Procreation, Harm, and the Constitution

Carter Dillard - Animal Legal Defense Fund

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Introduction

This Essay provides relatively novel answers to two related questions: First, are there moral reasons to limit the sorts of existences it is permissible to bring people into, such that one would be morally prohibited from procreating in certain circumstances?  Second, can the state justify a legal prohibition on procreation in those circumstances using that moral reasoning, so that the law would likely be constitutional?

These questions are not new, but my answers to them are and add to the existing literature in several ways.  First, I offer a possible resolution to a recent debate among legal scholars regarding what has been called the “nonidentity problem” and its relation to the right to procreate.  Second, using that resolution, I provide a novel constitutional argument that at least begins to justify limiting the right to procreate.

This Essay proceeds in three parts.  Part I introduces the nonidentity problem, explains why it creates seemingly irresolvable dilemmas for constitutional law, and sketches out two opposing positions in the legal debate.  Part II uses a common exception to the nonidentity problem to buttress Lukas Meyer’s solution: the notion of threshold harm.  If my argument holds true, one cannot admit there is such a thing as a life not “worth living” without endorsing the notion that future persons deserve lives above some minimum threshold of well-being.  Finally, Part III analogizes threshold harm to the state’s compelling interest in protecting the welfare of living children.  It demonstrates that if the state can limit the fundamental right to parent children when the parenting would cause the children’s lives to be below a defined threshold of well-being, then the state can limit the fundamental right to procreate.


I.
Nonidentity and the Constitution

Intuitively, having children in certain circumstances, a sexually abusive home for example, is morally problematic—specifically with regard to the children’s welfare.  But the nonidentity problem, as it has come to be called, runs counter to this intuition: acts that create a person cannot concurrently harm her because harm requires that she be made worse off than she was in the past or than she otherwise would be in the future, and without being created, neither of these conditions would occur.

Without harm to the person born, for example the child born into an abusive home, it is not entirely clear what legitimate or compelling state interests could be used to justify a law limiting the constitutional right to procreate.

Indeed, John Robertson, the well-known scholar of law and bioethics, employs nonidentity to describe a broad scope for procreative liberty by negating, in a variety of scenarios, the interests a state might articulate in preventing harm to children born.

If nonidentity means that children cannot be harmed by being born, the state cannot even rationally relate a law regulating procreation to its interest in child welfare, at least not with regard to the specific child whose birth is at issue.

In contrast to Robertson, who uses a “person affecting” notion of harm, Philip G. Peters argues that states can regulate advanced reproductive technology and limit the right to procreate by showing a compelling interest in preventing impersonal harm.  Impersonal harm is the harm of having a less well-off child than one could have had (and hence causing a relative loss in overall utility) though the child herself is not worse off than she was before or than she otherwise would have been.

The Supreme Court has offered no clear resolution.  Perhaps the closest it came was in Buck v. Bell, where the Court at least implied that Carrie Buck, whose involuntary sterilization was at issue, might harm her future children by having them.1

Using Lukas Meyer’s typology, I call one form of traditional person-affecting harm diachronic (being made worse off as compared to the past) and one form subjunctive-historical (being made worse off as compared to how one would have been in a counterfactual life).

Nonidentity gets its sting because, in cases where it applies, like procreation, neither of these two types of harm can be established.  At the same time, as is discussed below, most commentators seem to recognize an exception to the nonidentity problem: those invoking the problem almost always admit that one can harm or wrong a child by creating her if her life is not “worth living.”  That is, if a life is so bad, so full of misery, that it can be considered a bad thing overall just to be alive, then indeed the person created might be worse off than if she had never been created.

The next Part shows that the life not “worth living” exception implies the existence of threshold harm, a form of harm which is not subject to the nonidentity problem.

Finally, in Part III, I argue that if the state can show that it can further its interest in preventing threshold harm through regulating procreation, and constitutional precedent supports that very interest, we can begin to surmount the hurdles the nonidentity problem poses in constitutional analysis.


II.
Moral reasoning: Threshold harm and the notion of lives not worth living

As articulated by Lukas Meyer, threshold harm is harm caused by bringing a person into an existence below some pre-identified level of quality of life.  Meyer and others have fully explored the notion of threshold harm.  Therefore, in this Part I simply wish to buttress the threshold harm argument in the following way: Theorists who would presumably object to the notion of threshold harm as a solution to nonidentity nonetheless recognize the lives not “worth living” exception to the problem.  I argue that the reasons given for favoring the life not “worth living” exception over threshold harm are unconvincing; instead, the exception implies the existence of threshold harm and its usefulness in solving the nonidentity problem.

