This story is just so startling. 26 couples who have suddenly learned they may not be the biological father of their children. Per norm, Ars Technica’s comments are some of the only ones still worth reading on the web in 2017. One of the more interesting facts I learned from the comments was around the lack of punitive damages in Dutch courts. Thus the most a couple could sue the clinic for would be a refund on their procedure, possibly another free procedure, as well as covering other associated costs with the situation such as legal fees or mental health support. My initial gut instinct, as another commentator soon added, was that this seems like the exact sort of scenario where punitive damages seem appropriate. On some level, getting a refund when such a complex mistake with such long reaching ramifications occurs feels a bit inadequate.
After some more thought, I’ve basically completely reversed my opinion. Let’s break this particular scenario down and then zoom out. In the event that the unlikely scenario occurs and the paternity ends up being a surprise, you have effectively created an adoption. There’s certainly an aspect of this in which the mothers DNA is still involved and the fathers isn’t, although with the frequency of divorce and remarriage among the parents of my generation, an astounding percentage of kids I grew up with lived in this scenario, although possibly a bit more emotionally complex since they mostly actually knew their biological father.
Generally this technique is done in scenarios of male infertility. Up until a few decades ago, that would have simply have been the end of the discussion for this man ever becoming a biological father. If the couple is paying for this surgery, the father would clearly have had to learn he was naturally infertile. The psychological ramifications of this are certainly on the same level of complexity as discovering you are not the biological father of a child you thought you were. Particularly since there is no infidelity in this scenario, far too many humans have dealt with a much worse version of this story. In all of these other scenarios I’ve described, it would be fairly impossible for the situation to end up with the father receiving some form of payout for psychological damages. Its just a fact of life and something you are expected to come to terms with. At least here, someone else could be responsible to refund the expenses for therapy.
On the other hand, if the father was entitled to sue for emotional damages, in the United States the president has been set for these damages to be orders of magnitude higher than the actual expenses. The result of this would be that the clinic would most likely be forced to shut down, or at the very least drastically increase the costs of the procedure, which would just prevent potentially hundreds or thousands of other couples from having access to these services. This seems far more criminal, why should the quality of life for the society as a whole be devalued for this one couple.
Let’s expand from this to something which seems even more egregious, such as when hospitals have accidentally amputated the wrong patient. In this scenario, the Dutch definition of damages would still allow for the patient to be reimbursed for all medical procedures necessary for prosthesis, etc. as well as any loss to earning capacity . Again, millions of people in history have lost limbs due to no action of their own, and the vast majority did not receive free prosthetics or potential earnings. Is it really reasonable to drive up the costs of medical support for the entire society simply to make this victim extremely wealthy?
Taking it a step further, what if the hospitals negligence leads a switch of medication resulting in a fatality. This seems to be the end point of this line of thinking, if you are taking the life of someone accidentally, how is making the procedure free a fair resolution at all? Even the Dutch have considered legalizing damages in this scenario, although to the tune of $13,000 - $22,000 in US dollars.
But what are we doing? We cannot bring the actual victim back from the dead in this scenario, why are we pretending money is fixing anything? Fundamentally, the concept of psychological damages seems to be centered around this idea that somehow money is the only thing that can make amends for these travesties. Meanwhile, in the Netherlands, while a spouse or dependent is able claim a loss for earning capacity or in the case of a stay at home partner the costs of support; these rights cede immediately if the spouse remarries.
Once again, when you consider the impact on society as a whole, it seems absurd that we would force hospitals to pay out these exorbitant fees simply because they made a mistake. Beyond the obvious impact that it has lead to the cost of medical support to be completely off the charts; these lawsuits force hospitals to run lean, which drastically increases the risk that more of these mistakes will occur. We’ve created a vicious cycle of despair and it needs to be addressed.