Kirsten Rabe Smolensky (University of Arizona - James E. Rogers College of Law) has posted Creating Disabled Children: Parental Tort Liability for Preimplantation Genetic Interventions (60 Hastings Law Journal, Forthcoming 2008) on SSRN. Here is the abstract:
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 in some instances. Children have a moral right to an open future which tort law should protect whenever parents' preimplantation genetic choices limit a child's ability to pursue a variety of different life paths. In reaching this conclusion, the paper addresses various barriers to tort liability, including "no duty" arguments, parental tort immunity, and a variety of constitutional concerns.
And from the text:
A more complete definition of harm in the context of genetic choices comes from the work of several moral philosophers who argue that children have a right to an “open future”.37 Joel Feinberg, one of the first proponents of this approach, argues that where parents are fully informed of the likelihood of certain handicaps and yet permit a child to be born, they have wronged that child (in a moral sense) even if it cannot be said that the child has been legally harmed.38 While Feinberg is talking about situations where parents forgo a safe and legal abortion even though a disability has been detected in the womb (an act of nonfeasance post implantation), his words are equally applicable in the context of preimplantation genetic interventions.
Under Feinberg’s vision, a right to an “open future” means that children possess “anticipatory autonomy rights” that are violated when a child’s opportunities in life are limited.39 Every child that comes into existence has future interests40 that can be doomed by the child’s circumstances at birth.41 To say that the child has been deprived of his right to an open future, however, “[t]he doomed interests must be basic ones, including welfare interests in the possession of those unimpaired faculties that are essential to the existence and advancement of any ulterior interests.”42 In the words of Buchanan, et. al., they must be “natural primary goods,” or capabilities that are “useful or valuable in carrying out nearly any plan of life or set of aims that humans typically have.”43 One example of a natural primary good is sight.44 Under this ethical framework, all persons, and particularly parents, have a responsibility to help their children gain and develop natural primary goods.
Highly recommended.
At the level of moral theory, one of the most interesting questions in the context of embryo screening is raised by the fact that the children born as a result of selection would not have existed if the screening had not occurred. (Or would likely not have existed depending on the context.) This creates a baseline problem--whether being born with the disability is an injury as compared to not having been born at all. I haven't read the work by Feinberg that Smolensky cites, but it strikes me from her account that Feinberg addressed this problem by limiting the scope of the relevant class to cases in which the disability is so serious that the child lacks "an open future," i.e., capacities essential to the exercise of human autonomy. (Or something along these lines.)
Smolensky discusses this issue in the following passage:
Derek Parfit’s Non-Identity Problem may also pose a theoretical barrier to parental liability for preimplantation genetic interventions. The Non-Identity Problem postulates that a child born with a particular genetic disease as a result of negligent prenatal testing, for example Down Syndrome, has not been harmed.138 Put another way, if one’s alternative to birth with Down Syndrome is abortion (or nonexistence), then the child born with Down Syndrome has suffered no injury by being born. Parfit’s Non-Identity Problem often forms the basis for dismissal of wrongful life claims brought by children who argue that they would have been better off aborted than born.139 This section of the paper addresses the implications of the Non-Identity Problem for both direct and indirect genetic interventions. While direct genetic interventions, such as gene addition, deletion or modification, are still a few years away, direct genetic interventions provide the best case for preimplantation parental tort liability because the parents are altering a fixed set of DNA prior to implantation in the womb. This technology, therefore, makes the Non-Identity Problem, which has been used successfully to stave off wrongful life suits, irrelevant.
And:
Parfit’s Non-Identity Problem suggests that any child born as a result of this PGD choice lacks a valid tort claim because he has not suffered legally cognizable injury. A child born deaf (or with any other genetic condition that allows for a life worth living) is alive because of the choice his parents made. His other alternative was nonexistence (or in this case being indefinitely frozen), and unless the child can successfully argue that his life is worse than nonexistence his claim will fail.144 Such an argument is sure to fail in the case of a child who is deaf. People who are deaf live relatively normal and productive lives. Therefore, the Non-Identity Problem likely bars tort claims in cases involving PGD or other indirect genetic interventions even though it would not bar claims based on direct genetic interventions.
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