Fordham: “Disability and Designer Babies: Rethinking the Debate Over Genetic Interventions in Favor of Disability”

Brigham A. Fordham has posted Disability and Designer Babies: Rethinking the Debate Over Genetic Interventions in Favor of Disability, Valparaiso University Law Review, Forthcoming (2010) on SSRN.  Here is the abstract:

 If deaf parents purposely use new genetic technologies to give their child the genes for deafness, have the parents harmed the child? This and similar questions regarding parents who make genetic choices in favor of disability have preoccupied much of the scholarship regarding new artificial reproductive technologies. Some have argued that we should determine whether a child has been harmed by pondering whether the child’s “right to an open future” has been violated by the parents’ genetic intervention. If that right is violated, some say, the parents should be subject to tort liability for inflicting harm upon the child.

This Article considers the consequences of attempting to hold parents liable in tort for making genetic decisions in favor of socially disfavored physical attributes, such as disabilities. A legal scheme that asks judges and juries to separate “good” physical attributes from “bad” ones is problematic, especially when dealing with disabilities. Parents, who have personal experience with the physical traits in question, are better equipped to decide what is best for their offspring than jurors who have less experience and less at stake. Using the “open future” framework to second-guess parental decisions about socially disfavored physical traits only disrupts the parent-child relationship and suggests that discriminatory attitudes are natural and acceptable.

Moreover, the concern over genetic interventions in favor of disability is largely misplaced. Disabled parents who want disabled children are few in number and diverse in purpose. The recent focus on these parents in the debate over genetic intervention improperly assumes that such parents are incapable of making good choices and that the physical traits they prefer are inherently damning.

MR