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Wrongful Life

David Archard

Philosophy / Volume null / Issue 03 / July 2004, pp 403 - 420

DOI: 10.1017/S0031819104000348, Published online: 07 July 2004

Link to this article: http://journals.cambridge.org/abstract_S0031819104000348

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David Archard (2004). Wrongful Life. Philosophy, null, pp 403-420 doi:10.1017/
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Wrongful Life
DAV I D A R C H A R D

Is it wrong deliberately to bring into existence an individual whose

life we can reasonably expect will be of very poor quality? Several
philosophers do not think so, and for very similar reasons. In this
article I want to expose their arguments to critical scrutiny with a
view to defending an affirmative answer to the question above. I will
carefully specify the kind of case they, and I, have in mind distin-
guishing it from others whose putative wrongfulness rests on
different grounds. Hopefully my counter argument will shed light
on the proper, and improper, ways to think about procreation.
Let me start by addressing the use of the word ‘deliberately’ in
the opening question. Clearly a conscious decision to conceive a
child can be made, though no such decision is guaranteed to yield
the desired outcome. However as often as not conception is not
deliberate although it may be very welcome after the event. In these
cases the appropriate question will be: Is it wrong to proceed with a
pregnancy whose outcome will be an individual whose life we can
reasonably expect will be of very poor quality? In answering this
question the putative wrongfulness of allowing such a person to
come into being must be balanced against the putative wrongfulness
of terminating the pregnancy. Any final judgment in these cases
must thus await a determination of the moral permissibility or
impermissibility of abortion. This is obviously controversial. So, to
avoid these problems, I concentrate on cases where conception is
deliberate. The most obvious are those involving artificial repro-
duction, such as in vitro fertilization (IVF) where preimplantation
genetic diagnosis (PGD) permits the identification of the
probabilities of any child coming to suffer from a particular disease
or disability.
The qualification within the question signified by the words ‘we
can reasonably expect’ is important to rule out cases where nobody
could have been expected to know that the individual brought into
existence would suffer from some very serious disease; or where the
known risk of her doing so was very small. It is important to add
that there are non-medical circumstances in which we can
reasonably expect that somebody will enjoy a very poor life. These
include being born into extreme poverty or to be brought up by
doi:10.1017/S0031819104000348 ©2004 The Royal Institute of Philosophy
Philosophy 79 2004 403
David Archard

very cruel, abusive, or neglectful parents. Of course such circum-

stances can change, and be changed. However we can still imagine
being reasonably sure that they will not, and hence being reasonably
sure that the individual brought into being will suffer a very poor
life. In what follows I want to allow for both medical and non-med-
ical grounds on which we could reasonably expect a created life to
be of very poor quality.
I have framed the question in terms of an individual’s life. It is
possible that the person brought into being does not survive beyond
her childhood. Nevertheless, even the child who does mature into
adulthood has, I shall argue, a right not to suffer a very poor life.
The child has this right in her own right and not just in the person
of the future adult whose life is blighted. I shall thus speak of the
case of a child whose life is very poor. I also speak in terms of rights,
though the argument I advance does not depend on acceptance of
the view that rights-talk is a proper part of the moral language we
should use. We might equally speak simply of the wrongness of
bringing into being an individual whose life will be very poor.

I
I start my argument that it is wrong deliberately to bring into
existence an individual whose life we can reasonably expect will be
of very poor quality by defending the ‘birthright claim’. This is as
follows. If a child should be guaranteed a set of rights then no child
should knowingly be brought into existence lacking the reasonable
prospect of enjoying these same rights. Feinberg defends something
very similar:
if you cannot have that to which you have a birthright then you
are wronged if you are brought to birth. Thus, if the conditions
for the eventual fulfilment of the child’s future interests are
destroyed before he is born, the child can claim, after he has been
born, that his rights (his present rights) have been violated.
Moreover, if before the child has been born, we know that the
conditions for the fulfilment of his most basic interests have
already been destroyed, and we permit him nevertheless to be
born, we become a party to the violation of his rights.1
Following Feinberg, Bonnie Steinbock writes that ‘it is a wrong to
the child to be born with such serious handicaps that many very
1
Joel Feinberg, Harm to Others (Oxford: Oxford University Press,
1984), 99.
404
 Wrongful Life

