Genomic Torts: An analysis of possible legal responses to novel grievances generated by modern human genetic technologies

• Main Author: Chico, Victoria Leigh
• Published: University of Sheffield 2007
• Subjects: 340
• Online Access: http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.486471

Modern genetic technology provides the means to test for a number of genetic disorders in reproductive and non-reproductive contexts. The hope is that in the future gene therapy will provide the means to cure genetic disorders. This thesis considers a (non-exhaustive) set of situations in which those who are aggrieved by the provision ofgenetic services might turn to the tort system, particularly the tort of negligence, for redress. Chapter One presents an overview of the genetic techniques which are relevant to the claims considered. Chapter Two provides the theoretical underpinning for the consideration of four hypothetical novel claims. The chapter analyses the current culture ofdomestic negligence law, noting the influence that legal policy has on novel claims which seek to extend existing legal boundaries. A framework ofpolicy reasons which currently caution judges against . extending liability is devised, which serves as a basis for the consideration ofthe novel claims. The primary aim of Chapters Three, Four and Five is to consider how, within the context of the policy framework, the domestic tort system might respond to perceived wrongs arising from modern genetics. Chapter Six focuses on the concept of causation, with particular reference to the novel hypothetical claim considered in Chapter Fiye. The claim considered in Chapter Seven is so novel that there is an absence of analogous case law to serve as a guide to the policy arguments· which might impinge upon the decision. Thus, this chapter focuses instead on the medicoethical principles which might underpin the interests on which the novel claim might be based. Relatively speaking, the domestic courts currently take a relatively restrictive approach to novel negligence claims, thus, for the most part, against the background of the policy framework, it is argued that the chance that the hypothetical claimant will be successful in a negligence action is slim. l Where this is the case, adaptations which might be made to the law to make it more claimant-orientated are considered? The final chapter argues that making changes to the tort of negligence on an ad hoc basis to make it more claimant-orientated will only provide limited protection for those who suffer harm as a result ofmodern genetic techniques. Furthermore, ad hoc incrementalism might create a body oflaw beset with inconsistencies and arbitrary boundaries. It is argued that a new blockbuster autonomy-based tort would take us significantly further in devising a coherent and consistent claimant-orientated approach to claims arising from genetic technologies, than fashioning arbitrary rules on an incremental basis within the tort of negligence.