Intentional diminishment, the non-identity problem, and legal liability

Hastings Law Journal

Volumn 60, Issue 2, 2008, Pages 347-375

  Cohen, I Glenn ^a  

^a HARVARD LAW SCHOOL   (United States)

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EID: 61549134561     PISSN: 00178322     EISSN: None     Source Type: Journal    
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References (171)

1. Kirsten Rabe Smolensky, Creating Children with Disabilities: Parental Tort Liability for Preimplantation Genetic Interventions, 60 HASTINGS L.J. 299, 336 (2008). This phrase is commonly used in the literature, although perhaps it would be more accurate to refer to it as having a life worth not living.
2. See, e.g., DEREK PARFIT, REASONS AND PERSONS 359 (rev. ed. 1987);
3. I. Glenn Cohen, The Right Not to Be a Genetic Parent?, 81 S. CAL. L. REV. 1115, 1131 n.48 (2008);
4. Seanna Valentine Shiffrin, Wrongful Life, Procreative Responsibility, and the Significance of Harm, 5 LEGAL THEORY 117, 118 (1999). What is usually meant, is that it not be so bad that, if asked ex post, the individual would prefer never to have come into existence.
5. E.g., ALLEN BUCHANAN ET AL., FROM CHANCE TO CHOICE: GENETICS AND JUSTICE 224 (2000);
6. Carl H. Coleman, Conceiving Harm: Disability Discrimination in Assisted Reproductive Technologies, 50 UCLA L. REV. 17, 45 (2002). Job's lament that "I wish I had died in my mother's womb" is the classical expression, Job 3:11 (Good News), though what modern authors have in mind is something more like Lesch-Nyhan syndrome.
7. See, e.g., BUCHANAN ET AL., supra, at 233. I will follow Smolensky in discussing only interventions that do not produce a life worth not living.
8. Smolensky, supra note 1, at 300-01.
9. See id.
10. Id. at 301.
11. Id. at 334.
12. In another sense, this term could potentially cover a broader swath of cases than the ones that concern Smolensky. It recognizes that the line between disability, pain, illness, and injury is a fine one to draw, see, e.g., MARK S. STEIN, DISTRIBUTIVE JUSTICE AND DISABILITY: UTILITARIANISM AGAINST EGALITARIANISM 23-24 (2006), and that from the point of view of commonsense morality it is the harm-causing nature of the intervention, not the fact that it causes what might be termed a "disability" in the colloquial sense, which seems to matter. That said, while it is not clear to me how much (if any) of Smolensky's arguments would change if instead of intentionally creating a "disabled" child one intentionally created a child with a crippling disease, in what follows I will track her article by using examples that largely fall within the colloquial meaning of disability: deafness, blindness, paralysis, etc. The term "intentional diminishment" also acknowledges that not all disabilities are harmful to the same degree: while the selection of a pre-embryo with red/green color blindness, epilepsy, deafness, or moderate mental retardation all might be thought of as "creating children with disabilities," they represent the imposition of very different levels of harm. Moreover, as proponents of the social model of disability remind us, how harmful a given disability will be is in part a function of the existing social structure - to use a trivial example, mobility deficits requiring wheelchairs are less harmful in a world where every building has ramps than one where no building does.
13. In the real case of Sharon Duchesneau and Candy McCullough, a lesbian couple living in Maryland, both of whom were deaf and sought to produce a deaf child by using a sperm donor with five generations of deafness in his family, the reasons they gave for their actions were along these lines. Margarette Driscoll, Why We Chose Deafness for Our Children, SUNDAY TIMES (London), Apr. 14, 2002, § 5, at 7. As they put it, "We feel whole as deaf people and we want to share the wonderful aspects of our deaf community - a sense of belonging and connectedness - with children."
14. Id.
15. Even in a world where everyone spoke sign language, deafness would still prevent access to goods made possible only by sound - enjoyment of a violin concerto by Tchaikovsky, for example. That said, deaf adults sometimes refuse cochlear implants, suggesting the choice may not be completely clear cut, although in these cases the adults have already adapted to their nonhealing state such that the comparison may not be completely probative.
16. See Dan W. Brock, Separate Spheres and Indirect Benefit, 26 COST EFFECT. & RESOURCE ALLOC'N 4 (2003), available at http://www.resource-allocation.com/content/pdf/1478- 7547-1-4.pdf.
17. See Dan W. Brock, The Nonidentity Problem and Genetic Harms - The Case of Wrongful Handicaps, 9 BIOETHICS 269, 272-73 (1995). Of course, one thing in favor of the deafness example is that there have been real cases of parents seeking to create deaf children, while I am unaware of any case of parents who have tried to use reproductive technology to intentionally produce a child with mental retardation. This is most likely why Smolensky chose this example.