Both legal and moral theorists almost always acknowledge the life not “worth living” exception when invoking the nonidentity objection.  Most theorists seem to regard the exception as self-evident and do not attempt to explain it.  Tim Mulgan, however, expressly accounts for the exception by noting that such lives are (1) worse than nonexistence (which I refer to as preexistence); (2) fall below a zero level, in that they are below some presumptive value we simply assign to preexistence; or (3) are on the whole non-comparatively bad, in that the intrinsically bad states within the particular life outweigh the good.  Even on this last point, though, there is a comparison going on since the states within the life are compared, but as a whole the life itself is not compared to anything.

Regarding the first account, that such lives are worse than preexistence, many have argued that there is no value or disvalue in preexistence and that as such it cannot serve as a basis for comparison to life at all.  If that were the case, then there is no way to reasonably say that preexistence is preferable to a life not “worth living,” because there would be no basis from which to make the comparison.  Although the life not “worth living” exception seems to refer to harm to the person created, it cannot do so by any reference to preexistence.

Regarding the second account, that such lives fall below a zero level, David Heyd rejects this analysis because “non-existence is given a value (zero), although there is no one to ascribe it to.  Non-existence is neither good nor bad nor neutral for anyone, since good and bad can be ascribed only to metaphysically identifiable individuals.”2  As Heyd puts it, we “cannot say that someone who has no bank account can be considered as having a zero balance!”3

If there is no value or disvalue in preexistence and, moreover, we cannot reasonably assign preexistence a value (a zero, for instance), then the exception is either accounted for as a non-comparative bad or is in fact comparatively bad—but by reference to something other than preexistence or the “zero level” that we might assign it.  Between these two possible explanations, the latter is more convincing.

Intuitively, I care about the quality of my life when weighing the goods and bads within it.  But I care more so when I compare my life as a whole to others’ lives, or even to imaginary lives.  There are at least two reasons that using an external comparison is more intuitively compelling than exclusively using an internal comparison.  First, the difference between internal states may be greater or lesser in others’ lives.  So if I have a balance of +2 in my life, my life will look less good if I compare it to the life of a person with a balance of +5.

Additionally, without such comparison, I cannot know if my human life is as a human life should be.  After a certain number of comparisons I start to realize that, relative to some average, my life is marginal.  It is not enough to say a short unhappy life is awful because the bads outweigh the goods; it is awful relative to the balance of goods and bads in most human lives.  This adds to the compelling nature of the comparison, because I now feel the different hurt of the comparison to the average—not any particularized other life.  It seems worse to be far below the average than very far below some exceptionally good life.

One could still be externally comparative by using threshold harm.  The life not “worth living” is so only with reference to the threshold—it is worse than it should be.  Whatever the threshold is, it is well above such a life, and the absence of a past or a counterfactual life points to the existence of that threshold.

I believe the intuitive force of the notion of a life not “worth living” comes from an implicit comparison we make to some external standard derived from our life experiences.  This standard is the threshold at work in Meyer’s notion of threshold harm.  The life not “worth living” exception harms the person created because her life falls somewhere below this threshold standard.  The theorist acknowledging the life not “worth living”  exception is implicitly referencing the threshold in threshold harm.

Without defining the threshold, this account might explain the life not “worth living” exception better than the alternatives above.  I will not try here to fill in the content of what the threshold for harm may be.  Meyer lists several possible approaches, using egalitarian, prioritarian, sufficientarian, and Rawlsian reasoning.  Elsewhere, I have suggested that in terms of domestic law in the United States, state parental “fitness” standards seem appropriate, although under international legal obligations, the standards set out in the Children’s Rights Convention might prove a good starting point.

Determining the threshold may simply be a matter of consensus-building through democratic law-making, fleshing out and crystallizing what people alive today intuitively regard as a baseline from which to determine harm for contingent future persons.

Next, I explore the challenge nonidentity poses for the application of constitutional law.


III.
Legal reasoning: Threshold harm and the Constitution

In essence, the constitutionality of a law limiting procreation to prevent threshold harm to the resulting children depends on many factors, but primarily on whether courts will regard procreation as a fundamental right, as well as on how they will define its scope

Nonetheless, laws limiting behavior protected as a fundamental right may be constitutional, assuming the law can be shown to be necessary to achieve some compelling government interest.  Assuming arguendo that procreation, as defined above, is protected as a fundamental right, a state could still justify its law as constitutional upon such a showing.

How might a state use threshold harm moral reasoning to show a compelling interest in preventing harm (and comparative person-affecting harm in particular) to the resulting child?

First, the concept of threshold harm refers to harm to the actual child that will be brought into the sub-threshold existence.  Although the child is merely prospective at the time threshold harm is being assessed, the notion is based on avoiding future harm to what would be an actual person.

Second, as a matter of constitutional law, it is settled that the state has a compelling interest in protecting the welfare of living children.  And based on this interest, the state can terminate the constitutionally protected rights abusive or neglectful parents otherwise would enjoy over the care, custody, and control of their children.  If the state interest is enough to override the settled right to parent, it is surely enough to override the relatively unsettled right to procreate.

