17 Pages Posted: 4 Nov 2008
Date Written: November 3, 2008
Reproductive technologies currently allow parents to select for embryos with genetic traits such as deafness, Down Syndrome and Achondroplasia (dwarfism). In the future, parents may also be able to genetically engineer such traits. Current data suggests there is a small, but consistent, parental demand for the creation of children with disabilities.
In a previous paper, Creating Children with Disabilities: Parental Tort Liability for Preimplantation Genetic Interventions, I argue that a later-born child should be able to sue his parents in tort where they intentionally engage in a direct genetic intervention that creates a disabling trait. In response, Professors Glenn Cohen, Jaime King, and Alicia Ouellette wrote thoughtful commentaries that both challenged and advanced my proposal in numerous ways. This paper is a reply to several broad themes that appear in their commentaries; it makes at least two important, new arguments in favor of parental tort liability.
First, I make clear an unstated, but important, underlying assumption of the original paper: that a large portion of the harm caused by a disabling trait is due to environmental factors and that these environmental factors are not changing rapidly enough to alleviate harm caused by a disabling trait. Therefore, while a disabling trait, by itself, may not be inherently tragic or harmful, living life with a disability in today's society is harmful. Understanding the harm that results from choosing a disability in this way may reconcile an open futures approach and the social model of disability.
Second, the reply clarifies several points about the Non-Identity Problem. It argues that a particular entity (or identity) need not exist at the time of an injury-causing event for tort liability to lie. Consistent with preconception tort cases and many prenatal tort cases, this reply argues that a parent's direct genetic intervention causes the disability itself, not that it causes the conception or birth of a child who happens to be disabled.
Keywords: genetics, genetic engineering, torts, parental liability, parental tort immunity, disability, intentional diminishment, personal identity, reproductive technology
Suggested Citation: Suggested Citation
Smolensky, Kirsten Rabe, Parental Tort Liability for Direct Preimplantation Genetic Interventions: Technological Harms, the Social Model of Disability, and Questions of Identity (November 3, 2008). Hastings Law Journal, Vol. 60, 2008; Arizona Legal Studies Discussion Paper No. 08-27. Available at SSRN: https://ssrn.com/abstract=1295426