Creating children with disabilities: Parental tort liability for preimplantation genetic interventions

Hastings Law Journal

Volumn 60, Issue 2, 2008, Pages 299-345

  Smolensky, Kirsten Rabe ^a  

^a UNIVERSITY OF ARIZONA   (United States)

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EID: 61349187794     PISSN: 00178322     EISSN: None     Source Type: Journal    
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References (336)

1. This Article is primarily concerned with genetic selection and manipulation of preimplantation embryos. Genetic selection of preimplantation embryos is occurring daily. See, e.g., Susannah Baruch et al., Genetic Testing of Embryos: Practices and Perspectives of US In Vitro Fertilization Clinics, 89 FERTILITY & STERILITY 1053, 1054 (2008) (noting that "approximately 3000 cycles of PGD" were provided in 2005). "Gene therapy, the directed genetic change of human somatic cells[ - specialized differentiated cells - ]to treat a genetic disease or defect, has already produced positive results for a few diseases." The President's Council on Bioethics, Staff Background Paper, Human Genetic Enhancement, Dec. 3, 2002, http://www.bioethics.gov/background/humangenetic.html (discussing gene therapy in adults). While there have been no reports of direct genetic manipulation of human embryos, and though such techniques are probably several years away, it is important to discuss the possible ethical and legal ramifications of these techniques now.
2. See id.
3. Baruch et al., supra note 1, at 1054-55 (explaining that while it is impossible to translate this information into absolute numbers, the data suggests that at least five IVF clinics in the United States comply with requests to select for a disability).
4. Id. at 1055. The article does not specify what the diseases or disabilities are, but conversations with some reproductive endocrinologists at a 2007 American Society for Reproductive Medicine (ASRM) meeting suggest that at least one infertility clinic has complied with a parental request to select for achondroplasia (dwarfism) because the trait ran in the family.
5. Often technological breakthroughs are viewed with distrust by the disability rights movement. JOSEPH P. SHAPIRO, NO PITY: PEOPLE WITH DISABILITIES FORGING A NEW CIVIL RIGHTS MOVEMENT 22-23 (1994). As Shapiro points out: Many activists fear that with the growth of such predictive tests, pregnant women will be expected or coerced to abort fetuses when there is an indication of disability. Others worry that if genetic engineering can one day wipe out an illness, a person who already has that disability will be seen as a freak or devalued as a preventable mistake.
6. Id.
7. This Article only briefly considers genetic choices that occur between implantation and birth. Examples of prenatal, not preimplantation, genetic interventions include any direct genetic manipulations that could be performed in utero and any indirect genetic changes that could be brought about by abortion or maternal decisions regarding diet and exercise. These prenatal genetic choices raise more complicated questions of bodily integrity, as discussed briefly infra Part V.B. This Article does not address these concerns in detail because it is designed to focus on the implications of new reproductive technologies such as PGD.
8. See John A. Collins, Editorial, Preimplantation Genetic Screening in Older Mothers, 357 NEW ENG. J. MED. 61, 61 (2007). As Collins points out: Preimplantation genetic diagnosis, first described in 1990, involves removing one or two cells from an embryo for genetic testing in order to prevent transmission of genetic disorders from a parent who is known to carry a genetic abnormality. Genetic tests are done on the third day after in vitro fertilization (IVF), when the embryos are at the eight-cell stage of development; only embryos without specific genetic traits are transferred to the mother a day or two later. . . . The effectiveness of preimplantation genetic diagnosis has been accepted without randomized trials, because its success in reducing transmission of genetic diseases is self-evident.
9. Id. (footnote omitted).
10. The Parfit Non-Identity Problem has been used by courts to argue that children born as a result of negligence - for example a negligent tubal ligation resulting in pregnancy - have no wrongful life tort claim; as the child would not have existed but for the negligence, he suffers no injury. See DEREK PARFIT, REASONS AND PERSONS 351-79 (rev. ed. 1987).
11. ALLEN BUCHANAN ET AL., FROM CHANCE TO CHOICE: GENETICS AND JUSTICE 170 (2000).
12. See, e.g., Stallman v. Youngquist, 531 N.E.2d 355, 360 (Ill. 1988);
13. Womack v. Buchhorn, 187 N.W.2d 218, 222 (Mich. 1971);
14. Smith v. Brennan, 157 A.2d 497, 503 (N.J. 1960).
15. See, e.g., Stallman, 531 N.E.2d at 360;
16. Womack, 187 N.W.2d at 222;
17. Brennan, 157 A.2d at 503.
18. Brennan, 157 A.2d at 503;
19. see also Womack, 187 N.W.2d at 222 (citing Brennan);
20. Sylvia v. Gobeille, 200 A.2d 223, 223-34 (R.I. 1961) (citing Brennen and further noting that "we deem it fitting and proper to protect a child's right to commence life unhampered and unimpaired by damage negligently caused to his body or mind by another").
21. Nancy Levit, Ethereal Torts, 61 GEO. WASH. L. REV. 136, 141-45 (1992).
22. RESTATEMENT (SECOND) OF TORTS § 14 cmt. c (1965) ("There is perhaps no essential reason why . . . liability for battery might not be based on inaction, where it is intended to result and does result in a harmful or offensive contact with the person. Apparently, however, no such case has arisen, and what little authority there is denies the liability.").
23. BUCHANAN ET AL., supra note 8, at 6.
24. Id.
25. See, e.g., Baruch et al., supra note 1, at 1054-55.
26. Susannah Baruch et al., Genetic Testing of Embryos: A Critical Need for Data, 11 REPROD. BIOMED. ONLINE 667, 667 (2005) (on file with The Hastings Law Journal). As the authors explain: Since first reported, more than 1000 babies have been born following PGD, a number that is expected to grow dramatically. Indeed, some have suggested that in the future, PGD will become the standard of care for determining which embryos to transfer during IVF. Such a development would greatly increase the frequency of PGD, as IVF babies now make up 1% of all births in the United States, and that number, too, is growing.
27. Id. (citations omitted).
28. The Practice Comm. of the Soc'y for Assisted Reprod. Tech. & The Practice Comm. of the Am. Soc'y for Reprod. Med., Preimplantation Genetic Testing: A Practice Committee Opinion, 88 FERTILITY & STERILITY 1497, 1497 (2007) [hereinafter Preimplantation Genetic Testing] (explaining that there are two types of preimplantation genetic testing, PGD and preimplantation genetic screening (PGS)). The term PGD is used when one or both genetic parents carry a gene mutation or a balanced chromosomal rearrangement and testing is performed to determine whether that specific mutation or an unbalanced chromosomal complement has been transmitted to the oocyte or embryo. The term [PGS] applies when the genetic parents are known or presumed to be chromosomally normal and their embryos are being screened for aneuploidy.
29. Id. This Article talks exclusively about PGD because all of the reported cases of parents selecting for a disabling trait involve situations where one or both genetic parents are known to be carriers of the desired gene mutation.