basic interests are doomed in advance, preventing the child from

having the minimally decent existence to which all citizens are
entitled’.2
In contradistinction to Feinberg and Steinbock I want to defend
something more specific. Feinberg speaks of a child’s general right
to be born with a guarantee that her most basic interests will be ful-
filled. He describes a child’s ‘right not to be born’ as ‘a compendious
way of referring to the plausible moral requirement that no child be
brought into the world unless certain very minimal conditions of
wellbeing are assured’.3 Now one of the problems of both Feinberg’s
and Steinbock’s approach is the multiplicity of those against whom
the claim of rights violation can be made.4 For instance we could
surely and plausibly hold ourselves responsible for ‘permitting’ a
child we know will have a serious disability to be born, even though
we have played no part in the conception of the child. Similarly, it is
reasonable to think that Steinbock’s stated view implies that we do a
wrong to such a child by permitting it to be born and hence pre-
venting her from having a minimally decent existence.
I want to understand the birthright claim as the claim to a right
that any possible child has not to be intentionally and knowingly
conceived with the reasonable prospect of not enjoying a life above
a certain threshold. What that threshold is I shall come to in due
course. The birthright claim is thus made against those who can and
do play a direct causal role in the child’s conception, in other words
the prospective genetic and gestational parents.
The birthright claim rests on the following argument. I violate a
child’s given right, let us say her right to Ø, if I act so as to deny her
the enjoyment of Ø.5 I also violate her right to Ø if I knowingly and
avoidably put her into a situation where she cannot enjoy Ø (or
cannot reasonably be expected to enjoy Ø). If I know that a future
child will be incapable of enjoying Ø and I nevertheless act to bring
her into existence then I knowingly put her in a situation where she
cannot enjoy Ø. I thus violate the future child’s right to Ø by
knowingly bringing about her birth. This argument is valid and the
birthright claim is thus warranted.
2
Bonnie Steinbock ‘The Logical Case for “Wrongful Life”’ Hastings
Center Report 16 (April 1986), 19.
3
Harm to Others, 101.
4
E. Haavi Morriem, ‘The Concept of Harm Reconceived: A Different
Look at Wrongful Life,’ Law and Philosophy 7 (1988), 21.
5
I hold that the enjoyment of a right is more than its mere possession.
I possess a right if it is recognized—morally or in law—that I have the
right. I enjoy the right if I can, as a matter of fact, exercise the right.
405
David Archard

Deliberately conceiving a child who will be born to desperate

social and economic circumstances violates that child’s birthright.
So too does deliberately conceiving a child who will suffer a dread-
ful handicap. In what follows I want, first, to be clearer about the
threshold below which a child’s prospective life is so bad that it is a
violation of her birthright knowingly and deliberately to bring her
into existence. Second, I want to offer a critique of those who main-
tain that no wrong is done in conceiving a child whose life falls
below this threshold so long as the life is worth living and her
conception is, in a sense to be explained, unavoidable.
What is the threshold of acceptable existence? As we have seen
Feinberg and Steinbock speak of the conditions for the fulfilment of
basic interests. Others speak in terms of a minimally decent life.
Kavka defines a ‘restricted life’ as one that is ‘significantly deficient
in one or more of the major respects that generally make human
lives valuable and worth living’.6 Since my preferred mode of
argumentative exposition is in terms of rights I shall define the
threshold of a minimally acceptable life as one in which the child
has the reasonable prospect of enjoying a good number of those
rights possessed by all children. For the sake of the argument I shall
take the United Nations Convention on the Rights of the Child as
providing a useful list of these rights. I want to allow that what is
meant by ‘a good number’ of rights is vague and also that some
rights are more fundamental than others. Nevertheless it should be
clear that there are imaginable lives which are very poor in the
required sense and are so inasmuch as the child cannot enjoy a
significant number of these rights she is entitled to enjoy.

II

The case I want to consider is of a child who will enjoy a life that
falls below the threshold I have defined but whose life is still on
balance worth living. For many people do not think it wrong
deliberately and knowingly to conceive a child who will enjoy such
a life. Let me carefully specify the kind of case I, and they, have in
mind. It has two important defining features. First, the child’s life
is worth living but barely so. Her life is of less value than it would
be if more of her rights were enjoyed. Nevertheless the child’s life
6
Gregory Kavka, ‘The Paradox of Future Individuals’, Philosophy &
Public Affairs 11 (2) 1981, 105. For the citation of other relevant and
similar thresholds see Morriem, , ‘The Concept of Harm Reconceived: A
Different Look at Wrongful Life,’ 24–5.
406
 Wrongful Life

is not worse than non-existence. Now it is notoriously hard to

specify exactly what this comparative claim means. It need not
mean, for instance, that a child brought into being and faced with
the prospect of such a terrible life would choose to commit suicide.
Following a suggestion of Feinberg, I shall take it to mean this.7A
disinterested, fully informed and rational proxy adult choosing on
behalf of the prospective child would prefer that the child should
not be born rather than endure the life in question. ‘Wrongful life’
cases have principally been ones in which courts have been asked to
consider whether the child’s prospective life is worse than non-exis-
tence. However in the envisaged example the child’s life is worth
living even if barely so. It is better, just, than non-existence but it is
worse than the life that would be had if enjoyment of most of her
rights were guaranteed.
Second, the child cannot avoid being brought into existence. The
unavoidability in question is to be understood in this sense. There
is no possibility of a child being born to its prospective parents
enjoying a better life than the one envisaged. Thus this is not the
kind of case, made famous by Derek Parfit’s ingenious examples, of
the birth of a child with a handicap that could have been avoided
had conception been deferred to a later time, or had the mother
taken a relatively costless course of treatment at the time of con-
ception.8 In these kind of cases we want to say that wrong is done
by not deferring conception or by not taking the treatment since by
doing these things a handicap-free child could have been conceived.
The point Parfit seeks to make by means of this kind of example is
that, although wrong is done by conceiving the handicapped child,
no wrong is done to the child in question since if conception did not
occur at the envisaged time then this child would not have existed.
This is because Parfit holds it a necessary condition of X’s personal
identity that X was conceived within a particular time period and
under certain specified circumstances. For Parfit an impersonal
wrong is done in conceiving the handicapped child, but no wrong is
done to the child conceived at that particular moment. This is the
justly famous ‘non-identity problem’.
However this is not the kind of example I am here concerned
with. If the child is not conceived here and now, and under these
circumstances, then there will be no child born to these parents. Or
any child born to these parents, whenever and however conceived,
7
Joel Feinberg, ‘Wrongful Life and the Counterfactual Element in
Harming’, Social Philosophy and Policy 4(1) (1987), 145–78.
8
Derek Parfit, Reasons and Persons (Oxford: Clarendon Press, 1984),
357–66.
407
David Archard

