This chapter considers where law and bioethics intersect as to the 100-year life. It tackles two different issues. The first is an exploration of the bioethics of life extension and whether such extension is something that should be pursued. The second considers attempts to extend reproduction into the late period of life and the ethics thereof.

17.1 The Bioethics of Life Extension: Should We Do It?

In bioethics it is commonplace, albeit not without its critics, to distinguish treatment from enhancement. Treatments – whether curative (e.g., antibiotics for a bacteria), ameliorative (albuterol for asthmatic episodes), palliative (e.g., morphine for someone in pain in their final days before death), or preventative (vaccination for mumps) – are fully and uncontroversially consistent with the ends of medicine. Enhancements, by contrast, are viewed by some with more suspicion as either things to be prohibited or at least not subsidized by the state.

The political philosopher Norman Daniels is one of the most cogent defenders of the line, which he demarcates around the idea of “species-typical” functioning – that is, an enhancement is what boosts our capabilities beyond a species-typical level of normal functioning, while a treatment corrects for a disease, which is defined as a function of our biology or psychology that reduces an individual below a level of normal functioning.Footnote ¹

The pursuit of the 100-year-old life and beyond, especially one that seeks to increase not only the lifespan but also the wellspan and enables longevity and excellent functioning, puts pressure on the treatment enhancement distinction’s attractiveness as a guide either for what individuals should be allowed to pursue on their own (i.e., what should not be prohibited by a society), or what we are owed by the state (the way Daniels primarily employs the distinction). Put simply, living beyond 100 today at the wellness and functioning level of, say, a sixty-year-old is highly species-atypical – experienced by very few, if any. As such, under the Daniels definition it would clearly be an enhancement not a treatment. For some, that would be a reason to prohibit it (such as prohibiting attempts to improve IQ) or exclude it from the health care a society is obliged to provide (or at least unless and until it has met the needs for treatments of disease fully, it is a sort of “bonus”).

That perspective is in tension with many authors of this book and, I would suspect, the majority of the polity, who think pursuing excellent health past 100 is not only permissible but also desirable (possibly even obligatory) for the state to invest in. How to explain this divergence? An “error theory” approach would suggest either that it is a mistake to pursue the 100-year life as all-things-considered justified or that it is the enhancement treatment distinction as a guide for wise public policy that is the error.

In my view, the latter holds. The enhancement treatment distinction seems problematic at least as applied to lifespan and wellspan extension. The distinction seems to trade on a “baseline problem” that confuses is and ought. Consider the way the human lifespan and wellspan have varied dramatically across time. If 200 years ago someone proposed medical interventions to extend our lives by decades to their present length and wellness, would we have been right to resist those interventions as enhancements?

One might retort that there is a distinction between raising more people to the highest level attainable by our species and going beyond that level.Footnote ² If we pursued lifespans of 200 years, for example, we would cease being human and become something quite different. At best, the objection is making a problematically undefended appeal to the natural (in this case, what is natural for a human person). Even if we can agree that some things are natural and some are not, there is “no factual reason to suppose that what is natural is good (or at least better) and what is unnatural is bad (or at least worse).”Footnote ³ As Frances Kamm puts it:

Of course, rejecting the treatment enhancement line or appeals to the natural does not guarantee that a particular “enhancement” (if you must use that word) is unobjectionable. But increasing the number of years of healthy life escapes many of the stock objections to “enhancements.”

Additional healthy years are more absolute than positional goods,Footnote ⁵ and as such we are less worried about individuals pursuing them to produce private benefit at externalized costs.Footnote ⁶ If the project aims at reducing the gap between wellspan and lifespan, there is a plausible argument that it generates significant positive externalities in healthcare spending rates given the fact that healthcare spending currently increases substantially with age.Footnote ⁷ By contrast, increasing lifespan without correspondingly increasing the wellspan would produce significant cost externalities in terms of healthcare spending.Footnote ⁸

Some object to enhancements done on children or others as violating a “right to an open future” – that children should be “permitted to reach maturity with as many open options, opportunities, and advantages as possible.”Footnote ⁹ Even if you are persuaded in general by this objection,Footnote ¹⁰ when lifespan and wellspan expand in tandem it is hard to see the extension as deeply limiting rights to an open future. If anything, the number of “futures” one might pursue seem to expand in that one could imagine fourth or fifth careers, marriages, and so on, with a long-enough healthy life.