30. PETER J. RUSSELL, GENETICS, at G-8 (4th ed. 1996) (explaining that a multifactorial trait is a "trait influenced by multiple genes and environmental factors").
31. Susan L. Crockin et al., Genetic Tests Are Testing the Law, TRIAL, Oct. 2006, at 44,45.
32. Reprod. Genetics Inst., PGD for Single Gene Disorders, http://www.reproductivegenetics.com/single-gene.html (last visited Dec. 15, 2008).
33. RUSSELL, supra note 19, at G-10 (explaining that polygenic traits are traits encoded by many locations on the genome).
34. Melissa Healy, Fertility's New Frontier: Advanced Genetic Screening Could Help Lead to the Birth of a Healthy Baby, L.A. TIMES, July 21, 2003, § 6 (Health), at 1.
35. M. Spriggs, Lesbian Couple Create a Child Who Is Deaf Like Them, 28 J. MED. ETHICS 283, 283 (2002).
36. Id.
37. Ethics Comm., Am. Soc'y for Reprod. Med., Child-rearing Ability and the Provision of Fertility Services, 82 FERTILITY & STERILITY 564, 564 (2004). Many doctors may feel that purposefully selecting an embryo with a disability violates their ethical obligation to do no harm.
38. Id. While the ASRM does not have an ethics opinion directly on point, it opines that "[f]ertility programs may withhold services from prospective patients on the basis of well-substantiated judgments that those patients will be unable to provide or have others provide adequate child-rearing for offspring."
39. Id.;
40. see also id. at 565 (explaining that the primary concern is for the welfare of offspring).
41. At the time of writing, the United Kingdom was debating an amendment to the Human Embryology and Fertilisation Bill that would make it illegal to use embryos with a known genetic abnormality where nonaffected embryos were available for use. See Clare Murphy, Is It Wrong to Select a Deaf Embryo?, BBC NEWS, Mar. 10, 2008, available at http://news.bbc.co.uk/2/hi/health/7287508.stm;
42. Progress Educ. Trust, Debate in Cardiff, Wales: Debating Deafness and Embryo Selection: Are We Undermining Reproductive Confidence in the Deaf Community? (Apr. 9, 2008) (transcript available at http://stopeugenics.org/ files/2008/04/debatingdeafness.pdf).
43. For example, the ASRM guidelines for PGD sex selection say that "sex selection to prevent the transmission of serious genetic disease is ethically acceptable," whereas sex selection for "nonmedical reasons" should "not be encouraged." Ethics Comm., Am. Soc'y for Reprod. Med., Sex Selection and Preimplantation Genetic Diagnosis, 72 FERTILITY & STERILITY 595, 598 (1999).
44. However, while a recent ACOG Committee on Ethics Opinion also "supports the practice of offering patients procedures for the purpose of preventing serious sex-linked genetic diseases," it "opposes meeting requests for sex selection for personal and family reasons, including family balancing, because of a concern that such requests may ultimately support sexist practices." AM. COLL. OF OBGYN, COMM. OPINION No. 360, SEX SELECTION (2007), available at http://www.acog.org./from-home/publications/ethics/co360.pdf. First, it is not clear that all professional organizations agree on the appropriate ethical response. Furthermore, even in light of ACOG's disapproval of sex selection for nonmedical reasons, several fertility clinics advertise sex selections services for family balancing purposes.
45. See, e.g., The Fertility Instit., 100% Sex Selection, Family Balancing and Genetic Embryo Screening, http://www.fertility-docs.com/fertility- gender.phtml (last visited Dec. 15, 2008).
46. Céline Moutou et al., Preimplantation Genetic Diagnosis for Achondroplasia: Genetics and Gynaecological Limits and Difficulties, 18 HUM. REPROD. 509, 509 (2003) (explaining that achondroplasia is an autosomal dominant genetic trait with 100% penetrance that results in abnormal bone growth and short stature or dwarfism).
47. Interview with Anonymous, in Vancouver, Can. (June 20, 2007).
48. Id.
49. Id.
50. Susannah Baruch et al., Genetic Testing of Embryos: Practices and Perspectives of US In Vitro Fertilization Clinics (Sept. 19, 2006) (ePublished manuscript ahead of print, on file with The Hastings Law Journal) (this is an earlier version of the article cited in footnote two; much of the cited text is removed in the final version of the article).
51. Baruch et al., supra note 1, at 1053. Out of 415 clinics surveyed, 186 clinics (45%) provided valid responses, and only 74% of the respondents reported that they provided PGD services.
52. Id. at 1053-54. The remaining clinics (225) did not respond to the survey.
53. See id. If the percentages reported hold true for all IVF clinics that received the survey, then approximately nine IVF-PGD clinics in the United States have honored a request to select for a disabling trait.
54. Id. There is no data on how many children with disabilities have been born as a result.
55. See, e.g., id. at 1053-55.
56. See, e.g., Lori B. Andrews & Nanette Elster, Regulating Reproductive Technologies, 21 J. LEGAL MED. 35 (2000);
57. Judith F. Daar, Regulating Reproductive Technologies: Panacea or Paper Tiger?, 34 HOUS. L. REV. 609, 637-56 (1997) (surveying current and proposed legal regulation of ART).
58. For example, the Canadian Assisted Human Reproduction Act, which prohibits the purchase of "sperm or ova from a donor" has resulted in rampant medical tourism. The Assisted Human Reproduction Act, 2004 S.C., ch. 2 (Can.);
59. see also Paul Claman, The Assisted Human Reproduction Act, J. OBGYN CAN., Apr. 2007, at 303 ("Most [Canadian] patients in need of egg donation are currently traveling to clinics in the United States, where egg donors are paid fees averaging $4000 per donation, for treatment.").
60. See, e.g., Maxwell J. Mehlman & Kirsten M. Rabe, Any DNA to Declare? Regulating Offshore Access to Genetic Enhancement, 28 AM. J.L. & MED. 179, 208-12 (2002).
61. See, e.g., Alicia Ouellette et al., Lessons Across the Pond: Assisted Reproductive Technology in the United Kingdom and the United States, 31 AM. J.L. & MED. 419, 431-32 (2005) (describing in detail the United Kingdom's extensive regulatory regime).
62. A child, in theory, may also be able to sue the health care providers who allowed his parents to engage in harmful preimplantation genetic interventions. This Article does not examine potential provider liability because its purpose is to focus on potential parental liability. Parental liability, however, does not necessarily preclude provider liability.
63. JOHN A. ROBERTSON, CHILDREN OF CHOICE: FREEDOM AND THE NEW REPRODUCTIVE TECHNOLOGIES 22 (1994).
64. See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 844 (1992);
65. Webster v. Reprod. Health Servs., 492 U.S. 490, 499 (1989);
66. Roe v. Wade, 410 U.S. 113, 116-17 (1973);
67. Eisenstadt v. Baird, 405 U.S. 438, 440 (1972);
68. Griswold v. Connecticut, 381 U.S. 479, 480-81 (1965);
69. Skinner v. Oklahoma, 316 U.S. 535, 536-37 (1942);
70. Buck v. Bell, 274 U.S. 200, 205 (1927).
71. See, e.g., ROBERTSON, supra note 40, at 22-42 (arguing for a strong version of procreative liberty that recognizes both a right not to reproduce and a right to reproduce using virtually any available technology);
72. Radhika Rao, Constitutional Misconceptions, 93 MICH. L. REV. 1473, 1473 (1995) (arguing that Robertson's strong view of procreative liberty "lacks a solid foundation in Supreme Court jurisprudence").
