Procreation, Harm, and the Constitution

Law and Philosophy, 1983

The purpose of this paper is to argue that the tactic of granting a fetus the legal status of a person will not, contrary to the expectations of opponents of abortion, provide grounds for a general prohibition on abortions. I begin by examining two arguments, one moral (J. J. Thomson's 'A Defense of Abortion') and the other legal (D. Regan's 'Rewriting Roe v. Wade'), which grant the assumption that a fetus is a person and yet argue to the conclusion that abortion is permissible. However, both Thomson and Regan rely on the so-called bad samaritan principle. This principle states that a person has a right to refuse to give aid. Their reliance on this principle creates problems, both in the moral and the legal contexts, since the bad samaritan principle is intended to apply to passive refusals to aid; abortion, however, does not look like any such passive denial of aid, and so it does not seem like the sort of action covered by the bad samazitan principle. In defense of the positions outlined by Thomson and Regan, I argue that the apparent asymmetry between abortion and the usual type of case covered by the bad samaritan principle is only apparent and not a genuine problem for their analyses. I conclude with a defense of the morality of the bad samaritan principle.

A deeply, deeply humble philosophical Address, fit to be presented to an august social institution in early 2025.

Journal of Value Inquiry , 2020

Having children is an important aspect of peoples’ lives. I will take the intuition that there is something valuable about procreation as a starting point, and asks whether we can appeal to the value of procreation when engaged in liberal justification. This is an important question philosophically speaking, but it also has important implications. There is a lively debate, both in philosophy and society at large, about constraints on the right to procreate as well as about government family policies. The strength and the nature of the interest people have in procreation has implications for both of these debates. We cannot take a position, for example, on the permissibility of procreation in the light of sustainability issues, without a view on the value in procreation. In this paper I offer such an account.

According to commonsense morality, while we have reason to be concerned about the effects of our actions on anyone's welfare, we also have reason to be partial towards people to whom we bear certain special relationships. I have, for example, more reason to make sure that my own child gets into a good school than that my neighbor's child does. In this paper, I want to examine a kind of decision where the identity of people to whom we bear the special relationship-in particular, our future children-depends on our action. Ordinary moral thinking holds that even in such identity-affecting cases, the fact that my decision will lead to my future child having a better life counts in a special way in its favor, and the main accounts in the literature explicitly addressing such cases agree. I will argue that this is mistaken. This is because more generally, special concern doesn't give us reason to be picky-to select better identities for the occupants of our special relationships-and therefore does not give us reason to have better-off children rather than worse-off ones. Given that most of our decisions before our children's conception are identity-affecting, it will follow that our reasons to make sure our future children are well-off are merely reasons of general concern with the same character and strength as our reason to make sure anyone else is well-off. This thesis, that our future children are strangers to us morally, has surprising implications for the ethics of procreation, genetic engineering, and other identity-affecting practical decisions.

Philosophy Today 66:1, 2022

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Journal of Applied Philosophy, 2011

Attempts to explain the intuitive wrongfulness in alleged 'wrongful life' cases commonly do so by attributing harmful wrongdoing to the procreators in question. Such an approach identifies the resulting child as having been, in some sense, culpably harmed by their coming into existence. By contrast, and enlarging on work elsewhere, this paper explores the relevance of procreative motivation, rather than harm, for determining the morality of procreative conduct. I begin by reviewing the main objection to the harm-based approach, which arises out of Derek Parfit's analysis of the non-identity problem and its implications for preconception cases. Most attempts to avoid the non-identity objection adopt either an impersonal harm approach or draw on some version of a metaphysical modal counterpart theory to defend a person-affecting harm account. But here I develop an alternative view.The proposed account construes the wrongness in the considered cases as 'evil' rather than harm, and the type of evil in question as being of a non-grievance, welfare-connected, collective kind. Understanding the wrongness in this way offers a basis for the view that it matters morally why we procreate, and not just whether or how we do so.

Bioethics, 2024

Herjeet Kaur Marway recently proposed the Principle of Procreative Justice, which says that reproducers have a strong moral obligation to avoid completing race and color injustices through their selection choices. In this paper, we analyze this principle and argue, appealing to a series of counterexamples, that some of the implications of Marway's Principle of Procreative Justice are difficult to accept. This casts doubt on whether the principle should be adopted. Also, we show that there are some more principled worries regarding Marway's idea of a strong pro tanto duty not to complete injustices through one's procreative choices. Nonetheless, we believe Marway's arguments point in the right general direction regarding duties and structural injustice. Thus, in the final part, we suggest a positive proposal on how it would be possible to respond to the cases we raise. More specifically, we explore the suggestion that agents have a pro tanto duty to participate in eliminating structural injustice. Importantly, this duty can be satisfied, not only in procreation choices but in multiple ways.

2009

The question I address in this paper is whether and under what conditions it is morally right to bring a person into existence. I defend the commonsensical thesis that, other things being equal, it is morally wrong to create a person who will be below some threshold of quality of life, even if the life of this potential person, once created, will nevertheless be worth living. However commonsensical this view might seem, it has shown to be problematic because of the so-called ‘Non-Identity Problem’. Both utilitarian and rights-based approaches have been unable to provide a solution to this problem. I rest my thesis on two premises: that causing a disability or impairment in a future person is prima facie wrong, so long as we can avoid causing such a disability to that very person; and that reproduction, under normal conditions, is prima facie morally indifferent. From these two premises, I conclude that it is prima facie wrong to bring into existence a person with a non-trivial disability or impairment (which might be, nonetheless, compatible with a worthwhile life), even if the only available alternative is to remain childless.

Bioethics, 2022

Many contemporary ethical debates turn on claims about the nature and extent of our alleged procreative moral rights: moral rights to procreate or not to procreate as we choose. In this article, I argue that there are no procreative moral rights, in that generally we do not have a distinctive moral right to procreate or not to procreate as we choose. However, interference with our procreative choices usually violates our nonprocreative moral rights, such as our moral rights to bodily autonomy or to privacy. My argument presents hypothetical cases in which a state interferes with a person's procreative choices in order to promote aggregate social welfare, but this interference does not violate any of the person's nonprocreative moral rights. These cases not only undermine frequently made claims that widely recognized nonprocreative moral rights entail procreative moral rights, they also challenge the intuitively plausible claim that interference with our procreative choices as such violates our moral rights. What at first appear to be substantive moral rights are in fact a kind of illusion created by the frequent overlap of other rights, but lacking in substance beyond that overlap. While this argument against the existence of procreative moral rights has substantive implications for ongoing debates in reproductive ethics, I ultimately suggest that it is consistent with a progressive approach to reproductive justice.

2008

Few principles are as universally accepted in legal scholarship today, but based on such scant support, as the fundamental nature and broad scope of the right to procreate. What is perceived as a vague but nonetheless justified legal and moral interest to procreate freely without regard to others is, upon closer examination, based on little more than misconstrued or inapposite case precedent and blurry statements in non-binding sources of international law. By relying on this authority, conflating procreation with conceptually distinguishable behaviors, presuming its intrinsic value, and ignoring competing rights and duties, lawyers have largely overlooked procreation and its legal and normative limits. Interpreting U.S. constitutional and international law sources, and finally employing Locke's model of natural rights, this Article redefines the right in law and practice as satiable and narrow, acknowledging the competing rights and duties that both qualify and justify the righ...