The Costs of Creation: Carter Dillard’s Review of “Birth Rights and Wrongs”, a Response by Dov Fox and a MAHB Commentary

Carter Dillard’s review of “Birth Rights and Wrongs” was first published on Bioethics on April 14, 2022

– Response by Dov Fox and MAHB commentary at the end of this article –

Don’t be afraid to play god or others will do it, and they will be unjust.

Dov Fox’s book, Birth Rights and Wrongs [1] is an act of not being afraid to reorganize the mess of laws, regulations, and common law rules that regulate the creation of other persons and to do it in a way that makes them more just, assuming we take procreative intent and its outcomes as our fundamental values. Fox divides the existing body of law into cases of disputes between reproductive industries and their clientele involving the imposition, deprivation, and confounding of procreative desire, against a background norm of the state mostly refusing to intervene. Amid endless stories of persons deprived of benefits and saddled with burdens, Fox mounts upon the reader the feeling of a scale of justice leaning hard out of balance, with everyday people wronged through the presence or absence of the closest sorts of relationships. 

Fox wades past state hesitancy – much of it the baggage of religion [2] – to form a lattice of new rules to evaluate and resolve the disputes and thereby regulate the industries now operating largely without having to compensate for the harms they cause. The book is unique because it provides a comprehensive account, and reorganization, of private reproductive law mostly under the banner of torts [3], a change necessitated for Fox by the emergence and wildfire spread of reproductive technologies. While the title of his book says that the technologies are remaking the law, that change is nowhere fast enough for Fox, whose urging a new framework judges can pluck out of his book and apply, a new one meant to fit and justify the existing legal landscape enough to actually be used. 

There is a passion driving through the book, along with valuing procreative desire and a proper allocation of the costs and benefits that come with it: Birth rights and wrongs are consequential in such profound ways that we must feel compelled to act, not gape at the complexity and turn away [4]. That passion goes to Fox’s credit, relative to the many scholars who wait for law in the field of bioethics to form and then simply critique it. Fox is after justice, not commentary. One might imagine him as a frustrated tort lawyer, a line of clients out the door as he struggles for solutions to problems the cases before him seem too old and timid to address. 

For Fox private law, presumptively, is the place to start our reforms because it leaves control in the hands of those whose lives – and future daily relations – are so contingent on the outcome. It also allows more tailoring by courts than broad-stroke public regulation by legislatures, and torts are less likely to be slanted in favor of the industries than other forms of private law, like the contracts the industries would mostly control. Torts are also more likely to scale quickly, evolving like water around obstacles that might block federal legislation. Again, those intending and at risk of the new relations – lifelong as well as life-fulfilling or hobbling relations – are to be favored. 

This focus on the stories, on the victims, raises another theme running through the book. As if Prosser himself [5] were writing about life torts against a background of thousands of cases, Fox eschews reductionism and simplicity for a highly sophisticated framework that is responsive to and measured for the rocky landscape of technologies, fact patterns, and outcomes [6]. For example, he uses tailored compensation schemes and nominal remedies to balance the complex interests in things like trait selection [7], something readers might have expected courts – which do the same thing every day in other contexts – to have done long ago. Fox knows he is wading into visceral territory long occupied by religious policymakers, disgust inclined electorates, and savvy fertility companies eager to exploit the regulatory vacuum. He’s stepping lightly with a fresh exception or broad balancing standard for the sticky wickets, like parents’ desire to impose traits many would consider harms on their children.

That nuance presents a fact, not a theme, about the new tort system Fox has devised. While I am aware that he has been criticized for putting forth reforms that some see as unlikely [8], I see him as a long-game realist. He’s betting on free market conservatism, and the need for compensation for life harms, to eventually overtake social conservatives that might block his reforms. That may also be why he evaded broad regulation as a basis for the change. My guess is that he has a sense, from the thousands of cases he must have seen, which way the wind is blowing as these technologies emerge and become more available and popular. 

He’s also not trying to fix every problem even simple discussions of birth torts will raise. He’s not a legislature, or ethics commission, or tasked with evaluating the ethics of certain technologies. He’s a law professor seeing torts that are capable – with tweaking – of compensating victims for the incomparable harms they so aptly plea. Judges will see the same. In some ways, his work is a much older approach to a new and evolving body of technology. 

