Creating Children with Disabilities: Parental Tort Liability for Preimplantation Genetic Interventions

Using preimplantation genetic diagnosis (PGD), parents can now 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 a child can sue his parents in tort for selecting or engineering disabling genetic traits. This Article suggests that children both can and should be able to successfully sue parents who engage in certain direct genetic interventions.

First, tort law should protect a child's moral right to an open future where parents' preimplantation genetic choices limit a child's ability to pursue a variety of different life paths. Second, various potential barriers to tort liability, including "no duty" arguments, parental tort immunity, and a variety of constitutional concerns are not sufficient to bar parental tort liability for certain genetic interventions.