoma statute sounded in the mundane register of equality between embezzlers and chicken thieves. So procreation was almost beside the point.

Professor Robertson was sensitive to the politically charged march of progress toward greater reproductive freedom in the USA. In Children of Choice, he wrote:

The history of attempts to limit ‘irresponsible reproduction’ is replete with abuse and discrimination. From 1920 to 1960 more than 60,000 ‘mental defectives’ were forcibly sterilized on eugenic grounds, even though the risk of transmission of genetic disease was low and diagnostic errors of mental deficiency abounded. Poor and minority women have also been sterilized without consent under both public and private programs well into the 1970s. As a result, there is an extreme reluctance to even discuss the idea of irresponsible reproduction, much less propose public policies, for fear that it will be viewed as racist to lead to coercive state policies that will replicate earlier abuses.¹³⁴

More than one court has invoked this history as giving reason to resist compensation for offspring selection gone awry. They worry that affording protections to parental interests in selecting offspring DNA ‘could slide quickly into [an] applied eugenics’ that ‘espouse[s] reproduction of the “fit” and discouraged the birth of the “unfit”.’¹³⁵ What will happen, these judges ask, when advances in genetic science and prenatal screening technology makes it possible to uncover the biological contributions for ‘variations and disorders’ including ‘hypertension, diabetes, early- and late-appearing cancers, degenerative disorders, susceptibility genes for communicable diseases, [and] genes for various mental deficiencies’ or even height, intelligence or ‘aging’?

Will we then see the tort of wrongful birth extended to physicians who neglect or misinterpret genetic evidence and thereby fail to extend the option of a eugenic abortion to the unsuspecting parents of a genetically ‘unfit’ or ‘defective’ child?¹³⁶

These courts are wary of slipping down a slope that would compensate ‘the parents of every child’ whose ‘perceived genetic’ abnormality or difference ‘was a foreseeable consequence of the defendant's negligence’.¹³⁷ To start down that path, one Kentucky Supreme Court justice argued, wouldn’t just ‘discriminate against disabled persons’. It also risks ‘produc[ing] a culture that condones’ practices that smack of ‘the extermination of the weak by the strong or the more powerful’.¹³⁸ Professor Robertson resisted the analogy. I relied on his Children of Choice back in 2007 to distinguish Nazi eugenics from the ‘liberal’ ideal of offspring selection that

bears three defining features. The ideal prescribes that decisions touching on reproductive selection should be: (1) voluntary, (2) individualistic, and (3) state-neutral. First, decisions concerning offspring biology should be voluntary in the sense that they are made free of coercion. Whereas the eugenics of old often relied on sexual segregation, miscegenation laws, and forced sterilization, liberal eugenics is given by elective decisions made under no formal constraints. Second, eugenic choices should be individualistic, and in two senses: first, they should be made by individual families rather than government officials or relevant experts, and second, they should be made for individual offspring rather than for gene pools of broader groups…. The third feature of liberal eugenics is that decisions about genetic control be state-neutral, insofar that government does not promote any particular blueprint for what sorts of people there should be, leaving parents free to enhance their offspring as they see fit.¹³⁹

‘Whereas [] “procreative liberty” has historically been invoked as a negative right to prevent conception or birth’ against government intrusion, the profound consequences of reproductive decisions for a person's life and its meaning for them also supports ‘measures to have a child of a particular type.’¹⁴⁰ Robertson's theory has aided lawyers, judges, professors, and citizens to think in clear and sound ways about reproductive controversies of the past quarter-century. This essay has considered the implications of his theory for private law disputes involving the wrongful thwarting of offspring selection for a wide range of traits. The recent emergence of gene editing for human embryos reinforces the significance of Robertson's reflections on the meaning of reproduction and its larger stakes for society. His ideas and influence will endure for generations to come. And his practical wisdom and rare generosity will be deeply missed.

Footnotes

ACKNOWLEDGEMENTS

This essay benefitted from conversations with participants at the 2018 Baby Markets Congress. Special thanks for research support and assistance to the University of San Diego School of Law and the exceptional reference librarians at its Pardee Legal Research Center: Jane Larrington, Melissa Abernathy, Dan Kimmons, Ruth Levor, Christine Mathias, and Sasha Orman.