Causation and Compensation for Intergenerational Harm

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New forms of genetic engineering promise relief from debilitating disorders. But they also risk unintended side-effects of off-target mutations. How should society respond to gene editing gone awry, when misplaced splices get passed on to offspring born generations later? Traditional principles of tort liability and corrective justice demand that complaining parties to show that misconduct is to blame for their suffering. But it’s hard to say what caused such complex injuries so far off into the future. Not least of all for people who may not have existed if it hadn’t been for the very edit or alteration that made them the distinctive individuals they are. These difficulties confound the rules of recovery that require a close connection between past misconduct and future harm.

The problem of paying for off-target gene edits is less about deterring negligence or redressing its victims than it is about helping those in need without stifling valuable innovation. We have seen similar challenges of intergenerational justice before, when a common pregnancy drug left thousands of women and their offspring with cancer risks and genetic anomalies. Courts resolved these controversies by capping damage claims to children exposed to the drug in utero. But in a world of routine gene editing, existing remedies fail to respond in any satisfying way to the foreseeable harms of off-target mutations. I propose a mixed approach to these reproductive externalities that couples no-fault compensation with statutory limits on bad behavior.

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96 Chicago-Kent Law Review 101 (2021)