human cloning

and/or physicians who served as facilitators. Wrongful life cases have succeeded in a few jurisdictions.514 The claim in such cases is that a child would rather not have been born than have been born with a particular disability. Cases to date have found breaches of duties to the child’s parents. For example, in Curlender v. Bio-Sciences, the parents were erroneously told by a genetic testing laboratory that the father did not carry the gene for Tay-Sachs when he did, leading to the creation of a child with Tay-Sachs, who successfully sued the laboratory for wrongful life.515 The court in that case said in dicta that the child would also have had a cause of action against her parents for not aborting her. Under that logic, parents are seen as having a duty to future offspring not to give birth to a child with serious disabilities. Some commentators argue similarly that choosing to give birth to a child with a serious disability should be analogized to the parent maiming a child through child abuse.516 Some commentators argue that clones would have actions in tort against their creators for “wrongful life” because of their lack of “uniqueness” and invasion of their privacy.517 Recently, John Robertson argued that because nuclear transplantation cloning denies clones their right to personal privacy and alleged constitutional right to unique genes, it is likely that many would be so psychologically harmed that they would prefer to not have been born at all.518 Another commentator responded to this concern by arguing that if the legal system allowed clones to bring wrongful life suits, these suits would further undermine notions of human autonomy by reinforcing the idea that humans are machines which are controlled merely by their genes.519 Replicants whose claimed harm is that their autonomy has been limited— by having a predetermined genotype, by having the value of their talents devalued, by the overcreation of clones of their genotype— would be unlikely to show that they have been so seriously limited so as to be considered to be a wrongful life.

The analysis is more complex when a sterile individual clones himself or herself to have a genetically related child. The child created with the limitation of sterility might be able to claim that that disability is significant enough to be considered to be a wrongful life. Similarly, it might be argued that replicants have been wronged by being denied their uniqueness and by having their future options limited by genetic predetermination. However, it is unlikely that such a claim would give rise to an action for wrongful life, since courts that do recognize such claims limit them to situations in which the child is seriously disabled. A boy who was born “illegitimate” was not allowed to sue his father for wrongful life.520 And a court speculated that, with respect to deafness, “it seems quite unlikely that a jury would ever conclude that life with such a condition is worse than not being born at all.”521 The replicant of a cloned individual might also have a cause of action based on tort or property grounds for the creation of too many genetically identical versions which diminish his or her right to distinctiveness. Pizzulli explains the issue in the following way: While a given genotype may have been proved to be eminently successful, his duplicate may be relatively unfit because he is a duplicate. That is, there is little place for a duplicate genotype in a society which places a premium on uniqueness F-53