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Hastings Law Journal

Abstract

For two decades children suffering from severe genetic defects have sought recovery from genetic counselors whose alleged negligence caused their births, but not their defects. In these cases the courts have stumbled over traditional remedial principles. Because the child would not have been born but for the negligence, few courts have been willing to accept a child's allegation that her rightful position-unborn-is preferable to her impaired condition.

In this Article, Professor Kelly argues that in order to advance social policies favoring compensation, deterrence, and fairness, courts must analyze genetic counselling torts more thoroughly and more imaginatively. He then proposes three alternative remedial approaches that overcome obstacles to recovery by impaired children.

First, Professor Kelly argues that consistent application of traditional tort principles, including thoughtful application of the benefits rule, permits the comparisons that are necessary to a finding that impaired children are entitled to compensation. Second, he suggests that remedial principles drawn from misrepresentation cases identify the rightful position as the child's status if the genetic counselor's diagnosis had been correct, and consequently obviate the difficulties that deter recovery under traditional tort rules. Finally, Professor Kelly. proposes a broader view of the tort, one that considers the rightful position of the family unit, which might have included a healthy child born later. He argues that this third approach presents the most realistic, although perhaps the most problematic, remedial possibility for genetic counseling.

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