People who don’t exist; at least not yet
The minutest philosophers, who, by the by, have the most enlarged understandings, (their souls being inversely as their enquiries) show us incontestably, the HOMUNCULUS . . . may be benefited, – he may be injured, – he may obtain redress; – in a word, he has all the claims and rights of humanity, which Tully, Puffendorf, or the best ethic writers allow to arise out of that state and relation.
The story of medical ethics begins before conception. In the opinion of Tristram Shandy, a person’s character, and the life he will enjoy, is shaped by the parents’ thoughts during copulation. Tristram complains:
I wish either my father or my mother, or indeed both of them, as they were in duty both equally bound to it, had minded what they were about when they begot me; had they duly considered how much depended upon what they were then doing; – that not only the production of a rational Being was concerned in it; but that possibly the happy formation and temperature of his body, perhaps his genius and the very cast of his mind: – and, for aught they knew to the contrary, even the fortunes of his whole house might take their turn from the humours and dispositions which were then uppermost . . . Pray, my Dear, quote my mother, have you not forgot to wind up the clock?
– Good G—! Cried my father, making an exclamation, but taking care to moderate his voice at the same time,
– Did ever woman, since the creation of the world, interrupt a man with such a silly question?
The Human Fertilization and Embryology Act 1990 (HFEA) – the law that governs assisted reproduction services in the UK – requires doctors to mind what they are about when they help a woman to conceive a child. The Act states: ‘A woman shall not be provided with treatment services unless account has been taken of the welfare of any child who may be born as a result of the treatment (including the need of that child for a father) . . . ’
A great deal of brouhaha was created in the British press when a post-menopausal woman aged 59 years went to a private fertility clinic in Italy to be helped to conceive a child (in fact she subsequently gave birth to twins). ‘Think of the poor children who will be born’ was one response ‘they will be the laughing stock of their friends when they are met at the school gate by such an elderly mother’. According to one member of the Human Fertilization and Embryology Authority (which oversees fertility clinics), concern for the welfare of the potential children rules out fertility treatment for elderly women.
The welfare of children is so important a consideration in our moral thinking that the wording of the HFEA may seem unproblematic: but this is not so. When assisting conception it is not the welfare of an actual child that is under consideration, it is the welfare of a child that may exist at a later time, if indeed there will later exist any such child at all. It turns out that a consideration of the welfare of children who may exist at a later time is a very slippery customer indeed.
The analogy with adoption
In the early days of in-vitro fertilization (IVF) – the technique that led to the idea of test-tube babies – a Manchester woman was removed from the IVF waiting list when it was discovered that she had a criminal record involving prostitution offences. The hospital concerned had a policy in place (this was a couple of years before the HFEA was enacted). This policy stated that couples wanting IVF ‘must in the ordinary course of events, satisfy the general criteria established by adoption societies in assessing suitability for adoption’.
In effect this policy means that if a person seeking IVF would not be considered suitable as an adoptive parent, she should not be provided with assistance to reproduce. And underlying this policy, presumably, is the idea of the welfare of the child who might exist at a later time. But does the analogy between adoption and assisting reproduction hold?
In the case of adoption we have a child (child X) and a number of possible adoptive parents: A, B, C etc. Suppose that we have good reason to believe that parents A will be better parents than B, C, etc. and that child X is likely to have a better life if we choose parents A than if we choose any of the other parents (B, C, etc.). Assuming that judgments about the likely quality of parenting can be made (and such judgments have to be made by adoption agencies) then we act, as far as we can judge, in child X’s best interests in giving child X to parents A.
Now compare this situation of adoption with that of assisting reproduction. Suppose that couples A, B, C, etc. come for help with fertility treatment. All these couples are likely to be perfectly reasonable parents but we have good reason to believe that couple A are likely to be better parents than couples B, C, etc. Which couple should we help? Would we not be acting in the best interests of the child who may come to exist if we helped parents A, on the grounds that, as far as we can judge, the child would be happier with couple A than with couples B, C, etc.?
It is not, however, as simple as this. There is no kingdom, as far as I am aware, of potential children waiting to be allocated to a particular set of parents. If we help couple A to conceive, then one child (child a) will come into existence. If we help couple B then a different child (child b) will come into existence. What sense can we make of assessing the interests of the child that may exist at a later time? If we help couple B then child b would come to exist and have a good start in life but not as good as child a would have done.
If we have the resources to help only one couple, which couple should we choose, if our only criterion is what is in the best interests of the child who will come to exist? It is tempting to say that the best interests of the child would be served by helping couple A. But this is wrong. It will be a different child depending on which couple we help. It is in potential child as best interests for us to help couple A, but in potential child by are best interests to help couple B. If we focus on the interests of the child who may exist at a later date the question that needs to be asked is: are these interests better served if he or she is born to these parents or if he or she never exists at all?