18. See Smolensky, supra note 1, at 336.
19. Recognize, however, that even where the Non-Identity Problem applies, it does not rule out the possibility that in cases involving diminishment by third parties the parents may still have a suit against the doctor or other third party. When parents sue the tort is called "wrongful birth," while when the resulting child sues the tort is called "wrongful life." See, e.g., Wendy F. Hensel, The Disabling Impact of Wrongful Birth and Wrongful Life Actions, 40 HARV. C.R.-C.L. L. REV. 141, 142-43 (2005). In a wrongful birth case the parents claim they have been harmed, not that the child has been, and to the extent the harm is their own (the diminishment of enjoyment they get from not having a healthy child, the difference in costs between raising this child as opposed to a child without the impairment) and not derivative of their child's harm, the Non-Identity Problem poses no obstacle to their claim.
20. See id. As of 2005, however, approximately half of the states refused to recognize wrongful birth actions, while all but three have refused to recognize wrongful life actions.
21. Id. at 160-62 nn.114 & 122 (collecting cases). While in the intentional diminishment cases Smolensky focuses on, this kind of liability seems unlikely because the parents have intentionally caused their own injury (if any), I discuss the possibility of liability premised on other third-party effects more fully below.
22. See infra Part II.
23. Smolensky, supra note 1, at 303.
24. Id. at 301.
25. Id. at 332-33.
26. To be clear, what Smolensky and I mean by "identity" is "personal identity" - what makes one the particular person one is - as opposed to other possible senses of identity.
27. Eric Rakowski has captured the point nicely in discussing the opposite problem, whether there is a duty to engage in genetic manipulation of a deaf pre-embryo to make it hearing: If a person's genes could not have been better in a certain respect because better genes would have made him a different person, then it seems that being born with the poorer set of genes cannot have harmed him, because that poorer set is a precondition of his very existence.
28. Eric Rakowski, Who Should Pay for Bad Genes?, 90 CAL. L. REV. 1345, 1352 (2002).
29. To be clear, even if I am successful in showing that the arguments Smolensky advances for her own position are unpersuasive, that does not rule out the possibility that there may be other arguments out there for her distinction that do succeed.
30. Smolensky, supra note 1, at 333-34 (footnotes omitted).
31. E.g., Laura A. Baker, The Biology of Relationships: What Behavioral Genetics Tells Us About Interactions Among Family Members, 56 DEPAUL L. REV. 837, 838 (2007).
32. Moreover, as Smolensky notes, Parfit himself is unsure about this claim, and recognizes that if the time gap had been a month not seconds the two possible children would not share the same identity. Smolensky, supra note 1, at 334 n.194. While some might think that "if the child is born at a different time and experiences a different personal history from some other potential child," that may play a role in changing the child's identity, that conclusion does not mandate that it is the only thing that could change identity; indeed many think that changes in time of birth add to but do not supplant genetic changes in their effects on personal identity.
33. See, e.g., Rakowski, supra note 17, at 1368.
34. Such a view would not be unprecedented. In the context of genetic modification, Christopher Belshaw has noted (though not argued for) such a view, what we might call the biological view of identity, which he associates with the work of Saul Kripke. See Christopher Belshaw, Identity and Disability, 17 J. APPLIED PHIL. 263, 264-66 (2000). On this view the meeting of a particular sperm and egg is not only necessary for the formation of a particular personal identity, but it is sufficient, such that any genetic modification of the resulting entity thereafter does not disturb identity (or, on one variation, at least so long as the modification does not make the entity not human).
35. Id. at 265-66.
36. My purpose here is not to evaluate the biological view. For critiques, see, for example, id. at 265-66, 268-69,
37. and David Shoemaker, Personal Identity and Ethics, in THE STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Edward N. Zalta et al. eds., rev. ed. 2008), http://plato.stanford.edu/entries/identity-ethics/ . Rather, my purpose is just to note that it stands in opposition to the psychological Parfitian view of identity to which Smolensky appears drawn.
38. See Belshaw, supra, at 273. Further, the biological view would entail that no genetic modification can change identity, which is a claim it appears Smolensky has rejected.
39. The closest Smolensky comes to saying this outright is when she writes "[b]ut to argue that changing a single gene, even a gene that controls for a central component of one's identity, always results in the creation of a different person seems to place too much emphasis on genetics." Smolensky, supra note 1, at 333 (emphasis added). The words in italics hint that this is Smolensky's position, but in any event Smolensky has confirmed to me that this is her position in correspondence.