will enjoy substantially the same advantages and disadvantages. The

birth is not unavoidable in the sense that the prospective parents could
not decide either not to conceive or to terminate the conception.
Rather it is unavoidable in the sense that a child with this miserable
future life, that is enjoying the envisaged prospect of a barely
endurable existence, is the only child that can be born to these parents.
So imagine that we know that any child of these parents will suf-
fer a life that is only just worth living and that the only alternative
is that they should have no child. Is a wrong done if the parents
have such a child? As I indicated, many people do not think so. John
Robertson is clear that ‘bringing unavoidably handicapped off-
spring into the world does not harm them because there is no way
for them to be born healthy’.9 Indeed he thinks that even if we know
that a prospective parent will seriously abuse her child ‘it is not clear
that they will enjoy such a horrible life that they never should have
been born at all, and thus are harmed by being born to an abusing
mother’.10 John Harris is also clear that no wrong is done, and
indeed that conception in the circumstances envisaged is in the best
interests of the child. If a woman can only have a handicapped child
and does have such a child then ‘she is acting in the best interests of
the child’. She ‘wrongs no-one in having a handicapped child
because it is in that child’s interest to be born’.11
The reasoning of Harris and Robertson about such cases follows
from their possession of the two features just outlined. First, the life
that the abused or seriously handicapped child endures is still bet-
ter than non-existence. Thus ‘even serious child abuse does not
appear to cause a life of such unremitting suffering that its life is
wrongful, e.g., that the child would have preferred no life at all’.12 It
is in the handicapped ‘child’s interests to be born’ since ‘although
the child will inevitably suffer, it will have a life worth living’.13
Second, the birth is unavoidable in the sense indicated. If the
prospective parents could conceive a non-handicapped child then
they would be misusing their reproductive capacity if they
produced a less than healthy child.14 Nevertheless if they can only
9
John Robertson, Children of Choice: Freedom and the New Reproductive
Technologies (Princeton: Princeton University Press, 1994), 152.
10
Ibid., p. 82.
11
John Harris, ‘Wrongful Birth’, M. E. Dalton and J. Jackson (eds.)
Philosophical Issues in Reproductive Medicine (Manchester: Manchester
University Press, 1990), 165.
12
Ibid, 248 (282 fn. 32).
13
Harris, op. cit., 165.
14
Robertson, op. cit., 171.
408
 Wrongful Life

conceive a child who will be seriously handicapped or subsequently

abused then they do no wrong in so conceiving. This point about
how unavoidability is to be understood needs emphasizing. Harris
is clear that where parents can avoid bringing suffering into the
world ‘by declining to have the disabled child and yet fulfil their
desire to have a child by trying again for a healthy child then if they
deliberately produce children with more than slight disability they
are blameworthy’. However, he immediately continues, if ‘the
particular parent must have disabled children if they are to have
children at all, then they will be blameworthy only if the children
would be wronged by existence, that is, if they would find it not
worth living.’15 In other words parents are not blameworthy and do
no wrong by bringing into existence a child whose life is barely
worth living so long as that is the only life a child of theirs can enjoy.
They can avoid bringing such a life into being by not having a child.
But if they are to have a child then they cannot avoid her suffering
an existence that is barely worth living.
Avoidability is understood then in terms of the specified alterna-
tives. In the case under consideration the alternatives are no child or
a child with a less than minimally decent existence. In the case
where Harris and Robertson admit of wrong being done the alter-
natives are no child, a child with a less than minimally decent exis-
tence and a child with at least a minimally decent existence. Melinda
Roberts describes the contrast as between ‘type 2-alt’ cases and
‘type 3-alt’ cases. She too thinks no wrong is done to the child in the
former case,that is one where the only alternative to a less than min-
imally decent but at least worth living existence is non-existence.16
Let me now turn to a discussion, in succession, of the two fea-
tures of case being considered: a life better than non-existence and
its unavoidability. With respect to the first feature some think that
such a comparison is impossible to make in the sense that existence
and non-existence are, strictly speaking, incomparable. Indeed very
many ‘wrongful life’ suits have failed precisely because the courts
have determined that no such comparison is possible.17 A New
15
John Harris, Wonderwoman and Superman: The Ethics of Human
Biotechnology (Oxford: Oxford University Press, 1993), 90.
16
Melinda Roberts, Child Versus Childmaker: Future Persons and Present
Duties in Ethics and the Law (Boulder: Rowman and Littlefield, 1998), 27
and 101.
17
‘Wrongful life’ cases are brought by or on behalf of the individual
whose life is allegedly worse than non-existence. By contrast ‘wrongful
birth’ cases are brought by or on behalf of parents in respect of the avoid-
able birth of a child whose condition, e.g. extreme disability, allegedly
causes them serious harm.
409
David Archard

