200 Children’s Legal Rights Journal [Vol. 37:2 2017]
scenario, an unborn, genetically altered child, would be unable to consent to something that will
affect her or him directly, as well as her or his descendants.153 Also, as Mehlman notes, although
the fundamental principles of bioethics which apply to human experimentation—beneficence,
autonomy and justice154—would provide some guidance regarding the protection of children from
injuries resulting from genetic engineering techniques, such principles, in the abstract, are
insufficient to ensure the children’s protection.155 This, coupled with the aforementioned vast
discretion which parents have under American law,156 leaves genetically modified children largely
unprotected from many harms.157
In light of the aforementioned physical risks and general lack of protections, should the
application of genetic engineering technologies—which are understood to be inherently
unpredictable and potentially dangerous158—to create genetically modified children, prompt an
expansion of the legal doctrines of wrongful birth or wrongful life?159 As the technologies develop
and are implemented, it is of the utmost importance that attorneys working on child law issues
prepare and consider the possible strategies and legal arguments to seek redress for children who
may be harmed by their parents’ choice to employ genetic engineering.
Additionally, germline genetic modification will carry other consequences for genetically
modified children not stemming from physical harm. For example, how would issues of parentage
be resolved in the context of a three-parent baby?160 Although legal scholar John Harris dismisses
the idea that a child born as a result of MRT is a “three-parent baby,” declaring the notion
unfounded due to the minute amount of DNA contained in mitochondria,161 the presence of a third
http://www.hhs.gov/ohrp/archive/nurcode.html (last visited May 12, 2017); Peter Tyson, The Experiments, PBS,
http://www.pbs.org/wgbh/nova/holocaust/experiside.html. (last visited May 12, 2017).
153 Skerret, supra note 25.
154 The fundamental principles of bioethics are beneficence, autonomy and justice. See The Nuremberg Code, supra
note 145142145. See also, The Belmont Report, THE NAT’L COMMISSION FOR THE PROTECTION OF HUM. SUBJECTS
OF BIOMEDICAL AND BEHAV. RES. (April 18, 1979),
155 Mehlman, supra note 28, at 120-22.
156 MEHLMAN, supra note 48, at 106.
158 See Andrews, Annas & Isasi, supra note 12, at 158.
159 See Kathleen A. Mahoney, Malpractice Claims Resulting From Negligent Preconception Genetic Testing: Do
These Claims Present a Strain of Wrongful Birth or Wrongful Conception, and does the Categorization Even
Matter? 39 SUFFOLK U. L. REV. 733, 779-80 (2006) (explaining the application of wrongful birth and wrongful life
actions in the context of preconception genetic testing).
160 See generally Amy B. Leiser, Parentage Disputes in the Age of Mitochondrial Replacement Therapy, 104 GEO.
L. J. 413 (2016).
161 John Harris, Germline Modification and the Burden of Human Existence, 25 CAMBRIDGE Q. HEALTHCARE
ETHICS 6 (Jan. 2016). The author notes: “The third-party DNA contained in the donated mitochondrial makes up
less than 1 percent of the total genetic contribution and does not transmit any of the traits that confer the usual
family resemblances and distinctive personal features in which both parents and children are interested.” Id.