The usual suspects: Can parents be held accountable for their reproductive and genetic decisions?
| Autor | Vera Lúcia Raposo |
| Páginas | 107-135 |
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Article 63/4 of the Macao Civil Code (CC) states that: “parents are not responsible for injuries caused to their children or for diseases transmitted to them at the time of conception, nor, unless they have been intentionally caused, for injuries later inflicted to the fetus”.1
This norm excludes any kind of wrongful life claim presented by a child against its parents, and in fact excludes almost every kind of claim for dam-ages regarding a violation of reproductive duties because it excludes any parental responsibility for any damage caused to the child’s health. Note that the term “caused” is understood in the broad terms2of the adequate causa-
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tion theory that rules tort liability in continental law. Therefore, the injury can result from indirect causation, not exclusively from direct causation.
Indeed, the norm covers all scenarios in which the only way to avoid in-jury to the child would be an abortion, which constitutes the typical wrongful life situation. In those scenarios, although there is a violation of reproductive duties (a concept that we will develop in this study), it can reasonably be accepted that that violation will not impose any responsibility on the parents due to the legal and ethical dilemmas involved and to the value granted to every human life.
The problem is that the norm also excludes parents’ liability in cases in which they could have prevented the birth of an injured child, with a healthy child born in its place. A typical example is the case of embryo selection, in which parents can choose a healthy embryo for uterine transfer rather than simply leaving the choice to fate. Moreover, the norm even excludes parental liability in situations in which parents could have prevented the birth of a sick child by accepting in utero or in vitro treatment, such as drugs or gene therapy. These hypothetical situations should not be confused with wrongful life pretensions because in the latter there was no chance whatsoever of the child being born healthy, the only option being not to have been born at all. We now turn to cases in which a child could have been born healthy if some treatment had been provided. Hence, the choice is not between life and non-life but between a healthy life and an unhealthy life. However, the most paradoxical issue is that the norm also excludes liability in the case of the deliberate choice of a non-healthy embryo during in vitro fertilization (IVF).
The only scenario in which parents are held accountable according with this norm is one in which the two conditions within the sole exception in Article 63/4 apply: that is, the damage was caused to the fetus and the parents acted intentionally. With regard to the first condition, the text is far from clear. It is doubtful that the lawmakers used the concept of “fetus” in its strict and technically correct sense (i.e. an unborn child after eight weeks’ gestation) or in its general (and incorrect) sense (i.e. encompassing embryos and fetus), as it is sometimes used in Macanese law3. Thus, it is unclear whether the exception refers only to the relatively developed un-born (fetuses) or to all unborn (embryos and fetuses). In any case, the norm excludes all accountability for damages caused during conception. Thus, even if it is accepted that the second part of the exception refers to
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injuries caused to embryos, the very first moments of life are excluded from the remit of parental liability. But another doubt surfaces, this one related to the term “conception”. Traditionally understood as the actual moment of fertilization, its more modern understanding extends to nidation. In sum, the legal standard is anything but clear with regard to the liability exclusion (the rule) and its admissibility (the exception).
The second condition relates to parents’ degree of culpability, restricting liability to intentional conducts, that is, actions committed with direct intent, based on the idea that only in such circumstances were agents motivated by the objective of causing injury.
In sum, and assuming that the norm set by Article 63/4 of the CC does not encompass a hidden meaning that goes beyond the written words (which is not possible to know because no preparatory works concerning the norm are available, not even an explanatory note), the only situations in which parents can be held accountable are those in which they acted knowingly and willingly to intentionally give birth to a sick child and only if they made the decision to do so when the child was in the fetal stage (a scenario that appears more fictional than real, but cannot be excluded).
The standard is thus clearly disproportionate in that it completely disregards parents’ reproductive responsibility and their inherent reproductive duties towards their children. Such a broad disclaimer is hardly consistent with one of the basic concepts of family law, namely, parental duties, which also encompass genetic and reproductive dimensions.
In addition, the norm is also inconsistent with another basic principle of Macanese criminal law, and indeed of all continental law, that is, the parental duty of guarantee towards offspring4. The duty of guarantee states that individuals are criminally liable for damages that they did not cause in an active way, but that they did not prevent despite having an opportunity to do so, as long as there is a special connection between the agent and the victim (article 10 of the Macau Criminal Code). One relationship to which this duty clearly applies is the parent-child relationship. Therefore, it is assumed that parents are committing a criminal offence –i.e., homicide by omission or bodily harm by omission– if they do not take the action required to prevent injury to their children. Parents are thus assumed to have a duty –the duty of guarantee– to avoid injuries to their children, which, if not complied with, warrants criminal sanctions.5How then can it be explained
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that Macao’s criminal law aggravates parents’ liability towards their off-spring, whilst its tort law excludes virtually any kind of liability?
It must be noted that the aforementioned duty of guarantee concerns only children who have been born. The answer to the question of whether it can be extended to the unborn is far from obvious. On the one hand, criminal law allows a mother to interrupt a pregnancy without any sanction once certain conditions have been fulfilled (a privilege that does not apply to any other person). On the other, some jurisdictions, including Spain, have created the crime of fetal injury, which covers damage caused during the prenatal stage and considers parents to bear criminal responsibility. How-ever, even if the answer to the aforementioned question is negative, and there is no parental duty of guarantee to protect the unborn, we can still consider the situation of a child who is born with an injury that, were it not for its parents, could have been avoided.
Article 63/4 of the Macao CC is a norm inspired by the traditional (and supposedly surpassed) parent-child immunity doctrine,6according to which parents cannot he held liable for damages caused to their children. The doctrine comes from the days of the Roman Empire when the pater familias had total power over his children, who were considered a form of property. Accordingly, he could injure or even kill them without any sanction. However, this doctrine is more typical of tort law than of continental law. Furthermore, it is totally out of place in the context of modern parent-child relationships and the current legal understanding in which the concept of reproductive duties is increasingly recognized by the law, courts and legal scholars.
It can be assumed that the primary intention of Article 63/4 of the CC was to avoid disturbing the parent-child relationship, the cornerstone of the family structure, which would certainly be affected by compensation claims. However, the fact is that their relationship was already disturbed, namely, when the parents failed to fulfill their reproductive duties, as it will be demonstrated above. Once the damage has already occurred, it is imperative that we find a way to compensate children for the injuries they have suffered, whether in the form of monetary loss, pain and/or suffering.
This article will explore parents’ liability for violation of reproductive du-ties, especially in the legal framework of continental law.7The aim of this article it is not to justify the existence of reproductive duties and discuss all theories in favour and against. For this a priori question I refer to the stud-
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ies quoted about this issue. So, in this article I will assume the existence of reproductive duties and simply provide some basic notes on their legal grounds in order to contextualise the reader.
The concept of reproductive responsibility or parental responsibility8refers to a set of obligations (positive and negative) imposed on parents in the context of...
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