It may seem unfathomable that one person would or could force another individual to procreate or terminate a pregnancy, but approximately 10 percent of men and 9 percent of women have reported being in a relationship with partners who attempted to induce unwanted pregnancies. If a child is non-consensually conceived or terminated, is it possible to recover compensation for the associated damages and losses?
Using the Right Tort
Yes, it is possible to sue another person for non-consensually inducing a pregnancy or coercing or forcing an abortion. The challenge is in finding the right tort to use in court. Unfortunately, there is no tort law that specifically addresses this particular issue. While there is a wrongful birth and a wrongful conception tort, these are medical malpractice torts designed to address the failing of healthcare professionals to either properly advise parents of congenitally diseased children about their conditions (wrongful birth) or correctly perform sterilization procedures (wrongful conception).
Therefore, you would need to use other torts to sue for damages, and the proper tort to use would be based on the circumstances of the improper impregnation or termination. For instance, a man may be able to sue for fraud if he found his partner sabotaged his birth control method (e.g. poked holes in a condom), which lead to the conception of a child. A woman may be able to use the wrongful death statute to sue for the death of a fetus if her partner assaulted her with the express purpose of causing a miscarriage.
Other torts that may be used depending on the circumstances of the coercion include intentional or negligent infliction of emotional distress, assault and battery, false imprisonment, extortion, and fraudulent misrepresentation. Some states also have a "catch-all" tort that's used when the case doesn't fit any particular category. With this particular tort, you would have to show the defendant either intended or actually caused harm and that you suffered as a result.
The Challenges of Suing
Suing for reproductive coercion can be immensely challenging for a couple of reasons. Unless there is solid evidence supporting the claim, the case can quickly delve into a "he said, she said" situation where the judge's decision hinges on whose story is more credible. This may lead to an undesirable outcome regardless of what the truth may be.
The other problem you may run into is quantifying your damages and losses. In the case of the unwanted birth of a child, you could sue for the economic impact the child has had on your life such as the cost of medical expenses, childcare, etc. However, it's not so easy to financially quantify the loss of a child in cases involving the wrongful termination of a pregnancy. At best, you may be able to recover medical expenses and some pain and suffering, but it may not be enough to justify the expense of going to court.
For more information about suing for reproductive coercion or to file a lawsuit, connect with a personal injury lawyer like those at Baudler, Maus, Forman, Kritzer & Wagner, LLP.