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Creating Children with Disabilities: Parental Tort Liability for Preimplantation Genetic Interventions

37 Pages Posted: 11 Jul 2008 Last revised: 27 Jul 2015

Kirsten Rabe Smolensky

University of Arizona - James E. Rogers College of Law

Abstract

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.

Keywords: PGD, genetics, torts, parental liability, parental tort immunity, disabilities

JEL Classification: K13, K19, K32

Suggested Citation

Smolensky, Kirsten Rabe, Creating Children with Disabilities: Parental Tort Liability for Preimplantation Genetic Interventions. Hastings Law Journal, Vol. 60, 2008; Arizona Legal Studies Discussion Paper No. 08-15. Available at SSRN: https://ssrn.com/abstract=1158631

Kirsten Rabe Smolensky (Contact Author)

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

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