A different objection is about the irreversibility of some enhancements – especially when imposed on those who do not yet exist but, because of irreversibility, are stuck with them.Footnote ¹¹ There is a sensitive question about when life extension counts as “irreversible.” One could seek to end one’s life, and there is an argument that in a world of longer life spans there would be an obligation to also provide more end-of-life options. But ending one’s life is not a “reversal” of healthy longevity. It is the cessation of a life of a being who has been enhanced to live much longer. A “natural death” (whatever that means) becomes available only if one “sticks it out” – can we consider that a kind of injury that cannot be reversed? Without resort to a problematic baseline or undefended appeals to the natural it may be hard to characterize this as a deep problem with life extension; if this is a problem to impose on our children, so is our imposition of disease-free (or disease-reduced) lives for our children right now – they too cannot easily be “reversed.”

A different objection is what I have elsewhere called “The Coercion of Voluntary Enhancements (not Oxymoronic!).”Footnote ¹² Imagine the extension of lifespan and wellspan were completely optional – individuals could choose it or not without state penalty. Let’s further assume the extension is completely state-subsidized or otherwise costless (see below regarding the effect of relaxing this assumption). While this seems like a victory, as with all voluntary enhancements, there is a concern that it will result in “a new equilibrium where everyone enhances, or at least many choose to enhance who would not choose to enhance but-for the need to compete with the enhanced in a zero-sum distribution, and those who fail to enhance will suffer in terms of the distribution.”Footnote ¹³

With increased lifespan and wellspan it is easy to see how this will work. Why should law school only last three years, or medical school four? Why shouldn’t a thirty-year mortgage be extended by years or decades given longer life? Even if we imagine that each of these changes are, on balance, good, there is a distributional effect: Those who do not extend their lives face more life plans to which they are shut out (or at least delayed entry, with fewer years to experience them) as against a world where the extensions never happen. The end result is that many people who, but for this dynamic, would not choose to extend their (or their child’s) life will now do so. Furthermore, the “exit” options of ending one’s life will not solve the problem since the dynamic produces a “delayed start” in access to life plans.

I am fully convinced this is a real dynamic we would see if wellspan and lifespan are extended. But is it a moral problem? One answer is to say it is a problem, but not a problem for the “enhancement.” That is, we should strive to have our cake and eat it too – enabling life extension while seeking to correct this dynamic through other means such as labor law, antidiscrimination law (which must now protect the young more than in the past), forced retirements, and so on. Alternately, we could disagree that this is a problem, or at least a serious one. In prior work I have explored this with a hypothetical about a safe and costless drug that would improve the safety of airplane pilots and wondered whether we should be sympathetic to a pilot who argues “I have a right not to enhance and improve the safety of passengers, and the fact that it makes me a worse pilot and makes it more likely that my plane will crash, should not count against me in competing for this job.”Footnote ¹⁴

The pilot case – like all cases – has a mix of absolute and positional benefits skewing toward the absolute. Is the same true of life extension? Moreover, part of the “intuition pump” of this example is set up by assuming that the drug is safe and improves pilot performance significantly. This suggests that one may not make a judgment about life extension and the “voluntary coercion” effect as a whole but, instead, one might need to go institution by institution to determine whether requiring more experience as a condition of entry in a particular case is “credential inflation” without offsetting benefit or not.

One final relevant objection to enhancements is that when an enhancement becomes available it causes us to lose solidarity with those who choose not to avail themselves of it, including by shifting responsibility to them for bad health states. As framed by Michael Sandel, the more we come to view our lives as chance not choice, the more reason we have to share our fate with others, including through public financial support. However, all that might wither with enhancement.Footnote ¹⁵ Those who live for a very long time might come to view those with normal (as of 2023) lifespans and wellspans as poor unfortunate souls, the human equivalent of mayflies (who live for only a day), or perhaps as something quite different from ourselves, to whom we stand in the same distant relationship as to an unknown “beggar in Spain,” to borrow Nancy Kress’s novel’s title.Footnote ¹⁶ It is possible to contest the descriptive claim – to note that extending wellspan, in particular, might open more resources to all; to carve out the cases of failure to enhance children as one where the dynamic is least likely to hold; or to contest that our obligations to help others meet their health needs ought not to be premised on responsibility-based arguments.Footnote ¹⁷ One might also choose to “bite the bullet” and argue that, at least regarding wellspan extension, we ought to heap scorn or otherwise pressure others to engage in enhancement.Footnote ¹⁸ Still the possibility that life and wellspan extensions might create a genetic overclass and underclass is worrying and a reason why it is essential for the state, if possible, to try to equalize access to this extra time lest it become one more way of achieving hierarchy – especially dynastic.Footnote ¹⁹