40. To make a slightly different point, it would seem from the statement above that Smolensky draws something from the fact that it was a "single" gene that was changed. I, however, am not sure why the amount of genotypic change is what matters. There can be large genotypic changes that result in a small phenotypic differences and vice versa, and it seems plausible to me that my expressed traits (i.e., phenotype), not my genotype, play the larger role in what is essential to my personal identity.
41. Id. at 334 (footnote omitted).
42. More particularly, it does not prove that if two possible individuals were born with the difference in genes that would cause one of them to have a disability but not the other, they would always develop the same personal identity.
43. Smolensky, supra note 1, at 334.
44. See, e.g., Report of the Cal. Advisory Comm. on Human Cloning, Cloning Californians?, 53 HASTINGS L.J. 1143, 1191 (2002) (stating that "[t]he development of a nervous system and any possibility of feeling sensations comes much later than the appearance of the primitive streak[,]" which occurs at approximately fourteen days of development).
45. See 1 JOHN LOCKE, AN ESSAY CONCERNING HUMAN UNDERSTANDING 449 (1984) ("[A]s far as this consciousness can be extended backwards to any past Action or Thought, so far reaches the identity of that Person; it is the same self now as it was then; and 'tis by the same self with this present one that now reflects on it, that that Action was done." (emphasis added) (footnotes omitted));
46. see also Mary Ford, The Personhood Paradox and the 'Right to Die,' 13 MED. L. REV. 80, 87-90 (2005).
47. See Rakowski, supra note 17, at 1383 n.65. The other alternative would be to accept that "the slight cognitive links between a newborn and the disabled person he may or may not become are too meager to justify regarding the two as a single person,"
48. id. at 1383,
49. such that there is not identity continuity. This view, which Rakowski thinks is implied by Parfit's own work, id., would entail the conclusion that no harm has been done by deafening a four day old, although the same would not be true if one deafened an older child with greater cognitive development or an adult.
50. Because many might find this conclusion as to the four day old problematic, in the text I explain why rejecting Smolensky's view does not require accepting this conclusion. For present purposes, I remain agnostic as to which of these standards is either necessary or sufficient for the continuity of identity. It is worth noting, however, that in other domains of law, some have suggested that memory continuity is a necessary condition for identity continuity. I am thinking of a kind of change in identity that has nothing to do with genetics and may in fact involve fully formed adults: the man who suffers severe retrograde amnesia or brain damage such that he has no memory of who he was before. Ought we think of him as a "new" person, who should not enjoy either the burden or benefits of the one who he was before? In the case where the "old" person committed a crime, this problem has greatly interested criminal law theorists. See, e.g., LEO KATZ, BAD ACTS AND GUILTY MINDS: CONUNDRUMS OF THE CRIMINAL LAW 103-13 (1987);
51. Walter Sinnott-Armstrong & Stephen Behnke, Criminal Law and Multiple Personality Disorder: The Vexing Problems of Personhood and Responsibility, 10 S. CAL. INTERDISC. L.J. 277, 286-89 (2001). Such cases are not merely hypothetical, as Leo Katz has suggested that something of this sort occurred in the case of Rudolph Hess, a high-ranking Nazi tried at Nuremberg who initially pled amnesia.
52. See KATZ, supra, at 108-10. If we believe that in these circumstances the amnesiac should not be punished on retributivist grounds that suggests that memory continuity really is a necessary condition for identity continuity. On the other hand, it is also possible that the conditions for the continuity of identity may not be general but instead context specific to particular legal and moral inquiries. If so, it might be a mistake to move too quickly from intuitions in one context to another.
53. Rakowski, supra note 17, at 1383 n.65
54. (citing Jeff McMahan, Wrongful Life: Paradoxes in the Morality of Causing People to Exist, in RATIONAL COMMITMENT AND SOCIAL JUSTICE: ESSAYS FOR GREGORY KAVKA 208, 211 (Jules L. Coleman & Christopher W. Morris eds., 1998)).
55. F.M. Kamm, Cloning and Harm to Offspring, 4 N.Y.U. J. LEGIS. & PUB. POL'Y 65, 72 (2001-2002);
56. cf. Thomas Nagel, Death, in MORTAL QUESTIONS 1, 1-10 (1979) (justifying why we regret dying young, but not the failure to be born earlier, on the ground that only the former constitutes losing something good that we had).
57. Of course, some faiths believe that there already is a person who exists in the pre-embryonic state, see, for example, Philip G. Peters, Jr., The Ambiguous Meaning of Human Conception, 40 U.C. DAVIS L. REV. 199, 223-25 (2006), who is losing something good (the potential for hearing). This argument, however, does not seem available to Smolensky, for it would imply that the pre-embryo who has not been selected is also a person who has lost out on something good, the ability to live, such that there is a harm in the selection cases as well, which she denies. More generally, adopting such a view would counsel much more profound restrictions on reproductive technology use than I suspect Smolensky would endorse.
