In Defense of Wrongful Life: Bringing Political Theory to the Defense of a Tort
In Defense of Wrongful Life: Bringing Political Theory to the Defense of a Tort
Michael B. Laudor 0
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Recommended Citation Michael B. Laudor, In Defense of Wrongful Life: Bringing Political Theory to the Defense of a Tort, 62 Fordham L. Rev. 1675 (1994). Available at: http://ir.lawnet.fordham.edu/flr/vol62/iss6/4
MICHAEL B. LA UDOR *
In this Article, Post-doctoralAssociateMichael Laudordefends the tort
ofwrongful life as a valuable cause of action by developing a philosophy that addresses
issues of intergenerationaljustice. To do so, he first explores the problems of
future interestsand analyzes the limitations ofboth standardand
utilitarianconcepts of harm. Laudor next considers the legal dilemmas arisingfrom claims
that the births of certain children are harmful Laudorfinally constructs a
notion of harm that enables courtsdeciding whether to remedy injuries suffered by
future generationsto recognize wrongful life as a legitimate cause of action.
Genesis, God commands humanity to "be fruitful and multiply."
God later covenants with Abraham, telling him that he "will make of
him a mighty people, numberless as the stars in the heaven."
Theologically, the production of future people, once God starts things off, is both
a given and a blessing, both a natural part of the continuity of humanity
and a morally correct fulfillment of God's wishes. Religious faith makes
it clear that we are obligated to future generations and that, in the
timelessness of God, future people are as important as we are.
The comfortable certainty of faith, however, does not describe just
how we are obligated to future people or what specific actions or
inactions our obligations may entail. We may well wonder what we owe to a
person whom we cause to be born or to those harmed by the birth of a
person whom we cause to be born. Within the ambiguity-laden world of
rational political theory, questions like these are extremely difficult, if not
impossible, to answer. We not only have to determine what resources or
knowledge we ought to bestow on a predictably existent future
generation of a specific size, but also whether the generation will come into
existence and what size it will be. Our decisions have a determining
impact on almost all relevant aspects of the generations, and the
individuals, to come.
The theories and principles which we often employ to make important
decisions seem woefully inadequate to guide us in our problems with
posterity. The conceptual complexity of future people's interests poses
problems both for individual moral choice and for social and population
* Post-doctoral Associate, Yale Law School; B.A., J.D., Yale University. This
Article benefitted enormously from the contribution of James Fishkin, the Darrell K. Royal
Regents Chair in Government, Law, and Philosophy at the University of Texas at
Austin. I am also grateful to Jay Katz, Bruce Ackerman, Robert Burt, Guido Calabresi,
Owen Fiss, and Joseph Goldstein for the benefit of their comments, ideas, and criticism.
Thanks are also due Rosemary Carey for her logistical support
policy considerations. Derek Parfit, in his seminal works on future
generations,' provides a solution in the realm of individual choice, but only
by leaving his principle vulnerable to sanctioning objectionable policy
In Part I of this article, I will explore the general problems of future
interests and will demonstrate that standard conceptions of harm
generate intuitively objectionable implications.2 Section A will describe the
problems inherent in one standard conception of harm, the notion that
harms must be ascribed to particular individuals. Section B will discuss
Parfit's solution, as well as his recognition of the shortcomings of the
conception of harm embodied in standard forms of utilitarianism.
Section C will point out the failures of some attempts to reformulate
utilitarianism. Finally, Section D will briefly summarize the roots of the
problems of future people's interests.
The courts of America, as well as moral and political theorists, have
been grappling with posterity without providing satisfactory solutions.
The courts face legal dilemmas arising from claims that the births of
certain children are harmful. One promising tack for answering some of
the questions is the fairly recent definition of "wrongful birth" and
"wrongful life" as torts, or legally recognized harms. This approach has
come under attack because it poses great challenges to our normal
conception of individuals' interests.
In Part II of this article, I will argue that our normal conception of
interests deserves to be challenged and that a careful construction of tort
law, coupled with a flexible use of some traditional moral theories, gives
us one of the better current tools for justly answering some very difficult
questions. In the context of wrongful life cases, I will suggest a solution
to the problems posed by future interests for individual moral choice and
I will, unlike Parfit, suggest a solution which does not obviously justify
objectionable choices for social and population policy. Section A will
show how the courts have applied the law of harms, or tort law, to
wrongful life cases. Section B will briefly place the wrongful life issue in
the context of the harm problem discussed in Part I. Section C will
propose a reconstruction of identity-specific harm to allow justice to be done
1. See Derek Parfit, FutureGenerations: FurtherProblems, 11 Phil. & Pub. Aff. 113
(1982) [hereinafter Future Generations]; Derek Parfit, On Doing the Best for Our
Children, in Ethics and Population 100 (Michael D. Bayles ed., 1976). For a fuller treatment
of Parfit's theories, see generally Derek Parfit, Reasons and Persons (1984).
2. Throughout the harm discussion in Part I and the entire article, I will deliberately
create a false dichotomy, one that indicates that Parfit's utilitarianism and my opposing
intuitionism are our only choices in grappling with future interests. I have chosen not to
discuss Bruce Ackerman's radical egalitarian suggestions such as ensuring equal genetic
endowments for all. See generallyBruce A. Ackerman, Social Justice in the Liberal State
(1980). I also do not address John Rawls' implication that, behind the veil of ignorance,
no one knows which generation he or she would be a member of. See generally John
Rawls, A Theory of Justice (1971). I have chosen not to address these concepts because
they are not needed to contend with Parfit, in the realm of philosophy, and because
intuition, in the work of juries and others within the realm of law, plays such a great role.
in wrongful life cases. In Section D, I will defend the wrongful life tort
against attack on other legal grounds, proving, finally, that the tort is a
useful tool of justice.
GRAPPLING WITH POSTERITY: THE FUTURE AND NOTIONS OF
One basic formulation of the future generations problem can be
simplified and expressed as our need to decide whether it is obligatory, or
morally compulsory, for us to create future people at some cost to ourselves.
This question has many far-reaching implications, including issues of
population policy and whether we have an obligation to prevent the
extinction of our species. It also poses, in its present form, great challenges
to our normal conceptions of individuals' interests.
Our intuition tells us that, other things equal, it is better for a couple to
have a happy child than a severely deformed, wretched one. If their
choice results in a wretched child rather than a happy child, then we
would like to say that they have done wrong. Thomas Schwartz,
however, presents an argument that leaves an ordinary approach to moral
choice completely silent in just such a case, as well as in some interesting
cases involving generations further in the future. 3
Schwartz's theory of obligation to posterity is a flat denial of
obligation.4 He writes, "we've no obligation extending indefinitely or even
terribly far into the future to provide any widespread, continuing benefits to
our descendants." 5 Schwartz defends this assertion with the argument
that any policy that would have widespread effects would also affect the
composition of the future generation. 6 Using his example, if we followed
an uncontrolled population policy rather than a strict population control
program, it is mathematically demonstrable that, after a few generations,
there is virtually no individual born who would have been born had the
alternative policy been adopted.'
The adoption and enforcement of an uncontrolled population policy
change enough factors, like the moment of conception or the number of
children per couple, so that different gametes meet and the population is
composed of different particular individuals than those who would have
been created otherwise. Assuming that uncontrolled population growth
produces a significantly lower quality of life for the future generation
than the restrictive policy, we would like to say that this policy choice
3. See Thomas Schwartz, Obligations to Posterity, in Obligations to Future
Generations 3 (R.I. Sikora & Brian Barry eds., 1978) [hereinafter Obligations to Future
4. See id at 3.
5. Id (emphasis omitted).
6. See id
7. See id at 4.
harms the generation and that the policy choice thus is morally
objectionable. Schwartz, however, maintains that the choice is not morally
objectionable.' Schwartz believes in what Derek Parfit calls a
"personaffecting" concept of harm9 and what James Fishkin calls an
"identityspecific" concept of harm.1" Therefore, Schwartz can never harm a
future person if his policy affects the conditions of conception because no
particularindividual is ever made worse off than he or she otherwise
would have been.
This limitation, stemming from the identity-specific view of harm,
applies in the happy child versus the wretched child case as well. If a
couple could conceive a deformed, unhappy child now or wait and
conceive a happy child later, we would normally think it somehow
incumbent upon them to wait. Schwartz, however, would not think it morally
incumbent upon them to wait. The couple harms no one, in the
identityspecific sense, by conceiving the wretched child because the child is not
worse off than he or she otherwise would have been. That child, in fact,
otherwise would not have been born.
The conclusion that no harm is done to the future generation or to the
child is, nevertheless, counterintuitive. This conclusion arises, however,
from fairly plausible premises. It need not be unreasonable to define
moral obligation in terms of not harming particular people, and
Schwartz's assumptions about biology and varying personal identity
seem correct. That these premises lead to an obviously counterintuitive
stance on the child-bearing case caused Gregory Kavka to term this case
the "paradox of future individuals." 1 1
The conclusion certainly is paradoxical. Schwartz himself even tries to
escape from the implications of his own argument by claiming that
people who presently hold preferences for a happy future might, in pursuing
their own satisfaction, contribute to the welfare of future generations. 12 I
maintain, however, that Schwartz cannot escape by providing a
particular substitute for something his own moral principle ought to do. If he
came up with some external preference in the child example, say that the
couple had a preference for healthy children and so did not conceive the
wretched child, he still would not have patched the hole in his theory.
