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1 results

  • 13 - Commentary on Emerson v. Magendantz

  • from Part IV - Negligence and Vicarious Liability
  • Edited by Martha Chamallas, Ohio State University, Lucinda M. Finley, University at Buffalo, State University of New York
  • Book:
    Feminist Judgments: Rewritten Tort Opinions
    Published online:
    28 November 2020
    Print publication:
    10 December 2020, pp 291-313

  • Summary

    Emerson v. Magendantz assesses how to measure harm when people get pregnant after a negligently performed sterilization, or have disabled children after genetic counseling or prenatal testing misdiagnosed the risk. The court permitted parents to recover child-rearing costs only for disabled children, reasoning that the emotional benefits of a healthy child invariably outweigh its economic burdens. Critiquing this reasoning as a double insult to the disabled and to the importance of reproductive autonomy, the feminist rewritten opinion uses the normalcy and centrality of fertility control to women’s experience to conclude that traditional tort principles of full damages for all foreseeable harm includes child-rearing costs for healthy and disabled children alike. The accompanying commentary presents the varying judicial measurements of damages in “wrongful birth” cases, and highlights how courts have undervalued the importance of reproductive autonomy while overlooking the disparate impact of even wanted healthy children on women’s economic and educational advancement.