73. See generally Symposium, John A. Robertson's Children of Choice, 52 WASH. & LEE L. REV. 133 (1995) (providing for a more varied critique of Robertson's approach and his response);
74. Katheryn D. Katz, Lawrence v. Texas: A Case for Cautious Optimism Regarding Procreative Liberty, 25 WOMEN'S RTS. L. REP. 249 (2004) (providing a discussion of how recent Supreme Court rulings may have affected the right to procreative liberty).
75. See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 207 (1972) (holding that Wisconsin's mandatory school attendance law unduly burdened the parents' rights under the First and Fourteenth Amendments by forcing Amish parents to send their children to public school after the eighth grade in violation of core Amish religious beliefs).
76. See discussion infra Part V.C.
77. John A. Robertson, Procreative Liberty in the Era of Genomics, 29 AM. J.L. & MED. 439, 447 (2003).
78. Id. at 447-48.
79. Id. at 444 ("[Radical libertarians believe] that individuals are free to use any reproductive technique they wish for whatever reason, and no limits can appropriately be placed on what they do before the birth of a child. Individuals are thus free to select, screen, alter, engineer, or clone offspring as they choose." (footnotes omitted)).
80. Id. at 446 (footnote omitted).
81. Id. at 480.
82. Id.
83. See generally BUCHANAN ET AL., supra note 8;
84. ROBERTSON, supra note 40.
85. ROBERTSON, supra note 40, at 171.
86. Id.
87. See, e.g., BUCHANAN ET AL., supra note 8, at 170-72;
88. see also Joel Feinberg, The Child's Right to an Open Future, in WHOSE CHILD? CHILDREN'S RIGHTS, PARENTAL AUTHORITY, AND STATE POWER 124, 126 (William Aiken & Hugh LaFollette ed., 1980) (discussing a child's right to an open future generally).
89. Feinberg, supra note 54.
90. I JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARM TO OTHERS 38 (1984) (explaining that a person has an interest in something when he "stands to gain or lose" depending upon the outcome).
91. Id. at 98 (citation omitted) ("There can be no doubt in many cases that the condition of the infant at birth amounts to a dooming of his future interests to total defeat, so that when he comes into existence he already is in what we would normally call a state of harm.").
92. Id.
93. Id. at 99.
94. Id. at 98-100.
95. BUCHANAN ET AL., supra note 8, at 167-68.
96. Id.
97. Id. at 167.
98. Id. at 170 (emphasis added).
99. Id. (emphasis added).
100. Id. at 167. Some scholars have argued that attempts to have a deaf child are justifiable because the deaf are a minority group and a cultural group. K.W. Anstey, Are Attempts to Have Impaired Children Justifiable?', 28 J. MED. ETHICS 286, 286-87 (2002).
101. BUCHANAN ET AL., supra note 8.
102. Eric Rakowski, Who Should Pay for Bad Genes?, 90 CAL. L. REV. 1345, 1345 (2002).
103. Id.
104. Id.
105. Id. at 1390.
106. See, e.g., Stallman v. Youngquist, 531 N.E.2d 355, 360 (Ill. 1988);
107. Womack v. Buchhorn, 187 N.W.2d 218, 222 (Mich. 1971);
108. Smith v. Brennan, 157 A.2d 497, 503 (N.J. 1960).
109. See, e.g., The Universal Declaration on the Human Genome and Human Rights, UNESCO, 29th Sess., 29 C/Res. 16 (Nov. 11, 1997),
110. adopted by G.A. Res. 53/152, U.N. Doc A/RES/53/152 (Dec. 9, 1998) [hereinafter The Universal Declaration];
111. Roger Brownsword, Ahrens Torts Seminar: Genomic Torts: An Interest in Human Dignity as the Basis for Genomic Torts, 42 WASHBURN L.J. 413, 415-16 (2003) (citing the Convention on Human Rights and Biomedicine, and suggesting that the United Kingdom incorporate a fundamental right of human dignity into tort law).
112. Brennan, 157 A.2d at 503.
113. See, e.g., Stallman, 531 N.E.2d at 359 (recognizing that children have a "legal right to begin life with a sound mind and body" even though the court ultimately held that the mother could not be liable for the prenatal injuries she caused her child);
114. Womack, 187 N.W.2d at 222-23 (citing Brennan and recognizing a common law action for negligently inflicted prenatal injury).
115. The Universal Declaration, supra note 73, art. 8.
116. See id.
117. Id.
118. Levit, supra note 12, at 143.
119. Id.
120. According to a search of the LexisNexis database, the term "post-traumatic stress disorder" first began appearing in legal opinions in 1980. See, e.g., State v. Gregory, No. 80 AP-461, 1980 Ohio App. LEXIS 13522, at *7 (Ohio Ct. App. Dec. 31, 1980).
121. See James F. d'Entremont, Fear Factor: The Future of Cancerphobia and Fear of Future Disease Claims in the Toxicogenomic Age, 52 LOY. L. REV. 807, 813-14 (2006).
122. Id. at 810.
123. See generally John G. New, "Aren't You Lucky You Have Two Mamas?": Redefining Parenthood in Light of Evolving Reproductive Technologies and Social Change, 81 CHI.-KENT L. REV. 773 (2006);
124. Developments in the Law - The Law of Marriage and Family, 116 HARV. L. REV. 1996, 2052-74 (2003) (discussing how new reproductive technologies have changed the way we define parenthood and family).
125. ROBERTSON, supra note 40, at 104-07.
126. Immunities are generally bright-line rules designed to protect a defendant not merely from liability, but from suit. DAN B. DOBBS, THE LAW OF TORTS § 225 (2000) ("Courts sometimes emphasize the bright-line quality of immunity by saying that an immunity is an immunity from suit, not merely an immunity from liability. The point of that saying is to assert that the value of the immunity is to save the defendant from the costs and uncertainties of a trial and hence to claim that courts can rightly avoid considering the merits of the individual case."). Therefore, the applicability of a particular immunity necessarily arises before questions of duty, breach or injury. Hence, this Article addresses parental tort immunity before it reaches the specifics of intentional tort liability in Part IV and negligence in Part V.
127. Hewellette v. George, 9 So. 885, 887 (Miss. 1891), overruled by Glaskox v. Glaskox, 614 So. 2d 906 (Miss. 1992).
128. Glaskox, 614 So. 2d at 907 n.1 (Miss. 1992).
129. Martin J. Rooney & Colleen M. Rooney, Parental Tort Immunity: Spare the Liability, Spoil the Parent, 25 NEW ENG. L. REV. 1161, 1163 (1991) (footnotes omitted).
