Private Law Theory

ABSTRACT
More and more individuals seeking to expand their families make use of someone else’s gametes to help create a child. Unsurprisingly, those considering the use of donated or purchased gametes often seek reassurance that the use of those gametes will not create an increased risk that a child thereby produced will have a severe disease. Sometimes, because of negligence or recklessness, gametes are used that result in children having severe disease where that outcome would have been avoided though the use of reasonable care. Regrettably, courts addressing whether liability may be imposed in such cases have sometimes misunderstood and misapplied the prevailing reproductive torts jurisprudence and denied recovery, thereby promoting the very practices that public policy should discourage. This Article offers courts an approach that is more likely to promote both individual interests and good public policy.

Mark Strasser, Making Preconception Tort Theory Crisper, 105 Marquette Law Review 297 (2021).

First posted 2022-04-09 17:30:40