His theory justifies having the wretched child; whether the couple
actually has the child is irrelevant. Intuitively, we know that having a
wretched child, rather than an alternative healthy child, is somehow
terribly wrong. Schwartz eliminates the alternative child from
consideration, eliminating the choice. I might, and Parfit certainly would, discard
8. See id.
9. See Future Generations, supra note 1, at 149.
10. See James S. Fishkin, Justice Between Generations: The Dilemma
ofFutureInterests, in 4 Social Justice: Bowling Green Studies in Applied Philosophy 24 (Michael
Bradie & David Braybrooke eds., 1982).
11. Gregory Kavka, The Paradox of Future Individuals, 11 Phil. & Pub. Aft. 95
12. See Schwartz, supra note 3, at 12-13.
the person-affecting notion of harm, or merge it with some other
principle, rather than accept Schwartz's argument.
Parfit'sSolution: Identity-Independence and Utilitarianism
Parfit's conclusions, from discarding the person-affecting notion, are
very interesting. He redefines harm so that an individual need not be
made worse off, only that some persons will be worse off than they or
others would have been.13 Roughly, for the future generation policy
choice, Parfit claims that if the same number of lives would be lived
under either choice, it would be intrinsically worse if those who live are
worse off than those who otherwise would have lived.1 4 He moves to
what Fishkin calls an "identity-independent" notion of harm," one in
which a particular individual need not be made worse off. It will suffice
if any individual will be made worse off. The impartiality of this kind of
notion of harm is a familiar feature of Utilitarianism. Indeed, Parfit
looks to a utilitarian solution to the future generation problem. 6
At first, this approach might seem promising. It allows a moral
obligation principle to forbid the couple from having the wretched child,
because utilitarian consideration weighs the disutility of the wretched
child as negative and the utility of the happy child as positive.
Utilitarianism does not care which child, in particular, has the experience.
Rather, the theory focuses on the utility or disutility of the experience.
In fact, Parfit suggests using a fully comparative view of benefits,
deciding which of two alternative policies would benefit people most, and
implementing that policy.17
Choosing greater net benefits is a straightforward utility maximizing
principle. Parfit recognizes, however, that this will not work without
many restrictions, if it will work at all.1 8 Considering benefits in the
classical utilitarian sense of total utility forces us to promote the creation
of future people until the last person produced is indifferent between
living and not living. This principle forces us to prefer a huge, wretched
population to a smaller, happy one, as long as the quantity of the huge
population allows its total utility to exceed the total utility of the smaller
population. Parfit calls this preference "the repugnant conclusion."' 9
Considering benefits in the manner prescribed by average utility forces
us to declare it wrong to have happy children. If a child were to have a
happy life, a life well worth living but not quite as happy as the average
13. See Future Generations, supra note 1, at 140-48.
14. See id.
15. See Fishkin, supra note 10, at 25.
16. See Future Generations, supra note 1, at 146, 169-72.
17. See id.at 125. If the choice is between policy X and policy Y, he suggests that we
find all the benefits and losses from having X rather than Y, and all the benefits and losses
from having Y rather than X, and then choose the policy with greater net benefits. See
18. See id. at 125-28.
19. Id. at 142.
life, utilitarianism forces us to say that it is wrong to have this child. His
or her birth will lower the average utility of the population. The
repugnant conclusion and the immorality of a happy child are as
counterintuitive as sanctioning the couple's choice in the wretched child case. Total
and average utilitarianism, in their usual constructions, offer no solutions
to our problem.
Parfit attempts a number of restrictions, but ultimately concedes that
he cannot establish a principle to apply to future generations.2 0 He is so
distressed by his own and Schwartz' conclusions, however, that he is
convinced that we must discard the person-affecting notion of harm.2 1 He
proposes some principle X, a utilitarian principle which he cannot give in
specific form. 22 He writes that "[i]t will be about human well-being, and
the quality of life, but it will not claim that what is morally most
important is whether our acts will affect people for good or bad, better or
worse." 23 For fear of counterexample, or just the sheer difficulty of the
problem, Parfit cannot formulate this general principle of benefits or
moral obligation. He advocates the adoption of an identity-independent
notion of harm as the major step necessary to avoid counterintuitives like
the wretched child.24 Despite the obvious counterexamples to the
standard forms of utilitarianism, Parfit seems to feel that some kind of
utilitarianism, because of its identity-independent approach to harm, will work.
The Failureof Restricted Utilitarianism
Some braver souls attempt specific formulations of restricted
utilitarianism, but their proposals yield counterintuitive results. Each
formulation attempts to evaluate future people's interests against current people's
interests. This evaluation is crucial if we are to make social policy
choices. Recall the question of whether we are morally obliged to create
future people at some cost to ourselves. The particular restrictions of
utilitarianism can change dramatically the nature of the costs and
obligations involved. If we can discount future interests relative to current
interests, for example, the sacrifices that might be required of us in terms of
resource preservation or population control will be smaller than if future
interests are equal to our own.
Robert Scott believes that "one good solution to the present-future
aggregation problem is provided by a classical or total utility principle
which discounts effects on future people." 25 Scott believes, correctly,
that all purely utilitarian principles are vulnerable to counterexamples
20. See id. at 133.
21. See id. at 152.
22. See id. at 171.
23. Id. at 171-72.
24. See id. at 148-57.
25. Robert Scott, Jr., EnvironmentalEthics and Obligations to Future Generations,in
Obligations to Future Generations, supra note 3, at 74, 75.
that demonstrate how the principles legitimate injustice.2 6 A standard
example, for classical utilitarianism, might be a case where we judge a
prohibition on racially mixed marriages as good, because the preferences
of a mostly white southern town are such that a mixed marriage
produces great disutility.
Any case where utilitarianism requires predatory redistribution may
produce injustice. For example, if a doctor can save five ill people by
killing one healthy person and distributing his or her organs among
them, classical utilitarianism would, in a very unrestricted construction,
expect the doctor to kill the healthy person. Scott also believes that "any
correct moral code will contain both a utilitarian and a justice principle
...the justice principle will presumably save it from the
justice-counterexamples."27 I agree with Scott that utilitarian principles are vulnerable
to claims about injustice and I also accept as a possibility his claim that a
moral code may be an intuitionistic balancing between two or more
principles. I think, however, that his justice principle has an impossible task
to accomplish because it must, in addition to eliminating
justice-counterexamples, defend a violation of the most basic tenets of utilitarianism.
Scott draws his main argument for discounting from John Rawls, who
offers a way to prevent a total utility principle from demanding the
creation of future people until the next one produced would not experience
any net utility.28 Scott summarizes Rawls' argument:
Rawls suggests that total happiness utilitarians might want to
discount effects on future people in order to avoid what Rawls takes to be
a counterintuitive consequence of total happiness utilitarianism.
According to Rawls, because there could be so many people in future
generations and so many future generations, situations might arise
where utilitarian principles would dictate imposing extreme sacrifices
on the people of the present generation so as to slightly increase the
total happiness of future generations. However, if the happiness of
future people were discounted, this result could be avoided. Hence, says
Rawls, a total happiness utilitarian could improve his theory by
incorporating discounting.2 9
If the discounting were severe enough, that is, if the satisfaction of future
people is weighed sufficiently less heavily than the satisfaction of current
people, total utilitarianism does escape its usual counterintuitive
conclusion about producing more people. Discounting could also prevent
Parfit's repugnant conclusion, for as long as the huge, wretched
population is a future population, discounting could reduce the total utility
compared with the small, happy population's total utility.
Scott, however, misuses Rawls when he pretends that Rawls'
conclusion is that discounting can help a total happiness utilitarian "improve
26. See id at 76-77.
27. Id at 77.
28. See id at 85-86.
29. Id at 84 (citation omitted).
his theory."3 0 It is true that Rawls says something like this in A Theory
ofJustice3. 1 Rawls, however, reaches his real conclusion on the very next
We may find that to achieve justice between generations, these
modifications in the principle of utility are required. Certainly introducing
time preference may be an improvement in such cases; but I believe
that its being invoked in this way is an indication that we have started
from an incorrectconception.32
Rawls hardly says that discounting improves the theory of total
utilitarianism. Rather, he claims that the theory is a misconception and that
discounting might help prevent one of the counterintuitive results that
misconception generates.33 Rawls even says that "time preference has no
ienratrtienstihce ecthoincsaelquapenpceeasl. oIfttihseinuttriolidtyuccerditeinrioanp.u3r4ely ad hoc way to
Scott takes Rawls to mean that discounting improves total utility
principles.3 5 I claim that Rawls is far too gentle when he says that
discounting has no "ethical appeal."' 36 Discounting the interests of future people,
in fact, is ethically unappealing. It is intrinsically wrong. If we look at
how discounting works in general, it is very clear that we will not want to
use it in comparing future and current people's interests.
We make economic investment decisions, for example, by determining
the present discounted value of the investment. This assumes that a
person A, who lives in period T, has a rate of time preference such that,
other things equal, he or she prefers an amount Q in current
consumption to the same amount in the next period. If A knows the interest rate
he or she could earn, and the number of periods the investment will
cover, A can find out the present discounted value of foregoing Q and
investing it in a given project: Present Discounted Value = The
Summation, as T goes from 0 to N, of Q/(1 +R)T. This equation will tell A the
present value of his or her own future consumption from the investment.
The comparison is between different periods, but between one
individual's possible present and future utility. It is A who could have Q now,
and A who could have whatever the investment gives him or her in later
When we discount the interest of future people, however, it is not a
question of one individual A consuming now or at some future time. We
are, instead, saying that individual A's consumption or utility matters
more than some future unknown individual B's consumption or utility.
