Stanton Catherine
CSEP, The School of Law, Williamson Building, The University of Manchester, Oxford Road, Manchester, M13 9PL, UK.
Health Care Anal. 2016 Sep;24(3):228-45. doi: 10.1007/s10728-015-0306-y.
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.
本文探讨了现行法律是否有可能将遗传病传播行为认定为犯罪。本文认为,即便能够认定构成犯罪,刑法也不应介入这一领域,原因诸多,包括保护生育自由和孕妇权利的必要性。本文还研究了生殖伴侣之间因未能“警示”潜在基因危害而产生民事索赔的可能性,并认为有充分的政策依据抵制此类索赔。如果存在这样的义务,未来儿童可能有机会依据1976年《先天性残疾(民事责任)法》提起索赔。这种索赔可能是因为孩子的父亲未能警告其母亲,进而导致孩子失去了在子宫内接受治疗以预防残疾的机会。有人建议,支持该法案赋予母亲豁免权的同样论据也应支持父亲豁免权,因此,应重新审视该法案下缺乏父亲豁免权的问题。