Future Generations, Reproductive Technologies and Obligations to
Future Generations, Reproductive Technologies and Obligations to
FUTURE GENERATIONS, REPRODUCTIVE TECHNOLOGIES AND OBLIGATIONS TO•••
Since the early 1960s, scholars have struggled to define the nature and content of our obligations, if any, to future persons. These discussions began in the fields of environmental ethics and population policy and have had their most robust recent expression in the debate over risky reproductive technologies. This entry reviews the issues as they arise in decisions about reproduction, especially decisions involving reproductive technology.
The threshold issue is whether living persons have any duty to consider the welfare of future people. If that question is answered in the affirmative, then the content of the duty needs to be defined. The fact that reproductive conduct is existence inducing, however, greatly complicates the effort to determine exactly when a risky reproductive decision threatens the welfare of future persons.
Duties to Future Persons
Duties not to harm persons seem to presuppose their existence (Narveson). Yet, the future children whose interests are threatened by today's decisions do not exist and may never exist. Because their existence is entirely contingent, skeptics question whether it is coherent to talk of a duty to these "potential" people.
Until the middle of the twentieth century, courts in the United States agreed. Since then, however, nearly all courts have abandoned that view, concluding as most bioethicists do, that duties can run to future people who are foreseeably endangered by our actions (Buchanan et al.).
Moral philosopher David Heyd, in his 1992 book, Genethics, argued that an exception must be made for people who control whether or not a future person exists. He contended that creators, such as parents making reproductive decisions or scientists deciding whether to clone a human, cannot have obligations to future persons whose very existence they control. Although he conceded that we ordinarily do owe duties to future persons, he contended that this duty does not extend to persons whose existence we determine. Thus, a baby food manufacturer has an obligation not to harm babies who are born after its pureed peas are canned, but parents or scientists cloning humans have no obligation to future persons whose very existence they control. "There are no moral constraints," he argued, "in genesis decisions" (Heyd, p. 16).
Heyd's argument has central implications for the law and ethics of reproductive behavior. Heyd seems to assume that the right to deny existence includes the freedom to create people without accountability. This would excuse parents and fertility clinics from any obligation to consider the welfare of the children whom they are trying to create.
Heyd's view, however, does not appear to be widely shared. For example, in her 1998 book, Child versus Childmaker, Melinda A. Roberts noted that Heyd's view "implies that my neighbor's future child, but not my own, has a claim to my good behavior" (p. 20). Using his analysis, a homeowner who breaks a glass bottle in the backyard may have a duty to the neighbor's future children to pick up the glass, but not to the homeowner's own future children. That conclusion is difficult to defend persuasively. Heyd's theory assumes that the power to create a person implies the absence of any obligation to use that power responsibly. In his view, childbearing is inherently a selfish choice. Yet, this assumption is certainly not self-evident and it conflicts with commonplace expectations of responsible parenting.
Perhaps the key issue in the debate over the duty to future persons is whether a duty can be owed to a "person" who does not yet exist and may never exist. So characterized, the duty appears to be owed to preconception phantoms. Advocates of the duty contend, however, that the obligation being asserted is better understood as a conditional obligation that ripens only if and when an actual person is harmed (Peters, 1999). Whereas it may not be sensible to talk of duties to people who may never exist ("potential people"), it is sensible to talk of a duty to the people who do come to exist in the future ("future people"). Thus, the baby food manufacturer's duty runs only to actual, living people who consume its baby food. At that moment, the potential harmfulness of the earlier negligence crystallizes.
Harm to Future Persons
Many different theories have been offered to identify the circumstances in which reproductive behavior can cause harm to future persons. Each theory identifies a different vantage point from which to understand the interests of future persons. Collectively, they provide a useful set of tools for evaluating the impact of a novel reproductive technology.