Jersey Supreme Court observed in a 1967 ‘wrongful life’ suit: ‘The

infant plaintiff would have us measure the difference between his
life with defects against the utter void of non-existence, but it is
impossible to make such a determination’.18 The English courts
have reasoned in an exactly similar fashion. McKay v. Essex Health
Authority (1982) was a case for damages brought by an infant born
to a mother who was infected with rubella in the early months of her
pregnancy, a condition she alleged her doctors should have but
failed to detect. A principal reason for rejecting the suit was the
court’s view that it could not measure the loss to the child by com-
paring her disabled condition with that of her never having been
born. ‘But how can a court begin to evaluate non-existence ... No
comparison is possible’. ‘The court … has to compare the state of
the plaintiff with non-existence, of which the court can know noth-
ing; this I regard as an impossible task’.19
If a child’s miserable life cannot be compared with her non-exis-
tence then we cannot speak of her interest in being born (as opposed
to remaining unconceived). Hence her interests are not a considera-
tion in the determination of the moral permissibility of her being
brought into existence. The only relevant considerations would be the
prospective parents’ interests in having such a child, the public costs
of supporting the parents in their wishes to have the child, and the
interests of any third-parties such as the child’s future siblings.
Moreover, the child herself is not harmed by being brought into exis-
tence. A choice of action only harms someone if it makes her worse
off than she would have been in the absence of the choice.20 Morreim
denies that all harms can be conceived of in terms of a making worse
than what otherwise (in the absence of an action or event) would have
been the case. Nevertheless she does acknowledge that ‘all ascriptions
of harm do involve comparison’.21 But if no comparison can be made
then there can be no ascription of harm. If the counterfactual condi-
tion of non-existence cannot be compared with that of existence then
it cannot be the case that the child is harmed by being born.
Not everyone does deny that existence and non-existence are
incomparable. If they can be compared it seems clear that non-
18
Gleitman v. Cosgrove, 227 A. 2d 689, at p. 6982; quoted in Bernard M.
Dickens, ‘Artificial Reproduction and Child Custody’, The Canadian Bar
Review , 66 (1987), 55. Dickens comments that ‘existence and non-exis-
tence per se may not be contrasted’, ibid., 56.
19
McKay v. Essex Health Authority [1982) ALR 2 771, at 787 and 790.
20
M. Hanser, ‘Harming Future People,’ Philosophy and Public Affairs,
19 (1990), p. 52.
21
‘The Concept of Harm Reconceived’, 23.
410
 Wrongful Life

existence is very bad. It may not, as Cynthia Cohen argues, be as

bad as death.22 But it is surely still very bad. Certainly it is suffi-
ciently bad that existence, even if it falls below the minimal
decency threshold, is preferable. Even a barely worthwhile life is
better than none at all. Hence either non-existence and existence are
incomparable in which case the question of whether the child who
enjoys the miserable life is harmed does not arise. Or they are com-
parable and even a miserable life is better than none in which case
the child is not harmed by being conceived. Indeed she benefits.
Turning to the second feature of the case being considered, the
conception and birth of a child whose life is miserable is, to repeat,
unavoidable only in the sense that if any child is to be born it can-
not but be a child enjoying a barely worthwhile existence.
Conception and birth are not unavoidable in the sense that contra-
ception could not be used or a termination not sought. They can be
but are not. Moreover the view of Harris and Robertson is that
human beings should not be required to desist from conception or
to secure a termination in this case. Better, they have a presumptive
right to have children. As Robertson puts it, ‘Procreative liberty
should enjoy presumptive primacy when conflicts about its exercise
arise because control over whether one reproduces or not is central
to personal identity, to dignity, and to the meaning of one’s life.’23
Essentially the right to have or not to have a child is a central
liberty right. As such it can, at least for liberals, only be constrained
by a harm principle or something similar. Thus, since by the argu-
ment already considered, giving birth to a child whose life is only
barely worth living does not harm the child the prospective parents
rightly exercise their presumptive procreative liberty right in
having the child if that is what they choose to do. Its conception and
birth are unavoidable in the sense that it is their moral entitlement
if they wish to have children.24
22
Cynthia Cohen, ‘The Morality of Knowingly Conceiving Children
With Serious Conditions: An Expanded “Wrongful Life” Standard’, N.
Fotion and Jan C. Heller (eds.) Contingent Persons: On the Ethics of
Deciding Who Will Live, or Not, in the Future (Dordrecht: Kluwer
Academic Publishers, 1997), 31-5.
23
Children of Choice, 24.
24
Note that the procreative liberty right in question holds a special
significance for those who are strongly opposed to the use of contraception
or to abortions. Their views raise interesting questions. But I will concen-
trate on those seeking artificial means of reproduction. For they wish to
exercise their right to have children. Their situation is such that they can-
not otherwise conceive and cannot thus choose in the normal course of
events either not to reproduce or to reproduce.
411
David Archard

