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Wrongful Life and the Counterfactual Element in Harming

  • Joel Feinberg (a1)

I shall be concerned in this paper with some philosophical puzzles raised by so-called “wrongful life” suits. These legal actions are obviously of great interest to lawyers and physicians, but philosophers might have a kind of professional interest in them too, since in a remarkably large number of them, judges have complained that the issues are too abstruse for the courts and belong more properly to philosophers and theologians. The issues that elicit this judicial frustration are those that require the application to border-line cases of such philosophically interesting concepts as acting, causing, and the one that especially interests me, harming.

I first became interested in the concept of harming in my work on the moral limits of the criminal law, where I had to come to terms with John Stuart Mill's famous “harm principle”–the principle that it is always a good reason in support of a criminal prohibition, indeed, the only legitimate reason, that it will prevent harm to persons other than the actor. I could not very well criticize that principle until I decided what the word “harm” must mean in its formulation. I gave what I took to be the requisite analysis of harm in my book Harm to Others. Here I wish to improve that analysis, examine its implications for civil as well as criminal liability, and test it on conceptually hard cases, especially cases of prenatal harming, that is, cases in which the wrongful causative conduct occurs before the victim's birth, and the harmed state that is its upshot consists in being born in an impaired condition.

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1 Numerous paragraphs in this paper have been taken with only small revisions from my “Comment: Wrongful Conception and the Right Not to be Harmed,” Harvard Journal of Law and Public Policy, vol. 8 (1985). This essay can be considered an expansion and development of the earlier one.

2 Feinberg Joel, Harm to Others (New York: Oxford University Press, 1984).

3 ibid., p. 53.

4 This fifth condition might be redundant because implied by conditions 3 and 4. That seems plausible to me, but I make the condition explicit anyway because I cannot prove that it is implied by the others, and some might doubt that it is. I think it is implicit in the others in virtue of the principle that any adverse effect on a person's interest caused by another's unjustified and unexcused act is a violation of his right.

5 So the counterfactual condition should perhaps be revised to read: B's personal interest is in a worse state than it would be had A acted as he should have instead of as he did.

6 Thus, when a small boy falls from a cliff towards a certain death on the rocks below, but is electrocuted instantly when his hand touches an uninsulated wire through which the electric company has negligently allowed current to run, the company's negligence has harmed the boy by causing his instant death (a very adverse effect on his interest), but there was only the tiniest interval, perhaps one second, during which the boy was “worse off than he otherwise would have been,” and that severely discounts the gravity of the harming. As the court put it in a case of this sort, the victim was deprived of a life “too short to be given pecuniary allowance.” Dillon v. Twin States Gas and Electric Co. 85 N.H. 449, 163 A. 111 (1932).

7 See Salmond William, Jurisprudence, 5th ed., Fitzgerald P. J. (London: Sweet & Maxwell, 1966), pp. 303304.

8 Wrongful pregnancy suits may be “relatively unproblematic,” but they are far from noncontroversial. Many judges have argued that the “intangible benefits of having a child offset the expenses of raising a child.” Rieck v. Medical Protective Company of Fort Wayne, Indiana, 64 Wis. 2d 514, 219 N.W. 2d 242, 1974. Others have claimed that an offsetting benefit is shown by the parents’ retention of the child when there is the option of putting it up for adoption. Typically, the action is brought by parents who have acted in reliance on medical assurances that a vasectomy or tubal ligation has made pregnancy impossible, and then have had their new life plans dashed by the birth of an unexpected child. Normally they sue for the costs of raising a child to the age of eighteen years. Compromise settlements in which plaintiffs are allowed to recover only the costs of the unsuccessful operation, “compensation” for pain and suffering, medical complications, the costs of delivery, and lost wages and consortium during pregnancy are now common. For a definitive survey of cases, see Reichman Anne C., “Damages in Tort for Wrongful Conception — Who Bears the Cost of Raising the Child?The Sydney Law Review, vol. 10 (March 1985).

9 Curlender v. Bio-Science Laboratories, 106 Cal. App. 3d 811, 165 Cal. Rptr. 477 (1980).

10 Bonnie Steinbock describes the usual course of the disease: “The child appears well at birth and develops normally for six to eight months when progressive psychomotor degeneration slowly begins. By eighteen months the child is likely to be paralyzed and blind, unable to take food by mouth, suffering from constipation and decubitus ulcers. There are increasingly frequent convulsions which cannot be controlled by medication. The last few years of the child's life are usually spent in a vegetative state.” See her “Wrongful Life,” The Hasting Center Report, vol. 15 (April 1986), p. 17.

11 The argument is based on there being a life expectancy of 76.6 years for white females. Shauna lived only for four years, so her disease deprived her of the other 72.6 years. But either the testing laboratory would be negligent, in which case she was destined to a life of only four years, or it would not be negligent, in which case she would not have been conceived and born at all. In neither case would she have lived 76.6 years!

12 I am indebted to Nora K. Bell and Barry M. Loewer. See their valuable article “What Is Wrong with ‘Wrongful Life’ Cases?” The Journal of Medicine and Philosophy, vol. 10 (May 1985), pp. 127–146.

13 I borrow heavily here from Bell and Loewer, ibid., p. 131. Bonnie Steinbock gives still additional replies to this first misgiving in “Wrongful Life.”

14 We have seen (supra, note 8) that this sort of thing is commonly said in wrongful conception cases, but it is also said in wrongful birth cases where prima facie it is less plausible.

