Negligent Disruption of Genetic Planning: Carving Out a New Tort Theory to Address Novel Questions of Liability in an Era of Reproductive Innovation

Authors

Tracey Tomlinson, Fordham University School of LawFollow

Keywords

assisted reproduction technology; tort; wrongful birth; wrongful life; genetic planning; science and the law

Abstract

This Essay will address current concerns pertaining to ART-related negligence, and ultimately recommends the adoption of a new tort— negligent disruption of genetic planning (NDGP). This tort would enable plaintiffs to recover damages when an ART clinic’s negligent actions thwart reproductive planning, while simultaneously balancing the serious moral and ethical questions that arise in these situations. This argument proceeds in three Parts. Part I discusses the technological evolution of ART and gives examples of ART-related negligence cases that have occurred in the United States. Part II lays out the current U.S. tort remedies relied on by plaintiffs in these situations, and then discusses alternate tort-based approaches proposed by courts and scholars that find the existing tort landscape inadequate. Finally, Part III evaluates the applicability of existing torts to ART-related negligence cases as well as the proposed novel approaches of other courts and scholars detailed in Part II. Because existing theories do not adequately balance public policy concerns, the need to protect ART patients, and the complex moral and ethical questions surrounding ART, NDGP is proposed as a solution to fill the current gap.

Recommended Citation

Tracey Tomlinson, Negligent Disruption of Genetic Planning: Carving Out a New Tort Theory to Address Novel Questions of Liability in an Era of Reproductive Innovation, 87 Fordham L. Rev. (2018).
Available at: https://ir.lawnet.fordham.edu/flro/vol87/iss1/18