ABSTRACT
Epigenetics is an emerging science that studies how our behavior and environment can change the function of our genes without changing the genetic code. These changes can pass on to our children and grandchildren, whether for better or worse. Epigenetic knowledge could change our understanding of human biology and individual responsibility. However, it is also ripe for misunderstanding. Commercial entities seek to capitalize on the hype to sell snake-oil under the ‘epigenetic’ label. In the popular press, reporters dramatize limited studies to create sensational headlines, often blaming parents for harming their children.
If this attitude toward epigenetics crosses over into law, the potential legal ramifications are staggering. Should a person be liable when their behavior causes epigenetic harms to their children, grandchildren, or descendants? A handful of legal scholars have analyzed epigenetic tort claims, predominantly arguing that epigenetic studies can prove causation under negligence law. Unfortunately, these efforts have a perturbing aspect: parents are inevitably brought into debates couched in responsibility and liability toward their descendants. The regrettable reality raises the specter of legal action against parents.
This paper argues that parents should have no legal duty in tort law to prevent epigenetic harms to their children. Even if it were possible to prove causation, a duty to avoid epigenetic harm would intrude into the realm of one’s personal life and gravely diminish one’s right to control their own life. Epigenetic harms can arise long before individuals ever conceive a child, so a tort law duty would undermine our privacy rights, personal autonomy, reproductive autonomy, and bodily integrity. Focusing solely on individual liability overlooks the nuances that epigenetics research reveals, namely the underlying root causes of behavior that forms the social determinants of health. Attention should shift toward a collective, harm reduction-based approach in public health. Existing and innovative public health interventions may address the root causes of behavior to ameliorate harmful conduct. The potential of epigenetics in public health is beneficent as opposed to tort liability that may be deterrent or punishing.
Sie, Peter, Epigenetics, Preconception Tort Liability, and Public Health (March 26, 2024), Hastings Law Journal, volume 76, no 3, Forthcoming.
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