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Description
Published as Chapter 13 of Feminist Judgments: Rewritten Tort Opinions, Martha Chamallas & Lucinda M. Finley, eds. (Cambridge University Press 2020). 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.
Rights
Publication Date
12-1-2020
Publisher
Cambridge University Press
City
New York
ISBN
9781108706247
First Page
291
Last Page
313
Disciplines
Law | Law and Gender | Law and Society | Medical Jurisprudence
Recommended Citation
Lucinda M. Finley, Commentary on Emerson v. Magendantz in Feminist Judgments: Rewritten Tort Opinions (Martha Chamallas & Lucinda M. Finley, eds., Cambridge University Press 2020).