The question, put this way, is of course rather odd since it asks us to compare existence with non-existence. Perhaps a better question is: if there were later to exist a child to this couple, would it have a reasonable expectation of a life worth living? I will come back to these issues in the next section. The key point for the present discussion is that the possibility of ‘this’ potential child being born to any other (possibly better) parents does not arise. This, crucially, is where the analogy with adoption breaks down. If we have the resources to help only one couple then an argument could be made for choosing to help couple A. The argument is as follows: if we help couple A then the child that will exist (child a) will be happier (on the best prediction) than the child (child b) who would have existed had we helped couple B. If there are no other relevant grounds for choosing between the various couples then it is better to act in such a way as to bring about the existence of the happiest children that we can. We are, in this case, most likely to bring about the existence of the happiest child that we can by helping couple A rather than couples B, C, etc. We should, therefore, help couple A. In choosing to help couple A we are acting against the best interests of the child who would have existed in the future had we helped couple B instead. Our choice to help couple A is not on the grounds of an individual’s best interests but in order to make the world a better place. The child who will actually exist in that ‘better world’ (i.e. child a) will have a better life than the different child (child b) who would have existed had we helped couple B rather than couple A.
This point can be made more strongly by considering the following analogy. Suppose that a hospital delays the admission of a patient who requires non-urgent surgery in order to admit a patient requiring an urgent operation. No one would maintain that it was in the best interests of the first patient that her surgery be delayed. On the contrary, it is against her best interests. The justification for acting against her best interests is in order to benefit the patient who needs urgent surgery. Since a choice has to be made, the decision to give priority to the patient in more urgent need seems the right one.
We seem to have found an argument that justifies the initial intuition that, in the case of assisting reproduction, we should help couple A rather than couples B, C, etc. (assuming that we have the resources to help one only). This argument is not based on the idea of acting in the best interests of the child who may be born. It is not based on following the guidelines from the HFEA or from St Mary’s Hospital in Manchester. Instead, the argument is based on the idea of welfare maximization: that we should act so as to bring into existence as happy children as we can. Does it matter that the reasons are different, if the decision is the same? The answer is that it does, both in theory and in practice.
Comparing existence with non-existence
We have been assuming that we can help only one of the couples A, B, C, etc. But often this is not the case. The 59-year-old woman who went to Italy and conceived twins bore the costs herself. The clinic did not have to choose between her and someone else. The outcry in the British press was not on the grounds that some other couple would not receive help as a result of her being assisted to conceive. The outcry was on the grounds that it was against the interests of the potential child (i.e. any child who might be born) that she be helped to conceive at all. If we focus solely on the interests of the potential child, the question, I have suggested, that needs to be asked is: are the interests of this potential child better served if he or she is born tothese parents, or if he or she never exists at all? But this is a very strange question. Does it make any sense to compare existence (in whatever state) with non-existence? Some have said such a comparison is like dividing by zero – it appears to make sense at first sight, but it is a function without meaning. Others think that as long as the child will not have an appalling life then it is in the child’s best interests to exist, on the grounds that, on the whole, existence is a positive thing. Perhaps some, like Montesquieu, of a more pessimistic disposition, take the opposite view and see existence, on balance, as a negative experience.
If those who say that one cannot compare existence with nonexistence are correct, then the criterion of the best interests of a potential child is meaningless. But this view faces a difficulty. Let us suppose, for the sake of argument, that were couple J to have a child that child would suffer immensely (perhaps from some dreadful genetic condition). The child would live in constant pain and finally die, to the relief of all, at the age of one. So the life of this child would be one year of constant pain followed by death. In these circumstances it does seem to make sense to say that it would be wrong to help couple J conceive such a child on the grounds that to do so would be against the interests of the child who would exist.
It may be possible to make sense of this judgment without having to ‘divide by zero’. Over any period of life one can ask whether, overall, the experiences are positive or negative. The zero line here is such that life above zero is overall worth living for the person concerned and life below zero is not worth living. In the case of the child who would be born to couple J, his life, overall, would rate as below zero. It is for this reason that we can say that it is in his best interests not to be born. In saying this we do not rely on the problematic comparison of non-existence with existence, but on being able to make a judgment as to whether the life it is predicted that he would have would, overall, be above or below zero.
The argument that the post-menopausal 59-year-old woman should not be helped to conceive, on the grounds that to do so would be against the best interests of the potential child, falls apart, whichever view you take on this issue.
