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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.

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Notes

  1. Eg Golding [58], where the court considered the evidence of expert virologists.

  2. A Supreme Court decision overturning the Court of Appeal’s judgment seems unlikely, particularly given additional concerns raised about the prosecution case—such as the lack of coincidence in the mens rea and actus rea: see paras 40–45, per Lord Treacy.

  3. See the test from Bateman [55], cited by Lord Mackay in Adomako [54]: ‘in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment’.

  4. As Margaret Brazier has written: ‘If as a society we recognise that every human being is entitled to protection of those basic interests which constitute a decent life, the children we plan to bear or beget enjoy just the same entitlements. If potential disability or disadvantage significantly impairs a child’s prospects of enjoying a life free from degrading treatment, free from acute pain and suffering of mind or body, endowed with dignity and protected by security of his person, a choice to bring him into the world regardless is morally questionable’. [3 at 373]

  5. See also the recent amendment to s. 1 Children and Young Persons Act 1933 following the Serious Crime Act 2015 [69] which has created a criminal offence where a person with responsibility for a child under 16 causes that child psychological harm.

  6. For discussions of the dangers of invoking the criminal law in relation to women’s conduct in pregnancy which may harm the unborn child see Cave [5], Brazier [2, 3], Fovargue and Miola [14].

  7. This was legislation brought in following the tragedy when children were born suffering disabilities after their mothers had been prescribed the drug thalidomide. The legislation was designed to fill a gap in the law and clarify whether there could be civil liability in respect of pre-natal fault which led to post-natal injury [38].

  8. See also Montgomery v Lanarkshire Health Board [53].

  9. For a discussion of the potential for a ‘blockbuster’ tort for genomic grievances, see Brownsword [4].

  10. A recent case which examined whether a duty of care should exist is ABC v St George’s Healthcare NHS Foundation Trust [46]. In that case it was determined that there was no duty for a hospital to advise a woman that her father had Huntington’s disease.

  11. Subject, of course, to being able to prove that causation could be established.

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Cases

  1. ABC v St George’s Healthcare NHS Foundation Trust [2015] EWHC 1394 (QB).

  2. Attorney General’s Reference (No 3 of 1994) [1997] 3 All ER 936.

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  17. Stovin v Wise [1996] AC 923.

  18. Sutherland Shire Council v Heyman [1955-95] PNLR 238.

  19. Wood (1830) 1 Mood CC 278.

Legislation

  1. Children and Young Persons Act 1933.

  2. Congenital Disabilities (Civil Liability) Act 1976, as amended.

  3. Human Fertilisation and Embryology Act 1990, as amended.

  4. Marriage Act 1836, now Marriage Act 1949.

  5. Serious Crime Act 2015.

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Acknowledgments

This paper was initially presented in Prato, Italy in April 2014 during a conference which formed part of the iSEI Wellcome Strategic Programme in The Human Body: Its scope, limits and future (Grant Number: WT 087439/Z/08/Z). I would like to acknowledge with gratitude the support of Wellcome in funding that event and thank the participants for their comments on my paper. I would also like to thank Margot Brazier, Alex Mullock and the two anonymous referees for their helpful comments on earlier drafts. Any errors in the paper are mine.

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  1. CSEP, The School of Law, Williamson Building, The University of Manchester, Oxford Road, Manchester, M13 9PL, UK

    Catherine Stanton

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Correspondence to Catherine Stanton.

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Stanton, C. Genetic Transmission of Disease: A Legal Harm?. Health Care Anal 24, 228–245 (2016). https://doi.org/10.1007/s10728-015-0306-y

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