His final response to his recent critics is perhaps the best summary of his book: 

It’s been more than a century since courts last flexed their common-law muscles to establish new torts like slander, privacy, and defamation. But lost embryos, bungled birth control, and switched sperm samples give reason to recover that muscle memory. These mixups seem like “first world” problems, especially in the midst of a public health crisis that has transformed even parts of our lives we used to take for granted. But reliable health and child care have never mattered more than since stay-at-home orders, broken supply chains, and clinic restrictions have further stymied dreams for family life. Advances in medicine and technology promise to deliver us from the vagaries of the genetic lottery. Hard questions remain about expanding access to these innovations so that fewer people need to resign themselves to the fate of spontaneous miscarriage or unplanned pregnancy. Our legal system should no longer turn a blind eye to the reproductive trespasses that leave victims to pick up the pieces. These are not innocent lapses or harmless errors. They are wrongs in need of rights. This book, for all of its flaws, provides a starting place to vindicate them [9].

Before turning to my main critique, and in the spirit of the praise above, I found myself wanting one more section in the book. The vast experience Fox displays makes me believe that he has many thoughts about how to go beyond tort structuring and case law to deal with a problem readers may sense hovering over the whole book. That problem will be the complex interplay between the development of the torts Fox has devised and the many legislatures eager to intervene, who unlike the days of Prosser, will play a key role in the success of Fox’s project. The advice, the strategic framework for dealing with what could be the crucial factor, is alluded to in various places throughout the book but an organized and comprehensive gameplan is missing. This may be intentional – hidden for use as Fox proceeds, or the subject of future books. 

Regardless, if we value what Fox seems to value, procreative intent, life plans defined by family outcomes, the need to fairly compensate victims who are deeply wronged by companies benefiting from that harm, and the ability of tort systems to measure around scary bioethical obstacles, Fox may have devised the best and most internally consistent solution to the problems in the field. It’s at least the best I’ve seen. 

My primary critique is simply that Fox’s project needs a better foundation. 

Procreation involves other values that might precede, and form a broader framework around, the framework Fox has devised. I’ll frame the critique by accusing Fox of engaging in what I call the constitutive fallacy or the mistake of attempting to practice any form of freedom and justice without first ensuring the same in the dynamic creation – or procreation – of human power relations [10]. 

Fox’s immediate rejoinder to this argument is in the book. Fox bases his framework on the familiar concept of reproductive or procreative autonomy [11], and while he prioritizes the outcomes that autonomy creates for the parents more than the choice itself, he requires that initial concept of open choice to launch his project. He cannot avoid that, and for Fox, parental procreative autonomy is procreative justice – hence no fallacy committed. 

But procreative autonomy is a contradiction in terms, linguistically and conceptually eliminating future children from the moral universe and appropriating them in the process [12]. The act of creating another person is more other-determining for the created than self-determining for the parents – by definition, and by the outcomes, Fox is keen to elevate and respect. This is not a natural law argument. The sort of positive law Fox uses to support procreative autonomy can be better read to support a much more limited right (one based on improved continuity of the procreators’ life) that avoids discounting the worth of future persons (who are the majority) and one that is inherently future child-centric in nature [13].  

And that’s simply if we focus on the children that will be created. What is the state, or collective, interest in procreation? Assuming the state is a human rights-based democracy, the state’s interest is in ensuring all children a fair start in life and thus the creation and eventual emancipation of persons with the mutual capacity to be relatively self-determining – again, the baseline “life plan” value bleeding throughout Fox’s book but slanted to procreators. 

To ensure that capacity we would have to start at some border of human influence, or nature/nonpolity, and maintain a neutral position so that as any particular group of persons grows the capacity for self-determination gives way (or is directly inverse) to the capacity for determination by others. To maintain the neutral position, at a certain range, the group in question has to divide. Knowing and acting according to that inversion is proof that people are free and equal, or that they matter politically because their capacity to equally self and other determine is recognized.

Without this change, the act of having children becomes a thing capable of subjugating people, in the least expected and most subtle of ways. 

