Wrongful life, procreative responsibility, and the significance of harm

Legal Theory

Volumn 5, Issue 2, 1999, Pages 117-148

  Shiffrin, Seana Valentine ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 85022741161     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/S1352325299052015     Document Type: Article

References (27)

1. In these cases, the disability is not usually caused by events after conception, such as prenatal damage. Rather, the disability, the underlying genetic condition, or the relevant circumstances of conception are essentially linked to the child's identity or existence. So, he must claim that his life was wrongfully caused, not only his disability. Jeff McMahan argues that some significant prenatal damage, occurring early in pregnancy, may affect the identity of the child. If he is correct, then such cases should be classified with the cases typically associated with wrongful life litigation. Jeff McMahan, Wrongful Life: Paradoxes in the Morality of Causing People to Exist, in RATIONAL COMMITMENT AND SOCIAL JUSTICE: ESSAYS FOR GREGORY KAVKA 208-47 (J. Coleman & C. Morris eds., 1998).
2. Usually these suits are brought on behalf of children and allege that their parents’ doctors were at fault for failing to inform the parents of a likely defect (knowledge of which would have forestalled creation), failing to prescribe effective contraception, or failing to perform an abortion properly. Cf. Lori Andrews, Legal Regulation of Genetic Testing, in JUSTICE AND THE HUMAN GENOME PROJECT 64 (T. Murphy & M. Lappe eds., 1994), n.2 (citing evidence that most potential parents abort upon discovering their potential child will suffer a serious disability). But in some jurisdictions, the suit may be brought against the child's parents, alleging that the parents should not have conceived or should have aborted.
3. Only three states currently recognize the cause of action. Within these jurisdictions, the occasions of liability and the scope of damages have been significantly restricted. California originally approved suits even against parents who knew their child would be severely disabled, Curlender v. Bio-Science Labs, 106 Cal. App. 3d 811, 829 (1980), but the legislature subsequently precluded suits against parents. Cal. Civ. Code §43.6. Also, damages in wrongful life cases against physicians are limited to specific, not general damages. See Turpin v. Sartini 643 P.2d 954 (Ca. 1982) (declaring California rule); Gami v. Mullikan Medical Center, 18 Cal. App. 4th 870, 874 (1993) (reporting that New Jersey, Washington, and California all permit a cause of action for special damages).
4. See, e.g., Dawn Danzeisen and Edward Reitler, Tort Law: Wrongful Birth and Wrongful Life Actions, 11 HARV. J. L. & PUB. POL'Y 861, 859-65 (1988); Joel Feinberg, Wrongful Life and the Counterfactual Element in Harming, in FREEDOM AND FULFILLMENT 3-37 (1992); Robert Goldstein, MOTHER-LOVE AND ABORTION: ALEGAL INTERPRETATION 50-1, 166-7 n.34 (1988); Frances Kamm, CREATION AND ABORTION 173-4 (1992); John Harris, WONDERMAN AND SUPERWOMAN, 79-97 (1992); David Heyd, GENETHICS 1-39 (1992); Nancy Jeckers, The Ascription of Rights in Wrongful Life Suits, 6 LAW & PHIL. 149-65 (1987); Jeff McMahan, passim, Only three states currently recognize the cause of action note 1; Bernard Williams, Resenting One's Existence, in MAKING SENSE OF HUMANITY (1995).
5. See id. and McMahan, Tort Law: Wrongful Birth and Wrongful Life Actions note 1, and McMahan, Cognitive Disability, Misfortune, and Justice, PHIL. & PUB. AFF. 5 (Spring 1996).
6. For defenses, see Frances Kamm, Cognitive Disability note 5, at 173; Derek Parfit, REASONS AND PERSONS (1984), Appendix G. I also defend the view in The Benefits of Existence, unpublished manuscript. There is insufficient space to outline that defense here. The basic idea is that by being the direct cause of a person's being in a situation that intrinsically delivers harm, one harms that person; it is sufficient for this article, though, to assume that if one is the direct cause of a person's being in a situation that intrinsically delivers harm, then one is responsible for that person's suffering harm, even if one does not harm her.
7. Jeff McMahan advances a similar argument in Wrongful Life: Paradoxes, REASONS AND PERSONS note 1.
8. Feinberg, Wrongful Life: Paradoxes note 5, at 27.
9. Id. (emphasis added).
10. See, e.g., Joel Feinberg, HARM TO OTHERS 31-65 (1984).
11. By this I mean that the contents of one's life may well exceed the boundaries of one's conscious knowledge or even one's conscious experience. This has been thoroughly discussed in the literature on death. See, e.g., Thomas Nagel, Death, in MORTAL QUESTIONS 1-11 (1979).
12. Thomas Scanlon, among others, has noted a related asymmetry: One may reasonably put much greater weight on a project from the first-person perspective than would reasonably be accorded to it from a third-party's viewpoint. A person may reasonably value her religion's mission over her health, but the state may reasonably direct its welfare efforts toward her nutrition needs rather than to funding her religious endeavors. Thomas Scanlon, Preference and Urgency, 72 J. PHIL. 655-69 (1975).
