Fertility Torts: Emerging Theories of Recovery for Wrongful Birth, Wrongful Pregnancy, Negligent Genetic Counseling, and Fertility Treatment Fraud

Tort recovery for the reproductive process is a complex, evolving, and growing area of the law. Wrongful pregnancy relates to the costs incurred as a result of a failed sterilization procedure. Wrongful birth is a parental claim focused on damages flowing from a medical professional's failure to advise as to the possible complications and costs of taking a pregnancy to term. Wrongful life (disfavored in most states) is a claim brought by the child. Fertility-related fraud claims arise out of a sperm bank's erroneous description of the source of the sperm that its patients purchase.

Although wrongful pregnancy is a widely recognized and defined claim, wrongful birth and fertility-fraud claims are evolving and vary from jurisdiction to jurisdiction. In Zelt v. Xytex Corp., a case where the defendant made fraudulent representations regarding the sperm donor, the Eleventh Circuit felt compelled to rule for the defendant as a result of state substantive law disfavoring any claim that a child's birth would be unwanted under any circumstances. So disgusted was the court with the result, it explicitly called upon the "state courts or the state's legislature" to address "[r]eckless, reprehensible and repugnant" conduct that "undoubtedly caused severe emotional harm."

Listen as the panel addresses the provocative issues relating to these emerging areas of medical malpractice law, with which every trial attorney should be familiar. Learn not only the law but strategic choices that arise out of the legal principles discussed.

1. Wrongful birth
   1. Nature of claim
   2. Recognition of claim under governing law
   3. Defenses
2. Wrongful pregnancy
   1. Nature of claim
   2. Recognition of claim under governing law
   3. Defenses
3. Fertility treatment torts
   1. Contract vs. tort
   2. Claims and defenses relating to the treatment of the mother
   3. Claims and defenses relating to life materials provided by others
4. Process issues
   1. Constitutional issues
   2. Choice of forum and law

The panel will review these and other noteworthy matters:

• Elements of these emerging claims
• Identification of recoverable damages
• The medical experts needed to pursue a claim
• Constitutional issues