5: Reproductive Harm, Social Justice and Tort Law: Rethinking ‘Wrongful Birth’ and ‘Wrongful Life’ Claims

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This chapter considers how developments in reproductive medicine and technology have brought new issues to bear on traditional tort law principles, by closely examining what we call ‘reproductive torts’. The following themes are considered separately, as well as the relationship between them. First, the idea of reproductive harm – what is it, who does it affect and who should pay for it when it occurs? Second, social justice and reproduction, particularly in relation to structural inequalities relating to gender, ‘race’, class and disability. Third, tort law’s response, considering its purpose and development and the extent to which it can address reproductive harm and issues of social justice. The chapter explores whether and how tortious principles could be developed differently if social justice was more of a priority. In particular, it asks whether tort law principles could be developed in a way that collectivises, rather than privatises, responsibility for health and care, and recognises and values not only the suffering, but also the experiences, transitions and adjustments that people who are injured, and those who love and care for them, make following negligent treatment.

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