58. A different way of seeing this point, at least for those who believe that there exists some genetic manipulation that would be sufficient to change identity, is as follows: take whatever manipulation, however radical it is you believe would change personal identity if done to a pre-embryo (for example, one that induces a total loss of all sensory modalities except touch). Now ask whether you think there would be harm done if we intentionally acted to put an adult in the same state (e.g., a blow to his sensory cortex). The answer seems to be yes. However, if this argument were right, it would be impossible to believe that the intervention was identity changing when done to a pre-embryo but harmful when done to an adult. That is, however, exactly what we do believe, which suggests the argument is wrong.
59. There may also be other genetic manipulations that result in no phenotypic changes at all.
60. If one accepts that some genetic modifications will be identity changing and some will not be, one intriguingly counterintuitive result is that the more severe the disability imposed, the more likely identity will be changed. If, as Smolensky would argue, in the pre-embryonic case where identity has changed we ought to bar tort liability, then the imposition of more severe disabilities produce the weakest case for liability at least on the ground of harm to the child. That said, for some of the arguments offered in Part II (which do not depend on harm to the resulting child), the strength of the argument for imposing liability grows with the severity of the imposed disability, that is, in the expected direction. See infra Part II.
61. See, e.g., Rakowski, supra note 17, at 1351 ("[I]t can be difficult to resolve whether genetically caused conditions that are present from birth and frequently have an enormous impact on people's lives, such as blindness or deafness, result in a change in identity.").
62. I also worry that our intuitions about whether an intervention is identity changing are being driven by our intuitions as to whether we want to find liability, rather than vice versa. Cf. Duncan Kennedy, Distributive and Paternalistic Motives in Contract and Tort Law, with Special Reference to Compulsory Terms and Unequal Bargaining Power, 41 MD. L. REV. 563, 643-44 (1982) (making a similar point as to the relationship between determining decision-making capacity and the decision whether to overrule a patient's refusal of treatment).
63. Brock, supra note 10, at 273.
64. See, e.g., id. at 272-73.
65. Parfit himself introduces non-person-affecting principles of the same number variety immediately after presenting the Non-Identity Problem. PARFIT, supra note 1, at 359-61, 364-65. "Non person-affecting" may be a bit of a misnomer in that the suffering that is diminishing welfare will be experienced by some person-it is not disembodied, it is just that the principle does not require the same person to suffer or not suffer based on the counterfactual; the relevant distinction is between same number and same person cases.
66. Brock, supra note 10, at 273.
67. John Robertson, Procreative Liberty and Harm to Offspring in Assisted Reproduction, 30 AM. J.L. & MED. 7, 16 (2004).
68. Brock, supra note 10, at 273.
69. PARFIT, supra note i, at 360-61;
70. Brock, supra note 10, at 273.
71. BUCHANAN ET AL., supra note 1, at 255. This example given by Buchanan and his coauthors usefully illustrates the difficulty in determining exactly what is a different number case. Suppose that it is only the combination of both parents' genetic material that produces the disabled child, could they not avoid that result by using one of their gametes along with sperm or egg donated from a third party? Even if they each had genetic material certain to produce the disability, could they not still produce another healthy child with the mother serving as gestational parent using both donated sperm and egg? John Robertson has suggested that even in cases like these where we could make samenumber substitutions, we may want to make an exception and not treat the failure to substitute as wrongful if it "unreasonably burden[s] parents," and has suggested as examples cases where "[t]o substitute a healthy child would require that the parents give up having a genetically related child and accept childlessness, adoption, or use of a gamete donor."
72. Robertson, supra note 40, at 17. Whether we ought to make an exception for such cases would depend, in part, on prior normative judgments about the value of having genetically related children.
73. See Cohen, supra note 1, at 1189-90 (discussing this issue).
74. The problem is that when applied to different number cases, the non-person-affecting principle approach appears to lead to what Parfit has called "The Repugnant Conclusion," the idea that what would be best from the non-person-affecting standpoint is to produce a very large number of children who had lives just above the threshold of a "life not worth living," since the existence of each additional child might increase total happiness by vastly increasing the population, even though we make every already existing person much worse off. See PARFIT, supra note 1, at 387-90;
75. see also BUCHANAN ET AL., supra note 1, at 254. Some have suggested that the problems can be overcome by relying on average rather than total utility as a measure of what makes a state of the world better.
76. See Robertson, supra note 40, at 16-17. Others think that this problem shows that non-person-affecting principles alone cannot be the stuff which normative judgments are made of, and instead that what is required is an as-yet-unarticulated comprehensive theory of how person and non-person-affecting principles interact.