A is not being preferred to B because of his or her caste. A is simply
31. See Rawls, supra note 2, at 297.
32. Id. at 298 (emphasis added).
33. See id. at 297-98.
34. Id. at 298 (emphasis added).
35. See Scott, supra note 25, at 84-85.
36. Rawls, supra note 2, at 298.
preferred to B because A is a current person and B is a future person. A
is preferred to B because Rawls introduces discounting in "a purely ad
hoc way," 37 and because Scott finds it convenient. I do not.
One of the most appealing aspects of utilitarianism is its claim to
impartiality. The impartiality of an identity-independent view of interests is
what draws Parfit to utilitarianism in his principle X.3' The utilitarian
does not care which person experiences the utility or disutility, but rather
cares about how much utility is being experienced. Discounting the
interests of future people, as long as the discounting is based solely on time
preference and not on the probabilities of future effects, destroys this
impartiality. Suddenly, the utilitarian cares very much that the particular
current individual, A, experience utility relative to the particular future
individual, B. A, simply because he or she lives at an earlier time than B,
is a Brahmin, and B is an untouchable. This is why I claimed above that
Scott's justice principle would have to defend a violation of the most
basic tenets of utilitarianism.
While Scott does not offer a justice principle, he claims that "the
classical utilitarian principle with future discounting when it is part of a
moral code which includes some plausible principle of justice provides a
satisfactory solution to the present-future aggregation problem." 9 I
think that no plausible principle of justice, unless it starts out by setting
Scott's discount rate equal to zero, will even begin to make Scott's
proposal a satisfactory solution. If the principle did set the discount rate equal
to zero, to which Scott would obviously object, he would be left with
classical utilitarianism and the rest of some justice principle. Scott
incorporates discounting because he recognizes the problems that classical
utilitarianism has with future generations. Unfortunately, what he
incorporates is intrinsically unjust. There is no reason why a current person's
general interests should be viewed as more important than a future
person's general interests.
Despite its well-known disadvantages, classical utilitarianism without
discounting finds an advocate in Leonard Sumner, who tries to defend it
by claiming that it will not produce the repugnant conclusion.' He
claims that utilitarianism is self-restricted by its fully comparative
nature.41 Sumner stresses that the classical theory will only recommend
expanding the population when that is genuinely the best way to increase
total utility.42 He argues:
The classical theory bids us consider population expansion as one
possible method of maximizing the welfare of a given society. Changes in
37. Id. (emphasis added).
38. See Future Generations, supra note 1, at 154, 172.
39. Scott, supra note 25, at 86.
40. See L. W. Sumner, Classical Utilitarianismand the Population Optimum, in
Obligations to Future Generations, supra note 3, at 91, 96.
41. See id at 98.
42. See id at 103.
the population level are so closely interlocked with other social
changes that no expansionist policy will be just a population policy; it
will also contain provisions affecting the well-being of already existing
individuals. Similarly, non-expansionist alternatives will not aim
solely at the purely negative goal of no increase but will also feature
programmes designed to raise the overall level of social utility .... It
must ... be remembered that the classical theory is fully comparative
greater overall return than any non-expansionoinslty pwolhiecny. 4i3t promises a
...population expansion will be dictated
The requirement that a population expansion must promise a greater
overall return than any other policy allows Sumner's classical
utilitarianism to escape the repugnant conclusion if we accept Sumner's view that
the planet has already passed the stage where "further growth is the best
means of promoting human welfare." 44
For now, let's grant Sumner his assumption and the conclusion that
the fully comparative nature of classical utilitarianism precludes the
repugnant conclusion. I maintain, nevertheless, that Sumner's formulation
produces a standard counterintuitive result. The strictness of the claim
that a population expansion provides the greatest contribution to total
utility of any available action makes Sumner's proposal vulnerable to a
variant of the counterexample usually associated with the average utility
principle. Suppose a couple may conceive a child who will be happy, but
not ecstatic. Suppose also that the people of this couple's generation are
made particularly happy by jogging and tanning-so happy, in fact, that
the gain in total utility from the birth of the child couldn't possibly
match the gain from running in the sun. 5 Sumner's proposal makes it
wrong for the couple to have the happy child as long as it is possible for
people to run in the sun.
Of course, it is implicit in Sumner's proposal that the child be in a set
of possible children greater than the set E, where E is the number of
children needed to produce either zero or negative population expansion.
If all the happy children whom people want to conceive do not add up to
enough to represent a population expansion, Sumner will not object to
their conceptions or births. If, however, enough children are desired so
that a population expansion would occur if all were born, the above
example holds. Sumner will object to the birth of happy children.
Average utility principles object to the birth of happy children if their
happiness is below the average level. Sumner's principle objects to the
birth of happy children if they would represent a population expansion
when some other action, like jogging, would add more to total utility.
Either way, the result is counterintuitive. We should not object to the
birth of happy children who will lead lives well worth living simply
because a lower average utility or a larger population would result.
Proba43. Id. at 103-04.
44. Id. at 104.
45. We might imagine some extremely warped version of California to be this society.
bly the only case in which the birth of a child is terribly objectionable is
when the birth produces a terribly miserable child, as in the wretched
child case. A happy child, by definition, would not provide such a case.
I also wonder what kinds of injustice would result if Sumner did try to
limit the production of children to the set E, where no population
expansion would occur. Suppose there are more desired, possibly happy
children than spots in the set E. Will people be allowed to have children on a
first-come, first-served basis? What just method will there be to decide
which possible people will be included in E and which possible people
will not be allowed to come into existence? I can imagine all kinds of
nightmare scenarios, with some biased notion of which parents provide
superior endowments more likely to raise total utility, applied in the
decision. Perhaps there would be no room for African-Americans or Jews in
set E. Regardless of this speculation, I think it is clear that Sumner's
escape from the repugnant conclusion only leads him into other
counterintuitive conclusions. Classical utilitarianism simply does not give an
answer to our future generation problems.
The Complexity of Future Interests
Whether the restriction on utilitarianism is discounting or stressing
fully comparative decisions, the results are unsatisfactory. Although an
identity-independent notion of harm, embodied in utilitarianism,
provides grounds for objecting to the morally wrong individual choice of the
wretched child, it produces counterintuitive results for social policy.
This is the root of Parfit's dilemma. Parfit's difficulty in giving his
principle X a specific form probably stems from the fact that no construction of
utilitarianism, because of its identity-independent approach to harm, will
be free from devastating counterexamples.
The problem of the repugnant conclusion is still unresolved, but James
Fishkin points out yet another problem." Fishkin argues that the
"replaceability" argument will always provide objections to a consistent
application of identity-independent notions of interest.4 7 He provides a
science-fiction case which supposes that "[a]n entire population is
secretly and/or instantaneously and painlessly replaced by other persons,
perhaps copies, who have certain desirable properties. If we are
utilitarians, we might imagine the replacements to be more efficient utility
maximizers."4 8 Fishkin argues, correctly, that an identity-independent notion
of harm gives us no reason to object to this objectionable case.4 9
In fact, there are even more objectionable cases where
identity-independence might require us to kill people if they could be replaced with
more efficient utility maximizers. Ironically, the identity-independence
46. See Fishkin, supra note 10, at 26.
47. See id at 26-27.
48. Id at 27.
49. See id
which allows utilitarianism to escape from Parfit's attacks makes it
vulnerable to Fishkin's attacks. The problem of interest and the problem of
future generations' interests become even more complicated, for both
identity-specific and identity-independent notions of interest can entail
DEFENDING JUSTICE: REDEFINING HARM FOR THE TORT OF
In addition to presenting a frustrating tangle for theorists, the
difficulty of formulating a satisfactory, specific theory of people's interests
has disturbing empirical implications. In this Part of my article, I will
discuss individual injustices resulting from our courts' reliance on a
traditional, identity-specific view of harm. I will also propose a principle
that will allow the courts to avoid sanctioning injustice in individual
choice, without producing counterintuitive results for population policy
Wrongful Life: The Courts and a Problematic Tort
The courts, and the State, have a long-standing commitment to the
preciousness of life. In the first wrongful birth case, Christensen v.
Thornby,5 0 this commitment thoroughly dominated the court's ruling.
Dr. Thomby performed a vasectomy on Mr. Christensen that failed.5
As a result, despite Thornby's assurances of Christensen's sterility,
Christensen's wife became pregnant and bore a child.5 2 Mrs. Christensen
had been told that child-bearing might kill her." Mr. Christensen sued
Dr. Thornby claiming that he experienced great anxiety and expense,
both before and after the birth, which his wife survived.54 The court's
opinion drew heavily on Genesis in denying Christensen's claim:
The purpose of the operation was to save the wife from the hazards to
her life which were incident to childbirth. It was not the alleged
purpose to save the expense incident to pregnancy and delivery. The wife
has survived. Instead of losing his wife, the plaintiff has been blessed
with the fatherhood of anotherchild.55
The court essentially conducted an intuitive cost-benefit analysis of
Christensen's position and decided, among other things, that the
"blessing" of another child outweighed the anxiety experienced. 56 The court
did not view the birth as wrongful; indeed, birth could not be wrongful.
The issue in wrongful birth cases like Christensen is how the birth of a
child harms others, often the child's parents. In wrongful life cases,
how50. 255 N.W. 620 (Minn. 1934).