For example, we would need to change family planning policies to minimize the impact climate-related heat rises have on infants and their self-determination. We would have to ensure smaller families creating less emissions, in which each child had health care sufficient to mitigate the harm – perhaps by targeting those responsible for the crisis to pay for family planning incentives/entitlements and care. And those children would have to be raised capable of eventually constituting autonomous political units if they chose to do so, the sort where people are empowered to prevent crises like the climate crisis from occurring in the future.  

The simplest analogy for such groups of truly, but relatively, self-determining people would be the notion of functional constitutional conventions convening in a sea of biodiverse nature, whose numbers are pegged to historic representative ratios such that voices are meant to matter. This vision reflects the fact that the ultimate orders of human power are not lines on a map, but bodies and their influence. If the people in Rawls’s original position operated free from the power of others so that they could devise rules to determine the regulation of that power [14], and each had a turn at the podium to make their case in the negotiations, it would have had to look something like this. 

Not limiting the right to have children to account for this interest, or the interests of the future child is like a room full of people where not all are permitted to speak or some are drowned out by an eternal background noise. Those speaking feel free, to do what they like, but the total quantity of autonomy is reduced.

There are no obligations that precede the obligation to maintain this neutral position – in other words, the obligation to ensure all children’s ecosocial fair starts in life. A system is fair and obligatory when it goes all the way back – or fully accounts for its power. We are skipping a crucial step if we don’t do this. Fox is skipping this step. And adhering to obligations, like honoring government-issued property rights to wealth before using that wealth to create people in a fair way, would thus be dishonest. The owners of that wealth would have never paid the price of freedom in terms of orienting from a system of relatively self-determining people capable of setting the rules that then set market costs and benefits. Such people never come from a just place by fully accounting for the power of the system in which they live [15]. 

Presumably, that collective interest precedes and overrides any individualized procreative interest Fox relies upon, because the latter occurs in the political context of the former [16], though the two need not (and should not be) inconsistent if we limit the right to have children correctly. In other words, maintaining ourselves as a consensual “We the People,” which is contingent on procreation (which acts almost as a first election of the ultimate source of political authority – the people) in a unique way, precedes the list of rights “we” might enjoy. 

That limiting, the cabining of the procreative interest within the larger envelope of the preceding collective/future child-centric interest would further the self-determination and life plans Fox values. No parent, not the sort we read about in Fox’s book, wants to see their child suffer in the ravages of the climate crisis, which like all anthropocentric events is driven fundamentally by human procreation – and not just in terms of emissions but in the inequity, determination of lifelong resilience, hobbling of collective systems, loss of carbon sinks, etc. it fundamentally entails [17]. Recognizing the fundamental right to have children as focused on collectively ensuring fair starts in life, and not procreative autonomy, serves this procreative interest in the long run. But we have to replace procreative autonomy with procreative justice and cease the discounting of future persons by not extending them the same treatment we extend to extant persons [18]. That begins the end of pyramidic political states of affairs and the beginning of truly bottom-up liberation. 

Regardless of this potential baseline problem in Fox’s framework, Birth Rights and Wrongs stands as a unifying work that pulls together a mess of complex rules that surround the most viscerally controversial and conceptually challenging areas of law. He reconstructs it all, consistently anchoring around the unique importance of the outcomes, into a measured and responsive lattice of newish torts that stand to compensate victims in a sea of constantly changing technology. This is the sort of work we expect from law professors and the sort that judges and even legislators cannot do – to survey it all, and make it serve the greater interests at stake and in a way that can actually be applied. Fox has done just that. 

Notes

^[1]  Dov Fox, Birth Rights And Wrongs: How Medicine And Technology Are Remaking Reproduction And The Law (2019).

^[2] See id. at 162-163.

^[3] See id. at 57.

^[4] See id. at 15.

^[5] See William L. Prosser, Handbook Of The Law Of Torts, by William L. Prosser. West Publishing Co., St. Paul, 1941. Pp. xiii, 1309. $5.00., 4 La. L. Rev. (1941)

^[6] See Fox, supra note 1, at 141-147.

