Regulating Non-Existence
Authors:   , ten Haaf Lisette 
Published: April 2023

Advances in reproductive biotechnology increase control over who is born and under what circumstances. Resulyingly, we are confronted with the question: what do we owe to future people who are born with the help of these technologies? In an attempt to do justice to future people, a new entity has appeared the legal stage: the future child. This is the child that has not been born or even conceived yet – but might be at some point in the future. In order to be able to include this new entity in discussions on the regulations on reproduction, we need a theoretical framework that helps us understand what this entity is and how we can address it. In the regulations on reproduction, the future child is often conceptualised as a subject of rights or interests. Yet, as a result of these regulatory frameworks that invoke the interests of the future child, the future child itself is ultimately prevented from coming into existence, which renders the future child as a merely legal construct and a complex entity.

This research aims to assess the conceptualisation of the future child in the regulations on reproduction, by scrutinizing the tenability of the ‘interests of the future child’ construction. In order to assess this construction, it is deconstructed into the four assumption upon which it is based. These are: first, the core values underlying the regulations on reproduction can be understood as interests of an individual subject; second, the future child has an implicitly assumed interest in its own non-existence; third, the future child is a legal subject and, fourth, the future child whose existence is prevented is capable of having interests. The critical assessment of these four assumptions reveals that each of them is questionable. The first and second assumptions are untenable in most cases. The third and fourth assumptions, pertaining to the future child’s subjectivity, are completely untenable due to the future child’s non-existence. In short, the interests of the ‘interests of the future child’ construction appears to be unable to articulate various values that underlie the regulatory framework and it is internally contradictory.

In response, I propose an alternative theoretical framework based on the work of Hans Jonas that is capable of taking up this task. This alternative approach conceives the future child as the object of our responsibility. In order to set the parameters of our responsibility towards the future child, we need a more articulated normative account of the human person. In this research, I explore how perceiving the human person as equal and an autonomous end in himself is capable of making sense of the various values that can be distilled from the regulation of reproduction. Of course, the notion our humanity may remain topic of discussion, as it is surrounded by unprecedented complexities. As technological developments erode the boundaries between the given and the made, it may seem that we are losing our grip on this endeavour. But precisely because the regulation of biotechnology touches upon the intimate aspects of our humanity, and every regulatory choice implies an idea of what it means to be human, we cannot escape articulating such a collective perspective. Nor can we hide behind the ‘interests of the future child’ in an attempt to present our perspective on humanity as based on individual interests or rights. Therefore, rather than shy away from it, we must take up the challenge to at least further reflect upon the notion of humanity that forms the foundation of the regulations on reproduction and to attempt to articulate in more depth what it means to be human.