51. See id.
52. See id. at 621.
53. See id.
54. See id.
55. Id. at 622 (emphasis added).
56. See id.
ever, the issue is how the birth of a child harms the child itself. In recent
wrongful life cases, plaintiffs have asked courts to decide whether having
a wretched child, rather than no child at all, is terribly wrong. The
prevalent responses have been negative. 57 These courts appear to ground
their decisions, like Schwartz's argument, in identity-specific notions of
harm, as well as in the tradition, exemplified by Christensen, of
Berman v. Allan5" incorporated both wrongful birth and wrongful life
claims. Shirley Berman gave birth, at the age of thirty-eight, to Sharon
Berman who was born with Down's Syfndrome.5 9 Shirley Berman's
gynecologist and obstetrician never informed her about amniocentesis, nor
did they perform the procedure."t Shirley claimed that, had she known
about amniocentesis, she would have undergone the procedure,
discovered Sharon's condition, and aborted the pregnancy.6 The Bermans
brought a medical malpractice action claiming wrongful birth in that
Shirley had been deprived of the option of making a meaningful decision
about aborting.62 The Bermans also brought a claim on behalf of
Sharon, alleging wrongful life in that she would have been aborted but
for the doctors' negligence.6 3 The court recognized the parents' claim
but not Sharon's."
Justice Pashman, writing for the court, noted both
identity-specification and a special value of life:
Sharon does not contend that absent defendants' negligence she would
have come into the world in a normal and healthy state.... Rather,
the gist of the infant's complaint is that had defendants informed her
mother of the availability of amniocentesis, Sharon would never have
come into existence....
One of the most deeply held beliefs of our society is that
lifewhether experienced with or without a major physical handicap-is
more precious than non-life.... Nowhere ... is there to be found an
indication that the lives of persons suffering from physical handicaps
are to be less cherished than those of non-handicapped human
The court implicitly held that, had Sharon been aborted and the Bermans
had a healthy daughter a year later whom they named Sharon, the first
Sharon still would "never have come into existence."' 66
children would have been named Sharon, there would have been
fundamental differences of individuality between them in addition to one
having Down's Syndrome and the other being healthy.
The two children
would be genetically different, and therefore as different in appearance
and temperament as any siblings.
Thus, the identity-specific notion of
individuals' interests limits the choice to a child with Down's Syndrome
or no child at all. There can be no replacement for Sharon. Given this
choice, the court asserted the special value of life, regardless of
conditions, as "more
According to the court,
Sharon has not been harmed. In legal terms, she has not "suffered any
damages cognizable at law" by being born. 68
Berman is a typical wrongful life case, if there can be a typical case in
where factual circumstances take
myriad forms, in that the
weight of legal authority denies wrongful life as a harm or as a cause of
action in tort law. 69
ognize wrongful life as a cause of action.70
Only California, New Jersey, and Washington rec
While all three states
recognize the claim of wrongful life, however, they differ in their calculation of
65. Id. at 11-13.
66. Id. at 11.
67. Id. at 12.
68. See id.
69. For a survey of the case law refusing to recognize the wrongful life cause of
action, see supra note 57.
70. See Turpin v. Sortini, 643 P.2d 954, 966 (Cal. 1982); Procanik v. Cillo, 478 A.2d
57 (N.J. 1984
); Harbeson v. Parke-Davis, Inc., 656 P.2d 483, 486 (Wash. 1983) (en
71. The court in Procanik held that a wrongful life cause of action did exist, but
limited damages to special recovery of such burdens as extraordinary medical expenses
attributable to the child's affliction. See Procanik, 478 A.2d at 757. The court refused to
grant general damages as a remedy due to their complexity and an implicit sanctity of life
argument. See id. at 763. The Procanikcourt also denied recovery for the infant's
emotional distress. See id. at 764; cf Zepeda v. Zepeda, 190 N.E.2d 849, 855 (I11A.pp. Ct.
1963) (denying wrongful life cause of action noting, in dicta, plaintiff's failure to seek
damages for mental distress and emotional suffering on infant plaintiff's behalf), cert.
denied, 379 U.S. 945 (1964).
The court in Turpin also held that the plaintiff could not recover general damages in a
wrongful life action because of the difficulty in determining whether the child, in fact,
suffered an injury in being born impaired rather than not being born. See Turpin, 643
P.2d at 964, 966. The court noted that it would have been impossible to assess general
damages in a fair, nonspeculative manner. See id. at 964. Nevertheless, the plaintiff
In Harbeson v. Parke-Davis,Ina,2 Leonard Harbeson, a member of
the United States Air Force, and Jean Harbeson, an epileptic, had two
daughters suffering from growth deficiencies, developmental retardation,
wide-set eyes, low-set hairline, and other physical and developmental
defects.7 3 Jean Harbeson took Dilantin to control her epilepsy throughout
the period of her daughters' conception and birth. 4 Air Force doctors
prescribed Dilantin, and three of these doctors had assured the
Harbesons that the only risks associated with use of the drug during
pregnancy were a cleft palate and temporary hairiness.'- In fact,
Dilantin induced the birth defects. 76 The Harbesons claimed that, if they had
known the true risk of birth defects, they would not have had the
children.77 They brought malpractice actions against the Air Force doctors
lcilfaei. m78ing wrongful birth and, on behalf of their daughters, wrongful
The Supreme Court of Washington recognized both claims as valid
causes of action.79 Justice Pearson, delivering the court's opinion on
wrongful birth, recognized the "right of parents to prevent the
conception or birth of children suffering defects.... [P]hysicians owe a duty to
parents to preserve that right."8 0 He also noted that wrongful birth
actions "conform[ ] comfortably" to tort law, and are a "logical and
necessary development."8 Justice Pearson found that wrongful birth claims
involve particular, easily recognizable examples of the basic elements of
tort law.8 2 He wrote:
[W]rongful birth will refer to an action based on an alleged breach of
the duty of a health care provider to impart information or perform
medical procedures with due care, ,vhere the breach is a proximate
cause of the birth of a defective child. We do not in this opinion
address issues which may arise where the birth of a healthy child is
allegedly caused by a breach of duty owed to the parents.
The court extended the notion of birth as injury to the wrongful life
claim and rejected the arguments of the Berman court8. 4 The discussion
of wrongful life was simplified as "the child's equivalent of the parents'
wrongful birth action."85 The court specifically disagreed with the
Berman court's argument extolling the preciousness of life, saying that a
wrongful life action "does not appear to us to be a disavowal of the
sanctity of human life."' s6 In fact, the Harbeson court disavowed the sanctity
of life, at least in the overriding, unrestricted conception of sanctity
recognized by the Berman court.8 7
The Berman court claimed unequivocally that life, in all its forms, is
always more precious than non-life. 8 By recognizing a wrongful life
cause of action, the Harbeson court defined handicapped life as an injury,
an injury meriting compensation from the physicians whose negligence
caused the injury.8 9 The injury, it is worth stressing, is not the handicap.
It is the life itself, the fact of being born to experience the handicap, that
the court defined as an injury.9 0 The Harbesons' claim that they would
not have had the children if they were aware of the risk of defects is
central to this definition. If they had claimed that they definitely would
have had the children, the doctors' negligence would have caused the
defects, but not the birth. The courts would have had to compare a
defective child to a healthy child to assess damages, not a defective child to
no child. The court would have defined the injury to be the inducing of
defects, not the inducing of life.
The definition of life as an injury, of being born as a harm relative to
not being born, "disavows" the notion that life is always more precious
than non-life. The Harbeson court sought only to help a deformed child
by forcing a negligent physician to help pay for the child's health care.
The tort framework in which the court made its decision, however,
requires some injury, some harm, for negligence to have occurred. Since
the injury, in wrongful life cases, is birth, the court's acceptance of
wrongful life as a cause of action relies on the assumption that non-life
can be preferable to life.
Philip VanDerhoef, analyzing the Harbeson decision, maintains that
courts should not recognize wrongful life claims because of the difficulty
in determining that "birth is an injury to a deformed child."'
VanDerhoef, like the Berman court, asserts society's deeply rooted belief in the
special value of life:
Society's belief in the sanctity of life permeates the documents on
which our society is founded. The Declaration of Independence
declares man's 'unalienable' right to life to be a 'self-evident' truth, and
the United States Constitution characterizes life as one of the three
fundamental rights deserving special protection.... States universally
reserve the highest penalties for persons depriving others of their right
The sanctity of any given life is not dependent on the condition of
that life.... The amount of protection given to a person's life does not
vary with the degree of his or her defects.... The wrongful life cause
of action contradicts our fundamental concern for the sanctity of life
VanDerhoef's argument restates a traditional intuitive recognition of the
value of life. He agrees with the Berman court's refusal to decide that
nonexistence could be preferable to a handicapped life.9 3 Despite the
easy, intuitive appeal of the sanctity of life, the Harbeson court's decision
may prove to be the more attractive.
Wrongful Life and the Two Notions of Harm
VanDerhoef's arguments, like the Berman court's and like Thomas
Schwartz's, are rooted in identity-specification, in the definition of harm
as making a particular individual worse off than he or she otherwise
would have been. Because the plaintiffs in wrongful life cases otherwise
would not have been born, it is difficult to assert that they are worse off
for having entered the world with a handicap than not having entered it
at all. One way of escaping this dilemma, and of allowing ourselves to
object to examples like the wretched child case, is to redefine our
fundamental notion of harm. As the discussion of utilitarianism in Part I of
this article reveals, moral theory does not necessarily involve
identityspecific notions of interests.
