Against Genetic Exceptionalism: An Argument in Favor of the Viability of Preconception Torts

Abstract

While courts have had decades of experience in grappling with preconception torts, primarily through the diethylsulfidamide (DES) litigation, the more recent phenomenon of preconception genetic torts have proved difficult for the judicial system to manage properly. A preconception genetic tort occurs where a person is exposed to a mutagen that results in structural changes to that person's DNA. These changes, in turn, can affect any offspring, and because they result in structural alterations to DNA, the offspring potentially carry those mutations in their own germline cells. While these facts obviously render preconception genetic torts unique, in this paper, I argue against genetic exceptionalism and contend that there are no policy considerations sufficient to justify categorically denying the viability of such torts. The article canvasses the most important cases addressing preconception genetic torts, and analyzes the policy considerations that militate against the genetic exceptionalism that animates outright denial of preconception genetic torts.

Keywords: genetics, exceptionalism, mutagen, teratogen, preconception, tort