At the outset, the inquiry into harmfulness requires a definition of what it means to harm someone. Under conventional analysis, harmful conduct is conduct that makes a person worse off than he otherwise would have been (Fishkin). Lawyers call this a "but for" test because it asks whether the victim would have avoided injury but for the conduct in dispute. Although this test can sometimes be applied to reproductive behavior without any novel difficulties, its application is often complicated by the fact that the injuries believed to be harmful could not have been avoided except by preventing the child from being born at all. A child conceived by cloning, for example, owes his life to this technology. When a disputed act is existence inducing, the only alternative to life with the disability caused by the existence-inducing technology is no life at all. If the conventional test for harmfulness is used, then the disabilitycausing technology is not harmful unless life with the disability is worse than the alternative—never existing at all. This comparison does pose special problems.
The remainder of this entry begins by exploring the simplest cases—those in which the traditional test of harmfulness seems most apt. The entry then examines the application of this test to injuries that are inextricably associated with life itself and reviews some alternatives that have been suggested to the comparison between life and nonexistence. Finally, it examines the dilemma posed when parents or clinics have a choice between two alternative paths to reproduction, one of which is safer than another.
The easiest cases to analyze do not require a comparison between life and nonexistence. This is true whenever the behavior that caused the injury was not essential to the birth of the child. Consider, for example, the negligent repair of a fertile woman's uterus. A child who is subsequently born prematurely because of this carelessness has suffered injuries that could have been prevented if more care had been taken. Measuring the extent of her harm, therefore, does not require a comparison between life with her injuries and never existing at all. Instead, it requires only a comparison between life with her injuries and life without them.
In the context of reproductive technology, this kind of harm can occur both in routine settings and in exotic ones. Injuries caused by a fertility clinic's failure to properly store its frozen embryos are a straightforward example of this kind of ordinary, avoidable harm. Ordinary harm, however, can also occur in settings typically assumed to trigger the nonexistence comparison, such as multiple cloning or multiple embryo transfer. In a 1996 article, Roberts pointed out that any emotional injuries associated with being one of many identical clones can be avoided by cloning only one person from each source. That single child will consequently be better off than he would have been if additional identical siblings had been cloned.
Injuries caused by germ-line genetic engineering can also be understood in this way. A child who suffers injuries from the genetic engineering of her embryo need not have suffered these injuries if the embryo had been implanted without first manipulating its genes. Of course, she also would not enjoy the benefits, if any, conferred by the manipulation. Thus, she has been harmed by the manipulation if, but only if, it did more harm than good. Answering this question does not require a comparison between life and nonexistence.
The most interesting interpretive debate regarding the applicability of ordinary harm analysis to reproductive behavior involves parents who say that they will not conceive at all if they are not able to use a risky reproductive technique. Consider the case of a fertile couple who could conceive naturally but choose instead to employ a surrogate because the genetic mother fears the risks of childbirth, as occurred in the notorious case of "Baby M" (In the Matter of Baby M, 1988). If the parents would not have conceived at all had they been prevented from employing a surrogate, then their child's only alternative to surrogacy was nonexistence. For this reason, scholars such as John A. Robertson believe that no harm is done to this child by use of a surrogate unless the child suffers harms so serious that its life is worse than not existing at all.
The same surprising conclusion arises in other reproductive settings. Assume, for example, that parents can honestly contend that they will not have any children at all if they are not permitted to use a risky reproductive technique such as germ-line genetic engineering. If their claim is correct, then their future child's only alternative to the risks associated with germ-line genetic manipulation is not existing at all.
Roberts rejects the conclusion that no harm has been done in these cases. She has persuasively argued that children such as these are harmed whenever people could have prevented their injuries and chose not to do so (Roberts, 1996, 1998). From her perspective, the fertile couple's choice is a harmful one if it exposes the child to extra unnecessary risks. That the parents preferred not to avoid those risks does not make the choice any less harmful to the child. That child could have been born without his injuries.
Roberts's analysis squares with our intuitions. Surprisingly, however, it is less consistent than Robertson's is with the but-for test of causation. What matters under this test is what would have happened had the technology been banned, not what could have happened. If surrogacy had been prohibited, for example, the child would not have been born. The test does not take into account the fact that the same embryo could have been implanted in the genetic mother.