From the utilitarian perspective of identity-independent interests, the
doctors who caused the birth of Sharon Berman or the Harbeson girls
did wrong, because an alternative child, free of defects, might have been
born later and experienced greater utility than the defective child. The
Berman court's assertion that the possibilities were a defective Sharon or
no Sharon at all collapses under an identity-independent notion of harm.
Utilitarianism would not care if a particular Berman child were replaced
with another Berman child. The abortion and replacement of Sharon by
a child better equipped to experience utility, in fact, is the preferred
choice under utilitarianism.
Unfortunately, although identity-independence allows us to object to
producing a wretched child rather than a healthy one, a consistent
application of this notion of harm would be disastrous. Identity-independence
allows us to object too strongly. Every defective child might have
grounds for a wrongful life claim against his or her parents, doctors, and
the state for failing to abort. 94 Perhaps states would settle these claims
92. Ia at 670-71.
93. See iL at 669.
94. See e.g., Zepeda v. Zepeda, 190 N.E.2d 849 (Ill. App. Ct. 1963), cert. denied, 379
U.S. 945 (1964). In Zepeda, an early wrongful life case, Joseph Zepeda sued his father,
by killing the children and ordering parents to replace them with healthy
children, either by procreating or adopting. When people are viewed as
vessels of utility, with no intrinsic value or sanctity, all sorts of
counterintuitive results arise. We can justify predatory redistribution, forced
population expansion, and forced abortion depending on whether we seek to
maximize the total or average utility. A consistent application of
identity-independence, then, does not provide a satisfactory answer to our
A Reconstruction of Identity-Specific Harm
If, for the moment, we accept that the Berman court and VanDerhoef
Louis Zepeda, for causing him to be born an adulterine bastard. See id. at 851. The
complaint averred that "the defendant is the plaintiff's father; the defendant induced the
plaintiff's mother to have sexual relations by promising to marry her; this promise was
not kept and could not be kept because, unbeknown to the mother, the defendant was
already married." Id. The complaint alleged that
the promise was fraudulent, that the acts of the defendant were willful and that
the defendant injured the plaintiff in his person, property and reputation by
causing him to be born an adulterine bastard. The plaintiff seeks damages for
the deprivation of his right to be a legitimate child, to have a normal home, to
have a legal father, to inherit from his father, to inherit from his paternal
ancestors and for being stigmatized as a bastard.
Id. The lower court dismissed the suit for failing to state a cause of action. See id.
On appeal, the court held that the complaint did allege the commission of a tort but
affirmed dismissal noting that
lawmaking, while inherent in the judicial process, should not be indulged in
where the result could be as sweeping as here. The interest of society is so
involved, the action needed to redress the tort could be so far-reaching, that the
policy of the State should be declared by the representatives of the people.
Id. at 859. The court did not reject the cause of action as not to be found in tort law, but
rather because of policy considerations. The court intuitively weighed legitimacy versus
illegitimacy and found that not enough harm occurred to outweigh the benefit of life. See
id. at 856. The court, however, suggested that it might have reversed the dismissal if
Joseph Zepeda had included in his complaint the element of mental suffering. See id. at
The Zepeda court moved, primitively, in the direction of an identity-independent view
of harm, relying on a case in which the court allowed a woman to maintain an action for
financial damages suffered by her as a result of a fraud perpetrated on her mother before
the mother's marriage and the woman's own conception. See id. at 854 (citing Piper v.
Hoard, 13 N.E. 626 (N.Y. 1887)). Commenting on the plaintiff in Piper,the court noted:
"she [was] the very person injured by the fraud, and, although not individually
in the mind of the defendant when he perpetrated that fraud, yet, as filling the
position of heir to her father, she belongs to the class which defendant had in
contemplation when he represented to the mother that the heir of Frederick
would have the farm. In this way it may be claimed that defendant had in view
the plaintiff .... "
Id. at 854-855 (quoting Piper, 13 N.E. at 630) (emphasis added).
The Zepeda fact pattern is quite different from that of Berman. Despite both being
wrongful life cases, a social impairment such as illegitimacy may be far more bearable
than a physical impairment. The Zepeda court was also of another time, particularly in
tort law, and parental immunity may well have been in the back of the justices' minds.
The result might have been different today. See Grodin v. Grodin, 301 N.W.2d 869
(Mich. Ct. App. 1980) (reasoning that action lies at common law for negligently inflicted
prenatal injury and finding no immunity).
are correct to ground their views of wrongful life claims in
identity-specific notions of harm, we still do not have to find, as they do, that
wrongful life is not a harm. We simply have to accept, as the Harbeson court
implicitly does, that non-life may be preferable to life and that wrongful
life will be harmful. Justice Pashman, for the Berman court, made a
moving argument about the difficulty of accepting this concept. 95 He
We recognize that as a mongoloid child, Sharon's abilities will be
more circumscribed than those of normal, healthy children and that
she, unlike them, will experience a great deal of physical and emotional
pain and anguish. We sympathize with her plight. We cannot,
however, say that she would have been better off had she never been
brought into the world. Notwithstanding her affliction with Down's
Syndrome, Sharon, by virtue of her birth, will be able to love and be
loved and to experience happiness and pleasure-emotions which are
truly the essence of life and which are far more valuable than the
suffering she may endure. To rule otherwise would require us to disavow
the basic assumption upon which our society is based.9 6
According to the Berman court, life is inherently valuable because it
brings love, happiness, and pleasure.9" This inherent value outweighs the
negative experience of Down's syndrome.9 8
Like the Christensen court,99 the Berman court conducts the intuitive
cost-benefit analysis, almost on utilitarian grounds, and finds that the
happiness and pleasure experienced will outweigh the pain and
anguish."°° This kind of cost-benefit analysis parallels that required by
the Second Restatement of Torts, which notes that any benefits which
arise from the harm should be considered against claims for damages.'
The Second Restatement demands that we weigh the value of life against
the harm of experiencing the defect.' 2 The Berman court, using this
formulation, found the weight of her life heavy enough to prevent
Sharon's birth from being considered a harm. 0 3 The Berman court may
well be right. A child afflicted with Down's Syndrome may lead a happy
life given proper care. Philip VanDerhoef, however, would generalize
the Berman court's weight of the gift of life to preclude any wrongful life
claims, including the Harbesons'. VanDerhoef might claim that Sharon,
if anything, owes the doctors money.
There is a threshold, once we have accepted identity-specific notions of
harm, when non-life becomes preferable to life. A hypothetical case is
instructive to explore the implications of this position. If we determine
that a severely deformed, wretched life is worse than no life at all, we can
object to the couple's choice in the wretched child case."° While we may
not want to make this determination in all cases, in some instances we
may want to very much. Suppose there is a defect X that results in a
child's brain and nervous system being incapable of experiencing
pleasure. Suppose this defect results in a terribly painful existence of up to
four years, when the child dies. Suppose the pain is terrible enough so
that the child either screams in agony or is kept unconscious by drugs. I
doubt that the Berman court would have denied Sharon's wrongful life
claim if she suffered from defect X instead of mongolism. Even
VanDerhoef might find that a wrongful life claim based on a doctor's failure to
notify a high-risk patient of amniocentesis, if amniocentesis could detect
defect X, would not contradict our fundamental concern for the
preciousness of life. Or, perhaps, he would recognize that even a
fundamental concern may sometimes be overpowered by another fundamental
concern. A concern for not torturing others might overpower a concern
for promoting life.
Unfortunately, there are many actual cases that involve real versions
of defect X, and the inability of children suffering to claim damages is
very disturbing. Many of these cases involve painful, and ultimately
fatal, hereditary diseases. In Park v. Chessin, 0 5 the parents of a child
afflicted with polycystic kidney disease sued for wrongful birth and
wrongful life.' 0 6 Hetty Park gave birth to a baby suffering from
polycystic kidney disease who died approximately five hours after being born.'o 7
She and her husband were worried that any other children they might
104. One court has recently given strong, if oblique, support to the notion that a
wretched enough life could be wrongful enough to justify removing parental rights if the
parents wish to keep the child alive and suffering. See Baby dies while stillon life support,
New Haven Reg., Aug. 13, 1993, at 6. The parents of Terry Jr., a brain-damaged
twomonth old child, refused to let him die despite his doctor's recommendation. See id.
Terry was born four months prematurely, weighed two pounds, seven ounces, and
received morphine every six hours to relieve the pain caused by blood on his brain. See id.
A probate judge ruled that the parents were incompetent to decide what was best for their
son and granted guardianship to a great-aunt who agreed to follow doctor's
recommendations. See id. The boy died while still attached to a ventilator after the court ruled that
the baby's parents could not block the guardian from ordering his life-support
disconnected. See id.
If a doctor or parent negligently caused Terry Jr. to live to experience his condition,
perhaps a cause of action for wrongful life would obtain. The court here found non-life
preferable to life. Few of us, in Terry Jr.'s condition, would contest that finding. Guido
Tedeschi, in a brilliant early discussion of these issues, points out that "life is not always
in the nature of a blessing .. " G. Tedeschi, On Tort Liability For "Wrongful Life," I
Isr. L. Rev. 513, 515 (1966).
105. Becker v. Schwartz, 386 N.E.2d 807 (N.Y. 1978) (consolidating Becker v.
Schwartz and Park v. Chessin) [hereinafter Park v. Chessin].