For Robertson, Roberts and Harris, the parents who create a

child—so long as it enjoys at least a barely endurable existence—do
no harm and do no wrong. This seems to me to be deeply and obvi-
ously mistaken. Consider Gregory Kavka’s example of the couple
who produce a child they intend to sell at birth into slavery.
Assuming that life as a slave is better than never existing, then—on
the reasoning I have considered—they do not harm the child.
Crucially in the absence of the offer from the slave owner they
would not have a child. They were not planning to have one and do
so only as a result of his offer. Thus their conception of the about-
to-be-enslaved child is, in the requisite sense, unavoidable. I concur
with Kavka in viewing their actions as morally ‘outrageous’. This
would be so even if they used the money from the slavery contract
for selfless and morally commendable purposes.25
Kavka thinks the couple err in ‘misusing their reproductive pow-
ers’. I agree. Kavka construes this misuse in terms of their ‘extort-
ing’ an unfair (excessive and unearned) price for the exercise of
these powers. The couple give life to a child but charge the child too
much for it. In my view the error in Kavka’s approach is that it
assumes that a fair price can be charged for the exercise of one’s
reproductive powers. Kavka himself glosses his claim with the fur-
ther assertion that the seller of life ‘improperly treats human life as
a commodity to be passed out to the highest bidder’.26 But this gloss
suggests—correctly in my view—that it is not that a fair price
should be charged for existence but that no price at all is appropri-
ate. Existence is literally priceless. Taking Kavka at his own word,
a price cannot both be excessive and unearned. If one has not
earned the right to put a price on something then no price should be
charged. A price can nevertheless be earned but excessive.
There are, I think, a number of background thoughts that may
lend apparent but misguided support to the view that a price can be
charged for bringing someone into being. The first is the Lockean
theory of property whereby somebody owns whatever they have
laboured on, ‘mixed their labour with’.27 Since procreation is
arguably a labouring the procreators must own that which they
create, namely the child. Further, it is entirely proper to alienate and
to charge a price for the transfer of what one owns. Locke himself
25
Gregory Kavka, ‘The Paradox of Future Individuals’, Philosophy &
Public Affairs, 11 (2) (1981), 100–2.
26
Ibid., 108.
27
John Locke, Two Treatises of Government, a critical edition with an
introduction and apparatus criticus by Peter Laslett, revised edition
(Cambridge: Cambridge University Press, 1963), II, Chapter V.
412
 Wrongful Life

saw the implication of his own theory and laboured, unpersuasive-

ly, to block it.28 Contemporary neo-Lockeans, such as most notably
Hillel Steiner, have also recognized the implication and sought in
various ways to block it.29
I think the Lockean theory does not have the implication in ques-
tion, chiefly because if individuals do own what they produce then
it is in virtue of the fact that they, at bottom, own themselves. Any
human being, including a child, is self-owning. Whatever owns
itself cannot be owned by others. I note here only that the Lockean
theory casts a very long shadow over much thinking about the rela-
tionship in which a parent stands to its own children.
A second background thought is that somebody may properly
charge another for continued existence, by supplying, for instance,
a life-saving course of medicine. Here it is proper to talk of an
unfair or excessive price being charged. This would be the case, for
instance, if a person acquired monopoly control of, rather than
invented or developed, a drug that others needed to stay alive.30 Yet
there is a fundamental and crucial asymmetry between bringing
into existence and ensuring the continued existence of someone
already alive. A price can be charged for the latter but not for the
former. We do not owe our lives to our parents in the same way or
in the same sense as we do to a rescuer, to a surgeon, or to the sup-
plier of an anti-toxin.
The third background thought is that it is appropriate to charge
others than the resultant child for the exercise of one’s reproductive
powers. The reason is that any such exercise is a use of one’s own
bodily powers whose costs—the expenditure of time, the attendant
discomfort and pain, the postponed opportunities of pursuing other
ends, etc.—are voluntarily incurred and, in principle, merit
compensatory payment. Indeed those who enter into surrogacy
contracts determine a proper price for such services. But while it is
appropriate for a surrogate mother to charge an aspirant parent for
the use of her reproductive powers it is not appropriate to fix a price
for existence that the resultant child must pay.
A final brief comment on this matter is appropriate. The vast
majority of those who deliberately choose parenthood rightly
regard the existence of a child of their own as sufficient recompense
for the ‘pains’ of reproductive labour. The creative act of
28
See the excellent critical discussion in Robert Nozick, Anarchy, State,
and Utopia (Oxford: Basil Blackwell, 1974), 287–9.
29
Hillel Steiner, An Essay on Rights (Oxford: Basil Blackwell, 1994),
241–8.
30
Nozick, op. cit., 181.
413
David Archard

conceiving a future human being is its own reward. It does not have
a further chargeable price. That is how most people view it. They
are correct to do so.

