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Genetically Defective Children: Emerging Legal Considerations

Published online by Cambridge University Press:  24 February 2021

Margery W. Shaw
Margery W. Shaw*
Affiliation:
University of Alabama; Columbia University; University of Michigan; University of Houston; Yale Law School; Medical Genetics Center, University of Texas Health Science Center at Houston
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Abstract

Despite modern medical advances, births of genetically defective children still occur. The author outlines the problem of genetic disease, and describes the medical and legal advances that now make possible a reduction in its incidence. Then she cites—and briefly comments upon— some court cases brought by parents of genetically defective children against their physicians for allegedly failing to predict or to diagnose genetic defects in those children in time for the parents to exercise any procreative options such as sterilization, contraception, or abortion. In addition, the author speculates on various questions that may arise in future litigation in this area—among them, the question of whether or not courts someday will endow genetically defective children with a cause of action against their parents for bringing them into the world.

Type
Articles
Information
American Journal of Law & Medicine , Volume 3 , Issue 3 , Fall 1977 , pp. 332 - 340
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1977

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References

1 L. CAVALLI-SFORZA & W. BODMER, THE GENETICS OF HUMAN POPULATIONS 364 (1971).

2 NATIONAL INSTITUTE OF GENERAL MEDICAL SCIENCES, NATIONAL INSTITUTES OF HEALTH, WHAT ARE THE FACTS ABOUT GENETIC DISEASE? 6 (HEW Pub. No. (NIH) 75-370, 1975). This pamphlet gives many alarming statistics on the extent of the genetic disease problem.

3 It is estimated that approximately 20 percent of birth defects are caused by genetic factors and another 20 percent by environmental factors such as drugs, radiation, and maternal virus infections. Friedman, Legal Implications of Amniocentesis, 123 U. PA. L. REV. 92, 93 (1974). The remaining 60 percent of birth defects are a result either of interactions between the genetic constitution and the maternal environment, or of unknown causes. For a discussion of a recent case involving an environmental cause of birth defects (rubella), see Kass and Shaw, The Risk of Birth Defects: Jacobs v. Theimer and Parents’ Right to Know, 2 AM. J. LAW & MED. 213 (1977).

4 V. A. MCKUSICK, MENDELIAN INHERITANCE IN IMAN: CATALOGS OF AUTOSOMAL DOMINANT, AUTOSOMAL RECESSIVE, AND X-LINKED PHENOTYPES (4th ed. 1975).

5 Id. at xii (Table I).

6 For a comprehensive analysis of genetic screening, see COMMITTEE FOR THE STUDY OF INBORN ERRORS OF METABOLISM, NATIONAL RESEARCH COUNCIL, NATIONAL ACADEMY OF SCIENCES, GENETIC SCREENING (1975).

7 For a general discussion of many new techniques, see the articles in INTRAUTERINE FETAL VISUALIZATION: A MULTIDISCIPLINARY APPROACH (M. M. Kaback & C. Valenti eds. 1976).

8 For an illustrated review of the technique of amniocentesis, see Friedmann, Prenatal Diagnosis of Genetic Disease, SCIENTIFIC AMERICAN, November 1971, at 37.

9 See Littlefield, Milunsky, and Atkins, An Overview of Prenatal Genetic Diagnosis, in BIRTH DEFECTS 221 (A. Motulsky and W. Lenz eds. 1974). See alsoMilunsky, Medico-Legal Issues in Prenatal Genetic Diagnosis, in GENETICS AND THE LAW 53, 54 (1976).

10 Kaback & Valenti eds., supra note 7, at 150-61.

11 Id. at 7-15 and 162-78.

12 Id. at 73.

13 id.

14 In Roe v. Wade, 410 U.S. 113 (1973), the Supreme Court appeared to be concerned only with the mother's right to abort a normal fetus. The opinion did not address medical or nonmedical decisions not to carry an abnormal fetus to term. But the right to abort an abnormal fetus exists by implication under that decision.

15 No. 331 (N.Y. Ct. App.June 16, 1977), 46 U.S.L.W. 2011, 3 F.L.R. 2561, aff'g 53 App. Div. 2d 420, 386 N.Y.S.2d 460 (1976).Sff also commentaries on the Howard Appellate Division decision: Birnbaum and Rhe\ngo\d, Annual Survey—Torts, 28 SYRACUSK L. REV. 525 (1977); 44 ALBANY L. REV. 162 (1977); 12 New England L. Rev. 819 (1977); and Note, Wrongful Birth and Emotional Distress Damages: A Suggested Approach, 38 U. PITT. L. REV. 550 (1977).

16 Margett, J., dissenting in 53 App. Div. 2d at 425-37, 386 N.Y.S.2d at 463-71, asserted that if the plaintiffs could show (1) that the obstetrician owed Mr. and Mrs. Howard a duty, (2) that negligence had occurred, and (3) that their emotional pain and suffering was a proximate cause of the negligence, then the trier of fact must be permitted to affix the price of damages.

17 Cooke.J., dissenting in No. 331 (N.Y. Ct. App. June 16, 1977) at 3 contended that the real question was “whether a patient may recover for her physician's [alleged] negligence.” He found that only Mrs. Howard—and not her husband—had been Dr. Lecher's patient and that, therefore, he owed a duty only to her to warn of the possibility that she might bear a genetically defective child. Id. at 5. The majority view taken by the Appellate Division, and summarized in the text, was that of its Second Department. The Fourth Department of that Division recently took a different view in a similar fact situation. In a decision rendered after the Second Department's Howard v. Lecher opinion, but prior to the Court of Appeals ruling in Howard, the Fourth Department held that plaintiff parents could maintain a cause of action for damages for their own pain, suffering, and mental anguish by alleging that such harm resulted from the birth of a deformed child occurring as a consequence of negligence of their obstetrician and gynecologist in failing to properly advise the mother as to (1) the likelihood of her giving birth to a deformed child (their second such child), and (2) the existence of an amniocentesis test that could determine during pregnancy whether the fetus was deformed. Karlsons v. Guerinot, 394 N.Y.S.2d 933 (App. Div. April 15, 1977).

