Intentional Diminishment, the Non-Identity Problem, and Legal Liability

Abstract

This Article, lying at the intersection of law and bioethics, examines whether it is wrongful to use assisted reproductive technology to intentionally create disabled children and whether legal liability should attach to such acts. In particular, this Article considers the way these issues are intertwined with what philosophers have called the Non-Identity Problem, the idea that so long as a resulting child will have a life worth living the child cannot be harmed by being brought into existence, because even an impoverished life is better than not existing at all.

In her Article in this symposium (http://ssrn.com/abstract=1295426), Kirstin Smolensky suggests that the Non-Identity Problem should cause us to extinguish tort liability in cases where disabled children are created by preembryo selection but not if it were done through (a still hypothetical technology enabling) the genetic manipulation of a pre-embryo to induce a disability.

In this Article I critically examine this claim in two ways. First, I suggest some problems with her arguments for drawing a distinction (for Non-Identity Problem and hence legal liability purposes) between the two methods of creating disabled children.

Second, I examine whether legal liability should be barred even for cases where the Non-Identity Problem applies. I set out several approaches drawn from the bioethics literature that suggest that the parents have acted wrongfully by creating disabled children notwithstanding the Non-Identity Problem. I then offer some tentative views about whether any of these approaches is a valid basis for legal liability, discussing tort law, which is Smolensky's focus, and also extending the project beyond tort to discuss criminal law and other forms of legal regulation.