Carter Dillard, author of Justice as a Fair Start in Life, began his career as an Honors Program appointee to the U.S. Department of Justice. He later served as a legal adviser to the U.S. Department of Homeland Security, in the national security law division. He wrote his thesis reformulating the right to have children under Jeremy Waldron, his extensive academic work on family planning has been published by Yale, Duke, and Northwestern Universities, as well as in peer-reviewed pieces, and he has served on the Steering Committee of the Population Ethics and Policy Research Project and was a Visiting Scholar at the Uehiro Center, both at the University of Oxford. He has taught at several law schools in the U.S. and served as a peer reviewer for the journal Bioethics. Carter also served as General Counsel with Animal Outlook, a director of litigation with the Humane Society of the United States, Director of Litigation and Senior Policy Advisor with the Animal Legal Defense Fund, and currently serves as pro bono counsel to Direct Action Everywhere, Senior Research Fellow at the University of Denver College of Law, and Co-lead organizer, Fair Start Movement and Humane Families Initiative.

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Response by Dov Fox

Thanks to Carter Dillard for his incisive critique [1] of my book Birth Rights and Wrongs [2]. The book spells out how American courts have long denied remedies for reproductive misconduct under the laws of contract, property, and torts. For example, when a doctor botches a vasectomy. Or says it’d be dangerous to keep a healthy pregnancy. Or misses a risk of passing along disease. In all such cases, the U.S. legal system has failed to deter reproductive negligence or compensate its victims. Some are left without the baby they desperately want. Others end up with one they’d set out to avoid — or a child with different traits than what they were led to believe.

I call these harms procreation deprived, procreation imposed, and procreation confounded. Thousands of fertility patients were deprived of biological parenthood after their embryos were destroyed in a freezer meltdown. Pregnancy was imposed on hundreds of women whose birth control pills were packaged upside-down. And scores of parents had procreation confounded when the donor a sperm bank claimed was a Ph.D. genius with a spotless record had actually spent years bouncing between prison and psychiatric hospitals related to struggles with mental illness. The book maps out this terrain, clarifies why it matters, and seeks to set forth principled ways to respond to those losses while curbing collateral damage to innovation or access. For me,

the greatest value of family planning has less to do with choices than consequences. More important than reproductive autonomy is how making these decisions helps a person live well. Procreation matters most for its practical impact on the person’s health, education, employment, social standing, intimate relationships, and other critical features of well-being [3].

Dillard’s review explores the deeper stakes that this adult-centered argument poses for future generations in a climate-changing world. He criticizes my focus on would-be parents for missing what family formation means to the children who result. Dillard contends that

procreative autonomy is a contradiction in terms, linguistically and conceptually eliminating future children from the moral universe and appropriating them in the process. The act of creating another person is more other-determining for the created than self-determining for the parents – by definition, and by the outcomes, Fox is keen to elevate and respect. This is not a natural law argument. The sort of positive law Fox uses to support procreative autonomy can be better read to support a much more limited right (one based on improved continuity of the procreators’ life) that avoids discounting the worth of future persons (who are the majority) and one that is inherently future child-centric in nature [4].

Dillard develops the fuller argument in his own book, Justice as a Fair Start in Life [5]. It begins with the premise that an affirmative right to have children is less consequential and worthy than the right not to. And Dillard is generally less worried about individual freedoms when it comes to procreation. He argues that important considerations get overlooked in this conventional, individualistic picture of family planning. What this misses, he argues, is the profound impact that reproduction has the everyone else outside of the household, as well as the natural world. That broader perspective across space and time leads Dillard to privilege collective interest in the welfare not only of people who come into existence all around the world but also those who will be born in the future. If our reproductive policies are all about individual freedom, then what will that leave for them?

Dillard sees “the capacity for each person’s self-determination as directly inverse to population growth, relative to a neutral baseline such as the nonhuman world” [6]. And he argues that a just society demands asking what makes it decent and reasonable to create the people who would be so governed. For Dillard, this “creation norm” constrains reproductive freedom by the rights of would-be children to scarce resources like restorative climate policies, minimum levels of welfare, and consistent and representative ratios for participatory democracy [7]. His proposals are bound to provoke controversy. They include family-planning policies designed to drive constructive climate migration and reduce the number of children per household in wealthier countries. But there’s much to like in his ideal of equal respect for future persons, his fundamental concern for power relations across generations, and the connection that he urges between the size of successive cohorts and the access they will have to basic public goods.

