Creating Incentives to Market Mifepristone: No-Fault Insurance for Drug-Caused Birth Defects

GLYNNIS BURT

ABSTRACT

The author argues that the steroid mifepristone (RU 486) may be a victim of drug manufacturers' fears of potential liability or litigation involving products used by pregnant women, particularly given the potential for the drug to cause teratogenic harm to fetuses. The author first provides a description of the female reproductive process and mifepristone's potential role as a contragestive. In addition, mifepristone's potential use for other conditions is outlined. The likelihood of success of a product liability action by a child who might suffer harm if she is exposed to mifepristone during gestation and is subsequently born alive is considered under the Canadian negligence and United States strict liability doctrines; the conclusion is that such actions would probably fail. The author then makes some preliminary proposals for a no-fault insurance scheme for children who suffer drug-caused birth defects. Such a scheme could serve two purposes: first, it could provide compensation to children who would probably otherwise be uncompensated; and, second, it could assuage drug manufacturers' fears of litigation involving products related to reproduction, while simultaneously providing manufacturers with incentives to research and market beneficial and safe products.

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Citation: (1991) 49(2) U.T. Fac. L. Rev. 1.
Copyright © 1991. University of Toronto Faculty of Law Review.
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