Lawmakers addressing the problem of legal rights of the handicapped traditionally have tended to focus on the legal rights afforded those persons already possessing certain physical or mental handicaps. Specifically, their focus has usually centered on either the rights of the handicapped to compensation, or their rights related to opportunities in employment, rehabilitation, or mobility. Commentators have paid little attention to the legal rights, if any, that may be opportunities in employment, rehabilitation, or mobility afforded those not yet handicapped, or to legal rights designed to prevent future handicaps. This failure is unfortunate because social policy favors the avoidance or elimination of handicaps wherever possible. This lack of commentary on the propriety of laws designed to prevent handicaps is particularly troublesome. Recent scientific advances have increased the understanding of the causes and prevention of many forms of physical and mental handicaps. Many of these advances involve handicaps that can be projected or discovered prior to birth, the prevention of which can be furthered by legal regulation of the various stages of life, or potential life, prior to live birth. While undoubtedly there has been tremendous growth in the legal rights of a handicapped infant through compensation from those responsible for the handicaps, and through other opportunities for a meaningful future life, further legal regulation is needed to prevent those handicaps which are reasonably certain to occur. Compensation for handicaps is not only less desirable than their prevention, but in many cases compensation is not presently available for preventable handicaps. In focusing on the means by which laws can prevent handicaps for future generations, at least four distinct inquiries should be made. First, attention must be paid to the type of conduct that can be subjected to legal regulation, that is, what constitutes unreasonable conduct or perhaps reasonable but unwarranted conduct toward the unborn? Second, note must be taken of the people who can be subjected to legal regulation, that is, who can be made legally responsible for their conduct toward the unborn? Third, consideration must be given to the appropriate type of legal regulator, that is, who can be made responsible for setting the standards of legally acceptable conduct toward the unborn? Fourth, inquiry must be pursued on the possible sanctions available for the violations of any legal regulations, that is, what happens to those who act irresponsibly toward the unborn? These inquiries should not be foreclosed or delayed because recent scientific advances provide less than definitive conclusions regarding the causes and means of preventing handicaps. While preliminary or tentative scientific findings counsel caution in the implementation of legal standards, there is currently much that can be done to prevent the "costly and tragic and sometimes deadly burdens to the health and well-being" of the citizenry prompted by the birth of handicapped newborns. As scientific and medical advances produce more definitive conclusions, the inquiries should quickly be made and legal action therefrom should promptly be implemented. There looms the prospect of unprecedented harm if the traditional lag or delay between scientific advance and legal change is tolerated.
Parness, Jeffrey A., "The Duty to Prevent Handicaps: Laws Promoting the Prevention of Handicaps to Newborns" (1983). Faculty Peer-Reviewed Publications. 685.
College of Law
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