Notes

[1] See Blog – The Costs of Creation: A Review of “Birth Rights and Wrongs,” by Dov Fox – Bioethics Today

[2] See Fox, Dov. Birth Rights and Wrongs: How Medicine and Technology are Remaking Reproduction and the Law. Oxford University Press, 2019.

[3] Fox, Birth Rights and Wrongs, at 15.

[4] See Blog – The Costs of Creation: A Review of “Birth Rights and Wrongs,” by Dov Fox – Bioethics Today

[5] See Dillard, Carter, Justice as a Fair Start in Life: Understanding the Right to Have Children. Eliva Press, 2021.

[6] See Dillard, Carter. “Constituting Over Constitutions.” U. Bologna L. Rev. 6 (2021): 48.

[7] See Dillard, Carter J. “Rethinking the procreative right.” Yale Hum. Rts. & Dev. LJ 10 (2007): 1.

Dov Fox is Herzog Research Professor of Law at the University of San Diego School of Law, where he directs the Center for Health Law Policy & Bioethics. He was awarded the Thorsnes Prize for Teaching Excellence in 2021 and Outstanding Scholarship in 2020. His latest book is “Birth Rights and Wrongs: How Medicine and Technology are Remaking Reproduction and the Law,” published by Oxford University Press in 2019. His Audible Original “Donor 9623” was named the #1 podcast of 2020 and submitted for a Pulitzer Prize in investigative journalism. Fox is the author of more than 70 scholarly articles in leading journals of law (e.g., Yale Law Journal, Harvard Law Review), medicine (e.g., New England Journal of Medicine, Journal of the American Medical Association), and bioethics (e.g., Journal of Medical Ethics, Bioethics). He has been quoted in popular outlets including the Atlantic, the Economist, the New York Times, the Wall Street Journal, and the Washington Post, and provided on-air analysis for CNN, ABC News, CBS This Morning, NBC Nightly News, and the Today Show.

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Commentary by Sibylle Frey on behalf of Paul Ehrlich and the MAHB

Evidence has been mounting for decades that high human population numbers, together with continued economic growth and unequal access to resources, are a source of problems such as food insecurity, mass migration, and conflict.

Even though birthrates have been falling, human populations will continue to rise and are projected to peak at 10.4bn by 2100 [1]. Large human populations further accelerate climate change, biodiversity and soil loss, create more toxic wastes, increase the chance of pandemics, diminish wellbeing, and put additional pressure on already stressed ecological and social systems [2].

The magnitude of the threats to the biosphere and all life is now so immense that even experts have difficulty grasping it. This is exacerbated by a lack of realism in appreciating the situation, insular thinking across disciplines, and the incompetence of political and economic leaders [3]. The result has been a consistent failure to achieve most sustainability goals [4],[5].

Yet leadership across the whole spectrum is urgently needed to tackle the polycrisis. This necessitates having frank discussions about population growth, as well as lower but equitable living standards [6].

The biggest challenge for humanity is to create a fair and evidence-based framework of governance [7]. This needs to be flanked by a jurisdiction that is fit for purpose, grounded in biophysical realities, and recognizes that the number of one’s children affects the rights of other people’s children.

A judicial system that safeguards our grand and great-grandchildren by embedding their right to an intact natural world, would set a clear precedent for cases dealing with violations against the ecosphere, and therefore, our offspring.

This type of long-term planning is nothing new. For example, the Iroquois tribes in eastern North America encouraged seven-generation stewardship and compelled others to think about how their actions would affect those not yet born [8].

In the United States alone there are currently c. 2.8m unintended pregnancies per year [9]. Yet due to the Supreme Court overturning Roe/Wade we now have the perverse situation where abortions are illegal but the State is unlikely to provide the necessary care for the resulting children (most of them by poor or low-income women) [10]. It can be expected that this will lead to many more cases of child poverty, abuse, neglect, and wider social problems.