15 Becker v. Schwartz, 46 N.Y. 2d 401, 413 N.Y.S. 2d 895, 386 N.E. 2d 807 (1978).

16 Bell and Loewer, “What Is Wrong,” p. 131.

17 That is not to say that problems do not remain, especially in specifying the correlative right-holder. See my discussion of “birthrights” below.

18 Improving the lot of the no-longer-existent may be an exception to this. See my Harm to Others, pp. 79–83, and Aristotle, Nicomachean Ethics, Book One, Chap. 10. Improving the lot of the not-yet-existent, though, does seem to be logically impossible.

19 Williams v. State, 18 N.Y. 2d at 485, 276 N.Y.S. 2d at 888, 223 N.E 2d at 345 (Keating, J. concurring). Judge Keating goes on to say that “it is impossible to make that choice,” but surely that overstates the point. Experience as a bastard in contemporary America, a key harm in the case in question, clearly is preferable, certeris paribus, to nonexistence.

20 I am indebted to Thomas McKay of Syracuse University for reminding me of this distinction.

21 I find this to be a difficult question that requires an examination of the instinct of self-preservation, and the concepts of weakness of will and voluntariness and their relations to rationality. I am skeptical, but in the absence of detailed examination, I prefer to leave it an open question.

22 In the account I sketch in the text, I refer to birth as the “presumed onset of personhood,” and the rights that become actual at that point as “birthrights.” But if the reader believes that the onset of personhood is earlier than birth, he should substitute “personhood-inception rights” for my “birthrights,” and locate their origin at whichever developmental stage he wishes. I use the point of birth as an example only. I do not mean to beg any controversial questions in the abortion debate. There is one acknowledged implication for that debate, however, in my account: If the only way to prevent a child from being born into a life not worth living, and thereby being severely harmed, is to abort, and if we can know this in advance (a big IF), then it would seem to follow that the mother has a moral duty to submit to an abortion. See my “Wrongful Conception and the Right Not to be Harmed.”

23 Joel Feinberg, Harm to Others, p. 99.

24 I must therefore repudiate my position in Harm to Others, p. 102.

25 Parfit Derek, “On Doing the Best for Our Children,” Bayles Michael D., ed., Ethics and Population (Cambridge, MA: Schenkman, 1976).

26 For all this to be true, we must assume that the rescuer was not himself responsible for the other party's peril. If he put that party, in the precarious situation in the first place, he himself is responsible for the costs of rescuing him, including the costs of repairing the broken arm.

27 This is a partial list of “free-floating evils” from my “Legal Moralism and Free-Floating Evils,” Pacific Philosophical Quarterly, vol. 61 (1980), pp. 130–63. I have changed my usage, however. I prefer now to distinguish “grievance evils” from “non-grievance evils” as generic classes, and then distinguish two species of non-grievance evils, the welfare-connected ones (like impairment stemming from wrongful conception) and the free-floating ones (like those listed above in the text). In the earlier article, I used “non-grievance evil” and “free-floating evil” as synonyms, but that was a mistake.

28 Cf. the opinion in Zepeda v. Zepeda, 41 III. App. 2d 240, 190 N.E. 2d 849 (1963): “What does disturb us is the… related suits that would be encouraged. Encouragement would extend to all others born into the world under conditions they might regard as adverse. One might seek damages for being born of a certain color, another because of race; one for being born with a hereditary disease, another for inheriting unfortunate family characteristics; one for being born into a large and destitute family, another because a parent has an unsavory reputation…”

29 I have not had time to revise this essay to accommodate an important suggestion made by Wayne Sumner at the Ann Arbor conference at which this paper was read. Sumner, accepting an invitation I made to the audience to help me “better preserve my liberal purity,” suggests a way in which I might avoid, at least in Parfit-type cases, the view that liability without a properly harmed victim is morally legitimate after all. All that stands in the way of saying that the Parfit child has been harmed, he points out, is my counterfactual test for harming. Sumner therefore proposes that we modify that test (as I did, e.g., in cases of overdetermination) by casting it in an impersonal form. In the Parfit case, Sumner writes, “the child is worse off than the child the woman would (or might) otherwise have had would have been, had she acted otherwise.” This is an attractive suggestion to me because, in permitting me to be steadfast in support of the liberal doctrine of “no liability without a harmed and wronged victim,” it contributes to the greater overall coherence of my political philosophy, and on Sumner's alternative account of harming, the Parfit baby is a “harmed and wronged victim.” The disadvantage of Sumner's suggestion is that it seems to make a rather sharp departure from the concept of harming-wronging as it is normally and naturally employed. “How can I have wronged you when you admit that you are better off for what I did than you would otherwise be?” asks the Parfit mother. “Yes,” Sumner would have her child reply, “but I am not better off than the child you would have had a month later if you had waited.” This reply has the merit of establishing the child's grievance, if that's what we antecedently wish to do, but we might have some sympathy with the mother's further reponse if she questioned what relevance that counterfactual has to the question of whether she harmed (wronged) the child by bringing him into existence. Still, I think the Sumner suggestion deserves further serious exploration. As my argument now stands, I seem to prefer (relative) linguistic purity to the (relative) moral purity required by my initial liberal commitment.

30 This is the judgment that would seem clear when made from a prospective vantage point at the time of the harming, even though now, years later in retrospect, it might be admitted that love of this particular child “offsets” the harm. I think it is the prospective judgment, however, which should control. After all, the parents, but for the negligence of others, could have had another child that they would have loved every bit as much as this one, but without the heartbreaking handicaps.

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