Legal Issues in Prenatal and Preimplantation Genetic Diagnosis

Abstract

The legal questions that arise as one considers the regulation and oversight of, access to, and use of preimplantation and prenatal genetic diagnosis are increasingly complex and nuanced. Often, they arise as constitutional questions, focusing on the various rights and interests at play, including those involving a woman’s ability to terminate a pregnancy for fetal anomaly, prospective parents’ desire to procreate by utilizing preimplantation genetic diagnosis, and the state’s (often countervailing) interest in protecting potential life. They may also arise as tort law questions involving providers’ malpractice/negligence and failure to provide informed consent. This chapter focuses on four primary legal issues or areas associated with prenatal and preimplantation genetic diagnosis. First, it addresses pregnancy termination for fetal anomalies discovered through prenatal genetic testing, both at the federal and state levels. It then provides a constitutional analysis of access to preimplantation genetic diagnosis and the state’s role in regulating the procedure. The chapter then turns to a discussion of existing oversight of preimplantation and prenatal genetic diagnosis. Finally, it explores issues of tort liability in the use of preimplantation and prenatal genetic diagnosis. Importantly, this chapter addresses whether information gleaned through prenatal or preimplantation genetic diagnosis is actionable under current legal standards, rather than the ethical question of whether it should be actionable.