The last three texts (1,2,3) addressed a famous ethical paradox regarding harming future individuals called the Non-Identity Problem. Basically, the argument is that despite the intuition that it is wrong, or at least harmful, to create a person in the case of foreseen severe impairments, as long as that person is having a life considered to be worth living overall, that person couldn’t be regarded as a victim of the severe impairments, or to even be harmed by them, since without them, that person wouldn’t exist at all and so wouldn’t have this considered to be an overall worth living life.

The Non-Identity Problem feeds many pro-natalitsts who are asking, how can the act of creating someone be wrong if it is not bad for anyone specific? And in those three texts I’m trying to answer this question.

However, unfortunately, the fact is that meanwhile in the real world, while ethicists deal with theoretical moral dilemmas, many people are still far from considering as ‘wrong’ and as ‘a harm’, not cases of foreseen severe impairments endured by people who have a life worth living overall, but cases of severe impairments resulted from medical negligence or recklessness and endured by people who have a life not worth living according to the very people who are forced to live it, or according to their parents who plea on their behalf.
These cases are referred to as ‘Wrongful Life’ and they are supposed to be much easier and way more obvious than the cases the Non-Identity Problem refers to, yet amazingly they aren’t.

The following text, as well as the next three texts, addresses the case of how humanity regards the case of ‘Wrongful Life’. Or in other words, how human society view cases of people who view their own lives or of parents who view their children’s lives, as wrongful and would rather that they never have existed.

A ‘Wrongful Life’ case is when a child sues for medical negligence a doctor or hospital for failing to diagnose and/or for not informing the child’s parents about a genetic disorder or foetal impairment when abortion was still an option and would have been chosen by the parents had they been informed. The claim in a wrongful-life suit is not that the negligence of the doctor was the cause of the impairment, but that by failing to inform the parents, the doctor is responsible for the birth of an impaired child who otherwise would not have been born and therefore would not have experienced the suffering caused by the impairment. The lawsuit is in respect of the damage caused by the impairment, this would generally include pain, suffering, and ‘disability costs’—the extra financial costs attributable to the disability, such as the cost of nursing care.

The main arguments made by law jurisdictions, politicians and the general public against ‘Wrongful Life’ claims are:
The child suffers no damage due to the negligence, because without the negligence the child would not even exist
That ‘Wrongful Life’ claims disvalue the life of people with disabilities
That ‘Wrongful Life’ claims would put pressure on doctors to advise people to have abortions
That ‘Wrongful Life’ claims would lead to Eugenics
That ‘Wrongful Life’ claims go against the ‘Sanctity Of Life’

The following text addresses the first argument and the next parts would address the rest.

The Non-Existence of an Argument

Most courts don’t accept cases of ‘wrongful life’ mostly by claiming that damages are incalculable in monetary terms because it is impossible to compare life in an impaired state versus non-existence. For someone to claim compensation for being created in an impaired state, that person needs to show the court that s/he had been better off not being created. But non-existence is not a relevant comparative state, therefore it can’t be better off.
This claim can be referred to as the Non-Existence Argument.

Another common claim made by courts regarding ‘wrongful life’ cases is “the very nearly uniform high value which the law and mankind has placed on human life, rather than its absence.” (Becker v. Schwartz, 386 N.E 2d 807, 812 1978) Or in other words, the courts treat life as a blessing, stating that: “Life – whether experienced with or without a major physical handicap – is more precious than non-life”. (Berman v. Allen, 404 A.2d 8 N.J 1979)

Non-existence is indeed not a relevant comparative state, however, this statement must go both ways. The courts can’t argue for key flaws in the wrongful life argument such as that it is incoherent for someone to claim that s/he would rather not to exist because non-existence is not a state anyone can be in, but in the same breath argue that life is a blessing, because if non-existence is not a state anyone can be in, how can existence be a blessing? Compared with what? What else is there other than existence? If non-existence is not a relevant comparative state and therefore non-existence can’t be better off than existence, than it is also the case that existence can’t be better off than non-existence. What is supposed to be derived from this common courts’ statement is that non-existence and existence can’t be compared at all, therefore non-existence can’t be better off and existence in itself can’t be a blessing as again, compared with what other option?

