Procreative torts: enhancing the common-law protection for reproductive autonomy

Area of Science:

• Law and Medicine
• Reproductive Health Law
• Torts

Background:

• Roe v. Wade's anniversary prompts discussion on abortion rights.
• Existing legal commentary often overlooks tort law's role in protecting reproductive autonomy.
• The intersection of medical risks, malpractice, and women's procreative interests requires examination.

Purpose of the Study:

• To analyze the extent to which tort law currently safeguards a woman's interest in reproductive autonomy.
• To argue for the evolution of distinct tort causes of action to address interference with procreative autonomy.
• To evaluate legislative alternatives and assert their limitations in protecting women's interests.

Main Methods:

• Overview of medical and psychological literature on abortion-related risks.
• Analysis of current trends in abortion malpractice litigation.
• Review and application of battery, negligence, and lack of informed consent claims to abortion malpractice.
• Exploration of the development of specialized procreative torts.

Main Results:

• Current tort law offers insufficient protection for reproductive autonomy.
• Existing malpractice actions have limitations in addressing procreative autonomy interference.
• Specialized procreative torts are needed to provide more comprehensive protection.
• Legislative measures like right-to-know statutes are less protective than common-law tort development.

Conclusions:

• Tort law has the potential to more fully protect women's procreative autonomy.
• Courts should develop and apply torts to redress substantial interferences with procreative autonomy.
• Evolving tort law offers a more robust framework for safeguarding reproductive interests compared to legislative alternatives.