III

Rather then than quite literally cashing out the proper or improper
use of reproductive rights in terms of a fair price for existence, we
should think of a right with internal constraints. Adults have a pre-
sumptive procreative liberty right. This liberty right is rooted in the
considerable interests adults have in bearing children.31 However
there are internal constraints on its exercise. By an internal con-
straint I mean the following. A full and adequate specification of the
right in question contains or immediately entails a list of the
circumstances under which it may be exercised. By contrast an
external constraint on a right is a contingent consideration—
another right or other moral facts—which may or does limit or
vitiate the exercise of the right. If there is a right to Ø the internal
constraints specify what it is properly to Ø whereas the external
constraints specify when it is not permissible, all things considered,
to Ø.
Consider the right to drive that in the U.K. at least all qualified
motorists in possession of a valid licence have. An external con-
straint on its exercise might be the government’s determination that
for security reasons certain roads must be blocked off. Or that noise
levels have now reached such a high level that cars may no longer
drive down particular residential streets. Here contingent consider-
ations—security, noise pollution—are thought sufficiently weighty
to constrain the exercise of the right to drive. By contrast an inter-
nal constraint on the right to drive specifies what the right to drive
allows the rights-holder to do, namely drive a licensed, insured car
on designated highways within the appropriate speed limits. A
motorist who drives on a pavement does not exercise a right to drive
which is appropriately constrained by considerations such as the
safety of pedestrians. He simply does not exercise the specified
right to drive.
Or consider the right to freedom of expression guaranteed by the
First Amendment to the American Constitution and by Article 10
of the European Convention on Human Rights, incorporated into
the law of the United Kingdom by the Human Rights Act 1998.
Internal constraints on the right specify what forms of speech one

31
John A. Robertson, op. cit., Chapter 2.
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has a right to the free expression of. In the United States the
Supreme Court has adopted the policy of categorizing certain forms
of expression as falling outside the protection of the First
Amendment. Thus, for instance, advertising is ‘commercial speech’
and has in past judgments been categorized by the Supreme Court
as not a form of speech to which American citizens have a First
Amendment right of free expression.
By contrast an external constraint on this right might be given by
considerations of the public good. An individual could thus be pre-
vented from the expression of a view—the expression nonetheless
counting as a form of protected speech—on the grounds that under
the circumstances it constitutes a clear and serious harm to some pub-
lic interest. Moreover courts could determine that a particular form
of expression falling within the scope of the right is nevertheless enti-
tled to less protection than other forms of expression. Less weighty
considerations of the public good would be needed to trump the right
to this form of expression than would be necessary to set aside the
right to other forms. Thus it might be determined that commercial
speech is a form of expression protected by the First Amendment but
one requiring less protection than other forms also so protected.
Internal constraints in the above examples specify the action
types that fall within the scope of a right. But there is no reason why
an internal constraint should not take the form of a requirement or
duty incumbent on those who possess a right in their exercise of
that right. For instance, Robert Nozick argues that the Lockean
proviso—leave as much and as good for others—internally con-
strains the right of property acquisition. So when the proviso is
transgressed it is not the case that the right to property is overrid-
den by other considerations. ‘There is no such external (and ad
hoc?) overriding. Considerations internal to the theory of property
itself, to its theory of acquisition and appropriation’ explain why the
right in question cannot be exercised.32
I maintain that the right to procreate is internally constrained and
in the following manner. An adult may exercise his or her repro-
ductive powers to bring a child into being only if the child in ques-
tion has the reasonable prospect of a minimally decent life.
Steinbock and McClamrick speak in this context of ‘a principle of
parental responsibility’ which requires of individuals that they
‘refrain, when possible, from having children if they cannot give
them a decent chance of a happy life’.33 Onora O’Neill similarly
32
Robert Nozick, op. cit, 180–1 (second emphasis added).
33
B. Steinbock and R. McClamrock, ‘When is Birth Unfair to the
Child?’, Hastings Center Report, Nov–Dec 1994, 18.
415
David Archard

argues that ‘the right to beget or rear is not unrestricted, but con-
tingent upon begetters and bearers having or making some feasible
plan for their child to be adequately reared by themselves or by will-
ing others. Persons who beget or bear without making any such
plans cannot claim that they are exercising a right’.34 She thinks that
someone who conceives a child with no such plan does not exercise
the right to procreate. Just as someone who publicly advertises his
wares may not exercise a right to free speech and an unlicensed
driver who drives an uninsured car on public roads does not
exercise a right to drive a vehicle
Any parent who intentionally and knowingly brings into existence
a child whose prospect of life is better than non-existence yet below
the threshold does wrong. It is not that harms are done to the future
child which somehow outweigh or override the exercise of the right
to procreate. The parent does not exercise that right, and thus does
not do something that is presumptively morally permissible. The
child is wronged by being born even if it is not harmed. The child is
wronged in that it has a right to be given the reasonable prospect of
a life, one that is not just barely but is sufficiently worth living and
meets the specified threshold. This right, the child’s birthright, is
the corollary of the prospective parent’s duty to exercise its procre-
ative liberty in the manner specified by its internal constraints.
It is not a problem that an action may wrong another but not harm,
indeed may even benefit, them. Consider the broken promise that
rebounds to the benefit of the promisee, or the theft of the airline
ticket for a flight that crashes killing all on board.35 Thus I am happy
to say that the parents who bring into existence a child knowing that
she will enjoy a less than minimally decent life wrong the child even
if they do not harm the child—either because non-existence cannot
sensibly be compared with her miserable existence or because, ex
hypothesi, her miserable existence is better than non-existence. The
parents violate the child’s birthright to a minimally decent existence.

