It didn’t take long for the speculation to start: if women unintentionally get pregnant while taking the defective birth control pills that Pfizer recalled this week, could they, would they, sue?
Earlier this week, Pfizer recalled 1 million packages of pills - 14 lots of Lo/Ovral-28 tablets and 14 lots of generic Norgestrel and Ethinyl Estradiol tablets - after uncovering a packaging error that included too many active tablets in some packets and not enough in others. It cautioned women to use alternate contraceptive methods because they were at greater risk of becoming pregnant. In a statement, the company said that the recalled pills don’t pose “any immediate health risks.” That, of course, depends completely upon how you define “health risks.” Assuming you’re taking the pills to avoid having a baby but end up faced with what to do about an unwanted pregnancy, the ensuing stress could arguably count as a mental health risk, at the least. An unanticipated pregnancy is certainly more than just a minor inconvenience.
For most women, it’s likely too early to know if the packaging defect has resulted in unintended pregnancy. But already, bloggers have begun running scenarios.
LawInfo wondered whether product liability lawsuits - which “generally involve a product that was designed defectively or gave an insufficient warning to the consumer who was eventually harmed as a result of the design or warning defect” - might bubble up.
This would not be the first example of a “wrongful pregnancy” case, according to I. Glenn Cohen, assistant professor and co-director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School, who spoke with MyHealthNewsDaily:
Similar cases have allowed people to sue for things like unwanted pregnancies after botched vasectomies. In the past, there has even been a case in which a woman successfully sued a pharmacist for a pregnancy that resulted from errors in filling the woman’s birth control prescriptions, Cohen said.
The best chance for a case, however, would be for affected women with unwanted pregnancies to band together and bring a class-action lawsuit against Pfizer, said Arthur Caplan, a bioethicist at the University of Pennsylvania. Such a case could ask for considerably more money than an individual case, and would be more attractive to lawyers, Caplan said.
“I’m sure some enterprising lawyer is already thinking of bringing a class-action lawsuit…against the company,” Cohen said.
It’s unlikely that any settlement would approach the cost of raising a child, which, at $226,920, may in itself be a fairly effective method of birth control.
By Bonnie Rochman
Bonnie Rochman is a reporter at TIME.