Nevertheless, the but-for test is only a starting point for the analysis of causation. Both philosophers and courts have recognized its occasional deficiencies and have fashioned a number of exceptions to ensure that the attribution of causation comports with common sense. Roberts's case for yet another exception is quite credible. Taken to its logical conclusion, conventional harm analysis would excuse even the intentional infliction of harm on future children, as long as being able to inflict it was essential to the procreative intent of the would-be parents. Thus, deaf parents who genetically engineer their children to be deaf cause no harm if this is the only way in which they are willing to have children. This makes no sense. The very intention that makes their conduct culpable also insulates it from moral responsibility.
In ordinary settings, the plaintiff's inability to satisfy the but-for test implies that the plaintiff would have been no better off if the defendant had behaved more responsibly. In the special context of existence-inducing conduct, however, the failure to satisfy the traditional but-for test of causation does not have this meaning. Nonexistence was not the child's only alternative to life with her injuries. Instead, the defendant could have prevented the child's injuries. The mere fact that the parents preferred not to do so seems an insufficient basis for concluding that no harm has been done by their choice.
To recap, reproduction decision making sometimes threatens future children with ordinary harm. Analyzing the harmfulness of these decisions is straightforward except when parents claim that they would not have conceived at all if not permitted to reproduce in a dangerous manner. In such cases, one can either treat the choice as harmless unless the injuries are so serious that life itself is harmful (a threshold that is the subject of the next section) or else replace the inquiry into what would have happened with an inquiry into what could have happened.
Life as a Harm
Sometimes, the underlying objection to a risky form of reproductive conduct is not that safer alternatives were foregone, but that the conduct in question is simply too dangerous to use, even as a last resort. Imagine, for example, an infertile couple who have been unable to conceive despite undergoing several cycles of in vitro fertilization (IVF) in which three embryos were implanted each cycle. For this couple, implanting a higher number of embryos may be the only feasible way to conceive. Yet, doing so greatly increases the risk of a dangerous multiple pregnancy and, with it, the risk of serious injury. Not using the higher number of embryos would reduce this risk—not by allowing the children to be born without injury but by preventing their birth. If the only alternative to the use of a risky reproductive technology is not having children at all, then no harm is done to the children under the but-for test unless life with the anticipated disabilities is worse than never existing at all. Thus, no harm is done unless life is worse than nonexistence.
The idea that life itself can be harmful has been very controversial, even though the nonexistence comparison is actually just a special application of the but-for test. Indeed, most American courts have concluded that the notion of a harmful life offends public policy because it suggests that life with a disability is less valuable than life without it and because it is logically incoherent. For these reasons and others, most courts in the United States have refused to allow lawsuits claiming that a child was harmed by birth with a serious disability. Most scholars and a few courts, however, disagree. Although evaluating the harmfulness of life itself does involve some conceptual puzzles, these puzzles seem soluble.
Because "it is necessary to be in order to be better off," critics believe that it is logically incoherent to say that someone could "be" better off if they had never been born (Feinberg). A related objection is that humans know nothing about nonexistence and, thus, cannot compare it to life. One judge put his concerns this way: "Ultimately, the infant's complaint is that he would be better off not to have been born. Man, who knows nothing of death or nothingness, cannot possibly know whether that is so.… To recognize a right not to be born is to enter an area in which no one can find his way" (Gleitman v. Cosgrove). Many scholars, however, argue that reference to nonexistence is not necessary to determine whether life with a catastrophic disability is harmful. Instead, the benefits of life can be balanced against the burdens. A life in which the burdens exceed the benefits can reasonably be characterized as harmful. Fortunately, injuries this serious are rare. The birth defects most commonly offered as examples are Lesch-Nyhan syndrome and Tay-Sachs disease.
Critics also contend that treating life itself as harmful is a repudiation of the value of human life and a threat to the welfare of living people with disabilities (Blake v. Cruz). Others believe, however, that respect for future persons dictates that they be spared these terrible injuries (Turpin v. Sortini). They also note that preventing the birth of a person with a disability is not inconsistent with vigorously protecting the welfare of people who are born with disabilities. Finally, they note that our comfort with decisions to refuse death-prolonging care reflects our recognition that life is not always a blessing (Peters, 1989).