1. If it makes no sense to compare existence with non-existence then it makes no sense to argue that in helping the woman conceive one is acting against the best interests of the potential child. For on this view one cannot argue anything on the basis of best interests, since on this view it is meaningless to compare the interests in not existing with the interests in existing.
2. If, on the other hand, it does make sense to judge whether it is in the interests of a child (who may exist in the future) to exist, and if that judgment is essentially whether the predicted life will be, overall, a positive experience, then the question to be asked is this: is the predicted life of a child born to this 59-year-old woman, overall, likely to be positive?
If, like me on a bad day, you take a rather gloomy view of existence, then perhaps you think it is not in the interests of the child, who may come to exist, for the woman to be helped to conceive. But it was not such a view that prompted the outcry against helping the post-menopausal woman to conceive. Such a view would, after all, justify refusing to help almost all couples seeking help in reproducing. A more balanced view would be that being teased at school might make a child unhappy but hardly justifies the claim that it means that overall his life would not be worth living. Where
courts have had to decide whether it might be in the best interests of very young children to be allowed to die rather than have life extending treatment they have set the standards very high: that is, the life has to be very bad for the courts to decide that it would be in the child’s best interests to be allowed to die. The outcry at helping the post-menopausal woman to conceive was based on the grounds that the life of the child who may exist as a result of the treatment would not go as well as children born to a younger mother. But that, as I have argued, is not relevant to the question of the best interests of the child who would come to exist were we to help the woman.
That child could not exist as the child of a younger woman.
Identity-preserving and identity-affecting actions
There is a fundamental distinction that arises from this discussion: that between an identity-preserving and an identity-affecting action or decision. An example of an identity-preserving action is when a pregnant woman drinks large amounts of alcohol. The drinking of the alcohol in this example does not affect the identity of the foetus. If the child is subsequently born with some brain damage as a result of the mother’s alcohol intake that child has been harmed by the alcohol intake.
An example of an identity-affecting action is when a woman delays reproduction from, for example, 30 to 40 years of age. A different child will be born as a result of her delay. When a doctor chooses to help couple A to conceive, rather than couple B, she is making an identity-affecting decision.
What is the effect of the identity-affecting nature of an act on the morality of that act? This is a question that was first asked in the context of the analysis of fundamental moral theory. It is a question that is becoming of increasing importance to doctors.
The non-identity problem and identity affecting interventions
Derek Parfit called this issue the non-identity problem. He explains the problem using the example of ‘the 14 year old girl’. He writes: This girl chooses to have a child. Because she is so young, she gives her child a bad start in life. Though this will have bad effects throughout this child’s life, his life will, predictably, be worth living.
If this girl had waited for several years, she would have had a different child, to whom she would have given a better start in life.
Suppose that we tried to persuade this girl that she ought to wait . . . ‘You should think not only of yourself, but also of your child. It will be worse for him if you have him now. If you have him later, you will give him a better start in life.’ . . .
We failed to persuade this girl . . . Were we right to claim that her decision was worse for her child? If she had waited, this particular child would never have existed. And, despite its bad start, his life is worth living . . . ‘If someone lives a life that is worth living, is this worse for this person than if he had never existed?’ Our answer must be No . . . When we see this; do we change our mind about this decision? Do we cease to believe that it would have been better if this girl had waited, so that she could give to her first child a better start in life? . . . We cannot claim that this girl’s decision was worse for her child. What is the objection to her decision? This question arises because, in different outcomes, different people would be born. I shall therefore call this the Non-Identity Problem.
Parfit’s example raises many issues other than the non-identity problem, not least of which is what is in the interests of the girl herself. I want to set these other issues to one side. I give bellow some further medical situations in which the non-identity problem arises. In all these cases it can certainly be argued that it would be better if the decision were made that would lead to the birth of whichever child would be likely to have the better life. Such an argument could be based on the idea of maximizing overall welfare. In none of the cases, however, can an argument be based on the interests of the potential child. Nor can it be claimed, whichever decision is made in the three cases, that the child born has been harmed by the decision.
The non-identity issue has an important impact on what doctors should do. Where the doctor aids an act, such as in prescribing during pregnancy a drug that may harm a foetus, then such harm provides a good reason for the doctor to refuse to prescribe the drug even when the woman wants it and it is appropriate treatment.
Prescribing this drug is an example of an identity-preserving action. But when the doctor’s action is an identity-affecting action that may lead to a child being born with a handicap then there is no child who has been made worse off than she could have otherwise been.
In societies that give considerable weight both to patient autonomy and reproductive choice, doctors should not normally override a woman’s choice in situations where no person is harmed; and in identity-affecting decisions, or acts, no person is harmed (unless the handicap is so severe that the child’s life, overall, would not be worth living). Such a conclusion goes against normal intuition. In this case, it seems to me, normal intuition is wrong: it is based on a false metaphysics.
