Advances in assisted reproductive technology and genetic testing continue to offer parents a plethora of new reproductive choices. As a result, we now face significant moral and legal challenges regarding how to balance the interests of parents, children born through the procedure, and society as a whole. This Essay analyzes Professor Kirsten Smolensky's argument in favor of permitting children the right to sue their parents in tort law for manipulating their DNA prior to implantation to produce a disabling trait. While Smolensky's basic argument is sound, a more encompassing standard would create a duty to potential offspring to act as reasonably prudent parents when making reproductive choices that do not compromise the mother's bodily integrity. Such a duty would require parents to consider not just the harms discussed by Smolensky, such as preimplantation genetic manipulation to produce a disability, but also additional harms caused by ART procedures such as transfer of multiple embryos, embryo biopsy, and harms associated with procedures involved in genetic manipulation. In addition, under such a standard, prospective parents should weigh those harms against any potential benefit derived from being born with a specific condition, such as the ability to grow up in the same culture as his or her parents. Creating such a duty within the tort system offers some relief for individuals harmed by preimplantation ART; however, a national regulatory scheme offers three distinct advantages over the tort system alone: participation of members of the disability community, preemptive protection, and national consistency.
Duty to the Unborn: A Response to the Smolensky,
60 Hastings L.J. 377
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