Genetic Transmission of Disease: A Legal Harm?

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Abstract

This paper considers whether existing law could potentially be used to criminalize the transmission of genetic disease. The paper argues that even if an offence could be made out, the criminal law should not be involved in this context for many reasons, including the need to protect reproductive liberty and pregnant women's rights. The paper also examines whether there might be scope for civil claims between reproductive partners for a 'failure to warn' of potential genetic harm and argues there are strong policy grounds for resisting such claims. If such a duty were to exist, there might, in the future, be scope for a child to bring a claim under the Congenital Disabilities (Civil Liability Act) 1976. Such a claim could be for the failure by the child's father to warn her mother, which in turn led to the loss of opportunity to have treatment in utero which could have prevented the disability. It is suggested that the same arguments which supported granting maternal immunity under the Act would also support paternal immunity and that, therefore the issue of the lack of paternal immunity under the Act should be revisited.