106. See id. at 809.
107. See id.
have would also suffer from the disease and asked Dr. Chessin, the
obstetrician who treated Mrs. Park during her first pregnancy, to assess the
risks.1" 8 He erroneously informed them that polycystic kidney disease
was not hereditary and that there was virtually no chance of their having
a second child afflicted with the disease."°9 The Parks had a second child
who also suffered from the disease and lived two and one-half years."10
The Parks sued Dr. Chessin for damages on behalf of the second child
for wrongful life and, for themselves, for wrongful birth."' The court
recognized the parents' claim but denied the child's." 2
The Berman court's cost-benefit reasoning, poignantly phrased with
respect to Down's Syndrome, simply does not apply to the Park case.
The Park child knew only the brief, painful battle against the disease, and
then death. Another clear example urging the determination that life can
be a harm involves children afflicted with Tay Sachs disease." 3 Parents
of infants born with Tay Sachs have made very compelling cases urging
courts to recognize the wrongful life cause of action. "4
In order to allow objections to lives that are this painful, I suggest a
reformulation of identity-specific harm. This conception of harm
normally requires that a harm make a person worse off than he or she
otherwise would have been. In wrongful life cases, we might want to consider
harm as something that makes a person worse off then he or she
otherwise would not have been. We might abide by a basic moral obligation
principle that our actions must not make a person worse off than he or
she otherwise would have been. We might also recognize a corollary
Birth Principle demanding that we not cause to be born people whose
108. See id.
109. See id.
110. See id.
lives are clearly worse than non-existence." 5 Rather than viewing a
doctor's malpractice leading to the birth of an infant with Tay Sachs as a
blessing, we could view it as a morally wrong, harmful, and legally
tortious act that robs the victim of the blessing of non-existence and forces
the child to face unendurable pain. Similarly, in the wretched child case,
the couple's decision not to wait and instead to have a wretched child
becomes wrong. That child suffers a worse fate than he or she otherwise
would have faced because the state of nonexistence is preferable to utter
wretchedness. Although the Harbeson court does not state it as such, an
intuitive redefinition of harm along the lines similar to these must
underlie its decision. This is what allows birth to be defined as an injury.
The recognition of the Birth Principle in no way leads to the
counterintuitive consequences that Parfit's proposed solution to wretched child
cases produces. Accepting that a child has the right not to be born into a
condition that makes life worse than non-existence promotes neither the
repugnant conclusion nor the replaceability criticisms. We reach the
repugnant conclusion when a principle requires us to prefer a huge,
wretched population to a smaller, happier one if the utility of the large
population exceeds that of the smaller. Identity-specific notions of
interests, as Schwartz points out, do not allow us to consider the total or
average utility of a population in determining whether or not someone is
harmed." 6 Rather, we must consider how an action affects individuals,
not some aggregate that interests us.
While avoiding the repugnant conclusion, the Birth Principle does not
require us, as Schwartz's unrestricted identity-specification does, to be
indifferent in choices affecting future possible people. This principle does
not allow us to choose a policy that will result in lives clearly worse than
non-existence. A policy choice that might lead to one of Parfit's
populations prevents us from choosing wretchedness. As for replaceability, the
Birth Principle does not allow us to object to a life on the grounds that
another life might be preferable. We may object only when non-life is
preferable. Thus, the fact that a fairly happy child might be replaced
with an ecstatic child is irrelevant to our behavior. Our general moral
obligation principle prevents us from acting in such a way that the fairly
happy child would be made worse off. We cannot replace him or her
with another child and claim that we have not caused the first child
harm. This is the great strength of identity-specific notions of interest.
I am concerned, primarily, with solving the problem of objecting to
wrongful lives, so I will not fully develop a defense of my principle in the
area of social and population policy. Demonstrating that my solution
avoids the consequences of Parfit's suggests that the Birth Principle,
coupled with identity-specific interest, does not obviously generate
The Last Defense of Wrongful Life
VanDerhoef objects to the Harbeson decision even if birth is an injury,
but his arguments are less forceful than his impassioned, if misguided,
claim that no life is harmful. The most common attack can be crudely
expressed as an assertion of the impossibility of general damages and a
difficult harm definition in tort. VanDerhoef rejects the wrongful life
claim on another basic element of negligence-that of duty." 7 He
116. See Schwartz, supra note 3, at 4-5.
117. See VanDerhoef, supra note 91, at 672.
[E]ven if birth with defects is an injury, there is a second prerequisite
to establishing a duty: the plaintiff must have a right to legal
protection of his interests. No duty can be imposed on the physician unless
the unborn child has a legally protected right to be born free of
defects .... There are several indications that such a right does not exist.
First, there is no precedent for recognizing a right to be born as a
whole, functional human being. Second, the United States Supreme
Court has cast doubt on the possibility that an unborn child has any
legally protected rights, by denying that an unborn child has a legally
protected right to life. Finally, "rights" exist between persons as legal
entities in society. They do not exist between persons and non-persons.
As legal non-persons, unborn children are incapable of having rights.
Thus, the right to be born healthy is a necessary prerequisite to the
imposition of a duty on the physician in a claim for wrongful life, but
the existence of such a right has not been established.118
First, we need not recognize the "right to be born free of defects." ' 19
Recognition of such a right would create obviously counterintuitive
cases, as well as raise frightening questions about the responsibility of
parents, doctors, and the State to define and prevent the supposed
defect. 120 Fortunately, the right needing recognition in wrongful life claims
is far less dangerous to recognize. All we need is a right to be born not
tortured, not miserable, not utterly wretched-a right not to be born in
such a state that we would have been better off never to have existed.
Second, the Supreme Court has not denied that an unborn child has a
legally protected right to life. The Court has implied, in effect, that such
a right is overpowered by a woman's right to privacy.'2 1 It could be
overpowered in the same way by a right not to be born wretched. The
"Supreme Court[, however,] has cast doubt on the possibility that an
unborn child has any legally protected rights, by denying that an unborn
child has a legally protected right to life."' 122 A right not to have a life
worse than non-existence could exist independently of a right to life.
Finally, although rights usually exist between persons, they also exist
between persons and corporations, between persons and governments,
even between persons and animals. An unborn child is not a non-person
in the same sense that a chair or table is. The child has the potential of
being a person.123 Any act that moves the child from potential person to
118. Id. (footnotes omitted).
119. Id. (footnote omitted).
120. For example, I wear glasses and have been nearsighted since birth. My friend Pat
stutters. Might anyone argue that we were robbed of a right to be born free of defects by
not being aborted? Ku Klux Klan members might, out of concern for the preservation of
such a right, try to prevent the birth of any child with the "defect" of being
121. See, e.g., Roe v. Wade, 410 U.S. 113 (1973) (implying that right of privacy
encompasses decision to terminate pregnancy).
122. VanDerhoef, supra note 91, at 672.
123. The Zepeda court knew what it was doing when it stated that "the only theory of
recovery to be considered on this appeal is whether the complaint states a cause of action
in tort." Zepeda v. Zepeda, 190 N.E.2d 849, 852 (Il1.App. Ct. 1963), cert. denied, 379
actual person must occur before the child is actual. If the harm lies in
becoming actual, the child will not experience the harm until he or she is
born. The harm will be experienced by persons, or as VanDerhoef says,
"legal entities in society." 124 It cannot be just to claim that a negligent
doctor is not negligent simply because there is some lag time between the
negligent act and its consequences. VanDerhoefs rejection of duty is not
As for the core attack, the court in Zepeda v. Zepeda12 5 knew that it
was acting strangely when it attacked the wrongful life cause of action on
the grounds of the complication of awarding general damages. 126
Bearing in mind that an action for damages is implicit in any action that is
called a tort, 127 it may be inconsistent to deny, as we do, the right to
maintain an action to recover for this act. The Zepeda court noted that
"[r]ecognition of the plaintiff's claim means creation of a new tort: a
cause of action for wrongful life. The legal implications of such a tort are
vast, the social impact could be staggering." 128 This fear of the "slippery
slope" arises, in fact, in many areas of the law.1 29 But it is not just the
question of where it will lead that creates the stumbling block that has
only special damages awarded in Turpin v. Sortini130 and Procanik v.
C116. 3 It is, as Tedeschi puts it, the idea that general damages are
impossible to determine.' 32
At the risk of beating a dead horse, Williams v. State 133 reflects again
the sticking point of harm recognition. Judge Keating, in his
concurrence, reveals precisely this concern.I3 4 He is troubled by the difficulty of
permitting recovery when the very act that caused the plaintiff's birth
was the same one responsible for whatever damages she has suffered or
will suffer. 13 He noted that "[d]amages are awarded in tort cases on the
basis of a comparison between the position the plaintiff would have been
in, had the defendant not committed the acts causing injury, and the
position in which the plaintiff presently finds herself... It is impossible
to make that choice." 136
Timothy Dawe tries to help the courts see that damages can be
awarded by only recognizing more intuitively tangible and
understandable types of impairment2. 37 He writes:
To avoid the "open floodgates" possibility that the Zepeda court
feared so much, the injury alleged would have to be a physical one,
such as genetic or congenital impairment, and not merely an "impaired
status" injury such a [sic] illegitimacy. This distinction of the
Curlendercourt seems valid, considering the more ephemeral nature of
"status" impairments and the likelihood that they can be reversed. In
creomntarianst,thtrhoeupghhyosuitcatlheinjpulraieinstirfefssullitfine.g'3f1rom severe defects are likely to
This is an expediency argument, one designed, in a way, to keep the
courts' minds off the central issue, the possibility of life, of being born to
experience whatever defects, as the harm. It is also intrinsically unfair,
127. See Prosser, supra note 82, § 1, 2-4.
128. Zepeda, 190 N.E.2d at 858.
129. The more recent furor over reproductive technologies reflects this concern for the
"slippery slope." See Marjorie M. Shultz, Reproductive Technology and Intent-Based
ityfor Gender Neutrality, 1990
Wis. L. Rev. 297, 300-01 (1990).