Resources, though, are not infinite. Is it appropriate for the state to spend resources (such as grant funding) on extending the lifespan of those who already live fairly healthily into their seventies and eighties given how many people fail to live even that long or whose shorter lifespan is plagued by illness? One’s commitment to particular theories of distribution will shape the reply; utilitarianism, prioritarianism, and sufficientarianism offer well-established answers regarding what counts as a just distribution. Each of these theories can be applied to allocating “life years” or “health life years” and will provide different answers to when it is appropriate for the state to make the “rich” (in terms of years or health life) richer as opposed to focusing (or at least first focusing) efforts on the “poor.” There is also well-developed, if perhaps not resolved, literature in the space of rationing scarce medical goods (such as organs, vaccines, ICU beds) debating when it is appropriate to engage in “age weighting” – giving priority to younger over older claimants all else being equal, with one of the central arguments being the need to give everyone “fair innings” – a requisite number of life years to enable a particular kind of life.Footnote ²⁰ Many of the same concepts are applicable if we were allocating life extension directly rather than having it as an output of one of these other scarce goods. To the extent the relevant resources (e.g., research funding) were fungible, on many plausible theories the state would only be justified in pursuing or promoting life extension once it had already satisfied its duties toward those who currently receive lives that are unfairly short.

17.2 Fertile Octogenarians Abound! Reproducing Late in Extended Lives

As some may remember dimly from their property law class (or – in my case –studying for the bar) there is a funny pitfall in the application of the classic Rule Against Perpetuities to trusts that goes by the name of the “fertile octogenarian” rule, stemming from “a conclusive presumption of lifetime fertility.”Footnote ²¹ While at one point reproducing in one’s eighties – for women at least – was a fanciful law school hypothetical, in fact it is very possible today. What would it mean to reproduce late in the 100-year life?

The oldest reported successful pregnancy I know was of a seventy-three- or seventy-four-year-old woman (depending on the report) in India, who gave birth to twins by caesarean section.Footnote ²² But, of course, in “collaborative” or “third-party” reproduction the person seeking to produce a child to rear need not carry the child to term and may instead use a gestational surrogate. Many couples fertilize additional embryos as part of in vitro fertilization (IVF) and cryopreserve (i.e., “freeze”) them for a potential future use. In 2017, it was estimated that about 1 million embryos were housed in subzero facilities in the US alone.Footnote ²³ One could imagine a case where a couple fertilizes seven embryos at age thirty and implants them one at the time, leading to a successful pregnancy and the birth of a boy. Fifty years later they decide they want another child and then find a surrogate willing to assist. After paying her and thawing and transferring one of their cryopreserved embryos, there is a successful pregnancy and the birth of a girl. This girl would be fifty years younger than her full genetic brother in terms of her chronological age, but, if viewed from the moment of fertilization, she would be the exact same age as that brother – a strange incongruence.

This thought experiment is not that fanciful: in 2020 a child was born from a donated embryo frozen on October 14, 1992 and thawed for implantation in February 2020.Footnote ²⁴ The embryo was successfully transferred to and carried by Tina Gibson, who would serve as its legal and rearing mother – she herself was two years old when the embryo was first created.Footnote ²⁵ At twenty-seven years this is the current record for freezing and thawing, but there is no reason to think it could not go longer.

There are many other ways that reproduction so late in life could occur – frozen eggs, posthumously retrieved sperm, or perhaps most simply for older men with younger female partners. For example, James Doohan, who played “Scotty” on the original Star Trek, apparently had a daughter when he was aged eighty with his forty-four-year-old wife without intending to conceive.Footnote ²⁶

New technologies might provide still further extension of our reproductive periods. Mitochondrial replacement technique (MRT, sometimes called “three-parent IVF” by the lay press) is one “that involves removing an intended mother’s [nuclear] DNA from her oocyte [egg] or zygote, which contains mutated [mitochondrial] DNA, and transferring it into a female provider’s oocyte or zygote, which contains nonpathogenic [mitochondrial] DNA and from which the [nuclear] DNA has been removed.”Footnote ²⁷ While MRT’s primary use, and the use to which it has been authorized in the UK and a few other countries, has been to avoid transmitting mutant mitochondrial DNA to offspring while maintaining a mother’s genetic tie to the child,Footnote ²⁸ there have also been discussions of using it as a way to “rejuvenate” the eggs of older mothers.Footnote ²⁹ In vitro gametogenesis (IVG) in lay terms refers to deriving sperm or egg from a human’s adult cells – for example, skin cells.Footnote ³⁰ While the technique has thus far only been used to produce offspring in nonhuman animals, there is significant interest in many human applications of IVG, including as a way of enabling older women to produce eggs for reproduction.Footnote ³¹

Becoming a biological parent so late in life raises a host of interesting issues that stretch across many private and public law areas, including trust and estates, family law, insurance law, and public benefits law. I will not do any of it justice in this short space, but instead want to connect “reproducing so late in life” to two more general debates about the ethics of reproduction that I have written on: the rights claim to reproduce (especially as to state support for reproduction), which I will discuss in some depth, and claims of harm to offspring, which I will touch on only briefly.

