Once only thought possible in the realm of science fiction, today, scientists are able to edit genes in human embryos using a technique that employs a Clustered, Regularly Interspaced, Short Palindromic Repeat (CRISPR) and a CRISPR associated protein (Cas)—typically Cas-9. For ease, this comment will refer to the CRISPR system, inclusive of the Cas protein, as CRISPR/Cas-9.
David Cyranoski, a well-respected Nature editor, remarked that CRISPR/Cas-9 technologies will trigger a “Sputnik 2.0.” Shockingly, China has already used CRISPR/Cas-9 in twin girls to remove part of a gene that is responsible for causing HIV. Similarly, CRISPR/Cas-9 has been used on human cancer cells, and it has the potential to be therapeutic for aggressive forms of lung cancer. CRISPR/Cas-9 also enables researchers to produce specific types of tissues by altering genes in pluripotent stem cells. Furthermore, researchers can use CRISPR/Cas-9 to replicate the genetic basis for various human diseases, which will provide unprecedented insight into otherwise enigmatic diseases. Ultimately, at this early stage, the budding uses of CRISPR/Cas-9 extend to sickle cell anemia, cystic fibrosis, muscular dystrophy, cancer, eye diseases, and HIV.
With the rapid strides made in genetic editing, it does not seem far-fetched that parents will eventually use CRISPR/Cas-9 to select genetic characteristics for their child. Indeed, parents can already use preexisting technologies for eugenic selection of embryos with in vitro fertilization (IVF) and preimplantation genetic diagnosis (PGD). Unfortunately, CRISPR/Cas-9 is not a perfectly effective system, and it can introduce mutations at unintended sites in the genome. These unintended mutations are termed “off-target effects,” and they can implicate unwanted physical appearance, cell death, or disease.
More troubling than off-target effects is the thought that a parent may use CRISPR/Cas-9 to purposefully impose a defect on their child. Although seemingly improbable, this has been done in the past. For example, parents have intentionally utilized assisted reproductive technology to have a deaf child. Moreover, some IVF clinics allow parents to select a disabled child before implantation.
Each year, approximately 78,000 infants are born who were conceived using assisted reproductive technology. As parents are already using existing medical technology to select potential children, it seems likely that some parents will try to utilize CRISPR/Cas-9 in the reproductive context. Seventy-eight thousand infants are a remarkable class of potential plaintiffs. Consequently, the American legal system needs to be ready to articulate a plausible claim and method of recovery for children born injured from CRISPR/Cas-9.
In formulating such a claim, this comment will analyze two scenarios: (1) when a doctor performs CRISPR/Cas-9 with the goal of producing a healthy baby, but the child suffers off-target effects; and (2) when a doctor uses CRISPR/Cas-9 to purposefully impose a defect on a child. In an effort to apply preexisting legal frameworks to such novel situations, this comment will explore the aforementioned scenarios through an analysis of tort law.
Tort law has been applied in similar situations—specifically, preconception and prenatal harms. Although these claims were traditionally uncommon, tort law has expanded in recent years to keep pace with medical advances made in areas of reproductive health. When adjudicating a child’s tort claim for a prenatal harm, some courts have discussed the child’s “right to begin life with a sound mind and body.” This lends itself to a moral framework that recognizes a child’s right to an “open future” in the context of tort law. Consistent with this “open right,” a child with negligent genetic editing will sue for negligence. For purposeful defective genetic editing, the child’s cause of action will be battery.
Note that for either scenario, the current judicial stance on wrongful life claims will impede recovery. However, this comment argues that, in the context of CRISPR/Cas-9, the judicial reasoning behind denying wrongful life claims does not apply. To avoid the stigma of wrongful life claims, this comment will refer to the child’s claims as mistaken manipulation.
Part II of this comment summarizes CRISPR/Cas-9, introduces wrongful life, and highlights current case law on prenatal and preconception torts. Part III analyzes extending the framework gained from tort law to negligent genetic editing and purposeful imposition of defects. Furthermore, Part III explores the elements of negligence and battery and their relation to CRISPR/Cas-9 mistaken manipulation claims. Finally, Part IV will seek to dispel any counterarguments that may attempt to bar recovery.