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.
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