Wrongful Life

The reproach of “wrongful life” is one that is made by parents against parents, or doctors, or indeed, on the metaphysical level, against anyone and everyone who contributes to the creation of new human beings. Thus, already the Adam of Milton’s Paradise Lost complains that he had never asked to be brought into the world but had rather been created without having been consulted beforehand. A similar complaint was somewhat later to be uttered by the artificial human being imagined by Mary Shelley as having been created by Dr Frankenstein.

But the suggestion that a child might sue his or her own parents for “damages”, and claim “compensation”, for having been begotten without his or her consent is one which one encounters, perhaps, for the first time explicitly in the novel “Rien n’est…” by the French writer Georges >Poulet. Nevertheless, where negligence or omission on the part of medical practitioners led to the existence of a human being who had reason, on account of some grave disability, to curse this existence, such a human being had, until recently at least, little alternative but simply to curse, in the style of the ancients, the fate that had befallen him in coming into the world. Here, then, one must note and bear clearly in mind a certain striking disproportionality: it appears that one is much more inclined to acknowledge the validity of the lawsuits brought by parents who have become such as a consequence of some medical blunder than to recognize the validity of charges brought by children who have begun to exist without having wanted to do so or even burdened by serious illnesses or disabilities. Thus, a decision passed down by the German Supreme Court in Charge of Civil Cases includes the judgment that “a child must, in principle, accept his or her life in the form in which Nature has produced it and cannot lay claim to a right to have been prevented from being born, or otherwise removed from existence, by others…” (BGHZ 86, 254, quoted from Picker, l. c.). The child would thereby also have no claim to compensation, since the recognition of such a claim would presuppose that the child’s non-existence would be a state or condition preferable to his or her existence, that is to say, that the child’s existence would constitute a “harm done” to said child (see Picker, >Amphiboly of the Concept(s) of Existence). We surely are confronted, then, with a significant moral-logical discrepancy if, on the one hand, parents are to be permitted to sue for compensation where medical malpractice has led to the arrival of a child that has forced an alteration in the lives they had planned for themselves while, on the other hand, it is also judged that a child who wishes to bring a lawsuit with regard to his or her own existence must be obliged rather to respect this existence as the highest and most sacrosanct of values.  

It has, however, in the meantime become the case that such a child can – albeit with only a minimal prospect of success – bring a lawsuit against those medical practitioners who gave (from this point of view) “bad” advice or medical treatment to said child’s mother and, for example, cast their vote against the termination of the pregnancy. After a series of such àExistence Lawsuits had been brought, during the second half of the 20th century, without in any of these cases the suit proving successful, there occurred finally, in the year 2000 in France, a lawsuit brought by a seriously disabled person claiming compensation for his own existence in which the right to such compensation was acknowledged and the compensation awarded.   But let us look a little farther back: In 1960 a US court tried the case of an individual who had been born with serious disabilities due to a traffic accident occurring while it was still in the womb. The claim to compensation submitted in this case argued that “[…] justice requires that the principle be recognized that a child has a legal right to begin life with a sound mind and body.” (quoted from Gragl)

In 1967 the Supreme Court of New Jersey rejected the lawsuits brought by three plaintiffs which demanded, albeit for three different sets of reasons, a right to compensation for the beginning of the existence of one and the same physically disabled human being. This person’s mother, Sandra Gleitmann, brought a civil suit for pain and suffering demanding compensation for the emotional stress which had been caused her due to the terrible state of the health of her child;  the father, Irwin Gleitman, brought a civil suit demanding compensation for the costs incurred in caring for and seeing to the other needs of this same child; finally, the child in question himself, Jeffrey Gleitman, demanded compensation for his own existence – an existence which he himself had never asked for. As the Gleitman family succeeded in proving to the court, Sandra Gleitman had informed her gynaecologist, in the second month of her pregnancy, that she had just recently suffered from a case of the measles and asked him whether this was likely to have an effect on her child. The gynaecologist had assured her that the recent measles infection would not affect the child’s health. But the child Jeffrey, born in 1959, proved in fact to suffer from serious sight and hearing problems, as well as problems of limb articulation.

The court did not decide in favour of this lawsuit – in which the plaintiffs also cited the above-mentioned lawsuit brought by the individual born disabled as a consequence of a traffic accident during pregnancy – since, so the court reasoned, there had never existed any possibility of the child’s being brought to birth in a non-disabled condition. The suit, then, was rejected with the following justification: “The infant plaintiff is therefore required to say not that he should have been born without defects but that he should not have been born at all. In the language of tort law he says: but for the negligence of defendants, he would not have been born to suffer with an impaired body. In other words, he claims that the conduct of defendants prevented his mother from obtaining an abortion which would have terminated his existence, and that his very life is ‘wrongful’.” (Quoted from Gragl) In order to allow the family’s claims, continued the court in its judgment, it would have had to do something that was in fact onto-logically impossible: namely, weigh up the value of the individual in question’s actual existence with all his disabilities against his possible non-existence. Instead of this the court referred to the Conditio in/humana to which both the striving for life and the persistence in it belong (>Tyranny of Biology): “By asserting that he should not have been born, the infant plaintiff makes it logically impossible for a court to measure his alleged damages because of the impossibility of making the comparison required by compensatory remedies. […] It is basic to the human condition to seek life and hold on to it however heavily burdened.” (quoted from Gragl)