130. See, e.g., DOBBS, supra note 86, § 280 (providing a complete, brief overview of the birth and erosion of parental tort immunity in the United States, and noting that Goller v. White "began a national trend, and today, a majority of states has at least partially abolished parental tort immunity" (citing 122 N.W.2d 193 (Wis. 1963)).
131. See, e.g., Hurst v. Capitell, 539 So. 2d 264, 266 (Ala. 1989).
132. Newman v. Cole, 872 So. 2d 139, 145-46 (Ala. 2003) (carving out an exception for civil wrongful death action where a father repeatedly hit his son in the chest and then held him on the ground in a choke hold while his stepmother sprayed him in the face with water from a garden hose, ultimately causing his death).
133. DOBBS, supra note 86, § 280.
134. See infra Part V for a discussion of why some claims may be brought as negligence claims and not as intentional tort claims.
135. DOBBS, supra note 86, § 280 (citing courts that allowed claims to move forward in automobile accidents so the family could have access to insurance monies that would otherwise be unavailable).
136. Id. (noting that parental tort immunity has been removed in cases where "the child was injured in the course of the parent's business activity or by acts that were tortious to people generally").
137. Newman, 872 So. 2d at 140 n.1 (explaining that six states never adopted the doctrine of parental tort immunity, eleven adopted it but have since abolished it completely, and the remaining thirty-three states abolished parental tort immunity with a few limited exceptions).
138. Goller v. White, 122 N.W.2d 193, 196 (Wis. 1963);
139. DOBBS, supra note 86, § 280 (noting that the majority of states have adopted this standard often referred to as the Goller rule). An alternative statement of limited parental tort immunity comes from some New York cases, which allow immunity only for injuries resulting from parental supervision or a lack thereof.
140. See id.
141. DOBBS, supra note 86 ("Immunities tend to shield defendants because of their legal status, while privileges tend to shield defendants because their actions were justified in the particular case. . . . The line between status and justification is blurred, however, when immunity turns on the defendant's power to exercise discretion . . . .").
142. See, e.g., Kimberly A. Sackmann, What Happened to Protecting the Children? An Argument Against Parental Immunity for Foster Parents, 19 DUPAGE COUNTY BAR ASS'N BRIEF, Apr. 2007, at 32, 45.
143. Santosky v. Kramer, 455 U.S. 745, 753 (1982) ("Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course.");
144. cf. id. (discussing the state's ability to permanently sever parental rights).
145. See, e.g., State v. Ashley, 701 So. 2d 338, 341 (Fla. 1997) (holding that the state could not prosecute a teenage woman who shot herself in the abdomen during the third trimester of pregnancy because the state homicide and abortion statutes did not abrogate the common law doctrine of immunity for pregnant women causing injury or death to their fetuses).
146. See, e.g., Dubay v. Irish, 542 A.2d 711, 715 (Conn. 1988) (finding a mother immune from suit where she waited four hours before taking her seventeen-year-old daughter to the hospital after she overdosed on her mother's prescription medicine);
147. Ball v. Ball, 269 P.2d 302, 314 (Wyo. 1954) (finding parental immunity where a son was injured in a plane crash caused by his father's negligent piloting).
148. But see, e.g., Ard v. Ard, 414 So. 2d 1066, 1070 (Fla. 1982) (holding that a minor child could bring suit against his mother for injuries sustained when she negligently unloaded him from an automobile);
149. Anderson v. Stream, 295 N.W.2d 595, 600-01 (Minn. 1980) (holding that minor child could bring suit against his father after the child was struck by an automobile after the father negligently directed him across a street).
150. Broadwell v. Holmes, 871 S.W.2d 471, 475 (Tenn. 1994) ('"Each parent has unique and inimitable methods and attitudes on how children should be supervised. Likewise, each child requires individualized guidance depending on intuitive concerns which only a parent can understand. . . . Consequently, [a]llowing a cause of action for negligent supervision would enable others, ignorant of a case's peculiar familial distinctions and bereft of any standards, to second-guess a parent's management of family affairs. . . .'" (alteration in original) (quoting Paige v. Bing Constr. Co., 233 N.W.2d 46, 49 (Mich. Ct. App. 1975)).
151. See, e.g., Bonin v. Vannaman, 929 P.2d 754, 779-80 (Kan. 1996) ("A parent's decision regarding whether a child's medical conditions should be investigated for signs of malpractice or whether a malpractice action should be pursued is an exercise of parental discretion regarding a child's medical condition and financial well-being in which a court should not interfere. . . . If immunity for such actions is not provided, then a parent will always feel obligated to sue on behalf of his or her child, whether or not the parent thinks it is the right decision for the family. . . ."). While this case does provide some guidance as to the boundaries of parental discretion, the court's reasoning is arguably cursory.
152. See Martha Swartz, The Patient Who Refuses Medical Treatment: A Dilemma for Hospitals and Physicians, 11 AM. J.L. & MED. 147, 183-92 (1985) (providing descriptions of some medical custody cases).
153. See discussion infra Part V.D.
154. Arguably, intentional infliction of emotional distress (IIED) may be another available tort claim.
155. RESTATEMENT (SECOND) OF TORTS § 13 (1977).
156. THE N.Y. STATE TASK FORCE ON LIFE & THE LAW, ASSISTED REPRODUCTIVE TECHNOLOGIES: ANALYSIS AND RECOMMENDATIONS FOR PUBLIC POLICY 52-53 (1998) [hereinafter ASSISTED REPRODUCTIVE TECHNOLOGIES].
157. Id. at 54.
158. Id. at 56.
159. Id.
160. Collins, supra note 6.
161. Id.
162. Id.
163. ASSISTED REPRODUCTIVE TECHNOLOGIES, supra note 110, at 58-59.
164. See, e.g., White v. Univ. of Idaho, 797 P.2d 108, 109 (Idaho 1990).
165. Some readers may question whether intent to make contact with the embryo is sufficient where the contact is with a cell mass that has not developed awareness. But contemporary awareness of a harmful or offensive contact is not required. RESTATEMENT (SECOND) OF TORTS § 18 cmt. d (1977). "In any battery case where the alleged harmful or offensive contact occurs during a surgery involving general anesthesia, the patient is unaware of the contact at the time it occurs. Nonetheless, a claim for battery may lie."
166. Id. illus. 1. Similarly, suits for battery have been successful where the plaintiff acquired a sexually transmitted disease after contact with the defendant.
167. See, e.g., Doe v. Johnson, 817 F. Supp. 1382 (W.D. Mich. 1993);
168. Hogan v. Tavzel, 660 So. 2d 350 (Fla. Dist. Ct. App. 1995). In these cases, the plaintiff had no awareness that the contact was harmful or offensive at the time. Furthermore, courts have allowed suits where the later-born child was not conceived at the time of the alleged injury.
