By: June Mary Zekan Makdisi
In today’s age, when the use of reproductive technologies is
exploding, a large proportion of consumers of the technology are
likely to be in the dark about the associated biological facts. In
most cases it may not be important to understand the biological
underpinnings. However, in the context of pre-implantation genetic
diagnosis (PGD), where embryonic cloning is an essential feature of
the process, information about that biological fact is
significant.
The article introduces the subject of pre-implantation genetic
diagnosis with a brief vignette that focuses readers on the real
life issues associated with its use and then places the topic in
the context of the current debate. Next, the article hones in on
the much-overlooked clonal nature of this cutting-edge reprogenetic
manipulation and analyzes consent issues related to PGD. Because an
understanding of biology is crucial to the legal analysis, the
article devotes one section to demystifying the process and its
ramifications, using information drawn from mainstream medical
journals and texts.
The author notes that, as a general rule, informational
non-disclosures impacting consent to medical procedures are treated
under the umbrella of negligence. However, tracing the history of
consent law, the article reveals its roots in battery and the
continued application of battery to medical procedures under a
narrow set of circumstances. The focus on risk in negligence law is
contrasted with the focus on the nature of a touch in battery law.
Because the creation of a clone is a necessary consequence of the
procedure rather than merely a risk associated with PGD, the
article concludes that a failure to disclose the clonal nature of
PGD triggers liability in battery.