Document Type

Article

Publication Title

Journal of Contemporary Legal Issues

Abstract

A saga in four parts: Dov Fox’s recent book, the aptly named Birth Rights and Wrongs, is, as its title suggests, a study of the stark conflicts that arise in the highly contested area of reproductive rights. Fox makes the powerful case that the legal protection of reproductive rights, in all their protean forms, is systematically under-protected relative to two key benchmarks: the standards of ordinary decency, and social expectations. In my view, he has an acute awareness of these failures. But his greatest strength is also his greatest weakness, as he systematically ignores the great successes wrought through the current system, as disjointed as it might seem on first appearance. Since these triumphs are not sufficiently accounted for, Fox fails to develop a general theory which explains how these technological advances are two-sided developments. In my view, there are always powerful incentives to do better, no matter which way the liability or regulatory rules are set, which tends to account for the higher performance and lower risk rates observed over time in this area notwithstanding the void in tort and regulatory protections. Still, as the liability situation need not be first-best, it is important to note that all of these birth wrongs occur not as harms to strangers, but as harms that arise out of consensual arrangements, where contractual solutions are all too often pushed aside in favor of adopting tort solutions that don’t quite jibe with the situation. Accordingly, this article is divided into four parts. Part I deals with the paradigmatic failures; Part II deals with the underappreciated successes. Part III offers a typology for change. Finally, Part IV deals with the serious difficulty in finding a contractual liability scheme that is better than the status quo.

First Page

67

Volume

23

Publication Date

2021

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