Parental Tort Liability for Preimplantation Genetic Interventions: Technological Harms, the Social Model of Disability, and Questions of Identity

Professors Glenn Cohen, Jaime King, and Alicia Ouellette each wrote a thoughtful commentary in response to the article, Creating Children with Disabilities: Parental Tort Liability for Preimplantation Genetic Interventions. This short Essay is a reply to several broad themes that appear in these commentaries. It both clarifies several points made in the original article and makes a few additional arguments in favor of parental tort liability. In particular, this Essay addresses calls for regulation and provider liability, assesses additional costs and benefits associated with preimplantation genetic interventions, reevaluates the original proposal in a way more sensitive to persons with disabilities, and revisits the role of the Non-Identity Problem in limiting parental tort liability

Bionic bodies, posthuman violence and the disembodied criminal subject

This article examines how the so-called disembodied criminal subject is given structure and form through the law of homicide and assault. By analysing how the body is materialised through the criminal law’s enactment of death and injury, this article suggests that the biological positioning of these harms of violence as uncontroversial, natural, and universal conditions of being ‘human’ cannot fully appreciate what makes violence wrongful for us, as embodied entities. Absent a theory of the body, and a consideration of corporeality, the criminal law risks marginalising, or altogether eliding, experiences of violence that do not align with its paradigmatic vision of what bodies can and must do when suffering its effects. Here I consider how the bionic body disrupts the criminal law’s understanding of human violence by being a body that is both organic and inorganic, and capable of experiencing and performing violence in unexpected ways. I propose that a criminal law that is more receptive to the changing, technologically mediated conditions of human existence would be one that takes the corporeal dimensions of violence more seriously and, as an extension of this, adopts an embodied, embedded, and relational understanding of human vulnerability to violence

Rights of the Dead

This article examines how decedents are treated across a variety of legal disciplines and asks why the law gives the dead certain legal rights but not others. For example, survival statutes allow certain tort claims to be brought after death, most non-personal contracts (except those personal in nature) survive death, and at least one court has suggested that the dead have a nascent constitutional right to reproductive liberty. In contrast, testamentary directions concerning the disposal of property are sometimes ignored and some states disallow posthumous right of publicity or defamation claims. Many legal rules favoring the dead could be explained simply as an attempt to control, incentivize, punish and empower the actions of the living. Yet, such an explanation is incomplete because it ignores cultural norms and an innate desire among the living to honor the wishes of the dead even when doing so may harm the interests of the living. This article argues that consistent use of rights language by legislatures and courts is evidence not only that such cultural norms exist, but also that they guide the development of legal rules in very important ways. Where granting posthumous rights is practical, the article argues that judges and legislators should do so because it humanizes the law, making it more accessible to the general public. In building this thesis, the article relies on both Hohfeldian notions of legal rights and the extensive philosophical literature exploring the necessary characteristics of legal rights-holders. The article also considers a wide variety of legal cases which seem to confer legal rights on decedents, drawing particular attention to a few well-settled, common legal rules. Using these examples, the article develops a series of principles that will help judges, legislators and legal scholars think about the legal treatment of decedents\u27 interests, including the way the law should treat decedents\u27 legal interests. The article also explores what it means to be a legal rights holder, how posthumous rights can be enforced, and some of the agency problems created when an estate acts on a decedent\u27s behalf

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\u27s moral right to an open future where parents\u27 preimplantation genetic choices limit a child\u27s 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