Is there a problem analogizing the state’s authority to override the right to parent to its authority to override the right to procreate?  If we assume the predictability of the harm to the child that will be born, other than the problem of nonidentity at issue here, the only remaining objection may be that the state has a greater interest in stopping extant harms to living children than preventing future harms to future (or prospective) children.  But while extant harms might be easier for the state to prove, there is no reason to think these harms are more objectionable—morally or legally—than future harms.  In fact, the state may have a greater interest in preventing harm than trying to remedy it.

Returning to our analogy of parental rights, the state can use its compelling interests in child welfare to suspend and even terminate the fundamental rights of parents to the custody and care of their children if the child lives and will continue to live under parenting conditions beneath a legally defined threshold known as “fitness.”  In the context of adoption or foster care, a similar legal threshold prevents the state from allowing existing children to be placed in unfit parenting circumstances.

This is key:  In furthering its compelling interest, the state is not limited to preventing living children from being made worse off than they have been in the past (diachronic).  If that were the case, a child living in an unfit home could not be removed nor the parental rights terminated unless the home was in danger of becoming more unfit than it had been in the past.  Showing that the home is simply unfit would not be enough.  Nor is the state limited to preventing living children from being made worse off than they otherwise would have been (subjunctive-historical).  If that were the case, the state could not terminate parental rights or remove a child from a home that, though unfit, provided a level of well-being below which the child would fall if not for the parents’ actions, especially if circumstances were improving.

But these are not the constitutional tests.  The right to care, custody, and control of one’s children can be limited and even terminated by the state’s compelling interest in children not living beneath a certain minimum threshold level of well-being.  All that is needed is a showing that parenting in the home is unfit, that is, that life within it falls below some set of statutorily defined guideposts that create a standard of “minimally[] acceptable care,” or circumstances which fall below “minimally adequate standards” including whether “there is a showing of parental unwillingness or inability to provide basic care for the child.”4

Therefore, as has been shown, (1) the notion of threshold harm accounts for harm to actual children as they are brought into certain existences in which their lives are below the relevant threshold level of well-being.  Furthermore, (2) the state has a compelling interest in protecting the welfare of children, and (3) that interest allows the state to limit the fundamental right to parent children when the parenting causes the children’s lives to be below a defined threshold level of well-being.

Unless the right to procreate somehow carries more weight than the right to parent, it follows that the state’s compelling interest in protecting the welfare of children is a sufficient interest to allow the state to limit a fundamental right to procreate when the children’s lives would be below a defined threshold of well-being.  If the state’s interest is in protecting children, and the rights carry the same weight, there would be no reason to distinguish between the two.

It does not necessarily follow that whatever threshold the law uses to override the fundamental right to parent can also serve to override a fundamental right to procreate.  But the question remains: If the state has an interest in preventing living people from existing below a certain minimum level of well-being, why would the state not have an interest in preventing future persons from being created into existences below that same level?


Conclusion

The notion of threshold harm provides a moral basis to support the claim that there are constraints on the sorts of existences it is permissible to bring people into.  While many theorists would expressly reject threshold harm as a response to nonidentity, in light of the intuitive force of the life not “worth living” exception, the lack of value or disvalue in preexistence, and the limited intuitive force of the internally comparative approach, these theorists may nonetheless be implicitly invoking and validating threshold harm.

Furthermore, a state can constitutionally justify a legal prohibition on procreation in certain circumstances using the notion of threshold harm, because it accounts for what has been recognized as a compelling state interest: the prevention of children living in certain existences that fall below a given threshold level of well-being.

Acknowledgments:

Copyright © 2010 Northwestern University School of Law.

Carter Dillard is the Director of Litigation for the Animal Legal Defense Fund; formerly Westerfield Fellow, Loyola University New Orleans, College of Law. This essay expands upon a paper I was invited to present at the American Philosophical Association’s Annual Meeting in December, 2010. I am deeply indebted to Lukas Meyer, I. Glenn Cohen, Melinda Roberts, Michelle Meyers, David Wasserman, JoAnne Sweeny, Mary-Patricia Wray, and Matthew Glodowski for their comments and valuable work on earlier drafts. Special thanks to Marina Hsieh and Michelle Oberman for prompting me to consider these issues.

This Legal Workshop Editorial is based on the following Colloquy: .Carter Dillard, Procreation, Harm, and the Constitution, 105 NW. L. REV. COLLOQUY 5.

  1. 274 U.S. 200, 207 (1927).
  2. David Heyd, The Intractability of the Nonidentity Problem, in HARMING FUTURE PERSONS: ETHICS, GENETICS AND THE NONIDENTITY PROBLEM 15 (Melinda A. Roberts & David T. Wasserman eds., 2009) (footnote omitted).
  3. Id.
  4. Richard F. Storrow, The Bioethics of Prospective Parenthood: In Pursuit of the Proper Standard for Gatekeeping in Infertility Clinics, 28 CARDOZO L. REV. 2283, 2315-16 (2007) (quoting various sources).

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