Ordinary Harm

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 nonex-istence 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.

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