Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Monday, January 26, 2009

Hastings Symposium on Liability for Reproductive Technology

Hastings Law Journal just completed its symposium on Creating Children with Disabilities:
Commentaries on Parental Tort Liability for Preimplantation Genetic Interventions
.  The symposium was sparked by Professor Kirsten Smolensky's article, Creating Children with Disabilities: Parental Tort Liability for Preimplantation Genetic InterventionsThis 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.

A response by Professor I Glenn Cohen of Harvard entitled "Intentional Diminishment, the Non-Identity Problem, and Legal Liability"  considers the way these issues are intertwined with what philosophers have called the "Non-Identity Problem," the idea that so long as a resulting child will have a life worth living the child cannot be harmed by being brought into existence, because even an impoverished life is better than not existing at all. Professor Cohen responds to Professor Smolensky's suggestion that the Non-Identity Problem should cause us to extinguish tort liability in cases where disabled children are created by preembryo selection but not if it was done through (a still hypothetical technology enabling) the genetic manipulation of a pre-embryo to induce a disability. Professor Cohen suggests some problems with the argument for drawing a distinction (for Non-Identity Problem and hence legal liability purposes) between the two methods of creating disabled children. He also examines whether legal liability should be barred even for cases where the Non-Identity Problem applies.

Professor Alicia Ouellette of Albany Law School responded with her article: Insult to Injury: A Disability-Sensitive Response to Professor Smolensky's Call for Parental Tort Liability for Preimplantation Genetic Interventions in which she addresses the implications for people with disabilities of Smolensky's  argument. Specifically, it argues that limiting damages to cases in which a child is born with a disability unnecessarily and inaccurately devalues life with disability and leaves unprotected children whose DNA is shaped for traits other than disability at the request of their parents. It then suggests a disability-sensitive approach for delineating cognizable injury under which genetic modifications for disability are treated like other genetic modifications that shape a future child for cultural, aesthetic, or social reasons.

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