This paper considers the theoretical basis of 'the welfare of the child' as it exists in the Human Fertilisation and Embryology Act 1990 (as amended by the 2008 Act of the same name). It will be argued that potential persons, that is persons who do not yet exist, have no claims, interests or standing that can restrict the actions of actual persons. This claim will be based upon the necessity of existence before things can be said to affect a person. As persons are the subject for whom good and bad apply, actions which establish the preconditions for their existence cannot be subjected to considerations of the effect on the potential person. This is because potential persons are not affected by actions, but are the consequence of actions. Prospective parents, for example, should not be prohibited from having disabled offspring on the basis of the effect on the child, as different decisions relating to that child will change which persons exist, and thus the necessary preconditions for value will change. Based upon this logical framework it will be argued that only the interests of actual persons can constrain the actions of those involved in reproduction. Thus, the Human Fertilisation and Embryology Act's formulation of the welfare test must be repealed and only the interests of prospective parents and other actually existing people should be capable of constraining reproduction.
As technology has advanced the level of control that can be exercised over the reproductive process has increased. These advances have resulted in a number of claims in tort law relating to pregnancy and birth. The three reproductive torts considered here are 'wrongful conception', 'wrongful birth' and 'wrongful life'. This paper will consider the theoretical underpinnings upon which these torts rest, and will suggest that the potential/actual person distinction is crucial to these reproductive torts because potential persons should not be able to make claims in tort based on alternative conditions that could never have been. This is because actions (or omissions) prior to birth determine the preconditions for existence. Thus, only actual persons (that is those who exist at the time of the action or omission) should be able to bring claims in tort. The analysis will conclude by arguing that no child should be permitted to bring a claim under any form of reproductive tort.
R v BM is the latest case to consider the exceptions to the Offences Against the Person Act 1861 (OAPA). The exceptions allow an action causing injury that would be a criminal offence to become lawful if the person injured consents to the action. The consequences of this judgment is that body modifications are categorised as medical procedures (and therefore subject to the medical exception only) and new exceptions should not be developed on a case by case basis, instead allocating development of the exceptions to Parliament. Two implications follow from the BM judgment. First, it provided a limited definition of body modifications which are now categorised as medical procedures. Secondly, their Lordships have restricted further development of the lawful exceptions to offences against the person. This is a lost opportunity for developing the common law exceptions to the OAPA through an autonomy-based liberal judicial interpretation.
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