Courts commonly offer one additional reason for rejecting wrongful life cases. They doubt that any harm ascertained using the nonexistence comparison can be rationally translated into money damages. Whether or not this is correct, it is not a reason for refusing to apply the nonexistence comparison in settings where money damages are not an issue. The difficulty of calculating damages for the injuries suffered by a cloned child, for example, may be a plausible argument for denying the child a civil action for compensatory damages, but it is not an argument against prohibiting cloning until it is more safe to perform.
In fact, outside of the courts, the most common objection to the nonexistence comparison is not that it is unmanageable or too readily assumes that life is not worth living, but that it is underprotective, that is, it dictates restraint only when the risks are truly catastrophic. The critics can be loosely sorted into two groups. The first group contends that the nonexistence comparison sets the threshold too high. They prefer a more demanding threshold such as a minimally decent quality of life or a probability of harm no greater than the risks associated with natural conception. Critics in the second group believe that reproductive conduct is harmful to future children, regardless of the absolute severity of the injuries, whenever parents or providers choose a risky route when a safer one is available.
The debate over a more demanding threshold was led at one time by scholars who felt that it was unethical to expose future children to the unknown risks associated with a new reproductive technology (Ramsey). They contended that it was unethical to impose this risk without the child's consent. The consent objection has lost emphasis in recent years, perhaps because parents have the same moral authority to consent to these risks on behalf of their future children as they have to consent to risky new treatments for their living children.
Although the consent objection has largely disappeared, it is still common to see discussions of reproductive conduct that measure the safety of a new technology against the risks of natural conception (Green). Despite the intuitive appeal of the comparison to natural conception, however, this benchmark is vulnerable to several objections when it is applied to treatments of last resort. First, the current level of risk for natural conception is not natural at all, but the product of modern medical technology. Thus, the current level of risk is merely a historical coincidence. Second, though matching this level of risk may be desirable, it is not obvious why parents who face greater risks, but who have no safer alternatives, are acting unethically. The only alternative for their children is not existing at all. Finally, using the average risks of natural conception as a baseline, which means treating a riskier than average procedure as immoral, even if the injuries associated with the procedure do not prevent the affected children from having fulfilling lives. This is counterintuitive. For these reasons, no consensus in support of routine comparisons to natural conception has emerged.
Another school of ethicists offers a very different threshold for deciding when reproduction violates our obligations to future persons. Starting at least with the nineteenthcentury English philosopher and economist John Stuart Mill, philosophers have argued that we owe our children a minimally decent quality of life (Cohen, 1996, 1997; Steinbock and McClamrock). Support for this benchmark is found not only in the ethics literature but also in the daily decisions that prospective parents make to avoid the birth of children with serious birth defects, through either preventive sterilization or prenatal screening and abortion. Support of the idea of a minimal quality of life is also found in the regulatory stance of the U.S. Food and Drug Administration (FDA). Unquestionably, the FDA would deny approval for an effective fertility drug that caused significant birth defects, even if those injuries were not so catastrophic as to make life itself harmful.
Given its intuitive appeal, it is surprisingly difficult to explain why the goal of a minimally decent quality of life should be obligatory and not merely aspirational. Although it may be useful after birth as a measure of the support obligations that parents and society owe to their living children, this benchmark seems less apt as a determinant of reproductive obligations. Its advocates have yet to explain convincingly why it is wrong to create a child whose life—despite being considered to be below the quality of life threshold—will, on balance, be beneficial. Thus, some respected scholars reject it (Robertson; Roberts, 1998).
Nevertheless, the persistence of the minimally decent life standard and its relatively broad support suggest that it is driven by an important intuition. Thus far, the best attempts to identify the source of this intuition turn on the distinction between death and nonexistence (Cohen, 1996; Kamm; Peters, 1989). Because death is a fate faced by actual persons, it seems more tragic than never existing at all. And because we view life as precious, we are hesitant to conclude that a living person's suffering is so profound that death would be better. This skews our burden–benefit calculus in favor of life.
Decisions regarding whether or not to reproduce are materially different. Although a decision not to reproduce does mean that a potential future person will never come to exist, it does not lead to the death of a living person. As a result, we may feel comfortable imposing a more demanding test for preconception decisions than we would impose for the discontinuation of life support. Injuries that are not so catastrophic that death would be a blessing may, nonetheless, be so serious that it would be better never to have had the child at all. According to this view, one can rationally decide to treat disabled babies aggressively while simultaneously concluding that it would be better not to conceive more children who will suffer from these injuries. Using this distinction, the FDA's decisions make sense. If this insight is persuasive, then any application of the nonexistence comparison that overlooks this distinction threatens to underprotect future children.