130. 643 P.2d 954 (Cal. 1982).
131. 478 A.2d 755 (N.J. 1984).
132. See Tedeschi, supra note 104, at 529-30.
133. 223 N.E.2d 343 (N.Y. 1966).
134. See id. at 344 (Keating, J., concurring).
135. See id. at 345.
137. See Dawe, supra note 115, at 496-97.
as mental illness may fit neither into the physical or status categories, and
would therefore not be grounds for action despite its often severe and
It is probably better to try to meet the core problem head on, as the
Court of Appeals of Michigan did in Troppi v. Scarf.'39 The court
considered the civil liability of a pharmacist who negligently supplied the
wrong drug to a married woman who had ordered an oral contraceptive
and, as a consequence, became pregnant and delivered a normal, healthy
child."4 Although I am admittedly less comfortable with categorizing
this case as wrongful life, rather than wrongful birth, I am in agreement
with Judge Levin's argument about determining odd and thorny
damages. " ' He wrote:
Uncertainty of Damages. Of the four items of damage claimed by
plaintiffs, each is capable of reasonable ascertainment. The medical
and hospital expenses and Mrs. Troppi's lost wages may be computed
with some exactitude. Plaintiffs' claimed pain and anxiety, if not
capable of precise determination, is a component of damage which triers of
fact traditionally have been entrusted to ascertain. As to the costs of
rearing the child until his majority, this is a computation which is
routinely performed in countless cases.
It should be clear that ascertainment of gross damages is a routine
task. Whatever uncertainty attends the final award arises from
application of the benefits rule, which requires that the trier of fact compute
the dollar value of the companionship and services of an unwanted
child. Placing a dollar value on these segments may well be more
difficult than assessing damages, for, say, Mrs. Troppi's lost wages. But
difficulty in determining the amount to be subtractedfrom the gross
damages does not justifjy throwing up our hands and denying recovery
Judge Levin makes the crucial point that we have long entrusted the
triers of fact to find ways to quantify things that are intuitively not
possible to quantify.' 43
139. 187 N.W.2d 511 (Mich. Ct. App. 1971).
140. See id at 512-13.
141. See id. at 520-21.
142. Ia (second emphasis added).
143. This notion of successful, "impossible" computations is well expressed in an
alienation of affections case which has been overruled. See Bearbower v. Merry, 266 N.W.2d
128 (Iowa 1978), overruled by Fundermann v. Mickelson, 304 N.W.2d 790 (Iowa 1981).
The court noted:
The difficulty of translating damage to intangible rights into money
judgements has deterred us not at all in other law areas. We recognize violation of
the intangible right of privacy as an actionable tort. We permit actual damages
to be awarded for the intentional infliction of emotional harm. We have held a
plaintiff could sue for damages for emotional distress arising from breach of a
funeral service contract. We early allowed money compensation for mental
pain as a component of damages for a physical impact tort.... [W]e held a
wrongful death case jury could assign a dollar value to the loss of
companionship and society of a minor child.
It remains unclear why we allow valuation of the absence of a
wouldbe present child while denying as impossible the valuation of the presence
of a would-be absent child. 14" Damages determinations are nothing but
the best efforts of human triers of fact to find justice while searching for
clarity into murky or black water. Yet we have found, routinely, such
Id. at 133 (citations omitted).
144. Philip Peters offers an excellent discussion of finding a duty in tort. See Philip G.
Peters, Jr., Rethinking Wrongful Life: Bridging The Boundary Between Tort and Family
Law, 67 Tul. L. Rev. 397 (1992). Peters, noting the courts' discomfort with establishing
damages and remedy in wrongful life cases and drawing the connection to family law,
suggests finding a remedy in family law for a claim where there is still a duty in tort law.
See id. at 399. Peters would replace the wrongful life cause of action with a "backup
action for child support." Id. at 411. This solution would force the physician responsible
for a child's birth and experience of injury to assist parents in meeting their disabled
children's expenses. See id. at 412. Peters finds, in the special benefits rule, "a basis for
finessing the comparison between life and nonexistence." Id. at 434.
I do not find this finessing particularly attractive and, instead, advocate meeting the
problem head on. Peters and I, however, are not so far from each other initially. He
Because tort law is designed to insure compensation for harm, not adequate
child support, tort law leaves children born as a result of tortious conduct
inadequately protected. The problems and complexities associated with proof of
harm in wrongful life and wrongful birth actions cause courts to significantly
limit the recovery of compensatory damages. These limitations threaten to
leave many families without the resources necessary to adequately provide for
their children. To protect these children, lawmakers need to abandon their
exclusive reliance on tort doctrine as it is traditionally construed.
Id. at 398. Here we agree. I, unlike Peters, would reconstrue the notion of harm
underlying the courts' difficulty and stay within tort law. Peters instead looks to the blurry
boundaries of tort and family law and attempts to find a solution in family law-a move I
find instinctively dangerous. To reach for a tort-based cause of action by adding the
complexity, regarding children, of family law when a logical extension of tort law might
do the job is risky. See, e.g., DeShaney v. Winnebago County Dep't of Social Servs., 489
U.S. 189 (1989) (finding only sufficiently compelling interest can permit state to interfere
with liberty interest of parent); In re Gault, 387 U.S. 1, 17 (1967) (justifying considerable
state control over family by noting that "a child, unlike an adult, has a right 'not to
liberty but to custody' ").
Peters treats wrongful life cases principally as involving third parties such as physicians
and fails to address effectively those cases that are intra-familial. Thus, Peters will walk
with me a puzzlingly limited distance. He writes:
[T]he obvious shortcoming of an action for backup child support is the limited
relief provided. Courts would also need to recognize a full wrongful life claim
for compensatory damages to provide complete protection for a catastrophically
injured child. Even if such a claim were recognized, however, general damages
would be available only in the rare cases where the child's injuries are so
devastating that life itself is harmful.
Peters, supra, at 421. While Jtarbesonmay be just such a case, Peters, perhaps
inconsistently, appears to criticize it. See id. at 412 n.50. He also notes:
An action for backup child support would serve the demands of justice while
avoiding the problems that doomed the tort action for compensatory damages.
Because it escapes the comparison between life and nonexistence, damages are
calculable and do not require a finding that life itself is a legally cognizable
injury. To the contrary, the orientation of the child support action is to enable
the disabled, to focus on the future, not the past, and to emphasize the child's
potential, not her injury.
Id. at 443. While his point may be appealing, it ignores the stark fact that certain
determinations an acceptable and necessary part of tort law. More
generally, viewing a wrongful life case as occurring within, or at least having
a great input upon, a family, we can look to a great authority for general
approval. Prosser writes:
[T]he law of torts is concerned not only with the protection of interests
of personality and of property, tangible or intangible, but also with
what may be called "relational" interests .... An interference with
dren have no future. See supra note 104 (discussing Terry, Jr.); supra notes 113-114
(discussing children with Tay Sachs disease).
The very structure of Peters' article, his separate discussions of tort and family law,
shows how he goes astray, particularly with respect to claims by children against their
parents. Indeed, intra-familial tort immunity is virtually dead. See, e.g., Gibson v.
Gibson, 479 P.2d 648, 648 (Cal. 1971) (abolishing parental immunity); Anderson v. Stream,
295 N.W.2d 595, 600 (Minn. 1980) ("Our system of justice places great faith in juries,
and we see no compelling reason to distrust their effectiveness in the parent-child
context."); Balts v. Balts, 142 N.W.2d 66, 75 (Minn. 1966) (finding doctrine of parent-child
immunity as defense in tort no longer valid); Nolechek v. Gesuae, 385 N.F.2d 1268,
1277 (N.Y. 1978) (Fuchsberg, J., concurring) (noting that "each parent-child case
[should] be decided by answering... [w]hat would an ordinarily reasonable and prudent
person-taking into account the parent-child relationship-have done in similar
circumstances?"); Burnette v. Wahl, 588 P.2d 1105, 1119 (Or. 1978) (Linde, J., dissenting)
(stating that emotional harm which demurrer admits plaintiff has suffered is monetarily
compensable); Glomb v. Glomb, 530 A.2d 1362, 1366-67 (Pa. 1987) (holding parents
who negligently hired babysitter jointly and severally liable for child's brain damage
resulting from sitter's intentional conduct); Goller v. White, 122 N.W.2d 193, 198 (,Vis.
1963) (abrogating parent-child immunity except in limited cases). Thus the great trilogy
of early intra-familial immunity cases no longer holds. See, e.g., Hewellette v. George, 9
So. 885, 887 (Miss. 1891) (holding that societal and familial tranquility justify
parentchild tort immunity), overruled by Glaskox v. Glaskox, 614 So. 2d 906 (M
McKelvey v. McKelvey, 77 S.W. 664, 664 (Tenn. 1903) (refusing to award damages to
minor child for personal injury inflicted by stepmother), overruledby Davis v. Davis, 657
S.W.2d 753 (Tenn. 1983); Roller v. Roller, 79 P. 788, 789 (Wash. 1905) (rejecting child's
tort claim against parent for injuries inflicted during parent's rape of child), overruled by
Borst v. Borst, 251 P.2d 149 (Wash. 1952). The intertwining of family and tort law that
Peters sees as necessary to construct has, in great measure, occurred. For a useful
discussion in this area, see Martin J. Rooney & Colleen J. Rooney, ParentalTort Immunity.:
Spare the Liability,Spoil the Parent,25 New Eng. L. Rev. 1161 (1991).
