Prenatal Torts and Pre-Implantation Genetic Diagnosis

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Table of Contents

I. Introduction
II. Medical and Legal Background
  A. Various Forms of Prenatal Screening
  B. The Controversy
  C. The Current State of Prenatal Torts
    1. Wrongful Pregnancy
    2. Wrongful Birth
    3. Wrongful Life
III. Application of Prenatal Torts to PGD
  A. Focusing on the Relevant Distinctions
  B. Duty and Breach
  C. Injury
    1. Injury in Wrongful Birth Cases
    2. Injury in Wrongful Life Cases
  D. Proximate Cause
  E. Damages
  F. Existence of Cause of Action
IV. Role of Courts
V. Conclusion

I. Introduction

over the last several decades, the use of prenatal screening techniques to identify women at risk of giving birth to children with genetic and congenital disabilities has become a routine part of prenatal care. (1) Nearly all pregnant women are screened for risk factors and, among women of advanced maternal age, diagnostic testing of fetuses to detect abnormalities is now commonplace. The results of such testing can be used to decide whether to continue the pregnancy or abort. (2) Modern prenatal care also encompasses the decision to become pregnant, with many prospective parents seeking medical advice regarding the risk of their children inheriting a genetic disability.

The legal profession has not lagged far behind these medical advances, at least in holding medical professionals accountable. Concurrently with the increasing scope of modern prenatal care, courts have recognized a series of prenatal torts that allow parents, and sometimes children, to pursue claims against their medical providers for damages flowing from an unwanted birth. These prenatal torts include wrongful birth, wrongful life, and wrongful pregnancy. Many have argued that the development of prenatal torts has, in turn, accelerated the use of prenatal screening techniques by raising the threat of liability and creating a legal standard of care that requires prenatal screening. (3) Judicial recognition of prenatal torts continues to be controversial for many reasons, including the potential psychological impact on the child, the message such recognition sends to people living with disabilities, and the difficulties inherent in placing a monetary value on the quality of a human life. (4)

Over roughly the same time period, reproductive medicine has undergone another transformation through the advent of assisted reproductive technology ("ART"). The cornerstone of ART is in vitro fertilization ("IVF"), whereby embryos are conceived outside the body and implanted in the uterus. In what Professor Jaime King has described as a "revolution," (5) ART and prenatal screening have been brought together in a recent biotechnological development: pre-implantation genetic diagnosis ("PGD"). PGD is the process by which IVF embryos are screened for genetic traits before implantation. Typically, one cell is removed from the embryo for testing when the embryo reaches the eight-cell stage. (6) The results of the genetic testing are used to select embryos for implantation into the gestational mother's womb. In isolation, prenatal screening and ART each raise difficult policy and legal issues. Their combination in PGD has sparked an enormous amount of controversy over the medical, social, and ethical implications of the technology.

Despite vigorous debate over the use of PGD and ongoing controversy over the recognition of prenatal torts in the case of established prenatal screening techniques, there has been very little consideration of how existing prenatal torts might apply to PGD. (7) This Note explores the application of prenatal torts to cases involving PGD and considers the role that courts might play in the wider debate over PGD.

Part II provides an overview of the medical and legal landscape in which PGD tort suits may arise. Part III argues that existing prenatal tort jurisprudence cannot be applied wholesale to cases involving PGD. Part IV discusses the role of the courts in the continuing debate over PGD, and Part V concludes. …