New technologies are bringing a whole range of legal issues before judges and attorneys, who are often forced to make decisions by the seat of their pants, without legislative guidance or adequate scientific knowledge. Not only is law lagging behind technology, says Jennifer Rosato, professor of law at Drexel University, but the ethical implications of reproductive technology and the human genome project are raising issues about where decision-making authority should lie — with private parties, legislatures, and judges.
Although the role of law is to reflect the state’s values and give stability to an area, Rosato suggests we are not seeing a lot of legislation in the area of genetics because the ethical issues are difficult and legislators are taking a long time to hash out their implications.
Rosato will speak at a seminar on the “Legal Implications of the Human Genome Project” on Saturday, April 12, at 9 a.m. at the New Jersey Law Center in New Brunswick. The seminar is offered by the New Jersey Institute for Continuing Legal Education in cooperation with the National Association of Women Judges. A panel of experts will discuss issues such as behavioral genetics (the intersection of environment with genetic predisposition in determining or predicting behavior) and the use of such evidence in criminal, insurance, employment discrimination, privacy, and reproduction cases. Cost: $189. To register, go to www.njicle.com.
Rosato raises several legal-ethical issues that are making their way into the courts, involving both doctor-assisted reproduction and genetic information:
What are the implications of knowledge of the child’s genetic makeup at the pre-embryo stage? “Doctors don’t test every embryo for every possible problem,” says Rosato. But perhaps doctors will be forced to adopt a new standard of care, with an obligation to test embryos even where the possibility of a specific mutation is remote. And, of course, even when mutations are found, some are not as predictive as others of exactly what conditions might show themselves once a child is born.
Rosato raises a related ethical issue. “Should we test embryos for disposition to late-onset diseases (for example, Alzheimer’s or colon cancer) and allow parents to choose whether to implant embryos with or without that disposition?”
Parental responsibilities. Who bears responsibility for child support when a child is born with the help of complicated reproductive technologies? And who gets rights for visitation and custody? Rosato cites two cases involving couples who divorced after a child was born with technological help: in the first the couple had used a sperm donor, an egg donor, and a gestational surrogate; the second involved a lesbian couple, where the biological mother donated the egg to her partner, who became the gestational mother.
When these couples broke up, says Rosato, many questions come before the courts: Who is the parent? What is a family? Who should provide child support? And what do you do if the parent who is not biologically related did not adopt the child? Can a woman claim not to be the mother of a child she has been raising and providing for? Or does the biological mother always have primacy? Lots of questions, not so many answers.
The situations, though not at all laughable, bring to mind the old television show, “To Tell the Truth,” where the contestants hear allegedly true stories from three individuals claiming to be the same person. After the contestants vote (judges in our case), the emcee would then say, “Will the real mother please stand up.”
What are appropriate uses of genetic information? Often the possession of this information can be a two-edged sword. Take the possibility of using genetic differences between races to create better, more targeted drugs and therapies. The same information, warns Rosato, has the potential to be used negatively, say to “explain” differences in intelligence or certain mental illnesses.
At a societal level, there is concern that women and persons of color might so mistrust how genetic information will be used that they will not take advantage of its potential benefits. But that mistrust might be well-placed. Take a case cited by Rosato in which an employer tested women of color for predisposition to sickle cell anemia and other conditions without their consent.
A different potential use of genetic information is by criminal attorneys who might try to defend a criminal by suggesting a genetic propensity toward violence, or might try to minimize punishment at the sentencing stage, claiming that incarceration will not deter the person from a future crime.
What are the limits of privacy if genetic information about one individual will affect the lives of others? Is a doctor obligated to make sure the family members of a patient with the breast cancer gene are informed of this potential genetic time bomb. After all, the implications healthwise could mean the difference between a relatively early and gruesome death or a life after a double mastectomy and ovary removal. But giving such information wider circulation also carries dangers: what if an employer learns of it and decides not to hire or promote the woman?
What about the mix-ups? What happens if a mistake is made at a fertility center, and the wrong donor sperm or egg is implanted, and the child ends up disabled? If the parents then sue, is the error malpractice? asks Rosato. Or what if the child is born healthy but doesn’t look like the parents because the wrong donor sperm was used — is that actionable as a case?
Rosato grew up in Bethlehem, Pennsylvania, where her father was supervisor of a steel plant and her mother a bookkeeper at a daycare center.
Since she was a teenager Rosato has been interested in and involved with children. At Cornell University she worked with youth and neglected children and explored the effects of social and economic problems on children’s health, earning a bachelor of science specializing in social work and education in 1983. Rosato then spent a year in Ithaca as what she calls “a migratory ESL teacher.”
It was thoughts about children that propelled her to take the next step in her education a year later: “These kids have a rough life because the laws don’t protect them well.” So she went to the University of Pennsylvania Law School.
After graduation Rosato spent two years as clerk for U.S. District Court Judge Thomas N. O’Neill Jr. and then a year in private practice with Hangley Connolly Epstein Chicco Foxman & Ewing in Philadelphia.
Because her ultimate goal was to be a law professor, in 1990 she took a job as legal writing instructor at Villanova University School of Law. In 1992 she moved to Brooklyn Law School as a professor of law, and she came to Drexel University in 2006.
Rosato has been trying throughout her career as a law professor to bridge the gap between family law and bioethics. So the Human Genome Project sponsored by the National Association of Women Judges was right up her alley. “It is great for academics,” she says. “We get to think about issues and are making an impact by helping judges understand science, law, and ethics and how they can be combined to solve the problems that are coming their way.”
And it is particularly important for judges and lawyers to understand genetics and technology. “Families have health issues,” says Rosato. “Genetic issues are now part of the health fabric and what we think about in terms of ethics. A brave new world is not coming — it is here.” — Michele Alperin