Valuing Reproductive Loss
DOV FOX* & JILL WIEBER LENS**
Our legal system characterizes the unborn in a multiplicity of conflict-
ing ways—from persons to property, from body parts to medical invest-
ments. The law of civil wrongs is instructive. It weighs in when
misconduct deprives aspiring parents of the child they had hoped to
have, whether the transgression takes place during pregnancy or before
it. The torts and remedies that govern these cases are riddled with a con-
fusion that comes from treating prenatal life as anything but coherent.
The overturning of Roe v. Wade has cast new light on the neglected doc-
trine of reproductive loss and deepened a tension about the meaning of
prenatal life in both private and public law.
This Article undertakes the first study of jury verdicts for mismanaged
pregnancies and mishandled embryos. This original empirical analysis
reveals wildly erratic outcomes. And it lends insight into the influence of
racial and class biases about “wanted” children and “deserving”
parents. We introduce a framework with which juries should appraise
these losses according to three factors. First is the subjective experience
of losing a wanted baby. Second is the objective chance of having that
baby if not for misconduct. Third is accompanying traumas, such as
delivering a dead baby in a stillbirth. Each factor operates to promote
reproductive justice and recover principle in how the law treats prenatal
death across the landscape of civil awards and criminal restrictions.
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
I. EMPIRICAL STUDY OF JURY AWARDS 65 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. METHODOLOGY 66 ..........................................
B. VERDICT RANGES 66 .........................................
* Herzog Research Professor of Law and Director of the Center for Health Law Policy & Bioethics,
University of San Diego School of Law. © 2023, Dov Fox & Jill Wieber Lens.
** Robert A. Leflar Professor of Law and Associate Dean for Research & Faculty Development,
University of Arkansas School of Law.
For marvelous assistance with research and editing, deep thanks are owed to Mollie Angel, Chelsea
Kanzler, Hector Lozada, Sasha Nunez, Liz Parker, and the Staff of The Georgetown Law Journal. The
authors are grateful for valuable feedback from Aziza Ahmed, Naomi Cahn, June Carbone, Jonathan
Cardi, David Cohen, Glenn Cohen, Mathilde Cohen, Greer Donley, Michele Goodwin, Jessie Hill,
Courtney Joslin, Mike Kelly, Yvette Lindgren, Holly Fernandez Lynch, Maya Manian, Seema
Mohapatra, Kim Mutcherson, Dara Purvis, Rachel Rebouche, Nadia Sawicki, and Mary Ziegler.
Professor Lens dedicates this Article to her sweet boy in heaven, Caleb Marcus Lens.
61
C. LEGAL ACTIONS 68 ..........................................
D. DAMAGE CAPS 70 ...........................................
II. THE INFLUENCE OF RACE AND CLASS 71 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. WEALTH 73 ................................................
B. WANTEDNESS 76 ............................................
C. NEED 79 ..................................................
D. GRIEF 82 ..................................................
III. A MORE PRINCIPLED APPROACH TO DAMAGES 83 . . . . . . . . . . . . . . . . . . . . . .
A. AN INDIVIDUALIZED SUBJECTIVE INJURY 84 ......................
1. The Changed Lived Experience of Reproductive Loss 85
. . .
2. Freedom to Define the Loss 90 ..........................
3. The Risks of Arbitrariness and Unjust Bias 91
. . . . . . . . . . . . .
B. PROBABILISTIC RECOVERY 92 .................................
1. Preexisting Reproductive Difficulties 93
..................
2. Impermissible Factors 95 ...............................
C. DISTINCTIVE TRAUMA 98 .....................................
1. Birthing Your Dead Child 98
............................
2. Hurting the One You Want 99 ...........................
3. Last Chance to Reproduce 100
...........................
4. Somewhere Out There 101
...............................
IV. IMPLICATIONS FOR ABORTION LAW 102 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. UNBORN DOUBLE STANDARDS 102 .... ...........................
B. SUBJECTIVE FETAL PERSONHOOD 106 ............................
C. NORMALIZING REPRODUCTIVE LOSS 108 ..........................
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
62 THE GEORGETOWN LAW JOURNAL [Vol. 112:61
INTRODUCTION
Clayton and Sydney Mayhew recently lost their unborn son, Adam, in Fort
Worth, Texas.
1
Had his death been due to abortion, the performing doctor would
have faced a $100,000 penalty, first-degree felony conviction, and possible life
sentence in prison.
2
These consequences exist even if the abortion occurred at
only five weeks pregnant,
3
only a week after pregnancy is discoverable.
4
See Home Pregnancy Tests: Can You Trust the Results?, MAYO CLINIC, https://www.mayoclinic.
org/healthy-lifestyle/getting-pregnant/in-depth/home-pregnancy-tests/art-20047940 [https://perma.cc/
C5VA-8E8G] (last visited Aug. 28, 2023).
But this was not a case of abortion. Adam was stillborn; he died and was still-
born at forty weeks of pregnancy, the very end of pregnancy.
5
His parents believe
that had the doctor induced labor earlier, as Sydney repeatedly requested due to
extreme pain and discomfort, Adam would be alive today.
6
Instead, Adam was
born dead on the same day the doctor begrudgingly agreed to induce labor.
7
In Texas, the civil law of wrongful death mirrors the criminal abortion statute
in that both deem Adam an “unborn child.”
8
Yet Texas law forbids wrongful
death claims when medical malpractice causes the death of an unborn child.
9
So,
the Mayhews are barred from seeking that form of relief for being deprived of
their child Adam.
Texas law allows Sydney to sue for her own bodily injury, but limits any such
malpractice damages to “the loss of a fetus as part of the woman’s body,” and not
for “the loss of the fetus as a separate individual.”
10
Malpractice law defines
Adam as a body part that parents can’t have formed an emotional relationship
with.
11
Though they had already named him, Adam was, legally, Sydney’s body
part.
What if Adam was not yet a part of Sydney’s body when he died? What if the
Mayhews had used in vitro fertilization (IVF) to create embryos, including an
embryo they named Adam, and the embryos were destroyed in a freezer malfunc-
tion? Again, Texas’s abortion laws define any fertilized egg as a “child.”
12
Texas
courts haven’t yet been called on to decide how to remedy embryos lost in the
1. Interview with Sydney Mayhew (Apr. 24, 2023).
4.
5. Interview with Sydney Mayhew, supra note 1.
6. Id.
7. Id.
8. Compare TEX. CIV. PRAC. & REM. CODE ANN. § 71.001(4) (“‘Individual’ includes an unborn child
at every stage of gestation from fertilization until birth.”), with HEALTH & SAFETY § 170A.001(5)
(“‘Unborn child’ means an individual living member of the homo sapiens species from fertilization until
birth . . . .”).
9. See CIV. PRAC. & REM. § 71.003(c).
10. Edinburg Hosp. Auth. v. Trevi~
no, 941 S.W.2d 76, 79 (Tex. 1997).
the mother’s body, and if that body part is injured through negligent treatment, she has a claim for
medical negligence for injury to her body.”).
12. HEALTH & SAFETY § 171.201(7).
2023] VALUING REPRODUCTIVE LOSS 63
