Document Type
Article
Abstract
Today, parents can choose to have the embryos they create using in vitro fertilization (IVF) tested for harmful genetic mutations they want to avoid passing along to their children. Through a process called preimplantation genetic testing (PGT), hundreds of genetic mutations can now be detected, allowing parents to select embryos for implantation without the tested-for mutation. But if, due to a healthcare provider’s negligence, the resulting child is born with a harmful mutation causing an adult-onset condition, neither the parents nor the child can recover damages. This conundrum arose because the wrongful birth cause of action was created to deal with negligent prenatal counseling, testing, and diagnoses and, when PGT was later developed, it was simply subsumed under the wrongful birth umbrella. However, the wrongful birth framework is not a good fit for negligent selection of embryos and using this cause of action has resulted in a virtual immunity from liability for physicians, geneticists, and embryologists with respect to many negative outcomes affecting resulting offspring.
To illustrate the shortcomings of the wrongful birth cause of action in the context of wrongful selection of embryos, this Article focuses on the mutations related to three adult-onset conditions: BRCA 1 and 2, Lynch syndrome, and early-onset Alzheimer’s. These mutations were selected because carrying them is associated with profound medical, psychological, and financial repercussions. Using these three examples, this Article examines why the legal underpinnings of the wrongful birth cause of action prevent an equitable resolution of negligence claims related to PGT. In addition, this Article addresses the foundational ethical and policy differences between standard wrongful birth cases and those involving wrongful selection. Essentially, women in most wrongful birth cases allege that, but for the healthcare provider’s negligence, they would have had the opportunity to abort a fetus, who is now a child with severe disabilities. This premise has subjected wrongful birth actions to scathing criticism and caused several states to ban them. Significantly, studies have shown that women view abortion and selection of embryos differently. While they would be willing to select among embryos, they are generally unwilling to abort a fetus with a mutation likely to result in an adult-onset condition. This viewpoint, the ethical and policy distinctions it engenders, and the legal differences between wrongful birth and wrongful selection demonstrate the importance of creating a new cause of action for cases involving PGT. Finally, this Article uses traditional tort principles to provide a clear pathway for granting families financial relief for the extraordinary costs associated with the subject mutations and for their accompanying emotional distress. The intent is to create a helpful roadmap for future cases involving PGT, a rapidly expanding area of reproductive technology.
Recommended Citation
Evelyn M. Tenenbaum,
Preimplantation Genetic Testing for Adult Onet Conditions and the Mismatched Wrongful Birth Claim: Creating an Appropriate Negligence Cause of Action,
30 J. Tech. L. & Pol'y
(2026).
Available at: https://scholarship.law.ufl.edu/jtlp/vol30/iss1/1