We can freeze eggs and sperm, undergo in-vitro, or choose sterilisation or contraception, but if something goes wrong,
the path to justice is complicated, says Dr Anna Broadmore.
What if your partner lied about contraceptive measures to stop you from taking your own precautions, and you
unintentionally conceived a child with them? What if the eggs you thought were frozen were lost, thawed or mistakenly
switched with someone else's?
Throughout the world, people who have had their reproductive choices interfered with, whether through negligence or
intent, are heading to court to seek compensation.
Although there’s a judicial desire to provide remediation, there’s uncertainty around how to go about it, and the law is
in a transitional state of disarray, says University of Auckland law lecturer Dr Anna Broadmore.
Broadmore's doctoral thesis, ‘The private law right to reproductive control’ explores the legal challenges faced by
individuals whose reproductive choices have been disrupted.
In examining case law throughout the Commonwealth, she argues that reproductive control can and should be recognised as
a protected interest within the common law.
“This would enable the law to respond to interferences with reproductive choices in the same way other protected
interests in common law, including property, bodily integrity and privacy, help to inform the outcome when these
interests are interfered with,” says Broadmore.
The cases referenced in her thesis include a foiled fertility treatment in which the child born had no biological
relationship to the planned father. Another details the experience of cancer patients who decide to freeze their sperm
to keep the possibility of children open post-treatment, but later found that their reproductive material was
negligently destroyed.
In another case, a woman lied about taking contraception, so her partner decided not to take his own precautions, and as
a result, the woman fell pregnant. In this case, the law didn’t require the woman to consider her partner's wishes
regarding reproduction when deciding how to act, and he didn’t receive any remedy for the immense disruption to his
life.
Recognition of a private law right to reproductive control would enable a different outcome, says Broadmore.
“In the absence of judicial recognition of a protected interest in reproductive control, the courts often rely on other
recognised interests in order to resolve a dispute, but this can lead to misfocused and unjust outcomes.”
She notes that while developments in biotechnology and contraception have increased the reproductive possibilities
available, the law has failed to keep up.
“This has created a gap in the protection provided to our reproductive control and disarray in the common law response
to disputes arising.”