77. See BUCHANAN ET AL., supra note 1, at 254-55.
78. Of course, diminishment and the number of children one has could also interact in much more complex ways-for example, it may be that the extra resources required to raise a diminished child means you can only afford to raise one such child, but if instead you had undiminished children, you could afford to have two. Moreover, if the legal rule causes the couple to adopt rather than have a child genetically related to them, how ought we to evaluate the benefit to the adopted child from an all things considered point of view?
79. I will highlight one other problem with the non-person-affecting principle approach that goes to its suitability as a basis for moral wrongfulness: the difficulty it poses for drawing a line between a duty to avoid diminishment and a duty to engage in enhancement. For additional critiques, see, Rakowski, supra note 17, at 1371-88. If it would be better to avoid acts or omissions that produce diminished children with reduced welfare, it would also seem to be better to engage in acts or omissions that produce children with improved welfare, that is enhancements. Thus, the philosopher Julian Savulescu argues for a "moral obligation to have the best children" that he calls the principle of "Procreative Beneficience," that is, "couples (or single reproducers) should select the child, of the possible children they could have, who is expected to have the best life, or at least as good a life as the others, based on the relevant available information."
80. Julian Savulescu, Procreative Beneficence: Why We Should Select the Best Children, 15 BIOETHICS 413, 415 (2001). Savulescu himself seems to equivocate in stating the principle between choosing/enhancing a child with the "the best life" and one with "at least as good a life as the others," but the logic of the non-person-affecting principle and his argument suggests it really is a moral obligation to have the best possible children. Brock, and his later coauthors, by contrast, suggest a more restrained non-person-affecting principle, an obligation to avoid creating children who will "experience serious suffering or limited opportunity,"
81. Brock, supra note 10, at 273 (emphasis added), or "experience serious suffering or limited opportunity or serious loss of happiness or good,"
82. BUCHANAN ET AL., supra note 1, at 249 (emphasis added). Most attempts to draw a line between avoiding diminishment and obligating enhancement either focus on a claim that some enhancements are not good for the child (to the extent it allows parents to hegemonically foreclose certain avenues for the child instead of securing a "right to an open future"), the claim that the availability of enhancements problematically exacerbate inequalities between those who have access to enhancing technologies and those who do not, or the claim that enhancements impose externalities on third parties.
83. See generally id. at 156-203. Whether these distinctions work, and whether they work for all kinds of enhancements, is a question I leave for another day.
84. See Rakowski, supra note 17, at 1370, 1382-83.
85. 20 U.S.C. § 1400(d)(1)(A) (2006);
86. see Bd. of Educ. v. Rowley, 458 U.S. 176, 179-84 (1982);
87. Little Rock Sch. Dist. v. Mauney, 183 F.3d 816, 820-21 (8th Cir. 1999).
88. 42 U.S.C. §§ 12131-12133 (2006);
89. Tennessee v. Lane, 541 U.S. 509, 513-18 (2004).
90. 42 U.S.C. § 12112(b)(5)(A);
91. see, e.g., Sutton v. United Air Lines, Inc., 527 U.S. 471, 477-79 (1999).
92. See, e.g., Susan M. Wolf et al., Using Preimplantation Genetic Diagnosis to Create a Stem Cell Donor: Issues, Guidelines & Limits, 31 J.L. MED. & ETHICS 327, 330-36 (2003) (discussing real life versions of these "savior sibling" cases and the bioethics issues posed).
93. Of course, third-party effects can be positive as well as negative. If deaf parents or others also receive a benefit when a deaf rather than hearing child comes into existence, that too has to be factored into an all things considered welfarist evaluation.
94. Smolensky, supra note 1, at 306-08, 325-30.
95. For another argument suggesting that the right to engage in intentional diminishment is not part of what the Constitution protects as "procreative liberty," see, JOHN ROBERTSON, CHILDREN OF CHOICE 170-71 (1994). It is not clear whether Smolensky is making only a claim about what the Constitution actually protects or also a normative claim about what she thinks it (or common law, or statutory law) should protect. An argument for legal liability on this or many of the other theories discussed would, of course, require defeating both the normative and positive law versions of the autonomy argument. A separate unresolved problem is how to square this approach with the fact that most of us accept the costs imposed by these statutes in the mundane case where they require us to accommodate an already existing person who has a disability. Perhaps we can draw a distinction between a duty to accommodate a disability when it is beyond someone's control versus taking steps to prevent the disability from happening at all? This would lead to interesting questions about what our obligations should be to someone who intentionally or negligently acted in such a way to bring about a disability in themselves, which in turn interfaces with a burgeoning literature on responsibility for health states.