169. See generally Julie A. Greenberg, Reconceptualizing Preconception Torts, 64 TENN. L. REV. 315 (1997) (discussing preconception negligence cases).
170. See, e.g., White v. Muniz, 999 P.2d 814, 815 (Colo. 2000). Note that some scholars believe that dual intent, or more specifically the requirement of an intent to cause a harmful or offensive contact, is always superfluous.
171. Ken Simons, A Restatement (Third) of Intentional Torts?, 48 ARIZ. L. REV. 1061, 1067 (2006).
172. But see DOBBS, supra note 86, § 30 (Supp. 2007).
173. DOBBS, supra note 86, § 30.
174. Id. (explaining that in situations where the plaintiff lacks capacity to consent, "an objective standard based on the objective reasonable sense of personal dignity may be desirable").
175. Id.
176. Preimplantation Genetic Testing, supra note 18, at 1499 ("The estimated risk of transferring an affected embryo mistakenly identified as normal by PGD is approximately 2% for recessive disorders and 11% for dominant disorders.").
177. Colin B. Begg et al., Variation of Breast Cancer Risk Among BRCA1/2 Carriers, 299 JAMA 194, 200 (2008) (finding a large variation in risk among patients that carried BRCA1 and BRCA2 genes and hypothesizing that this risk variation may be due to additional unknown environmental or genetic risk factors or perhaps individual genetic variants in the BRCA1 and BRCA2 genes).
178. Id.
179. M. Hayry, There Is a Difference Between Selecting a Deaf Embryo and Deafening a Hearing Child, 30 J. MED. ETHICS 510, 510-11 (2004).
180. Arguably, all four of these concerns are also potential barriers to intentional tort claims. They are addressed here because these concerns have been raised most frequently in negligence cases involving prenatal harms.
181. Nat'l Cas. Co. v. N. Trust Bank, 807 So. 2d 86, 87 (Fla. Dist. Ct. App. 2001) (permitting a child to successfully sue for prenatal injuries suffered in an automobile accident caused by his mother's negligence up to the limits of the parents' insurance coverage);
182. Grodin v. Grodin, 301 N.W.2d 869, 871 (Mich. Ct. App. 1980) (permitting a claim to go forward where a pregnant mother took a drug that caused the child to develop discolored teeth);
183. Bonte v. Bonte, 616 A.2d 464, 464-65 (N.H. 1992) (allowing a child to recover where he suffered a prenatal injury after his mother negligently crossed the street while pregnant).
184. Stallman v. Youngquist, 531 N.E.2d 355, 361 (Ill. 1988) (finding that a fetus did not have a cause of action against its mother where she negligently caused a car accident during the fifth month of pregnancy);
185. Remy v. MacDonald, 801 N.E.2d 260, 266-67 (Mass. 2004) (holding that a child born alive could not maintain an action against its mother for prenatal injuries suffered as a result of the mother's negligent driving);
186. Chenault v. Huie, 989 S.W.2d 474,478 (Tex. App. 1999) (holding that a mother who abused narcotics while pregnant had no liability to her child who sustained related prenatal injuries).
187. Stallman, 531 N.E.2d at 359;
188. Remy, 801 N.E.2d at 262;
189. Chenault, 989 S.W.2d at 475.
190. See cases cited supra note 131.
191. See infra Part V.B.
192. Chenault, 989 S.W.2d at 478.
193. The role of juries where courts recognize a parental duty to act as a reasonably prudent parent is discussed infra Part VI.
194. Chenault, 989 S.W.2d at 478.
195. By "reasonably prudent parent" I mean that parents owe their children the ordinary standard of care, that of a reasonably prudent person in the same or similar circumstances (including familial circumstances). I chose the former terminology, even though it may slightly conflate duty and breach, because that is the language often used in scholarship discussing parental duties. See, e.g., Gail D. Hollister, Parent-Child Immunity: A Doctrine in Search of Justification, 50 FORDHAM L. REV. 489, 525-26 (1982).
196. See, e.g., Gibson v. Gibson, 479 P.2d 648, 653 (Cal. 1971) (holding that the standard for parental liability should be that of "an ordinarily reasonable and prudent [p]arent . . . in similar circumstances") ;
197. Hollister, supra note 136 ("[C]ourts should recognize that parents do have duties toward their children, including the duty to act as 'an ordinarily reasonable and prudent parent [would act] in similar circumstances.'" (footnote omitted));
198. Geoffrey A. Vance, Rock-A-Bye Lawsuit: Can a Baby Sue the Hand That Rocked the Cradle?, 28 J. MARSHALL L. REV. 429, 430 (1995) (arguing that parents should owe their children an ordinary, reasonable standard of care);
199. cf. DOBBS, supra note 86, § 280 (noting that there is a question whether categories like "supervision" or "parental discretion" will "help judges focus on relevant polices better than the ordinary negligence rules" which "have the advantage of doing what courts do best by focusing on the facts and the justice of the particular case").
200. But see Rooney & Rooney, supra note 89, at 1181-82 ("Such a standard not only allows the possibility of too many opportunities for trivial interferences with the family, but also fails to accord due respect to family autonomy and parental discretion.").
201. The reasonably prudent parent standard would arguably place parental decision making under more scrutiny. Additionally, it could reduce the liability
202. See, e.g., Serna v. Pettey Leach Trucking, Inc., 2 Cal. Rptr. 3d 835, 839-40 (Cal. Ct. App. 2003).
203. To date, I am unaware of any cases involving potential paternal tort liability for prenatal harms; all of the reported cases focus on maternal liability.
204. See cases cited supra note 130.
205. Roland F. Chase, Liability for Prenatal Injuries, 40 A.L.R.3d 1222, 1230 § 3(a) (2006) ("Many cases - especially the more recent ones - have expressed the view that an action may be maintained to recover damages for prenatal injuries negligently inflicted regardless of whether the unborn child was viable or nonviable at the time of injury, provided it was subsequently born alive.").
206. See, e.g., Bailey v. Khoury, 891 So. 2d 1268, 1285-86 (La. 2005) (holding that an infant had cause of action against a physician who prescribed medication to its mother but failed to warn her of the risks of becoming pregnant while taking the drug);
207. Seattle-First Nat'l Bank v. Rankin, 367 P.2d 835, 837-38 (Wash. 1962) (holding that an infant had cause of action against its mother's physician when he failed to diagnose and medicate the mother for anemia during pregnancy, a condition that ultimately harmed the fetus).
208. See, e.g., Payton v. Abbott Labs, 437 N.E.2d 171, 190 (Mass. 1982) (holding that women who were harmed because their mothers took diethylstilbestrol (DES) while pregnant could maintain a cause of action).
209. See, e.g., Mallison v. Pomeroy, 291 P.2d 225, 228 (Or. 1955) (holding that the born-alive child, but not the child's stillborn twin, could recover against a motorist who negligently crashed into a car carrying the plaintiff's then-pregnant mother);
210. Kalafut v. Gruver, 389 S.E.2d 681, 683-84 (Va. 1990) (allowing a child's estate to bring suit against a negligent driver who hit his mother's car while the plaintiff was in utero causing the child's premature birth and subsequent death).
