Wednesday, June 6, 2018
U of Arkansas law prof Jill Wieber Lens argues that tort law must recognize the true nature of the loss when medical negligence results in a stillborn baby:
Tort law, for the most part, already enables parents to sue when someone wrongly causes their child’s stillbirth . . . . However, that tort claim must properly recognize the extent of the parents’ loss: It’s not just a loss of pregnancy or of a fetus ― it’s the death of a child. Only this kind of recognition correctly incentivizes doctors and provides compensation to grieving parents.
Proper recognition of the devastating loss after the death of a desired unborn child does not threaten abortion rights, and we cannot let the ongoing abortion debate minimize that devastation. This is something the pro-abortion rights and anti-abortion movements should be able to agree on.
Both sides of the abortion debate could and should agree on this, but I'm skeptical that they will. Pro-abortion rights advocates are leery to recognize the fetus as a child. If passage through the birth canal loses its moral significance, the abortion debate opens up to important and sensible new policy questions that have been marginalized in the U.S. since Roe.