96. See, e.g., Dan Wikler, Personal and Social Responsibility for Health, 16 ETHICS & INT'L AFF. 47, 49-55 (2002).
97. See, e.g., Mitchell N. Berman, Commercial Speech and the Unconstitutional Conditions Doctrine: A Second Look at "The Greater Includes the Lesser," 55 VAND. L. REV. 693, 756-57 (2002);
98. Mariano-Florentino Cuéllar, The Tenuous Relationship Between the Fight Against Money Laundering and the Disruption of Criminal Finance, 93 J. CRIM. L. & CRIMINOLOGY 311, 365 n.214. Of course, "victimless" is a misnomer in the sense that those who are victimized are those who bear the costs of the negative third-party effects. This kind of argument might also give rise to a number of regulatory policies unconnected to liability. For example, it might lead to a policy to encourage the use of PGD, either by subsidizing hospitals who buy the necessary equipment, or through state level insurance mandates requiring that all insurers cover PGD as part of pregnancy coverage, in the hope it will help avoid negligent diminishment cases. To be frank, one concern I have with the other-affecting-principle approach is that it might support an argument for legal regulation to discourage or prevent women from implanting preembryos that are identified as likely to carry disabilities. The existing constitutional jurisprudence prohibits the state from forcing women to have an abortion in such situations, but as I have suggested in other work, it is not at all clear that the state faces the same limitations if it tries to intervene before a pre-embryo has been implanted.
99. See I. Glenn Cohen, The Constitution and the Rights Not to Procreate, 60 STAN. L. REV. 1135, 1148-65 (2008).
100. Indeed, in cases where the doctor produces the diminishment, wrongful birth actions by parents are a form of third-party-effects tort liability. See Hensel, supra note 12, at 141-43.
101. See William B. Rubenstein, On What a "Private Attorney General" Is - and Why It Matters, 57 VAND. L. REV. 2129, 2142-56 (2004).
102. See, e.g., Robert A. Katz, Too Much of a Good Thing: When Charitable Gifts Augment Victim Compensation, 53 DEPAUL L. REV. 547, 584 n.191 (2003) ("[T]o achieve optimal deterrence, tortfeasors must bear the full costs of their risky behavior, even if this overcompensates the occasional tort victim.");
103. Eric A. Posner & Cass R. Sunstein, Dollars and Death, 72 U. CHI. L. REV. 537, 553-56 (2005).
104. On the other hand, there is a debate as to whether punitive damages should really be part of tort at all, or whether we should instead view it as something like "crimtorts." See, e.g., Thomas H. Koenig, Crimtorts: A Cure for Hardening of the Categories, 17 WIDENER L.J. 733, 739-40 (2008).
105. Moreover, a recent line of Supreme Court cases, culminating in Philip Morris USA v. Williams, have required an increasingly tight fit between the amounts of punitive and compensatory damages awarded in order to pass muster under the Federal Constitution's Due Process Clause. 549 U.S. 346 (2007). The many statutory actions giving plaintiffs multiple damages - for instance, the Equal Credit Opportunity Act, Fair Credit Reporting Act, Fair Debt Collection Protection Act, and the Magnuson-Moss Consumer Warranty Act - offer another example of the same idea.
106. See Koenig, supra, at 776 n.168. Still another example comes from civil rights cases in which some of the circuits have explicitly upheld awards of punitive damages even in the absence of actual damages.
107. See, e.g., Cush-Crawford v. Adchem Corp., 271 F.3d 352, 357-59 (2d Cir. 2001) (Title VII);
108. Alexander v. Riga, 208 F.3d 419, 430-34 (3d Cir. 2000) (Fair Housing Act);
109. Timm v. Progressive Steel Treating, Inc., 137 F.3d 1008, 1010 (7th Cir. 1998) (Title VII). Of course, these are statutory actions, not common law tort.
110. See, e.g., Benjamin Zipursky, Civil Recourse, Not Corrective Justice, 91 GEO. L.J. 695, 700-02 (2003) (emphasis added);
111. see also John C.P. Goldberg, Rethinking Injury and Proximate Cause, 40 SAN DIEGO L. REV. 1315, 1335-36 (2003) (civil recourse).
112. Even for those who are comfortable with uncoupling deterrence and compensation, nothing in the argument requires that we single out the disabled child as the one who ought to have standing to serve as the vehicle to ensure optimal deterrence, as opposed to any other plaintiff. Indeed, as the one person who was not harmed, there is a good argument for not using the disabled child in this fashion. The best argument I can think of for singling out the disabled child as the one to bring these suits is pragmatic, that the child has the best access to the information needed to bring forth the claim. But this does not seem particularly persuasive. There is a countervailing risk that the child is less likely to bring suit than other possible litigants because doing so entails disrupting the family relationship, in which case a different arrangement might produce better deterrence. It might also be thought of as particularly awkward for the child to bring suit to vindicate the claim that her existence poses undue costs on others.