In a recent paper on uterus transplants (currently used for women with uterine factor infertility, but in the future potentially for those assigned male at birth), I drew a distinction between the “first wave” of reproductive technologies “encompassing everything from Artificial Insemination to In Vitro Fertilization (IVF), Surrogacy, and Preimplantation Genetic Diagnosis (PGD)” and a new wave that encompasses uterus transplants, MRT, IVG, and potentially egg-freezing.Footnote ³² The first wave “focused on restoring or enabling the kind of reproductive options available to fertile, heterosexual, couples, a focus on what I call ‘mimicking’” and thus “largely expanded access to that which could be achieved by traditional reproduction.”Footnote ³³ The new wave, by contrast, is “more focused on ‘extending’ reproduction beyond what is possible through sexual reproduction.”Footnote ³⁴ The mimic extender distinction is interrelated to distinctions others have drawn in the literature:

The rights claim of a hypothetical ninety-year-old woman who wants to use one or more of the technologies discussed above to reproduce so late in life seems to be an extension, and not mimic use. The extension-mimic line seems normatively attractive in part because it mirrors the distinction between treatment versus enhancement discussed earlier.

The same might apply to our hypothetical ninety-year-old woman: She is asking for something species-atypical. While that fact may not justify a negative liberty restriction – I return to harm-based arguments that would be more common reasons for such restrictions later – does it defeat her rights claim to positive liberty state support for such reproduction?Footnote ³⁷

One response to this suggestion is to reject a keying of the treatment enhancement line to the conception of species-typical normal functioning, but then one needs another way to distinguish claims to assistance for health needs (with the moral urgency we normally assign to it) from nonhealth needs. A more radical approach would be to reject views that assign a special importance to health in favor of more consequentialist theories that

A third response is from within the species-typical normal functioning approach and suggests we may be too quick to assume that a woman’s reproduction at ninety is not species-typical. It is, after all, species-typical for men to be able to reproduce quite late in life like Star Trek’s Scotty did. Why is the right “comparator” group for species typicality the “female of the species” and not “the species, sex unspecified”?Footnote ³⁹

Another possible rejoinder is that while reproduction so late in life is species-atypical for a kind of organism that lives till eighty, it would not be atypical for a species that lived so much longer than that. For someone likely to live to age 200 reproducing at age ninety is roughly at the same point in one’s lifespan as it would be for someone likely to live to eighty to reproduce at age thirty-six – and we would view that as quite normal. Why not view the species-typical question in terms of proportions of a life-span – that is, it remains “species typical” to reproduce in the first third to half of one’s life span, with a third or a half being much longer with life extension?

For me there is a bit of a bootstrap “hat on a hat” quality to this argument: It suggests that once we have permitted the enhancement that enables individuals to live a much longer life (see Part I), our expectation of what is species-typical would reset – thus treating reproduction so much later in life as typical. On the other hand, when our range of lifespan or wellspan extends so much longer, why should our idea of a normatively tinged “normal opportunity range” not extend commensurately?

This move might generate the following countermove: There is an old maxim in the law of equity that “equity aids the vigilant, not those who slumber on their rights.”Footnote ⁴⁰ Those making a rights claim to use reproductive technologies at age ninety have, like Rip Van Winkle, slept an awful long time on their reproductive capacities. Does that suggest their claim to state assistance is forfeit or at least much diminished? Is it discriminatory against older individuals to deny them state support for opportunities not because they are older or is the fault theirs in failing to take advantage of an opportunity available to them when they were younger? Some might find that such a framing of formal equality misses the point. After all, one might use the same logic as to state support for women given our current lifespans: that the state can justifiably deny women past age thirty-eight state support for IVF in that they too slept on their rights – a right to reproduce earlier without the need of such technology. This feels like a reductio ad absurdum, especially when one considers how a society that refuses to support reproduction after age thirty-eight fosters a widening gap of sex inequality since it is women whose health and professional lives are most burdened by pregnancy.