IV

In the concluding section of this article I want to do three things:

meet an important objection to my claim, clarify whether it is always
34
Onora O’Neill, ‘Begetting, Bearing and Rearing’, O. O’Neill and W.
Ruddock (eds.), Having Children: Philosophical and Legal Reflections on
Parenthood (Oxford: Oxford University Press, 1979), 25.
35
James Woodward, ‘The Non-Identity Problem,’ Ethics 96 (1986),
804–31.
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 Wrongful Life

wrong to create an individual who may be reasonably expected to

lead a very poor life, and to state what follows from my claim. The
objection is that my claim appears circular or unsubstantiated.36
There is a duty not to bring miserable children into existence
because they have a right not to be brought into such an existence.
The duty’s warrant derives from the birthright that in turn is either
simply asserted or justified by appeal to the idea that we ought not
to create barely worthwhile lives, that is that we are under the duty
correlate with the putative birthright.
There is a reply to this charge. It is that thinking of the right of
procreative liberty, as internally constrained in the manner suggest-
ed, is warranted whereas thinking, as Harris and Robertson do, of
the right as only externally constrained by a harm principle is not.
The warrant is to be found in the idea of consistency. Here I follow
and expand on some comments of Onora O’Neill.37 She points out
how Robertson and Harris both see the exercise of procreative lib-
erty as simply a mode of making exclusively personal choices.
Harris follows Ronald Dworkin who views the right of procreative
autonomy as guaranteed by the First Amendment right of free self-
expression.38 Harris explicitly echoes Dworkin when he writes that
‘the sorts of freedom which freedom of religion guarantees, free-
dom to choose one’s own way of life according to one’s own most
deeply held beliefs, are also at the heart of procreative choices.’39
Onora O’Neill rightly comments that reproductive choice ‘is not
best seen on the model of the exercise of a liberty right, such as a
right to freedom of expression’ but adds only that this is because
reproduction ‘aims to create a dependent being, and reproductive
decisions are irresponsible unless those who make them can reason-
ably offer adequate and lasting care and support to the hoped-for
child.’40 This may well accord with many people’s considered judg-
ment but it sounds question-begging. Moreover Harris and
Robertson will surely respond that the presumptive liberty right
they defend is not unconstrained. It does take account of the inter-
ests of the future child. A child whose reasonable life prospects are
36
Morreim, op. cit., 22.
37
Onora O’Neill, Autonomy and Trust in Bioethics (Cambridge:
Cambridge University Press, 2002), 60–3.
38
Ronald Dworkin, Freedom’s Law (Oxford: Oxford University Press,
1996), 104–5.
39
John Harris, ‘Rights and Reproductive Choices’, John Harris and
Søren Holm (eds.) The Future of Human Reproduction: Ethics, Choice and
Regulation (Oxford: Clarendon Press, 1998), 35.
40
Autonomy and Trust in Bioethics, 61 and 62.
417
David Archard

worse than non-existence is harmed if brought into being. A parent

also does wrong if she could—at no unreasonable cost to herself—
create a child whose prospects of life are significantly better than
those of the child she does conceive.
Thinking as O’Neill does certainly accords with our broader
intuitions about the value and point of using our reproductive pow-
ers to bring another human being into existence. However more can
be said to defend this way of thinking against Harris and Robertson
along the following lines. A right of procreative liberty is one of a
set of rights that the adult human being may be presumed to pos-
sess. The exercise of any of these rights cannot be at the expense of
another’s rights, that is be such as to subvert or vitiate the posses-
sion or enjoyment of another’s rights. But that is precisely what
would be the case if the right to procreate could be exercised so as
to bring into being a child incapable of enjoying her rights. The
same essential claim can be made in terms of interests. Grant that
human beings do have a fundamental interest in the creation of
their own offspring and that it is proper not to seek to frustrate the
enjoyment of this basic interest. However its satisfaction cannot be
at the expense of another human being’s enjoyment of her most
basic interests. But that is precisely what would be the case if a
human being knowingly and deliberately conceived a child whose
own life is likely to fall below a minimum specified in terms of
interests.
The birthright is to the enjoyment of a significant number of the
rights possessed by any child. A parent would not do wrong by
creating a child who might be reasonably expected not to enjoy one
of her rights. Wrong is done when the child’s life falls below a
threshold which has been identified as the secure enjoyment of a
good number of her rights. It is conceded that this is somewhat inde-
terminate. Yet it should be transparently clear that exercising one
liberty right in such a fashion and with the consequence that
another human being cannot enjoy most of her rights is wrong.
Is it always wrong deliberately to bring into being an individual
whose life may reasonably be expected to be very poor? There are
two very different circumstances which might give us pause. The
first is when bringing someone into existence arguably serves a very
great public good, or averts a very great public harm. Imagine, at
the extreme, that after some awful catastrophe only two couples on
earth remain. They know this is the case and that any child each
couple can conceive will enjoy a barely acceptable existence. They
had not otherwise planned to conceive. If one thinks, reasonably,
that the continued existence of the human species is, ceteris paribus,
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 Wrongful Life