If impaired existence is not a harm because it can’t be worse than non-existence which is not a state that can be attributed to someone, then any existence is not a blessing or a benefit because it can’t be better than non-existence which as aforesaid is not a state that can be attributed to someone.
If existence is a blessing it must be in comparison to non-existence and if so then why can’t a person claim that its existence is worse off than non-existence? If the courts can say that existence is better compared with non-existence, than others can say the opposite.

I think that both claims can’t be made for the simple reason that indeed non-existence is not a comparative state. Nevertheless wrongful life claims are not flawed, as a person can certainly claim that its life is not worth living even if the alternative is not having a life at all. The claim is not that there is a better option that the plaintiff prefers, but that the option that was forced on that person is harmful, and since it is a result of negligence, compensation is required. The person claims that its life is miserable and that had s/he had an option this life would have never been chosen. These people were harmed by their existence because they have one, not because before that they didn’t have one. They don’t necessarily prefer another option but not to be forced with the one that was forced on them, or specifically in the case of a lawsuit, to at least be compensated for it. The claim for compensation is not for a better life that were deprived of someone, but for the particularly miserable life that were forced on someone. It is not that they prefer to have their former state which is non-existence, but to have no state at all. They don’t say YES to non-existence, but NO to their existence.
But when it comes to most courts it is as if these people do say YES to non-existence, and as if there is such a state as non-existence since they are saying to these people; what is preferable to your life, non-existence?!

Since non-existence is not really an option for anybody, and existence is the only possible option for everybody, but it is not necessary or in the interest of anyone, there is no sense in considering procreation as a benevolent state. Procreation is unnecessarily creating an unnecessary and vulnerable person, that would necessarily experience unnecessary harms.

Besides, an action can be harmful and wrong even if it brings about a better situation overall to the person who was harmed.
Intelligence and physical beauty for example are quite consensually considered to have a very high value. Would it be morally justified for a doctor to anaesthetize a person without consent and perform some plastic surgeries and add some IQ points to its brain to benefit that person? Would the same courts who declined wrongful life cases claiming that life is always a benefit, also decline a suit by that person? Highly unlikely. They would probably convict the doctor for harming that person despite that s/he is not worse off, but probably the other way around. That is because it may be permissible for a person to agree to undergo a harm to receive a benefit, but it is definitely not permissible for another person to impose the harm without consent. Had the doctor performed the operation without consent but so to prevent the operated person from suffering a greater harm, even if as a result of the operation the operated person have been harmed or is suffering from pain or physical disability which was inevitable as part of the rescuing procedure, it is extremely unlikely that any court would find that doctor guilty of harm. And that is because when harms are caused to prevent greater harms they are morally permissible, but they are never permissible to bestow benefits.

And obviously, the case of creating a person is utterly different than the case of an existing person. As opposed to bestowing benefits to an existing person which can be better off by the operation (regardless of if the operation should be considered as morally permissible or not), a created person is not better off by its creation, nor the other way around. A created person is not better nor worse off, but rather s/he literally wasn’t and now s/he is. So if courts would rule against harming an existing person to bestow benefits despite that person being better off, they should most definitely rule against harming a person by forcing him/her to exist when that person is not by any means better off.

Even if the creation of the people in ‘wrongful life’ cases was truly a benefit overall, no one would be harmed or be deprived of that alleged overall benefit if they hadn’t been created. However, they are severely harmed by being forced to exist.
Procreation is creating a vulnerable person who can be miserable, and in the case of a foreseen impaired life it is creating an even more vulnerable person than usual, and who is more likely to be miserable once forced into existence.
While there is something awfully wrong about creating a person with impairments, there is nothing wrong with not creating a person at all, let alone not creating one with severe impairments.

Comparing the two scenarios, in one there would be a suffering person, suffering parents, and more burdens on society, and in the other there would be no one who is deprived of a life s/he never had, the parents won’t be harmed by an impaired life of a child they never had, and society won’t be harmed by the creation of another person who needs much more attention and resources than average. This is not supposed be to such a tough moral dilemma.

