Avoiding Injury by Substituting a Different Child

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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 "non-identity 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.

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Pregnancy Guide

Pregnancy Guide

A Beginner's Guide to Healthy Pregnancy. If you suspect, or know, that you are pregnant, we ho pe you have already visited your doctor. Presuming that you have confirmed your suspicions and that this is your first child, or that you wish to take better care of yourself d uring pregnancy than you did during your other pregnancies; you have come to the right place.

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