211. See, e.g., Crussell v. Electrolux Home Prods., Inc., 499 F. Supp. 2d 1137, 1141 (W.D. Ark. 2007) (allowing an infant to sue her mother's employer when a work-place accident caused the child's premature birth resulting in "numerous physical and mental ailments" for the child);
212. Snyder v. Michael's Stores, Inc., 945 P.2d 781, 791 (Cal. 1997) (holding that a born-alive child could sue for injuries incurred when child's mother inhaled toxic fumes on the job while pregnant).
213. See generally Greenberg, supra note 119. Cases involving preimplantation genetic interventions are not preconception cases because the alleged tort occurs after conception, but prior to implantation in the womb. Nonetheless, courts allowing preconception negligence claims seem unconcerned with the fact that the later-born child was not in existence at the time of the alleged injury.
214. Id. This line of cases, therefore, suggests that children harmed as a result of preimplantation harms should not be barred from recovery simply because they may have less moral status than an already-born person.
215. See, e.g., Schloendorff v. Soc'y of N.Y. Hosp., 105 N.E. 92, 93 (N.Y. 1914);
216. Strickland v. Deaconess Hosp., 735 P.2d 74, 76 (Wash. Ct. App. 1987).
217. Washington v. Glucksberg, 521 U.S. 702, 734-36 (1997) (holding that the constitutional right to privacy includes the right to bodily privacy).
218. Union Pac. R.R. Co. v. Botsford, 141 U.S. 250, 251 (1891).
219. Rochin v. California, 342 U.S. 165, 172 (1952).
220. Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261, 265 (1990).
221. Eisenstadt v. Baird, 405 U.S. 438, 440 (1972).
222. Roe v. Wade, 410 U.S. 113, 116-17 (1973).
223. Remy v. MacDonald, 801 N.E.2d 260, 263 (Mass. 2004).
224. Chenault v. Huie, 989 S.W.2d 474, 474 (Tex. App. 1999).
225. Stallman v. Youngquist, 531 N.E.2d 355, 360-61 (Ill. 1988);
226. Remy, 801 N.E.2d at 265.
227. 989 S.W.2d at 477.
228. Id. at 475-76.
229. Rochin v. California, 342 U.S. 165, 172 (1952).
230. Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261, 265 (1990).
231. Eisenstadt v. Baird, 405 U.S. 438, 440 (1972).
232. Roe v. Wade, 410 U.S. 113, 116-17 (1973).
233. Stallman v. Youngquist, 531 N.E.2d 355, 360 (Ill. 1988). While it is true that the fetus and the mother are not strangers to one another, the conclusions drawn from this reasoning seem inapposite. Because the mother and her fetus are not strangers, and because the mother has power over all aspects of the prenatal relationship, and special knowledge as to what effects her actions will have on the fetus, the court's reasoning actually cuts in favor of recognizing a mother's duty toward her fetus.
234. 801 N.E.2d 260, 264 (Mass. 2004).
235. A mother's potential liability for nongenetic prenatal actions that negatively impact her fetus is not within the intended scope of this Article. Instead, this Article focuses on preimplantation, not prenatal, harms.
236. See cases cited supra note 130.
237. Most cases focus on maternal liability for prenatal harm and do not address the question of whether a father could be liable for prenatal torts. See, e.g., Chenault v. Huie, 989 S.W.2d 474, 475 (Tex. App. 1999). Given the reasoning in the cases rejecting maternal liability, it is still a distinct possibility that a father who injures his unborn child could be found liable for negligence while a woman in the exact same situation would not. For example, a father who negligently injures his pregnant wife in an automobile accident could presumably be found liable for the prenatal injuries of his child in Massachusetts, Illinois, and Texas, but his wife, if driving negligently, would not be liable because of her "unique symbiotic relationship" to the child.
238. See, e.g., id.
239. U.S. CONST, amend. XIV, § 1.
240. See, e.g., Troxel v. Granville, 530 U.S. 57, 66 (2000) (finding order granting parental grandparents visitation an unconstitutional infringement on the mother's right to make decisions about the "care, custody and control" of her two daughters);
241. Santosky v. Kramer, 455 U.S. 745, 753 (1982) (discussing "the fundamental liberty interest of natural parents in the care, custody, and management of their child");
242. Parham v. J.R., 442 U.S. 584, 602 (1979) ("Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children");
243. Wisconsin v. Yoder, 406 U.S. 205, 232 (1972) ("The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.");
244. Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (finding that the Due Process Clause protects the liberty interest of parents to "bring up children" and control their education).
245. But see Troxel, 530 U.S. at 91 (2000) (Scalia, J., dissenting) (arguing that "a right of parents to direct the upbringing of their children" is an unalienable right "with which the Declaration of Independence proclaims 'all Men . . . are endowed by their Creator,'" and that it is also a right '"retained by the people' which the Ninth Amendment says the Constitution's enumeration of rights 'shall not be construed to deny or disparage'").
246. Troxel, 530 U.S. at 78 (referring to Meyer).
247. Id. at 88 (Stevens, J., dissenting).
248. Id. at 89.
249. 406 U.S. at 236.
250. Id. at 234.
251. Id. at 224.
252. Id. at 224-25.
253. Id. at 230.
254. Id. at 238 (White, J., concurring).
255. Troxel v. Granville, 530 U.S. 57, 90 (2000) (Stevens, J., dissenting).
256. See, e.g., Prince v. Massachusetts, 321 U.S. 158, 166 (1944) ("[T]he custody, care and nurture of the child [should] reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.");
257. Pierce v. Soc'y of Sisters, 268 U.S. 510, 535 (1925) ("The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.").
258. PARFIT, supra note 7. Parfit's primary example for identifying the Non-Identity Problem is that of a fourteen-year-old girl who has a child and gives it a bad start in life by not waiting to have a child until she is older. Parfit explains the problem as follows: Suppose that we tried to persuade this girl that she ought to wait. We claimed: 'If you have a child now, you will soon regret this. If you wait, this will be better for you.' She replied: 'This is my affair. Even if I am doing what will be worse for me, I have a right to do what I want.' We replied: 'This is not entirely your affair. You should think not only of yourself, but also of your child. It will be worse for him if you have him now. If you have him later, you will give him a better start in life.' We failed to persuade this girl. She had a child when she was 14, and, as we predicted, she gave him a bad start in life. Were we right to claim that her decision was worse for her child? If she had waited, this particular child would never have existed. And, despite its bad start, his life is worth living. Suppose first that we do not believe that causing to exist can benefit. We should ask, 'If someone lives a life that is worth living, is this worse for this person than if he had never existed?' Our answer must be No. Suppose next that we believe that causing to exist can benefit. On this view, this girl's decision benefits her child. On both views, this girl's decision was not worse for her child. When we see this, do we change our mind about this decision? Do we cease to believe that it would have been better if this girl had waited, so that she could give to her first child a better start in life? I continue to have this belief, as do most of those who consider this case. But we cannot defend this belief in the natural way that I suggested. We cannot claim that this girl's decision was worse for her child. What is the objection to her decision? This question arises because, in the different outcomes, different people would be born. I shall therefore call this the NonIdentity Problem.
