Assisted Reproduction and the Frustration of Genetic Affinity: Interest, Injury, and Damages

Fred Norton

The premise of this Note is that parents have an interest in having children with whom they share symbolically identifying traits, and that this interest is a significant motivation in the decision to use ART. Consequently, if fraud, negligence, or other breach of legal duty frustrates that interest, those parents suffer a cognizable injury--even when that breach of duty results in the birth of a healthy baby. Recognition of the injury, however, raises more questions than it resolves, not the least of which is the problem of damages: Assuming that parents in these cases have a cognizable claim, what would the remedy be? Since no court has confronted this question, this Note analogizes it to wrongful pregnancy caselaw, concluding that the balance of countervailing harms and benefits developed in those cases best redresses the contemplated injury.

This article appears in the June 1999 Issue: Volume 74, Number 3