To summarize, the mere fact that a reproductive technology is more risky than natural conception does not mean that its use violates our obligation to future children. However, technologies that cause injuries so serious that life is not worth having do cause harm and, thus, require justification. When policymakers ask whether the risks of a reproductive practice are so serious that nonexistence would be better, they need to remember that preconception decisions do not lead to the death of a living person and, therefore, a more demanding minimal threshold can be imposed than would be appropriate after birth.
Avoiding Injury by Substituting a Different Child
Even if the but-for test is applied in a way that recognizes that life itself is sometimes harmful, the test remains vulnerable to the criticism that it overlooks an important and quite different category of harmful conduct. This category is composed of decisions to engage in risky reproductive behavior when a safer alternative is available. In this category of cases, parents and clinics can minimize future suffering by taking the safer route. Thus, for example, sperm banks can materially improve the health of the babies that they help to create by screening their sperm donors for transmissible illnesses.
Yet, the but-for test of harm cannot explain why a choice not to screen sperm is harmful. That is because screening would result in the birth of different children. Whenever the choice between two reproductive alternatives would result in the birth of different children, the but-for test dictates that the harmfulness of the choice be determined by asking whether the child who is born would have been better off not existing at all. That is because choosing the safer route would not have made this child better off. Instead, this child would not have existed, and a different child would have been born. As a result, the options for the injured child were life with a disability or no life at all. If the injuries suffered are serious, but not so serious that never existing would be better, then no harm has been done to children created by the sperm bank. Even a clinic's failure to screen for HIV infection may not meet this threshold (Robertson).
This conclusion defies common sense. Because it focuses exclusively on the magnitude of the injury to a specific child, rather than on the presence or absence of safer alternatives, conventional analysis overlooks the harm caused when injuries could be avoided by substituting one future child for another. The harmfulness of a decision not to avoid injury by substitution lies not in the absolute magnitude of the threatened harm, but in the decision to take a risky route when a safer one was available. The but-for test cannot explain the harmfulness of these choices because choices such as these do not make a specific child worse off than she otherwise would have been. Instead, they substitute a different child. Yet, conventional analysis overlooks the fact that substituting improves the collective welfare of the class of future children.
Proponents of a duty to choose the child who will suffer least concede that tort compensation for the injured children will not be appropriate unless the injuries meet the wrongful life threshold (Peters, 1999). That is because these children could not have been born without their injuries. Their only options were life as it is and nonexistence. As a consequence, only those whose lives are worse than nonexistence have been individually harmed. Yet, taking avoidable risks can harm the welfare of the class of future children, even though there are no individual victims. Cumulatively, responsible decisions improve the welfare of future children as a class by substituting healthier children and, thus, reduce the suffering experienced by these children.
Giving content to our obligations to future persons in this manner was first discussed at length by Derek Parfit in his 1984 book, Reasons and Persons. Since then, others have applied the idea to reproductive technology (Brock; Peters, 1989). Parfit offered the example of a woman who is advised by her doctor not to become pregnant until she recovers from a temporary illness that causes moderate birth defects. Under the but-for test, she does no harm by refusing to wait, because waiting would change the identity of the resulting children. Parfit called this counterintuitive result the "nonidentity problem." To cure this gap in our understanding of harmful conduct, Parfit proposed a principle that he called Q that obliged parents and providers to have the child who will suffer least.
A primary obligation to avoid unnecessary suffering is intuitively appealing. It also seems consistent with the moral reasoning of John Rawls, outlined in his 1971 book, A Theory of Justice. Presumably, people acting under a veil of ignorance about their own circumstances, as according to Rawls, would agree that parents should try to have the children who will suffer least. This principle is also consistent with the utilitarian emphasis on beneficence because it calls for decisions that will maximize the welfare of the resulting children. When we are able to avoid injuries by substituting one child for another, we should do so unless doing so will threaten even more important interests.