113. See Scott Altman, (Com)modifying Experience, 65 S. CAL. L. REV. 293, 294-97 (1991);
114. I. Glenn Cohen, Note, The Price of Everything, the Value of Nothing: Reframing the Commodification Debate, 117 HARV. L. REV. 689, 691-92 (2003).
115. Cohen, supra note 62, at 698-99.
116. Id. at 691.
117. Altman, supra note 62, at 295.
118. Leon R. Kass, The Wisdom of Repugnance, in THE ETHICS OF HUMAN CLONING 3, 19 (Leon R. Kass & James Q. Wilson eds., 1998). I am not sure Kass would himself frame his arguments as "modified-experience" or "corruption" ones, though I think they lend themselves to this approach. In any event, consider the argument a variation on Kass if not strictly Kassian.
119. Id.
120. Id. at 38-39.
121. See, e.g., Margaret Jane Radin, Market-Inalienability, 100 HARV. L. REV. 1849, 1933 (1987) ("[In commercial surrogacy w]e must also consider the commodification of children. The risk is serious indeed, because, if there is a significant domino effect, commodification of some children means commodification of everyone.");
122. see also Altman, supra note 62, at 297 ("Arguments for making important decisions based on concern for preserving sensibilities, especially observers' sensibilities, should be greeted with great caution.").
123. See, e.g., Ken Levy, Gonzales v. Oregon and Physician-Assisted Suicide: Ethical and Policy Issues, 42 TULSA L. REV. 699,727-28 nn.124-28 (collecting sources offering this kind of argument).
124. See, e.g., Koenig, supra note 59, at 771-74 (arguing that punitive damages in tort can serve a similar boundary-setting function that prevents the erosion of social mores).
125. See, e.g., Lawrence B. Solum, Natural Justice, AM. J. JURIS. 65, 65-76 (2006);
126. Rosalind Hursthouse, Virtue Ethics, in STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Edward N. Zalta et al. eds., rev. ed. 2007), http://plato.stanford.edu/entries/ethics-virtue/.
127. I should stress that the classification of Sandel's argument is mine and not his.
128. MICHAEL J. SANDEL, THE CASE AGAINST PERFECTION: ETHICS IN THE AGE OF GENETIC ENGINEERING 46 (2007).
129. See Hurstone, supra note 72;
130. Solum, supra note 72, at 65-76.
131. See SANDEL, supra note 74, at 1-4, 11-19, 94-97 (emphasizing that his argument is distinct from arguments against enhancement relating to safety, autonomy, or distribution of benefits).
132. Once again, this should not be taken as an endorsement of the position offered by Sandel. Frances Kamm, for example, has critiqued an earlier version of Sandel's argument for its focus on the desire for mastery as being the wrong-causing element of enhancement - giving the example of a scientist who sought to cure blindness not out of compassion but out of a desire for mastery, and suggesting that we do not think him to have acted immorally - and questioned whether Sandel's openness to the unbidden would also make it wrong to take steps to prevent natural disasters like tornados or to cure cancer. See Frances M. Kamm, Is There a Problem with Enhancement?, 5 AM. J. BIOETHICS 5, 6-9 (2005). In his more recent work, Sandel has tried to accommodate this critique by suggesting that his point is merely that "the moral stakes in the enhancement debate are not fully captured by the familiar categories of autonomy and rights, on the one hand, and the calculation of costs and benefits, on the other. My concern with enhancement is not as individual vice but as a habit of mind and way of being."
133. SANDEL, supra note 74, at 96.
134. See Lawrence B. Solum, Virtue Jurisprudence: A Virtue-Centered Theory of Judging, 34 METAPHIL. 178, 180-81 (2003) (collecting articles applying virtue ethics to, inter alia, antitrust, civil rights, corporate, criminal, employment, and environmental law, as well as offering a virtue ethics take on judging).
135. Heidi Li Feldman, Prudence, Benevolence, and Negligence: Virtue Ethics and Tort Law, 74 CHI.-KENT. L. REV. 1431, 1450-52 (2000).
136. See id. at 1462-66 (arguing for a view of the reasonable person standard in negligence as an attempt to determine whether the tortfeasor was one who showed the virtues of reasonableness, prudence, and carefulness).
137. See Kenneth W. Simons, The Hand Formula in the Draft Restatement (Third) of Torts: Encompassing Fairness as Well as Efficiency Values, 54 VAND. L. REV. 901, 933-34 (2001).
138. See, e.g., Kyron Huigens, Virtue and Inculpation, 108 HARV. L. REV. 1423, 1423-44 (1995);
139. see also Darryl K. Brown, Cost-Benefit Analysis in Criminal Law, 92 CAL. L. REV. 323, 363-64 (2004).
