When Is Birth Unfair to the Child

Has a child been treated unfairly if the only it can exist is by having a n awful life? a principle of parental responsibility show how the child is wronged. Is it wrong to bring children who will have serious diseases and disabilities into the world? In particular, is it unfair to them? The notion that existence itself can be an injury is the basis for a recent new tort known as "wrongful life."[1] this paper considers Feinberg's theory of harm as the basis for a claim of wrongful life,' and concludes that rarely can the stringent conditions imposed by his analysis be met. Another basis for maintaining that it is morally wrong to have children under extremely adverse conditions is suggested: a principle of parental responsibility. We also argue that having children under such conditions may be unfair to the children, even if they have not been (in Feinberg's sense) harmed. Finally, we consider when conditions are sufficiently awful that having children might be viewed as incompatible with being a good parent and unfair to the child. Minimal Birthrights On one very plausible conception of rights, the function of rights is to protect interests. To understand the claim that there can be a right not to be born, we must explain how someone can have an interest in not being born. Born children clearly have all kinds of interests, including an interest in healthy existence. A child who was injured in utero, and is subsequently born, has been harmed even if it is maintained that at the time of the injury there was no being with any interests at all. In fact, it is possible for a child to be harmed by negligence that occurs prior to that child's conception, when no being, not even an embryo, existed f although it must be admitted that courts have been extremely reluctant to acknowledge preconception torts). By contrast, wrongful life suits do not claim merely that the infant plaintiff was harmed before birth. They claim that the child was harmed by being born, implying an interest in not having been brought into existence. Someone can be said to have an interest in not being born if his or her existence is inexorably and irreparably such that life is not worth living. Joel Feinberg explains the right not to be born this way: Talk of a "right not to be born" is a compendious way of referring to the plausible moral requirement that no child be brought into the world unless certain very minimal conditions of well-being are assured. When a child is brought into existence even though those requirements have not been observed, he has been wronged thereby. (p. 101) Feinberg goes on to suggest that these "minimal conditions of well-being" amount to a requirement that we not doom the child's future interests to total defeat. The advance dooming of a child's most basic interest - those essential to the existence and advancement of any ulterior interest - deprives the child of what might be called his birthrights. And if you cannot have that to which you have a birthright, you are wronged if you are brought to birth. Is the infant plaintiff in a wrongful life suit also harmed by being born? In Harm to Others Feinberg offers an analysis of harming as the "thwarting, setting back, or defeating of an interest." To have an interest in something is to have a "stake" in it: "In general, a person has a stake in X ... when he stands to gain or lose depending on the nature or conditions of X": One's interests, then, taken as a miscellaneous collection, consist of all those things in which one has a stake.... [These] are distinguishable components of a person's well-being: he flourishes or languishes as they flourish or languish. What promotes them is to his advantage or in his interest; what thwarts them is to his detriment or against his interest. (p. 34) Applying this analysis to the case of prenatal harms, Feinberg concludes that harm can be caused to a person before his birth "in virtue of the later interests of the child that can already be anticipated" (p. …