Wrongful Life Claims and Negligent Selection of Gametes or Embryos in Infertility Treatments: A Quest for Coherence

Final version published in: (2014) 22 Journal of Law and Medicine 426-441

Queen Mary School of Law Legal Studies Research Paper No. 192/2015

17 Pages Posted: 13 Feb 2015 Last revised: 14 Mar 2015

See all articles by Noam Gur

Noam Gur

Queen Mary, University of London

Multiple version iconThere are 2 versions of this paper

Date Written: February 11, 2015

Abstract

This article discusses an anomaly in the English law of reproductive liability: that is, an inconsistency between the law’s approach to wrongful life claims and its approach to cases of negligent selection of gametes or embryos in infertility treatments (the selection cases). The article begins with an account of the legal position, which brings into view the relevant inconsistency: while the law treats wrongful life claims as non- actionable, it recognises a cause of action in the selection cases, although the selection cases bear a relevant resemblance to wrongful life claims. The article then considers arguments that may be invoked in an attempt to reconcile the above two strands of the law. Three of these counterarguments consist in attempts to distinguish the selection cases from wrongful life claims. It is argued that these attempts fail to reveal a valid basis for treating these situations differently. A fourth possible counterargument levels against the present analysis a charge of reductio ad absurdum. It is shown that this argument suffers from a fundamental flaw caused by confusion between different senses of the term “identity”. Finally, the article discusses possible changes to the legal position that could rectify the problem. It argues that one of these changes, which focuses on legal redress for violation of personal autonomy, is particularly apt to resolve the problem at hand, but also highlights the need for further inquiry into the broader implications of introducing this form of redress into the law of torts.

Keywords: Wrongful life claims, Congenital Disabilities (Civil Liability) Act 1976, negligence, selection of gametes or embryos, infertility treatments, reproductive liability, autonomy.

Suggested Citation

Gur, Noam, Wrongful Life Claims and Negligent Selection of Gametes or Embryos in Infertility Treatments: A Quest for Coherence (February 11, 2015). Final version published in: (2014) 22 Journal of Law and Medicine 426-441; Queen Mary School of Law Legal Studies Research Paper No. 192/2015. Available at SSRN: https://ssrn.com/abstract=2563556

Noam Gur (Contact Author)

Queen Mary, University of London ( email )

Lincoln's Inn Fields
Mile End Rd.
London, E1 4NS
United Kingdom

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