Abstract
Epigenetics is an emerging science that studies how our behavior and environment can change
the function of our genes without changing our genetic code. These changes can pass on to our
children and grandchildren, for better or for 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 causing epigenetic harms to 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 effect: 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 Article 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 harms
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 one’s 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 form 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, whereas tort liability may serve a deterrent or punitive role.
