Applying the actual/potential person distinction to reproductive torts

Abstract

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.

The Non-Identity Problem and the Ethics of Future People By David Boonin, Oxford: Oxford University Press, 2014. 320 pp. ISBN 978-0-19-968293-5 £45.00

“…The non-identity conclusion has wide-ranging and startling implications for a number of legal issues – most obviously for law relating to reproduction and for population policy choices. Accepting the non-identity conclusion makes civil liability for pre-natal harm more uncertain, because no person exists at the time the harm occurs, thus a new person may be created by that action (see Walker, 2014a); errors in genetic testing prior to conception would also be affected by the non-identity problem; assessing the welfare of a child created through artificial reproduction would become incoherent; and there are implications for selection and genetic modification of offspring (see Walker, 2014b). The non-identity conclusion prevents us from claiming that future people can be made better or worse off, that any future people are entitled to exist, and that we should conserve resources now for future people because only once a person exists can effects happen to them rather than constituting them .…”