Let us look back now at the case from the year 2000, the judgment in which constituted, at least up until the year 2008, the only judgment according to a disabled person compensation for their own existence. In this case too, a previous German Measles infection of the mother’s had resulted, in her child (Nicolas Perruchet, b. 1983) suffering from disorders of the nervous system, deafness in both ears, and compromised visual abilities, so that the mother in question would surely have terminated the pregnancy if she had been informed beforehand of the extent of the damage that her previous infection was likely to do to her child.  With regard to the child, Nicolas Perruchet, the court recognized that he had indeed suffered “a certain harm through having been born” (“préjudice d’être né”). French legislators, however, found themselves obliged, shortly after the announcement of this judgment – due to criticism of it both from the side of the public and from the side of various politicians – to revise the findings expressed in it, so that a new judgment was issued stating that “no one enjoys a legitimate claim to compensation for harm or damages merely on the grounds of their having been born.”  (quoted from Paul Gragl, Wrongful Life – Gibt es ein Recht, nicht geboren zu warden? For the above, see the same author)

On what, then, can someone base himself who undertakes to make certain medical practitioners, or his own parents, responsible for the existence which he did not ask for and which he finds unbearable and to bring a lawsuit against these parties on these grounds? Whoever already exists cannot claim, obviously, that he/she is now in a worse position than he/she was in before the beginning of his/her existence. Normally, in order for a lawsuit of this sort to be successful, the plaintiff must indeed be able to demonstrate that a certain alternative action or course of events would have been more to his advantage, which would in this case mean: that it would have been better for him himself never to have existed. But since existence is a fundamental precondition for taking up any different position at all on the scale of “better” or “worse”, no lawsuit evoking any such thing as “being worse off” due to the beginning of an existence can ever hope to be successful in a court of law except where there succeeds in asserting itself an essentially irrational metaphysics whereby it would have been better for me, had I never begun to exist.  

Nevertheless, it remains the case that a certain claim to compensation for the fact of his existence should, after all, be accorded to whomever is not in agreement with his own having-been-begotten. It may indeed be the case that I was not harmed by certain persons’ acting in such a way that I began to exist. It is correct, however, to say that there was imposed upon a person – a person who was eventually to become me – all those things of which it was already known that they were unacceptable: an “unacceptable gift” consisting in such things as the wearisome living-out of an entire existence, in sicknesses, in one’s own inevitable death as well as the necessity of witnessing >the Deaths of Near and Dear Ones.

The argument is often made that it is immoral to beget a human being whose life will (by reason of genetic predisposition or in view of the social situation in which he will find himself) in all likelihood be a miserable one. This conclusion may, as a basic matter of principle, be expanded to take the form: the decision to beget progeny should be rescinded in every case in which it cannot be absolutely excluded that these progeny will ever undergo suffering and in every case where it is not absolutely certain that they will be able to die in the “epic” manner of passing away having had their fill of life and with full serene assent to this death.

Nativistic Anonymity

It is true, of course, that parents can in such cases have recourse to nativistic >Anonymity and retort to their children, should these latter begin to complain about their own existence: “When we decided to have a family we did not decide specifically to have you but rather to ‘have a child’ quite generally. You cannot, then, accuse us of having done something to you through our engaging in procreation.”  But to this the child discontented with the fact of his own existence can object: “Even if it is indeed the case that you did not convey me from one state into some other state by bringing about the beginning of my existence, the fact remains that without your deed of procreation I would not exist: I, who must now drag myself through this life for many decades, suffer illnesses, and finally suffer death. It is correct, then, to say that you begot ‘someone’ and could not have envisaged me as this ‘someone’ as you did so. But it is also correct to say that you ought to have reckoned with the certainty that you would beget thereby a human being who would not take it kindly that you acted in such a way that both the beginning of his life and its end became inevitable. It is for this reason that I demand of you that you render me, for so long as I am alive, as content as possible with my own existence.

But to this, in their turn, the parents might retort: When we begot you we were – as so many tend to be – too young and inexperienced to be able to conceive such thoughts. The provision of compensation for existence is rather a task that the >State ought to take over and bear: namely, in the form of an unconditional securing of a good existence for everyone and the commitment to render content with their material lives all citizens who demand that they be so made content (>Existential Money) and also in the form of an uncomplicated assistance provided by the state to all those who, after careful consideration, choose the path of freely ending their own life as a way of reversing and removing the >”Diktat of Birth”.

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