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 to 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 to 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 viceral territory long occupied by religious policy makers, 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 the 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 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 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 original position operated free from the power of others so that they could the 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 noies. 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 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 being 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) 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 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.
 Dov Fox, Birth Rights And Wrongs: How Medicine And Technology Are Remaking Reproduction And The Law (2019).
 See id. at 162-163.
 See id. at 57.
 See id. at 15.
 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)
 See Fox, supra note 1, at 141-147.
 See Mary Ziegler, Birth Rights at War, 100 B.U. L. REV. ONLINE 148, 148 (2020).
 Dov Fox, Birth Rights and Wrongs: Reply to Critics, 100 Boston University Law Review Online 160, 173 (2020).
 Carter Dillard, Justice As A Fair Start In Life: Understanding The Right To Have Children (2021)
 See Fox, supra note 1, at 1, 15.
 Carter Dillard, Future Children as Property, 17 Duke J. Gender L. & Pol’y 47 (2010).
 Dillard, supra note 10; see also Rethinking the Procreative Right, 1 Yale Hum. Rts. & Dev. LJ 10 (2007).
 See Kukathas, Chandran, and Philip Pettit. “Rawls: a theory of justice and its critics.” (1990).
 See Dillard, supra note 10.
 See Carter Dillard, Child Welfare and Future Persons, 367 Ga. L. Rev. 43 (2008)
Carter Dillard, JD is a Senior Research Fellow at the University of Denver, College of Law.