St. John's Law Review

Involuntary Cloning: A Battery

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.