Playing the Odds or Playing God? Limiting Parental Ability to Create Disabled Children through Preimplantation Genetic Diagnosis

Article excerpt

Suppose [persons with disabilities] believe that their child will be happier if she shares her parents' condition, and take action to prevent her from developing normally, for example, not giving the growth hormone that will make her taller, or not providing a cochlear implant that might overcome a mild form of congenital deafness. Such actions would arguably harm the child and constitute child abuse, for the child would be denied a treatment essential for future functioning in society.

Unless it could be shown that children born to such parents are in fact better off if they share the parents' disability, stopping parents from prenatal lessening of offspring abilities would not ... interfere with their procreative liberty. (1)

These words, written by Professor John A. Robertson, resonate more in today's society than when first written fifteen years ago, when screening of preimplantation embryos for genetic disease was only experimental. (2) No longer are Professor Robertson's words a supposition of what our future holds--our future is here. And while originally preimplantation screening was thought to be a mechanism to discard embryos carrying disease, clearly Professor Robertson foresaw the downside to this technology long before it became a reality. Today, some couples are no longer satisfied with having perfectly healthy babies; they would rather have a child that is disabled, like them.

This Comment argues that parents do not have a moral or legal right to harm their children by ensuring that they are born with a disability or disease through the use of preimplantation genetic diagnosis ("PGD") or other assisted reproductive technologies ("ARTs"). There is no constitutional right to use PGD, and so the individual states should be free to regulate this arena. At this time, however, no states have implemented any legislation that would prevent parents from using PGD in any capacity, whether to help or harm their future children. As such, those children already born through PGD, who cannot benefit from present or future regulation of reproductive technologies, should benefit from indirect methods of regulation through the tort law system.

Part I of this Comment will explain the science behind current ARTs, specifically PGD, and address instances in which parents have used PGD to create disabled or diseased children. Part II will discuss the current state of reproductive law in the United States, as well as legislation currently in effect in Canada and Western Europe. Part III will examine the ethical implications presented by the use of PGD to limita child's opportunities, mainly the conflict between the ethical principles of beneficence and autonomy, and how both of these cannot be achieved when parents use PGD for this purpose. Part IV will analyze why parents do not have a constitutional right to use PGD to create disabled or diseased children, and why the states may intervene with regulation. Finally, Part V will present an alternative solution to direct regulation through federal or state legislation by using the tort law system as an indirect method to regulate these issues.

I. BACKGROUND ON PGD AND ITS USES TODAY

ARTs refer to those fertility treatments that include the handling of both sperm and eggs. (3) ART encompasses in vitro fertilization ("IVF") (4) and its variations, which include: intracytoplasmic sperm injection ("ICSI"), (5) gamete intrafallopian transfer ("GIFT"), (6) zygote intrafallopian transfer ("ZIFT"), (7) and PGD. (8) Accomplished prior to IVF transfer, PGD is the process by which one or two cells are removed from a human zygote, or biopsied, after which the genetic makeup of the cells is analyzed. (9) Only those embryos that were not carriers of whatever gene was being screened for are then implanted in the uterus.

PGD was designed to screen for disabilities or diseases in order to avoid passing on serious genetic defects to offspring. …