13. See also Restatement of Torts, §920: “When… tortious conduct has caused harm to the plaintiff… and in so doing has conferred a special benefit to… the plaintiff…, the value of the benefit conferred is considered in mitigation of damages, to the extent that this is equitable.” My discussion may be read either as challenging this principle or offering a constrained reading of what constitutes equitable mitigation. Generally, the principle's actual applications depend on the more limited claim that I endorse: If harmful conduct averts greater harm to the plaintiff, then the averted harm should be considered in mitigation of damages.
14. Whereas its opponents believe the child has no complaint. The disapproval is properly directed only at a defect in the character of the procreator or in the state of affairs that results, judged impersonally. See, e.g., Dan Brock, The Non-Identity Problem and Genetic Harms, 9 BIOETHICS 269-75 (1995); John Harris, J. PHIL. note 5; and David Heyd, GENETHICS (1992), ch. 1.
15. I summarize the main grounds for this view here. I defend it in depth in Consent and the Morality of Procreation (unpublished D. Phil. thesis, Oxford University, 1993). Independently, David Benatar has advanced some related arguments that causing to exist imposes burdens on children in Why It Is Better Never to Come Into Existence, 34 AM. PHIL. Q. 345-55 (July 1997).
16. Feinberg, AM. PHIL. Q. note 13, at 97.
17. For discussions of the problem of justifying child support, see Scott Altman, A Theory of Child Support, USC Law SchoolWorking Paper No. 98-13 (1998), and John Eekelaar, Are Parents Morally Obliged to Care for Their Children? 11 OXFORD J. LEGAL STUD. 340 (1991).
18. See, e.g., Elizabeth Bartholet, FAMILY BONDS: ADOPTION AND THE POLITICS of PARENTING (1993).
19. This could support a different outcome in the Baby Jessica case in which, after two years of adoptive care, an infant was returned to her biological father who had been unaware of the child's existence and did not consent to her adoption. In re Clausen, 502 N.W. 2d 649 (Mich. 1993), stay denied, 509 U.S. 1301 (1993).
20. See, e.g., Cal. Civil Code §43.1.
21. These are not mere possibilities. A couple is currently suing a sperm bank, seeking the identity of a sperm donor who misreported his medical history and passed on an incurable kidney disease to the child who resulted from his spermcontribution. Julie Marquis, Gift of Life, Questions of Liability, L.A. TIMES, August 9, 1997, at Al. In another case, a man passed on the herpes virus to a surrogate and to the child she conceived, who suffers from severe disabilities. Rebecca Powers, Surrogate Negligence Case Ready for Court, THE DETROIT NEWS, Jan. 20, 1993, at 2. The Sixth Circuit found that the broker, lawyer, and doctors who facilitated the surrogacy arrangement had an affirmative duty of care and could be sued for negligence. Stiver v. Parker, 975 F.2d 261 (6th Cir. 1992).
22. S.W. 2d 588 (1992).
23. See, e.g., Martha Field, SURROGATE MOTHERHOOD 126 (1990).
24. In a California case, two sponsoring, “intentional” parents took genetic material from two anonymous contributors. The resultant embryo was implanted in a separate gestational carrier. Before the child's birth, the sponsoring father filed for divorce and sought to avoid support obligations for the child. To further his position, he contended that his ex-wife, the sponsoring mother, lacked custody rights, although she avidly claimed them, because she was not the genetic or gestational mother. A trial court ruled that the child was entirely without legal parents. An appellate court reversed, finding the father liable for support and the sponsoring mother to be the child's parent. Buzzanca v. Buzzanca, 1998 WL 102105 (Ca. 1998).
25. One biological father rejected a child he produced through a surrogacy relationship because the child was male. See, Surrogate Mother Stunned as Dad Rejects One Twin, CHICAGO SUN TIMES, April 24, 1988, at 1. Another planned to reject a child from a surrogacy relationship because the child was disabled. See Powers, SURROGATE MOTHERHOOD note 51.
26. This rationale is similar to that voiced in Johnson v. Calvert, 851 P.2d 776 (Ca. 1993), but does not, as the California court does, deny that the gestational carrier is a natural mother of the child or contend that natural motherhood is the key factor for custody.
27. Marjorie Shultz also makes this point in her more parent-oriented argument for intentbased approaches to parenthood determinations. Marjorie Shultz, Reproductive Technology and Intent-based Parenthood: An Opportunity for Gender Neutrality, WIS. L. REV. 297, 324 (1990). See also John Hill, What Does It Mean to Be a ‘Parent'? The Claims of Biology as the Basis for Parental Rights, 66 N.Y.U. LAW REV. 353 (1991).