This principle has surprisingly broad application to reproductive decision making. Parents deciding which embryo to transplant as part of an IVF procedure are making a choice that would be governed by this principle. Infertile patients deciding whether to clone a genetically related child or use donated embryos are making a similar choice, as are couples deciding whether to use donated sperm or to accept the risks associated with intracytoplasmic sperm injection (ICSI). ICSI is a treatment for male infertility that involves injecting a woman's egg with her partner's sperm. It poses extra risk because it bypasses the natural process for willing defective sperm.
The duty to choose the safest route to conception also provides an alternative way of resolving the debate, described briefly above, between Robertson and Roberts over the significance of reproductive alternatives that parents have available to them but decline to use. If avoiding injuries by substitution is better than declining to do so, then the disinterest of prospective parents in the safer option is not relevant to the assessment of harmfulness.
One consequence of offering a more robust understanding of the interests of future children, like the theory of avoidability by substitution, is to expand the number of cases in which the interests of future children conflict with the interests of prospective couples, both fertile and infertile. Prospective parents have a liberty interest in making their own decisions free from governmental restriction. Critics charge that a broad conception of our obligations to future children will impose upon prospective parents an unwanted duty to undergo prenatal screening and to abort if tests are positive (Robertson). The enriched conception of the interests of future children described here does have broad implications, which apply to both artificial and natural conception.
While it is true that a broad conception will increase the number of cases in which we will appreciate that the children's interests conflict with parental liberty, rejecting that conception will not eliminate the conflicts—it will only reduce them. In either event, a model for reconciling these competing interests will need to be developed. The strength of the notion of avoidability by substitution is that it helps us to appreciate potential conflicts that are overlooked entirely by conventional analysis. The significance of this new methodology is not that it requires intervention in every case, but that it requires justification in cases overlooked by more conventional notions of harm.
A second concern expressed about avoidability by substitution is that it characterizes conduct as harmful in circumstances in which no specific person has been harmed. For some philosophers, this is a serious problem (Roberts, 1998). One critic called it merely a "norm against offending persons who are troubled by gratuitous suffering" (Robertson, 1997, p. 76). Advocates claim, however, that it is genuinely person-affecting insofar as it reduces unnecessary human suffering (Brock).
Finally, proponents of avoidability by substitution have struggled to find a method for handling "different number" cases. Different number cases arise when the use of a risky reproductive method (such as cloning or the use of fertility drugs at a dosage associated with multiple pregnancies) will result in a different number of children than would have been produced using a safer alternative (such as natural conception or lower doses of the fertility drug). Moral philosophers have discovered that startling paradoxes plague the effort to compare the welfare of groups of different sizes. A tentative solution has been offered that combines average utility and total utility into a combined index that can be used to compare the moral implications of different number reproductive choices (Hurka). This proposal, however, has not yet been thoroughly tested.
The debate over avoidability by substitution is far from resolved. While avoidability by substitution seems to provide a useful explanation consistent with our intuitions, it raises problems that make it unattractive to some ethicists. Even if it is persuasive, it must be supplemented by the nonexistence comparison in cases in which prospective parents want to engage in a risky reproductive practice for which no safer alternative exists, such as postmenopausal pregnancy.
Reproductive behavior can be harmful to future children in three ways. First, reproductive practices can sometimes cause ordinary harm. These are injuries that could have been avoided if more care had been used, such as injuries caused by failure to store frozen embryos properly. Second, reproductive technology can result in a harmful life when the child who is born has a life that is not worth having. Finally, the interests of future children are harmed when the birth of an injured child could have been avoided by changes in conduct resulting in the birth of a different, healthier child. This kind of harm is avoidable by substitution. Clinics performing artificial insemination, for example, can prevent needless suffering by screening out high-risk donors. Responsible efforts to protect future children from harm should aim at minimizing each of the three types of harm to the extent that is consistent with parental procreative liberty.
philip j. peters, jr.
SEE ALSO: Aging and the Aged: Anti-Aging Interventions; Children; Environmental Ethics; Environmental Health; Hazardous Wastes and Toxic Substances; Maternal-Fetal Relationship; Population Ethics; Sustainable Development; Technology
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