a very great good and, further, that the only chance of its continu-
ing in these circumstances is if the couples have children then the
couples are permitted to conceive. Indeed arguably they are obliged
to do so.
A less extreme situation is one in which the continued existence
of a society or a culture or a tribe is similarly dependent upon the
birth of one or more children to members of the group. These chil-
dren will enjoy a less than minimally decent existence. It could be
argued that bringing children into being in these circumstances is
also permissible. However I am far less sure that the continued exis-
tence of the group is an evident good, in the way that the continua-
tion of the species is, that outweighs the wrong done to the children.
The second type of circumstance in which it might not be
thought wrong, all things considered, to create a barely tolerable life
is where the situation of the future child is not attributable to any
actions by her parents. Imagine then that the child will be born to
extreme poverty and that this condition can reasonably be explained
as the result of the actions, individual and collective, of human
beings other than the parents. In short it is not the parents’ fault
that they are very poor and that any child they have will suffer a
very poor life. Should they be denied a choice to have a child that is
available to those richer than they are? If it is wrong that they can
only do wrong by having a child, is their having the child really
wrong?
However the wrongfulness of having the child in these circum-
stances does not transfer from the parents to those responsible for
their poverty such that the parents act blamelessly in conceiving a
child whose life will be very poor. Their decision to have the child
is deliberate. It is not done under duress. Not having the child does
not threaten their life; it merely frustrates an admittedly central
interest of theirs. That they cannot have a child without doing
wrong is the result of the wrongful actions of others. This provides
a moral reason to change their economic circumstances. It does not
exempt them from blame if they do have the child.
Consider a very rich and avid stamp collector, Smith, who needs
a particular and unique stamp to complete his collection. It has been
his whole life’s ambition to do this. The stamp in question is not
available for purchase because at some point in the past it was
stolen, and has passed subsequently into the hands of another col-
lector, Jones, who is unwilling to sell it. Smith would be wrong to
steal the stamp from Jones. That this is the only way for Smith to
possess the stamp, and complete his life ambition, is the result of a
past wrong. This fact is a moral reason for changing the status of the
419
David Archard

stamp, warranting the state, for instance, in taking the stamp from
Jones. But the same fact does not give us a reason to think Smith’s
act of theft any the less wrong.
The practical upshot of my claim is simple. Assisted reproduction
should not be available to couples where one can be reasonably sure
that any child they will conceive will enjoy a life that falls below the
specified threshold. In the case of couples who do not need assis-
tance in conceiving things are obviously more complicated. Where
conception was unintended but subsequently welcomed we cannot,
to repeat, determine whether wrong, all things considered, is done by
allowing the pregnancy to continue. This is because such a judgment
requires a determination of the moral permissibility or impermissi-
bility of abortion. Those who deliberately create a miserable life are
blameworthy. But it should be recognized that appropriate practical
measures are limited and most likely ineffective.
However consideration should be given to the compulsory steril-
ization of those who can only bring into existence persons whose
lives will fall below the threshold. The principal moral reason
against the compulsory sterilization of anyone is that it abrogates
their procreative liberty right. However those who can only con-
ceive persons whose lives will be very poor cannot exercise this
right. For this right is internally constrained by the requirement
that anyone conceived will be born to lead a life that can reasonably
be expected to be a minimally decent one. One does not do wrong
in abrogating a right that cannot be exercised. One may do wrong in
other respects but cannot do so in this regard.
To conclude: the minimum threshold entitlement of any child is
the secure enjoyment of a good number of those rights that are listed
in the United Nations Convention on the Rights of the Child. This
is every child’s birthright. A parent does wrong in knowingly bring-
ing into existence a child who will not enjoy most of these rights.
Acting in this wrongful way she does not exercise a procreative
liberty right since that right is internally constrained by the
obligation to ensure that any child will be guaranteed at least the
adequate life which these rights circumscribe.41
Lancaster University
41
An earlier version of this article was presented as a paper to a confer-
ence on the new reproductive technologies at the University of Giessen. I
am grateful to those present, including John Harris and John Robertson,
for their comments at the time and subsequently. The paper was also pre-
sented to a seminar at the University of Lancaster, and I am grateful to my
philosophy colleagues, John O’Neill, Alison Stone, Cain Todd, Rachel
Cooper, and Garrath Williams, for their very helpful critical suggestions.
420