259. Id. at 358-59 (footnote omitted).
260. This conclusion was reached in tort cases prior to Derek Parfit's work on the Non-Identity Problem. See, e.g., Gleitman v. Cosgrove, 227 A.2d 689, 692 (N.J. 1967) (holding that the child did not have a legally cognizable injury where his mother was not given the option of terminating her pregnancy, and hence the plaintiff's existence, prior to his birth).
261. This Article focuses on the Non-Identity Problem and person-affecting conceptions of harm because it is concerned primarily with tort law. In almost all situations a successful tort claim necessitates the finding of a legally cognizable injury, i.e., a person-affecting harm. There are, however, other conceptions of harm that are relevant in policy and ethical debates outside of the torts realm. For example, from an objective (impersonal) perspective selecting an embryo with a disabling trait is similar to deafening a hearing child because the "outcomes do not differ from one choice to the other." Cf. Hayry, supra note 127, at 510 (discussing how this analogy breaks down once it is personalized).
262. See, e.g., Elliott v. Brown, 361 So. 2d 546, 547-48 (Ala. 1978);
263. Siemieniec v. Lutheran Gen. Hosp., 512 N.E.2d 691,693-95 (Ill. 1987);
264. Wilson v. Kuenzi, 751 S.W.2d 741, 743 (Mo. 1988);
265. Gleitman, 227 A.2d at 692;
266. Willis v. Wu, 607 S.E.2d 63, 65-66 (S.C. 2004).
267. But see Turpin v. Sortini, 643 P.2d 954, 965-66 (Cal. 1982) (holding that a minor child could recover special damages from medical care providers that negligently failed to advise the child's parents of a hereditary hearing defect);
268. Curlender v. Bio-Sci. Labs., 165 Cal. Rptr. 477, 489-90 (Cal. Ct. App. 1980) (holding that a minor child born with Tay-Sachs disease could maintain a "wrongful life" suit against two laboratories that negligently failed to inform the child's parents of the possibility that the child would be born with the disease).
269. A single gene may be modified to create a deaf child. See, e.g., Signing 'Increases Deafness Rates': Sign Language May Be Behind Rising Rates of Inherited Deafness, According to Researchers, BBC NEWS, Apr. 28, 2004, http://news.bbc.co.uk/1/hi/health/3665939.stm. Most traits, however, are polygenic, meaning that many genes interact with one another to create a particular phenotype.
270. See RUSSELL, supra note 19, at G-10.
271. Another complication is that certain traits are not determined solely by one's genotype, but have a significant environmental component. N.Y. STATE TASK FORCE ON LIFE & THE LAW, GENETIC TESTING AND SCREENING IN THE AGE OF GENOMIC MEDICINE 13 (2000).
272. Some genetic changes do happen to nuclear DNA between the time of conception and death, but they are likely limited. See Randy L. Jirtle et al., Genomic Imprinting and Environmental Disease Susceptibility, 108 ENVTL. HEALTH PERSP. 3, 271-78 (2000);
273. Paul A. Wade & Trevor K. Archer, Epigenetics: Environmental Instructions for the Genome, 114 ENVTL. HEALTH PERSP. 3, A140-41 (2006).
274. PARFIT, supra note 7, at 351-55 (explaining that there are myriad ways to define personal identity and philosophers have debated for centuries what is necessary and sufficient for a personal identity to be formed). Recounting this debate here would subsume this Article, and so I discuss the role of personal identity in a very limited fashion.
275. See, e.g., Jonathan Kahn, Biotechnology and the Legal Constitution of the Self: Managing Identity in Science, the Market, and Society, 51 HASTINGS L.J. 909, 940 (2000).
276. I do not mean to suggest that being deaf or hearing alone defines a person's identity. If someone is blonde or brunette, dark skinned or light skinned, these traits are a component of his or her identity. Even if these traits do not affect a person's conception of self, they do, inevitably, and in many instances unfortunately, affect the way that others perceive and respond to them.
277. PARFIT, supra note 7, at 351-52.
278. Id.
279. Id. Both he and the other child would have had the same genes contained in his mother's egg, roughly 50%.
280. Id. (acknowledging that this is a controversial claim, but stating that "[i]f any particular person had not been conceived within a month of the time when he was in fact conceived, he would in fact never have existed").
281. Identical twins never have perfectly identical genes. CE. Bruder et al., Phenotypically Concordant and Discordant Monozygotic Twins Display Different DNA Copy-Number-Variation Profiles, 82 AM. J. HUM. GENETICS 763 (2008);
282. see also Anahad O'Connor, The Claim: Identical Twins Have Identical DNA, N.Y. TIMES, Mar. 11, 2008, at F5.
283. J. Harris, Is There a Coherent Social Conception of Disability?, 26 J. MED. ETHICS 95, 97 (2000) (explaining that some have even argued that there is no difference between choosing a deaf embryo via PGD and deliberately deafening a hearing child).
284. But see Hayry, supra note 127, at 510-11 (arguing that Harris is wrong because his argument focuses improperly on impersonal outcomes and not personal outcomes).
285. See, e.g., Turpin v. Sortini, 643 P.2d 954, 965-66 (Cal. 1982) (holding that a minor child could recover damages where medical providers failed to diagnose the child's hereditary hearing defect before birth);
286. Iraida J. Alvarez, Note, A Critique of the Motivational Analysis in Wrongful Conception Cases, 41 B.C. L. REV. 585, 586 (2000) ("Today, pre-natal torts and birth-related causes of action have become more accepted by courts and legislatures nationwide.").
287. See sources cited supra note 197.
288. See, e.g., Donna M.D. MacDonald, Note, Torts - Successor Corporations - Defective Products-Can the Law and Policies of Strict Liability Be Reconciled with Corporate Law Policies Which Protect Successor Corporations in Order to Respond Fairly to the Legitimate Interests of the Products Liability Plaintiff? Nissen Corp. v. Miller, 323 Md. 613, 594 A.2d 564 (1991) (4-2 decision), 22 U. BALT. L. REV. 147, 159 (1992) (explaining that causation is also required to establish liability in tort actions).
289. Turpin, 643 P.2d at 965-66.
290. See, e.g., PARFIT, supra note 7.
291. See, e.g., Curlender v. Bio-Sci. Labs., 165 Cal. Rptr. 477, 488-90 (Cal. Ct. App. 1980) (reviewing several wrongful life cases, including cases where such arguments failed);
292. see also Maxine A. Sonnenburg, A Preference for Nonexistence: Wrongful Life and a Proposed Tort of Genetic Malpractice, 55 S. CAL. L. REV. 477, 509-10 (1982) (discussing the need for preserving the cause of action in Curlender).