Even if damages are incalculable in monetary terms because it is impossible to compare life in an impaired state and nonexistence, they are calculable in monetary terms when compared to life not in an impaired state. Why can’t courts compare the costs and burdens of life in an impaired state versus life not in an impaired state and compensate the family for whatever the gap they would find for every specific case relative to people of more or less the same social state? Why not define harm in relation to wrongful life cases as putting someone in a worse off place than what is considered normal? Or putting someone in a severely inferior state compared to the average starting point and welfare? Or define a decent minimum standard for existence, some basic living conditions, and whom whose life is below that threshold is a ‘wrongful life’ case. Obviously, as an antinatalist I don’t think that these options are sufficient or needed, I am only specifying them to show that the point of reference to calculate compensation need not to be non-existence, and that given that it is possible (and quite easy) to find calculable measures in monetary terms for damages, this is not really a serious judiciary problem, but rather a serious ethical failure.

I think that courts can easily avoid philosophical discourses over the metaphysics of non-existence by comparing harms in ‘wrongful life’ cases with other created people, or by referring to the parents’ right to decide, or to “the fundamental right of a child to be born as a whole, functioning human being”, or anything of this sort. But we are still extremely far from any kind of resolution even in cases such as these. We are living in a world in which fetuses are more important than people. You are very much familiar with this from debates over abortions, but here it is not even the case of women’s rights over their own bodies against the so called rights of fetuses, but of children’s rights not to be forced into an impaired existence against the so called rights of fetuses which are actually the very same children before they are born! This is a new level of madness and it is even scarier than the usual scary arguments against abortions.

As opposed to the claims against wrongful life cases, these people are severely harmed by their existence as they are forced to endure numerous severe negative experiences, probably on a daily basis, with no necessary reason, without consent, and with a very high probability of being extremely miserable for their entire life.
But creating a person is always imposing pain, frustration, death, the fear of death, illnesses, boredom, anger, anxiety, regret, disappointment, suffering and etc., on that person. That is sufficient for claiming that regardless of any severe impairments, procreation always harms the person created. That is sufficient to claim that actually, every child has been harmed.

Cases of severe congenital impairments might be viewed as more complicated when it is of whom who view their lives as worth living (which is the heart of the Non-Identity Problem), but in the case of people who view their lives as not worth living, and to such extent that they have decided to sue, meaning to endure the awful experience of a trial, in cases of people who are stating that they rather not to have existed, people who are stating that their existence is so bad that they would rather not to have experienced it, who are saying not only that they are harmed during their existence, but that they are harmed by their existence, where is the dilemma? They need not to argue that non-existence is a better option for them but that existence is harm to them. It is impossible to avoid this by claiming that non-existence is not a state anyone can be in as the claim is not why haven’t you left me in non-existence a state which I would have preferred over my horrible existence, but that you have harmed me by not preventing my horrible existence. The claim is of harming by not preventing harm.

If more or less the same harms would have been caused to an existing person, say when that person is one month old, and it was caused by a negligent doctor who failed to notice a developing disease or a medical condition that is not congenital, probably all courts would decide to compensate the harmed person. But that is not the case when the negligence occurs before a person was created. Despite that the harms in terms of pain, suffering and costs being more or less the same, in the one month old case compensation is unquestionable and in the not yet existing person case being dismissed is very probable. The reasoning behind this gap is that had not for the negligence in the one month old case the person would have “normal” life and in the case of the not yet existing person, s/he wouldn’t have a life at all. In other words the courts view life as a gift irrespective of their quality. Experiencing chronic pain, suffering, disability, paralysis, and what not, as a result of negligence is a very serious crime only when it happens in life and never when it is instead of life. When this is the inevitable price of life, life is still viewed as a blessing. That is even when the ones forced to experience all that feel differently.

This represents a new category of pro-natalism since here it is doctors and later the law system that forces existence, not to mention an impaired one, on people without their consent, and without their parents’ consent, and as opposed to the cases referred to by the Non-Identity Problem, without them being considered worth living by whom who were forced to endure them, or by their parents.
This is how far behind pro-natalists are. Not even ‘wrongful life’ cases are viewed as wrong. So how likely is it that they would view all of them as wrong?

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2012 Bioethics ISSN 0269-9702