Three clinical examples that involve the non-identity problem
1. Preimplantation genetic testing
Hypothetical case 1: ‘deafening’ an embryo. A couple with a genetic condition causing deafness wishes to have a child who is also deaf. This is so that the child is part of the ‘deaf community’.
The woman becomes pregnant. Genetic testing shows that the foetus does not have the gene causing deafness: it is likely to become a normal child. Suppose that a drug is available that if taken by a pregnant woman will cause a normal foetus to become deaf. It has no other effect and is otherwise completely safe for both embryo and mother. The couple decides that the woman should take this drug in order to ensure that their child is born deaf.
(a) Would the couple be morally wrong to choose to take the drug?
(b) Would a doctor be wrong to prescribe the drug at the couples’ request?
(c) If the parents did take the drug and their child were born deaf, would the child have a morally legitimate grievance against the parents, and/or the doctors?
I imagine that most people will answer ‘yes’ to these three questions. Now consider the following hypothetical case.
Hypothetical case 2: choosing a ‘deaf embryo’. A couple with a genetic condition causing deafness wishes to have help with conceiving. A number of embryos are created, using IVF (the sperm fertilizes the egg in a laboratory and outside the woman’s body, and the fertilized egg is then implanted into the woman’s uterus/womb). These are genetically tested to see which have the ‘deafness gene’. Embryo A is a genetically normal embryo. Embryo B has the ‘deafness gene’ but is otherwise genetically normal. The couple chooses to have embryo B implanted and subsequently give birth to a deaf child: child B. (If you consider that the embryo has the full moral status of a person, vary the example to involve egg, rather than embryo, selection.)
(a) Are the couple morally wrong to choose, for implantation, embryo B rather than embryo A?
(b) Would doctors be acting wrongly to accede to their request?
(c) Does child B have a morally legitimate grievance against the parents and/or the doctors?
At first sight it seems wrong for the couple to choose to have a deaf child when they could have had a child with normal hearing, and wrong for doctors to allow such a choice. The principal reason why this seems wrong is that such a choice would be harmful to the child. But this is false: it is not harmful to the child because the choice of which embryo to implant is an identity-affecting choice.
2. Delaying pregnancy
A 35-year-old woman hopes in the long run to become a mother, but not yet. She wants to delay pregnancy for another four years until she has finished a degree course. She knows that she is more likely to conceive a child with Down’s syndrome if she delays pregnancy. (Down’s syndrome is caused by an extra chromosome over the normal number, i.e. 47 rather than 46. Most people with Down’s syndrome have some degree of learning difficulty.) She asks her doctor for a prescription for the contraceptive pill. The doctor prescribes the pill for the next three and a half years. After this the woman becomes pregnant and has a child with Down’s syndrome. Did the doctor’s act, in prescribing the contraceptive pill, harm the child?
3. Treating acne
Acne is a skin condition that typically affects adolescents. It is characterized by spots and small pustules that are distributed over the face. Most adolescents experience mild acne but some suffer a much more severe form. Severe acne, if left untreated, can lead not only to psychological problems but also to permanent facial scarring. Sometimes the only effective treatment for severe acne is a drug called isotretinoin.
There is one, very important, unwanted effect of isotretinoin: it may cause foetal damage if a woman is taking the treatment during pregnancy. Children may be born with congenital malformations mainly of facial appearance or of the heart.
Because of the significance of these unwanted effects on a foetus it would normally be considered wrong for a doctor to prescribe isotretinoin to a woman with severe acne known to be pregnant, even if the woman wanted the treatment, because of the harm to the foetus, or at any rate the child that the foetus will become.
What should a doctor do, however, in circumstances where a patient is not pregnant, but might become so while taking the drug? The advice that is given to doctors on this issue is that they should only prescribe the isotretinoin if the woman will reliably delay pregnancy until after she has stopped taking the isotretinoin. In some situations this will require the doctor to prescribe the isotretinoin only in combination with the contraceptive pill.
On this view it is right for a doctor to prescribe isotretinoin to a non-pregnant woman if she will reliably delay pregnancy until after the course of isotretinoin (typically six months to a year); but wrong to prescribe it if she will not reliably delay pregnancy. The intuition is that if she does not delay pregnancy then she has harmed the child, but if she does delay pregnancy then she has not harmed the child. Once again, however, it will be a different child. If she becomes pregnant, and the child is born with a handicap, it cannot be claimed that the child has been harmed as a result of the woman’s not delaying pregnancy. For if the woman had delayed pregnancy that child would not have existed at all.
