In March of last year, more than 4,000 human embryos and eggs were destroyed at an Ohio hospital when their cryopreservation tank overheated. Grieving would-be parents — who consider themselves bereaved parents— placed a memorial bench at a local cemetery.
“In memory of the unborn,” it states. “Before I formed you in the womb, I knew you. Jeremiah 1:5.”
Such failures represent the dark side of the boom in reproductive medicine. How courts should respond is the theme of a new book by bioethicist Dov Fox, director of the University of San Diego’s Center for Health Law Policy & Bioethics.
Fox discussed his book “Birth Rights and Wrongs,” and the moral dilemmas that prompted it, Thursday night at a University of San Diego reception. Go to http://j.mp/birthrightsfox for more information.
Couples deprived of children, who get different children from what they asked for, and getting children when faulty contraceptives didn’t work, all result in harm the courts should address, he said.
Without guidance from Congress and state legislatures, courts have grappled with how to evaluate injuries, and whether they should even be involved.
Fox said courts should intervene in such cases as a recognition of the rights of people to have or not to have children according to their own values.
He said there is precedent: Around the beginning of the 20th century, courts recognized people had a right to privacy. The cause was the emergence of inexpensive cameras, which allowed widespread photography of people when they expected privacy.
This right to privacy was behind the successful 2012 lawsuit against Gawker by Terry Bollea, professionally known as Hulk Hogan. Gawker had published a clip from a sex video of Bollea, which he said was taken without his knowledge.
“It was courts, it was judges, who flexed these muscles …” Fox said. “It’s been more than 100 years since courts last flexed these muscles, last invented a new tort, like the right to privacy. In this book, I’m arguing that we need to recover some of that muscle memory.”
Fox said the right to reproductive control also deserves recognition. This include cases that might seem relatively trivial, until you know the facts.
Should the desire of parents to have a child genetically descended from them matter? It did for William Stern, who in 1986 sued a surrogate mother who decided to violate her contract and keep the baby she bore.
“The resultant child was so important to him as the last surviving member of the Holocaust in his family,” Fox said.
“And this belief of a link between the past, the present and the future through genetics, through blood, meant a great deal to him. He felt like that would be lost, it would be cut off, if they had adopted.”
The case of the girl called “Baby M” went on for years before finally being decided in Stern’s favor. The contract was thrown out as illegal, but a court ruled that Baby M’s best interest was served by being raised by Stern and his wife.
On the other side, women who get pregnant because their birth control pills were faulty also deserve redress, he said. In one instance, the pills were packaged in the opposite order, risking unintended pregnancies.
These cases are more than legal theory for Fox: during the talk, Fox’s young son approached him and starting playing with him. Fox eventually picked him up and continued talking about legal theories while keeping the boy occupied.
“I owe everything to my wife and kids,” Fox said. “They will always be the biggest and best decisions of my life.”
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