140. Of course, for consequentialists the Right and the Good are coextensive, what is right is what maximizes good states of the world. See, e.g., JOHN RAWLS, A THEORY OF JUSTICE 19-23 (Rev. ed. 1999);
141. L.W. SUMNER, WELFARE, HAPPINESS, AND ETHICS 3 (1996). Deontologists and other nonconsequentialists, however, believe in the priority of the Right over the Good, that there may be actions which promote good states of the world that are nonetheless wrong.
142. See, e.g., RAWLS, supra, at 22-26.
143. Kamm, supra note 31, at 72
144. (citing James Woodward, The Non-Identity Problem, 96 ETHICS 804, 810 (1986)). To be sure, some would object that these examples are explicable within consequentialism.
145. For others, see, for example, Dena S. Davis, Genetic Dilemmas and the Child's Right to an Open Future, 27 HASTINGS CENTER REP. 7, 12 (1997) (arguing that "disabled persons wishing to reproduce themselves in the form of a disabled child . . . violate[] the Kantian principle of treating each person as an end in herself and never as a means only" because "they define the child as an entity who exists to fulfill parental hopes and dreams, not her own");
146. Elizabeth Harman, Can We Harm and Benefit in Creating?, 18 PHIL. PERSP. 89, 93 (2004) (arguing that "an action harms a person if the action causes pain, early death, bodily damage, or deformity to her, even if she would not have existed if the action had not been performed," and "reasons against harm are so morally serious that the mere presence of greater benefits to those harmed is not in itself sufficient to render the harms permissible: when there is an alternative in which parallel benefits can be provided without parallel harms, the harming action is wrong");
147. F.M. Kamm, Baselines and Compensation, 40 SAN DIEGO L. REV. 1367, 1385 (2003) ("[C]reators owe their creations, at reasonable cost, certain things that I call the 'minima' [which] involve more than just things that make lives barely worth living[, such that] I do not think that giving half a loaf, as distinct from giving a whole loaf and then taking half away, is permissible if the half a loaf falls below the minima.");
148. Woodward, supra note 84, at 813-21 (arguing from a principle that "it can be wrong to adopt a course of action which will both bring certain obligations into existence and make failure to meet them unavoidable, even though this course of action affects another's overall interests as favorably as any other course of action would").
149. Shiffrin, supra note 1, at 119-22, 131-34. I will not do Shiffrin's incredibly interesting argument full justice in this short recap, omitting, inter alia, her discussion of an objection from hypothetical consent and built-in compensation.
150. Id. at 120-25.
151. Id. at 124-25.
152. Id. at 125-27.
153. Id. at 123-27
154. (citing JOEL FEINBERG, FREEDOM AND FULFILLMENT: PHILOSOPHICAL ESSAYS 5 (1994)).
155. Id. at 127-28 (setting out the full hypothetical).
156. Id.
157. Id. at 119-20. One (deep) open question is whether being created is a benefit at all.
158. Id. at 117-19, 135.
159. RESTATEMENT (SECOND) OF TORTS § 920 (1979).
160. Id. cmt. b.
161. Id. illus. 6.
162. Shiffrin suggests her view may challenge the Restatement or give a "constrained reading of what constitutes equitable mitigation." Shiffrin, supra note 1, at 130 n.30.
163. See generally MICHAEL WALZER, SPHERES OF JUSTICE 1-10 (1983);
164. see also Brock, supra note 9;
165. Cohen, supra note 62, at 696-703.
166. Another possible way to achieve a rapprochement of this kind of argument (whether Shiffrin's version or another) with tort law might be to group intentional diminishment with the "dignitary" torts, such as false imprisonment, invasion of privacy, and offensive battery, for which we recognize tort liability even in the absence of a showing of harm to the individual. See DAN B. DOBBS, THE LAW OF TORTS § 42 (2001) (discussing these torts). Whether such an approach succeeds would depend on the viability of a claim that those torts are best seen as cases where someone has been wronged without being harmed (in the sense of setback of interests) rather than cases where someone has been harmed without being physically harmed.
167. Shiffrin, supra note 1, at 137-39.
168. Id. at 139.
169. Id. at 142.
170. Id. at 143.
171. Frances Kamm has questioned Shiffrin's treating "as problems or being in a harmed state some of the very things that give value to human life, such as moral consciousness," and expressed her worry that "Shiffrin's argument would lead one to conclude that creating creatures incapable of moral choice, never in pain, and unaware of truths such as the prospect of death, like extremely happy, long-lived rabbits who have no other problems, would be preferable to creating human persons as they are now." Kamm, supra note 85, at 1384.