293. Any claim of parental liability for nonfeasance is likely to be raised as a negligence claim. While, in theory, there is no reason why "liability for battery might not be based on inaction, where it is intended to result and does result in a harmful or offensive contact with the person. . . . [N]o such case has arisen, and what little authority there is denies the liability." RESTATEMENT (SECOND) OF TORTS § 14 cmt. c (1977). Therefore, this Article conceives of tort claims for parental nonfeasance as negligence claims.
294. DOBBS, supra note 86, § 314.
295. Id.
296. RESTATEMENT (SECOND) OF TORTS § 322;
297. see also DOBBS, supra note 86, § 316 (providing that a defendant must render assistance to a plaintiff where the defendant's train runs over the plaintiff and severs a limb; it does not matter if the defendant was not negligent or if the plaintiff was contributorily negligent).
298. RESTATEMENT (SECOND) OF TORTS § 321;
299. see also DOBBS, supra note 86, § 316 ("[I]f the defendant, without fault, collides with and kills a horse on the highway, reasonable care may oblige him to take steps to warn others or have the animal removed.").
300. RESTATEMENT (SECOND) OF TORTS § 324;
301. see also DOBBS, supra note 86, § 318.
302. Buck v. Bell, 274 U.S. 200, 207 (1927) (allowing sterilization of a mentally incompetent woman because "three generations of imbeciles are enough").
303. See, e.g., In re Romero, 790 P.2d 819, 823 (Colo. 1990).
304. Curlender v. Bio-Sci. Labs., 165 Cal. Rptr. 477, 488 (Cal. Ct. App. 1980).
305. Cal. Civ. Code § 43.6 (West 2008).
306. See supra Part V.B.
307. PGS, or preimplantation genetic screening, is distinct from PGD. PGD is used where the parents are known to be carriers of a particular trait. PGS is used where the parents are not known carriers. See, e.g., Baruch et al., supra note 1.
308. Insurance coverage for genetic screening is widely variable, "but coverage is more likely for women over 35 whose screening tests returned positive results, and for others (like those with a family history for abnormalities) for whom the tests may be deemed a 'medical necessity.'" Carolyn Jacobs Chachkin, What Potent Blood: Non-Invasive Prenatal Genetic Diagnosis and the Transformation of Modern Prenatal Care, 33 AM. J.L. & MED. 9, 14 (2007).
309. See generally Sebastiaan Mastenbroek et al., In Vitro Fertilization with Preimplantation Genetic Screening, 357 NEW ENG. J. MED. 9 (2007).
310. See, e.g., Larry A. DiMatteo, The Counterpoise of Contracts: The Reasonable Person Standard and the Subjectivity of Judgment, 48 S.C L. Rev. 293, 347-48 (1997) (discussing the role of subjectivity in the reasonable person standard when applied in the context of contract law).
311. 989 S.W.2d 474, 477 (Tex. App. 1999).
312. Id. at 478.
313. Id.
314. DOBBS, supra note 86, § 148 (noting that "part of the jury's role is to make normative decisions or value judgments").
315. See 57A AM. JUR. 2D Negligence § 24 (2008).
316. Id.
317. Steven Hetcher, The Jury's Out: Social Norms' Misunderstood Role in Negligence Law, 91 GEO. L.J. 633, 640 (2003).
318. Hollister, supra note 136, at 526.
319. In theory, jurors might even be asked to decide what a reasonably deaf parent might do. The law, however, generally considers a wider variety of beliefs for plaintiffs than for those who are defendants. See generally GUIDO CALABRESI, IDEALS, BELIEFS, ATTITUDES AND THE LAW: PRIVATE LAW PERSPECTIVES ON A PUBLIC LAW PROBLEM (1985).
320. 190 N.E.2d 849, 859 (Ill. App. Ct. 1963).
321. Id. at 858.
322. Such is the case of NBA star Yao Ming, whose parents, both very tall former basketball players, were hand-picked by the Chinese government to mate as part of the government's plan to create world-class athletes. Brook Larmer, The Creation of Yao Ming, SPORTS ILLUSTRATED, Sept. 26, 2005, at 64, 70.
323. See, e.g., WENDY S. GROLNICK, THE PSYCHOLOGY OF PARENTAL CONTROL: HOW WELL-MEANT PARENTING BACKFIRES 29-30 (2003).
324. See, e.g., M. Cathleen Kaveny, Cloning and Positive Liberty, 13 NOTRE DAME J.L. ETHICS & PUB. POL'Y 15, 31 (1999).
325. See id.
326. Even if a cochlear implant could reverse the child's deafness, arguably no physician would implant one absent parental consent.
327. See supra note 89 and accompanying text.
328. Rooney & Rooney, supra note 89.
329. Debora L. Spar, Where Babies Come from: Supply and Demand in an Infant Marketplace, HARV. BUS. REV., Feb. 2006, at 133, 135.
330. See Collins, supra note 6, at 61 (explaining that PGD adds an average of $3000 to $5000 to the cost of an IVF cycle).
331. Jessica L. Hawkins, Separating Fact from Fiction: Mandated Insurance Coverage of Infertility Treatments, 23 WASH. U. J.L. & POL'Y 203, 204 (2007). Currently, fifteen states have laws mandating coverage for infertility treatments.
332. Id.
333. See id.
334. Fiona D'Souza, The Recognition and Enforcement of Commercial Arbitral Awards in the People's Republic of China, 30 FORDHAM INT'L L.J. 1318, 1653 n.299 (2007) (noting that data is hard to find).
335. The Committee on Post-Judgment Collection Procedures in the Special Civil Part reported that: [O]nly 32% of the writs of execution issued in civil cases (Special Civil, exclusive of landlord/tenant and small claims) were returned fully or partially satisfied, while 52% were returned unsatisfied. Wage executions orders issued in civil cases appear to be somewhat more successful, with a total of 36% being returned fully or partially satisfied. COMM. ON POST-JUDGMENT COLLECTION PROC. IN THE SPECIAL CIVIL PART, REPORT TO THE SUPREME COURT OF NEW JERSEY 14 (1993).
336. During the same time period: A total of 42% of the small claims writs of execution were returned fully or partially satisfied and 44% were returned unsatisfied. Forty-four percent (44%) of the wage execution orders issued in small claims cases were returned fully or partially satisfied. Thirty-three (33%) of the wage execution orders issued in small claims cases were returned unsatisfied and 20% remained outstanding as of December 1988. Id. at 14-15. While this data does not capture all of the relevant data relating to judgment collection in either the Special Civil Part or Small Claims Court, is does suggest that a significant portion of these judgments are never paid. Furthermore, these numbers deal only with judgments smaller than $5000. N.J. R. CT. 6:1-2. Nonetheless, these judgments represent a wide variety of claims, including breach of contract, property damage, landlord/tenant, and professional malpractice. NJCourtsOnline.com, Special Civil FAQ, http://www.judiciary.state.nj.us/civil/civ-03.htm (last visited Dec. 15, 2008).