Furthermore, recent studies have linked climate change and air pollution to fetal damage and birth defects in children. Therefore, procreation involves considering a wider set of birth rights and wrongs, beyond the desires of (would-be) parents. Paradoxically, if private (tort) law focuses mainly on the procreative desires of aspiring parents, the impacts of population-driven climate change on their progeny scupper these aspirations more than anything else (and beyond the concerns of those wealthy enough to enlist reproduction services).

Such an approach is brutally self-limiting. Instead, a legal shift from procreative autonomy to procreative justice for the (future) child would strengthen both parents’ and children’s rights to be protected from, and compensated for, life harms from population-induced damages and threats.

The latter would also dovetail with international human rights already enshrined in e.g. the UN Convention on the Rights of the Child [11] and in particular, the newly declared UN universal human right for a clean and healthy environment [12]. If implemented, this could catalyze action for holding governments and other parties responsible for the ecological crisis.

Perhaps, had a child-centric policy focus been taken the post-Cairo Convention’s taboo on setting demographic goals wouldn’t have materialized. The same goes for its tragic consequences – not just for women’s reproductive health but also for the security of future offspring confronted with climate change [13].

People are part of nature, not apart from it. A legal framework that acknowledges that procreation puts high external costs on the planet (with ultimately self-limiting consequences) is key to safeguarding a habitable future for all beings, including those not yet born. It cannot come soon enough.

Notes

[1] United Nations https://www.un.org/development/desa/pd/content/World-Population-Prospects-2022

[2] Bradshaw CJA, Ehrlich PR, Beattie A, Ceballos G, Crist E, Diamond J, Dirzo R, Ehrlich AH, Harte J, Harte ME, Pyke G, Raven PH, Ripple WJ, Saltré F, Turnbull C, Wackernagel M and Blumstein DT (2021) Underestimating the Challenges of Avoiding a Ghastly Future. Front. Conserv. Sci. 1:615419. doi: 10.3389/fcosc.2020.615419

[3] Ibid. [2]

[4] After 25 years of trying, why aren’t we environmentally sustainable yet? The Conversation https://theconversation.com/after-25-years-of-trying-why-arent-we-environmentally-sustainable-yet-73911.

[5] Global Climate Agreements: Successes and Failures. Council on Foreign Relations https://www.cfr.org/backgrounder/paris-global-climate-change-agreements

[6] Ibid. [2]

[7] Rees W. 2010. What’s blocking sustainability? Human nature, cognition, and denial. Sustainability: Science, Practice, and Policy 6: 13–25.

[8] Vecsey C, Venables RW. 1980. American Indian Environments: Ecological Issues in Native American History. Syracuse University Press

[9] https://www.guttmacher.org/fact-sheet/unintended-pregnancy-united-states#

[10] State abortion bans create new governmental obligations for children. The Hill https://thehill.com/opinion/judiciary/3542987-state-abortion-bans-create-new-governmental-obligations-for-children/

[11] https://www.unicef.org/child-rights-convention/convention-text-childrens-version

[12] https://news.un.org/en/story/2022/07/1123482

[13] O’Sullivan, J.N. (2018). Synergy between Population Policy, Climate Adaptation and Mitigation. In: Hossain, M., Hales, R., Sarker, T. (eds) Pathways to a Sustainable Economy. Springer, Cham. https://doi.org/10.1007/978-3-319-67702-6_7

Sibylle Frey is an environmental scientist and Director of Production for the MAHB. She is a former Research Fellow at the Stockholm Environment Institute, a consultant to various industries, and a peer reviewer for the Journal of Industrial Ecology. She holds a B.Sc. and M.Sc. in nutritional science from the University of Hamburg, Germany, and a P.h.D. in environmental sciences from Brunel University, London. Sibylle has 20 years of experience working on sustainable consumption and production models, as well as ten years of experience in the airline industry.

Paul Ehrlich is the President of the Millennium Alliance for Humanity and the Biosphere, Bing Professor of Population Studies Emeritus, and President of the Center for Conservation Biology at Stanford University.

The MAHB Blog is a venture of the Millennium Alliance for Humanity and the Biosphere. Questions should be directed to joan@mahbonline.org