On the flipside, though, state support of reproduction quite late in life might lead to a different kind of inequality through the dynamic of “voluntary coercion” of enhancements discussed earlier. Those who decide to extend their lives and have the resources to do so might feel the need to delay their reproduction to give themselves or their child the best start in life from a resource perspective. Some will simply not be able to afford the technologies needed to delay reproduction. Others who can afford it but would rather not reproduce so late may feel pressure to do so for their children to compete in a zero-sum society.

From the admitted (science fiction) armchair, it is a little hard to predict if this dynamic would take hold. So long as our ability to extend life or wellspan has a stopping point, one might argue that the pressure to delay reproduction is countered by the reality that every year of delay is one fewer year to spend with the child one produces. The equilibrium that results from trade-offs between enjoying one’s life without children, furthering one’s own non–child-rearing goals, building resources to give one’s children an excellent life, the number of years of life people would prefer to share with their children (and countless other factors) is hard to predict. So much seems likely to be mediated by culture that it seems like a shot in the dark to guess people’s first-order preferences.

While we started with the mimic-extension line, we have found both normative uncertainties about the moral force of species typicality and its underlying architecture of the normal opportunity range to this question, as well as difficulty predicting how extending lifespan would affect individuals’ reproductive choices if reproducing much later in life was also possible. One seemingly potential way out might be – in the positive liberty and even the negative liberty sense – to set policy based on the idea that reproduction so late in light is harmful to children.

The problem is twofold. One part is descriptive – how sure are we that reproduction late in life is bad for offspring? Over the past couple of decades, several jurisdictions – including France, Greece, Italy, Japan, and some Australian states – have at various points had in place prohibitions on IVF for women above a certain age premised on concern for the welfare of offspring.Footnote ⁴¹ It is important to distinguish risk to offspring from risk to pregnant persons (including the risk of losing the pregnancy). A recent review article summarized the existing state of the literature:

Whether these problems would become worse, improve, or stay the same in individuals whose life was radically extended will certainly depend on how life extension is achieved. But it seems plausible that some but not all of those risks might be mitigated by permitting reproduction but not pregnancy very late in life. Such a strategy would require increased use of gestational surrogacy, which for some may be a normative reason to oppose it. But the normative justification of prohibition on this basis would be explicitly paternalistic (harm to self) rather than offspring-focused (harm to others), the latter being a more common basis for reproductive regulation.Footnote ⁴³

What about risk to offspring in a possible future where individuals (especially women) can produce gametes much later in life than they currently can? In our current technological attainment, advanced maternal and paternal age has been associated (among other things) with autism spectrum disorders in children – with the most frequently cited hypothesized mechanisms on the paternal side being “increased rates of de novo mutations and epigenetic alternations associated with increasing age,” and on the maternal side being “higher rates of chromosomal abnormalities, perinatal and obstetric complications, and potential genomic and/or epigenetic alterations induced by cumulative exposure to environmental toxins.”Footnote ⁴⁴ If these trends persist with radical life extension and reproduction even late in life, are these the kinds of deficits that should matter to that state? Or does such an intervention impermissibly favor the neurotypical over the neurodiverse in a way that should be intolerable from a disability rights perspective? A different set of arguments surrounds the harm to a child from being born to parents who will be deceased early on in that child’s life – in fact, this is an area where life extension might be a solution rather than part of the problem.

But even if one resolves these kinds of questions in favor of the view that the risks to offspring are so great that they would justify prohibition on reproduction late in life, there is a second more conceptual problem associated with Derek Parfit’s non-identity problem:Footnote ⁴⁵ We cannot justify prohibiting an act of reproduction on the basis of harm to the offspring that would result (what I have called “best interests of the resulting child” justifications) if we provide the child a life worth living, because that child’s existence is not worse than a counterfactual of not existing at all. As I wrote more than a decade ago:

My claim remains controversial among both philosophers and legal scholars.Footnote ⁴⁷ Even if accepted, this does not rule other arguments for prohibiting reproduction by aged parents for which the welfare states of offspring may be relevant: arguments premised on non–person-affecting principles, wronging without harming, reproductive externalities, virtue ethics – or arguments premised on legal moralism, or justified paternalism, and perhaps other arguments might still be available.Footnote ⁴⁸ But to justify age-based regulation of reproduction on one of these grounds is more fraught, normatively speaking, than relying on the much simpler harm principle-type argument I believe is illusory in this space. These alternative arguments often have premises or entailments that some will find problematic and require us to step outside of the more comfortable liberal commitment to child welfare as a north star.Footnote ⁴⁹