18 No. 190033 (Cal. Sup. Ct., Orange County, Dec. 13, 1974), CITATION, June 1, 1975, at 38, cited in A. R. HOLDER, LEGAL ISSUES IN PEDIATRICS AND ADOLESCENT MEDICINE 34 n.14 (1977). The mother, age 42, gave birth to an infant with Down's Syndrome in 1970.

19 No. 217(N.Y. Ct. App.'May 12, 1977), aff g 384 N.Y.S.2d 455 (App. Div. 1976). The plaintiff mother gave birth to the plaintiff infant who was afflicted with a chromosomal abnormality known as. Cri-du-chat Syndrome, consisting of helpless physical and mental retardation. Id. at 1. This condition can be diagnosed in the fetus by amniocentesis (see note 8 supra). The court refused to reach the issues of “wrongful life” (see Part III (B) of this comment) and of the “parents as bystanders,” as well as the public policy considerations inherent in the statutory ban on abortion which existed in New York in 1969 when the birth took place. Instead, the court rested its decision on the state of medical knowledge regarding amniocentesis in 1969, and concluded that the physician had properly exercised his medical judgement because he did not depart from the accepted medical practice at that time. No. 217 at 2-3.

20 For a detailed analysis of the pertinent data, see NICHD National Registry for Amniocentesis Study Group, Midtrimester Amniocentesis for Prenatal Diagnosis, 236 J. AM. MED. ASS'N 1471 (1976) and Simpson, et ai, Prenatal Diagnosis of Genetic Disease in Canada: Report of a Collaborative Study, 115 CAN. MED. ASS'N J. 739 (1976). See also Goldstein and Dumars, Minimizing the Risk of Amniocentesis for Prenatal Diagnosis, 237J. AM. MED. ASS'N 1336 (1977). As early as 1975, Milunsky and Reilly had asserted that “[ajvailable legal precedent indicates that most courts would determine that amniocentesis is no longer experimental.” Milunsky and Reilly, The “New” Genetics: Emerging Medicolegal Issues in the Prenatal Diagnosis of Hereditary Disorders, 1 AM. J. LAW & MED. 71, 76 (1975).

21 31 N.J. 353, 364, 157 A.2d 497, 503 (1960).

22 See, e.g., Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 689 (1967), noted in 46 TEX. L. REV. 1004 (1968), 10 So. TEX. L.J. 174 (1968), 46 No. CAR. L. REV. 205 (1967); Stewart v. Long Island College Hosp., 35 App. Div. 2d 531, 313 N.Y.S.2d 502 (1970).

23 Tedeschi, On Tort Liability for “Wrongful Life,” 1 ISRAEL L. REV. 513 (1966).

24 88 Misc. 2d 222, 387 N.Y.S.2d 204 (Sup. Ct. 1976).

25 For a discussion of counseling for risks of genetic traits, see H. E. SUTTON, AN INTRODUCTION TO HUMAN GENETICS (2d ed. 1975) at 465-70.

26 Hints exist of a trend toward courts being willing to entertain children's suits involving alleged preconception torts in the genetics area. For example, in the recent case of Renslow v. Mennonite Hospital, 46 U.S.L.W. 2116, Aug. 30, 1977, aff'g 351 N.E.2d 870 (1976), the Supreme Court of Indiana held that a minor may recover from a hospital and a physician for injuries allegedly resulting from the negligent transfusion of Rh positive blood into an Rh negative mother several years prior to the minor's conception. See also Note, Torts Prior to Conception: A New Theory of Liability, 56 Neb. L. Rev. 706 (1977).

27 On June 20, 1977 in Beal v. Doe, 45 U.S.L.W. 4781, the U.S. Supreme Court held that Title XIX of the Social Security Act, which created the Medicaid program, does not require states participating in the program to fund (under Medicaid) nontherapeutic abortions as a condition of participation. It appears that the Court left open the question of whether the abortion of a defective fetus falls under the category of “therapeutic.” Meanwhile, heated debate continues in the U.S. Congress on the abortion funding issue and the House and Senate seem to be deadlocked. On June 17, 1977 the House voted to prohibit the use of federal funds for abortion in any circumstances, even when the mother's life was endangered. The Senate modified that position to permit funding not only of abortions necessary to save the woman's life, but also of abortions in cases where the pregnancy results from rape or incest or where a doctor finds the abortion to be medically necessary. On August 2, 1977 the House modified its position to permit federal reimbursement for abortions in cases where the life of the mother would be endangered if the fetus were carried to term. A joint House-Senate conference committee will attempt to resolve the differences after Congress returns from its recess on September 6, 1977 but it seems unlikely that genetic indications for abortion will be included in the Bill. See PLANNED PARENTHOOD—WORLD POPULATION WASHINGTON MEMO, August 3, 1977, at 1 and ABORTION TRENDS, Supplement of July 29, 1977.

28 Goldstein, Medical Care for the Child at Risk: On State Supervention of Parental Autonomy, 86 YALE L.J. 645 (1977).CrossRefGoogle Scholar