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Book Review: Birth Rights and Wrongs: How Medicine and Technology are Remaking Reproduction and the Law

2 September 2019
Appeared in BioNews 1013

In his new book, Professor Dov Fox shines a light on the harms that are done to fertility patients, and the lack of protection which the law in the USA affords them. 

Although he doesn't use his professional title in the book, Professor Fox is a professor of law at the University of San Diego in California. Drawing on real cases, from the 19th century to the modern-day, he shows that all too often, the courts have failed to bring those providing fertility services to account for their negligence, leaving patients and their families without any meaningful recourse. 

This book is an especially poignant read in the wake of the recent heart-breaking US case where a clinic mistakenly transferred the embryos of two separate couples to a woman who was going through IVF treatment. The woman carried and gave birth to two babies who were not biologically connected to her or each other and has subsequently had to give the babies to their biological parents. 

Professor Fox approaches this complex subject in a methodical way and challenges his readers to reflect and examine their own views on sensitive matters. He does this with a great deal of sensitivity, frequently acknowledging and unpacking the opposing viewpoint. 

Far from being a dry legal text, one gets the feeling that Professor Fox really cares on a personal level about this subject and is using this book as a call to action for change. He brings the content to life by peppering his writing with real-life cases where the fertility industry has failed patients, demonstrating the devastating impact that malpractice in the fertility sector has on patients and their families. 

Professor Fox explains why it's difficult for victims to succeed in court, and readers may be surprised to discover that there is scant legislation in the USA in the field of assisted reproduction. Professor Fox argues that this means that it is too easy for fertility malpractice to slip under the radar, and for mistakes to be repeated again and again, with devastating consequences.  

Professor Fox neatly summarises why, in his view, this lack of regulation exists, citing the general preference towards libertarianism and suspicion of state intervention in personal matters in the USA. He also believes that the US government doesn't want to get too involved in such morally complex and divisive issues associated with fertility treatment, nor does it wish to stand in the way of the commercial interests of the sector. 

Professor Fox proposes a new framework for how the courts can deal with wrongdoing and identifies three categories of harm that can be inflicted due to professional error: procreation deprived, procreation imposed and procreation confounded. Procreation deprived is where a professional denies someone the chance of having a child, procreation imposed is when someone becomes a parent against their wishes, and procreation confounded is where parents have a baby, but not the baby they were expecting. 

Professor Fox explores how the justice system could remedy harms suffered under each category, offering practical and logical proposals for assessment of culpability and compensation. He argues that the court needs to treat these cases in the same way as other torts, and develop a systematic, reasoned approach so that patients can have access to the justice they deserve.  

One of the issues which crops up throughout the book is the court's underlying reluctance to allow claims where a child has been born following negligence or malpractice of some kind. Perhaps a sperm bank fails to conduct background checks on donors and their medical history, leading parents to conceive a child who has a much higher than average risk of developing schizophrenia. Or perhaps the clinician conducting prenatal screening fails to identify a serious illness in the fetus, depriving the parents of the opportunity to consider whether to proceed with the pregnancy.

The courts shy away from providing parents in these cases with recourse, in case it should appear that by compensating the parents, they are jeopardising the sanctity of human life. Professor Fox argues that this is a fundamental misunderstanding of the issue – parents are not saying they don't love their child, or they wish they hadn't been born. Rather, a mistake was made, a wrong has been suffered, which means that someone needs to be held responsible.

Professor Fox also touches upon the thorny issues regarding the deliberate selection of disabilities, including deafness and Down's Syndrome, and offers a balanced and reasoned view, unpicking the issues and ethical dilemmas which such treatments present to professionals and the justice system. 

Professor Fox challenges the courts and legislators to take a more logical, structured approach when dealing with negligence and malpractice in the fertility sector, to protect and support people when they need it the most. 

This is not an easy read, with every chapter detailing some case where patients have suffered unimaginable harms. It is, however, a hopeful book, as Professor Fox provides a workable and sensible approach which could help patients and their families, as well as improve standards within the fertility sector.

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