Creating Children with Disabilities: Parental Tort Liability for Preimplantation Genetic Interventions
Kirsten Rabe Smolensky
University of Arizona - James E. Rogers College of Law
Hastings Law Journal, Vol. 60, 2008
Arizona Legal Studies Discussion Paper No. 08-15
Using preimplantation genetic diagnosis (PGD), parents can screen embryos for genetic traits such as deafness and Achondroplasia (dwarfism). Studies show that some parents intentionally choose embryos with disabilities because that genetic trait runs in the family. This recent trend raises the important legal question of whether children can sue their parents in tort for selecting disabling genetic traits.
This article suggests that children should be able to successfully sue their parents who engage in certain direct genetic interventions. Tort law should protect a child's moral right to an open future where parents' preimplantation genetic choices limit a child's ability to pursue a variety of different life paths. In reaching this conclusion, the article addresses various barriers to tort liability, including "no duty" arguments, parental tort immunity, and a variety of constitutional concerns.
Number of Pages in PDF File: 37
Keywords: PGD, genetics, torts, parental liability, parental tort immunity, disabilities
JEL Classification: K13, K19, K32
Date posted: July 11, 2008 ; Last revised: July 27, 2015