Insult to Injury: A Disability-Sensitive Response to Professor Smolensky's Call for Parental Tort Liability for Preimplantation Genetic Interventions

Abstract:     
In her article Creating Children with Disabilities: Parental Tort Liability for Preimplantation Genetic Interventions, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1158631, Professor Kirsten Rabe Smolensky argues that children who were subject to preimplantation genetic manipulation should have the ability to sue their parents for damages when the parents "directly intervene in the child's DNA and consequently cause that child to suffer a disability which limits the child's right to an open future." This paper addresses the implications for people with disabilities of that argument. Specifically, it argues that limiting damages to cases in which a child is born with a disability unnecessarily and inaccurately devalues life with disability and leaves unprotected children whose DNA is shaped for traits other than disability at the request of their parents. It then suggests a disability-sensitive approach for delineating cognizable injury under which genetic modifications for disability are treated like other genetic modifications that shape a future child for cultural, aesthetic, or social reasons.

The article is one of three articles responding to "Creating Children with Disabilities" in a symposium edition of the Hastings Law Journal. The first critique is by Glenn I. Cohen from Harvard Law School. Professor's Cohen's piece, "Intentional Diminishment, the Non-Identity Problem, and Legal Liability" (http://ssrn.com/abstract=1330504), argues that distinctions I draw on the basis of the Non-Identity Problem are flawed. He then discusses several other possible approaches to finding legal liability.

Jaime S King, from Hastings Law School, writes the second critique, "Duty to the Unborn: A Response to Smolensky" (http://ssrn.com/abstract=1336375). In that article, Professor King agrees that parents making preimplantation reproductive decisions should act as reasonably prudent parents, but argues that a balancing test that considers both the benefits to children of growing up disabled and the additional risks of the reproductive technologies themselves should be applied. The article also argues that national regulation is a better social response to this problem than parental tort liability.

The symposium concludes with a brief response to each of the three critiques. The response, "Parental Tort Liability for Direct Preimplantation Genetic Interventions: Technological Harms, the Social Model of Disability, and Questions of Identity" (http://ssrn.com/abstract=1295426) addresses a central argument from each of the three critiques.

Number of Pages in PDF File: 14

Keywords: disability, human reproduction, enhancement, genetics, moral harm

Accepted Paper Series