Blog Against Heteronormativity Day


I give up. I've been trying to come up with a post against heteronormativity all day and can't overcome writer's block. This doesn't mean I'm not against heteronormativity; I just can't think of anything interesting to say right now. For actual, new posts against heteronormativity, go to Blac(k)ademic, who's running Blog Against Heteronormativity Day.

As some small consolation, I'm re-posting an old heteronormativity-related enty I did a few months ago:

Breeder Centrism in Tort Law

In recent years a new type of law suit has arisen: the wrongful life suit, sometimes referred to as a wrongful birth suit. These suits are a species of medical malpractice. A doctor botches a sterilization, be it a vasectomy, tubal ligation, or whatnot. The party who received the operation behaves as though they were sterile even though they remain fertile. The result is a pregnancy. Wrongful life actions have been recognized by most states, and I don't believe any state has explicitly refused to recognize them. At trial everything is very similar to medical malpractice, the procedure is discussed, experts are brought in, negligence is argued over, and, if the jury finds for the plaintiff, damages are assessed.

The damages are where things get tricky. If the plaintiff had an abortion things are pretty pat. The plaintiff generally gets compensation for the cost of the botched sterilization, the cost of another sterilization, the cost of having the abortion, and any related medical bills and lost wages. There might also be emotional damages. Things get more expensive if the plaintiff decides to have the baby, then put it up for adoption. There, in addition to the above costs, the doctor (or the doctor's insurance company) generally has to pay all the expenses related to the pregnancy, including considerably more lost wages. Still, though, nothing particularly controversial.

What happens, though, if the plaintiff decides to keep the baby? Now the question is to what extent the doctor should be held liable for the cost of rearing the child. This is, after all, a baby that the plaintiff did not want, and that would not exist but for the doctor's negligence. The rule of thumb for torts is that the plaintiff should be "made whole," that is, the plaintiff should be put financially back in the same situation she would have been in had the accident never occurred. Kids are expensive. In order to put the plaintiff in as good a situation as she would have been in had the sterilization been successful, it follows that the doctor ought to pay the entire cost of rearing the child.

That, of course, is how things probably would work if wrongful life suits were treated like any other cause of action. In practice, courts have found a great many ways to avoid doing so. When considering tort suits, courts are often asked to decide which damages are legitimate and compensable and which are not. In this case, most jurisdictions (31 as of 1997) don't allow child-rearing costs when computing damages. Two jurisdictions (New Mexico and Wisconsin) do.

The courts have offered a number of reasons for ignoring child-rearing costs. First, the costs are too vague to assess. Who know how much it would actually cost to rear this child, and whether the plaintiff would actually put the money to that purpose? Because these costs are too indefinite, too expensive, and too long-term, the courts should not consider them. This doesn't stop courts from assessing vague, expensive costs incurred over a long period in other malpractice cases, but it is apparently a problem in these cases.

Another argument proferred is that the cost would be far too heavy a burden for the poor doctor to bear, just for one little mistake (Courts are quite fond of these sob-stories about the poor defendants forced to pay for their negligence. These stories are only persuasive until you realize that a court case is about deciding which of two parties should bear a huge loss. The poor doctor could not stand to bear the financial burden of raising this child! It therefore follows that the mother ought to bear the financial burden instead). The less-objectionable policy argument is that if you make potential damages too high, doctors will simply refuse to perform these operations out of fear of botching them. The cost of performing these operations will skyrocket, hurting those who would seek sterilizations in the future.

There are a few other, more troubling arguments that some courts have found persuasive. One is that the plaintiff assumed the cost of rearing the child when she decided not to abort the child or give it up for adoption. This facile argument handily ignores the moral dimension of those two alternatives. Abortion is obviously a sticky issue for a lot of people, and once you've decided not to abort the child, adoption isn't without its own problems. The pregnant party is between Scylla and Charybdis and the court is arguing that choosing one indicates the party prefers and accepts that option. They ignore the fact that the entire point of having the operation was so the plaintiff would not have to make that choice in the first place. A variant on the assumption of risk argument is that the plaintiff assumed the risk of pregnancy by having sex, regardless of whether the sterilization had occurred. This argument only makes sense if you see sex as a morally wrong act in and of itself. The doctor acted negligently in performing the sterilization, while the plaintiff had sex under reasonable the belief that it couldn't result in pregnancy. Unless sex itself creates culpability, there's no reason to look at the two parties and declare that the plaintiff should pay.

The other troubling argument ties into the ambiguity of the costs argument. While we don't know exactly how much it costs to rear a child, we do know it costs something. How do you move from the idea that we don't know exactly how much child-rearing will cost to the conclusion that we should not award any child-rearing costs at all? Enter the Bundle of Joy argument. The courts have argued that there is an indisputable joy in having and raising a child. The plaintiff, they argue, is trying to benefit from this joy without paying the attendant costs. Therefore, to get a fair assessment of the plaintiff's damages, we must balance the cost of raising the child against the joy the plaintiff derives from that child. Since it's so hard to measure these things, the courts decide to call it even and leave the damages at 0.

It hardly bears pointing out that this argument is intensely patronizing. It ignores the fact that the plaintiff was sterilized precisely to avoid having a child. She could have any number of reasons for doing so. Maybe she can't afford a child, or maybe, heaven forbid, she just doesn't like kids. Moreover, sterilization operations aren't exactly something you do on a whim. The plaintiff carefully examined her situation and decided that the costs of having a kid outweighed the benefits. She therefore paid for an expensive surgery to prevent it ever happening. The courts have looked at this and said, "Awww, you didn't REALLY mean that. Everyone loves kids! Now go have fun with your new bundle of joy!" The whole idea forces heteronormative breeder-centrism down the plaintiff's throat. You can't possibly not want a baby; who in their right mind wouldn't?

What's even more insulting, however, are the three jurisdictions, and I don't know which states these are, that actually include the Bundle of Joy factor as a weight against other costs. That is, you get all the aforementioned medical costs, and then the court determines how much joy they think the baby will give you, attaches a dollar value, and subtracts it from those costs.

The only argument I find at all persuasive is the concern that imposing higher tort liability on doctors will raise the cost of the procedure in the future. The doctor botched the operation and the plaintiff did nothing wrong in acting under the false belief that the doctor had done the job competently. The court should estimate the cost of raising a child to, say, the age of 18 and assess it against the doctor. The doctor's almost certainly in a better position to pay than the plaintiff; setting aside the likely disparity in incomes between the two, the doctor will have malpractice insurance to the hilt. There's no such thing as unwanted pregnancy insurance. The doctor screwed up, and the doctor should be responsible for the results of that mistake.

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This page contains a single entry by Zach published on April 22, 2006 10:34 PM.

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