Kirsten Smolensky on Creating Children with Disabilities -- Plus Responses

Kirsten Rabe Smolensky (University of Arizona) - Creating Children with Disabilities: Parental Tort Liability for Preimplantation Genetic Interventions:

Using preimplantation genetic diagnosis (PGD), parents can screen embryos for genetic traits such as deafness and Achondroplasia (dwarfism). Studies show that some parents intentionally choose embryos with disabilities because that genetic trait runs in the family. This recent trend raises the important legal question of whether children can sue their parents in tort for selecting disabling genetic traits.
 
This 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.

Jaime S. King (Hastings) - Duty to the Unborn: A Response to Smolensky:

This article responds to Professor Kirsten Smolensky's article in Hastings Law Journal titled Creating Children with Disabilities: Parental Tort Liability for Preimplantation Genetic Interventions by arguing in favor of creating a duty for individuals to act as reasonably prudent parents with respect to their preimplantation reproductive decisions. In addition, the article advocates use of a balancing test to determine the reasonableness of parents' choices when compared to the risks associated with using genetic testing and assisted reproductive technologies. The article concludes with an argument for national regulation as the primary social response to challenges associated with assisted reproductive technology rather than tort liability.

The abstract of another response by I. Glenn Cohen was earlier posted on this blog and is available here.