Another disagreement I have with Peters is the constant expediency, or instrumental
rationality, of his perspective. While I recognize that this stems from a care-based
jurisprudence, and I consider the writings of Carol Gilligan and Martha Minow in my own
work, Peters goes too far. Peters ignores that the Harbeson,Turpin, and Procanik courts
thought they were doing justice when he claims that they "intuitively fashioned relief to
meet the child's needs." Peters, supra,at 414. They were righting a perceived wrong. I
find myself wondering if Peters has heard of a declaratory judgment. Indeed, I am
disturbed by his lack of attention to dignity, to the right to recover from a wrong.
The Supreme Court has recognized the need for dignity and the right to be treated
justly. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 261 (1970) (extending due process
rights to recipients of benefits of entitlement programs). In his famous dissent, Justice
Burger expressed an agonizing tension: given a finite pool of resources devoted to
welfare, each notice of benefit termination, each hearing, could mean less money going to
needy recipients and, consequently, less people fed. See id. at 284 (Burger, J., dissenting).
Children whose lives are wrongful have been harmed. Under a proper understanding of
that harm, the courts should be fashioning remedies. They should not rely on a mixture
of tort and family law that denies compensation for harm and merely provides support
from a third party if and only if the parents need the money to meet their expenses.
The attack on the difficulty of determining general damage awards as a
ground for not recognizing a wrongful life cause of action remains
Although it is different to have a life ended than never to have lived at
all, the courts have moved toward a recognition that non-life can be
preferable to life. In a much publicized case, Cruzan v. MissouriDepartment
ofHealth,'4 6 the Supreme Court upheld the right of parents to show by
clear and convincing evidence that their child would refuse
life-prolonging measures. 14 7 The Court has also let stand a lower court's affirmation
of such a right in In Re Quinlan.4' 8 Underlying these decisions was the
notion that, if the child involved could have spoken for herself, she would
have made the same decision. The same notion, given the redefinition of
harm and the ensuing recognition of a right to be born to a life not worse
than non-existence, should provide a framework for wrongful life cases.
There is no excuse for denying wrongful life as a cause of action. The
child, usually represented by parents or a guardian, will have a
tremendous burden of proof. In addition to the tort elements of duty, breach,
and proximate cause, the child will have to convince the finders of fact
that his or her particular life is worse than never having been born. Each
case, however, should be tried on its merits and not excluded from the
courts by a blanket rejection of the wrongful life cause of action. An
infant suffering from Tay Sachs would seem to have little trouble making
a case.' 49 My intuition suggests that the court would reverse its decision
to deny a wrongful life cause of action in the Park case.' 50
VanDerhoef and others attack the Harbeson court's decision, but its
decision is enlightened and humane. The wrongful life cause of action,
when the proper underlying concept of harm is applied, is a testament to
the ability of our courts to pursue, even in the modern jungle of
advancing medical technology, the time-honored principle of a remedy for every
145. Prosser, supra note 82, § 124.
146. 497 U.S. 261 (1990).
147. See id. at 285.
148. 355 A.2d 647 (N.J.), cert. denied, 429 U.S. 922 (1976).
149. See supra notes 113-14 and accompanying text (discussing children afflicted with
Tay Sachs disease).
150. See Park v. Chessin, 386 N.E.2d 807, 809 (N.Y. 1978) (discussing child suffering
from polycystic kidney disease).
57. Numerous state courts refuse to recognize the wrongful life cause of action . See. e.g., Elliot v . Brown, 361 So. 2d 546 (Ala . 1978 ) (refusing to recognize wrongful life cause of action); Walker v . Mart , 790 P. 2d 735 ( Ariz . 1990 ) (same); Lininger v . Eisenbaum , 764 P. 2d 1202 ( Colo . 1988 ) (same); Garrison v . Medical Ctr. of Del., Inc., 581 A.2d 288 (Del . 1989 ) (same); Kush v . Lloyd, 616 So. 2d 415 (Fla . 1992 ) (same); Blake v . Cruz , 698 P. 2d 315 ( Idaho 1985 ) (same); Siemieniec v . Lutheran Gen. Hosp., 512 N.E.2d 691 ( Il1 . 1987 ) (same); Cowe v . Forum Group, Inc., 575 N.E.2d 630 ( Ind . 1991 ) (same); Bruggeman v . Schimke , 718 P. 2d 635 ( Kan . 1986 ) (same); Viccaro v . Milunsky , 551 N.E.2d 8 (Mass. 1990 ) (same); Wilson v . Kuenzi , 751 S.W.2d 741 ( Mo . 1988 ) (same), cert . denied, 488 U.S. 893 ( 1988 ); Azzolino v . Dingfelder , 337 S.E. 2d 528 (N.C . 1985 ) (same), cert . denied, 479 U.S. 835 ( 1986 ); Smith v . Cote , 513 A. 2d 341 (N.H . 1986 ) (same); Becker v . Schwartz , 386 N.E. 2d 807 (N.Y . 1978 ) (same); Ellis v . Sherman , 515 A.2d 1327 (Pa. 1986 ) (same); Nelson v . Krusen , 678 S.W.2d 918 ( Tex . 1984 ) (same); James G . v. Caserta, 332 S.E. 2d 872 ( W. Va . 1985 ) (same); Dumer v . St. Michael's Hosp., 233 N.W.2d 372 (Wis . 1975 ) (same); Beardsley v . Weirdsma , 650 P. 2d 288 ( Wyo . 1982 ) (same).
58. 404 A.2d 8 (N .J. 1979 ).
59. See id at 10.
60. See id.
61. See id
62. See id.
63. See id
64. See id at 13.
85. Id . at 494.
86. Id . at 497.
87. See id. at 496-97.
88. See Berman v. Allan, 404 A.2d 8 , 12 (N.J . 1979 ).
89. See Harbeson v. Parke-Davis, Inc., 656 P.2d 483 , 494 - 95 (Wash. 1983 ) (en banc).
90. See id.
91. Philip J. VanDerhoef , Washington Recognizes Wrongful Birth and Wrongful Life-a CriticalAnalysis, 58 Wash. L. Rev . 649 , 669 ( 1983 ).
111. See id.
112. See id.at 812-13.
113. Tay Sachs, which is a progressive and ultimately fatal disease of the nervous system, is a nightmarish affliction that renders infants capable of experiencing only pain until they die between the ages of two or three . See Duncan's Diseases of Metabolism: Genetics and Metabolism 456 - 58 (Philip K. Bondy , M.D. & Leon E. Rosenberg , M.D. eds., 7th ed. 1974 ). Tay Sachs primarily affects Jews of Eastern European descent . See id at 456.
114. See Howard v. Lecher , 366 N.E. 2d 64 (N.Y . 1977 ); Curlender v . Bio-Science Lab., 165 Cal. Rptr. 477 ( Ct. App . 1980 ). In Howard,Mrs. Howard charged her obstetrician with failing to take a proper medical history, failing to recommend tests for Tay Sachs, and failing to inform her that her child would have Tay Sachs . See Howard , 366 N.E.2d at 65. She claimed that she would have had the child aborted, had she known, rather than watching the child suffer, and die within two years, from the disease . See id.
In Curlender,a medical testing laboratory had told the parents of an infant suffering from Tay Sachs that they were not carriers of the disease . See Curlender , 165 Cal. Rptr. at 480. The parents, on behalf of their child, charged that the inaccurate information affected either their decision to conceive or their decision not to have an amniocentesis and possibly abort. See id. As a result of being born only to experience Tay Sachs, the child suffered from, among other things, loss of motor control, mental retardation, and convulsions . See id. at 480-81.
115. Despite Tedeschi's thoughtful arguments, he seems to fail to recognize that this simple, yet awesome, determination is within the power of human hearts, minds, and souls to reach. Thus his thoughtful, provocative piece ends almost fliply, with the claim that his entire, or immediately preceding, "line of thought" makes, through a virtual non sequitur, "it unnecessary to consider, in concrete cases, whether it would have been preferable for the child not to be born, a problem which admits of no solution." Tedeschi, supra note 104, at 538 (emphasis added).
Timothy Dawe also advocates allowing the cause of action . See Timothy J. Dawe , Note, Wrongful Life: Time For a "Day in Court," 51 Ohio St. L .J. 473 ( 1990 ). Dawe suggests an expedient quantifying:
The proposed scheme would have a different assignment system. Nonexistence would be valued at zero, while life without defects would retain its high positive value. Life impaired with defects would be assigned values in a range spanning from positive numbers just below that assigned to life without defects, down to negative values for the most serious of impairments. While most impaired conditions would still fall above nonexistence in value and thus result in no real injury, others that were the most severe and tragic, symbolized by negative numbers, would fall below the value of nonexistence and would thus be classified as an injury . Id. at 496 . Later in this article, I will discuss the expediency and instrumental reasoning that Dawe and others bring to the discussion . See infra note 144.
I have published from the perspective of a jurisprudence of caring in the past . See Michael B . Laudor , Disabilityand Community: Modes ofExclusion, Norms ofInclusion, and The Americans with DisabilitiesAct of 1990 , 43 Syracuse L. Rev . 929 ( 1992 ). This article is a different enterprise. With respect to the vindication of a right, which the Zepeda court and others have explicitly recognized yet refuse remedy for its violation, I do not find Dawe particularly helpful. Although I agree with him that the wrongful life cause of action should generally be recognized, I object to the rigidity of his proposed schema .