4.1. Identifiability

The first objection insists that future children do not satisfy a necessary condition of rights-ascription, and therefore cannot be said to have their rights violated through a procreative act. David Heyd (Reference Heyd, Roberts and Wasserman2009, 13) notes that in our usual understanding, rights seem to be linked to metaphysically identifiable people who are the subjects of those rights and the recipients of their correlative duties. For instance, in the case of Smith, we are able to pick out a particular person who is the subject of a right not to be discriminated against, and thus a particular person to whom a duty of non-discrimination is owed. It then makes sense to say that Smith’s rights were violated because the airline failed to perform a duty owed specifically to Smith as an identifiable person.

Future children, however, are not identifiable in this way. As Michael Bayles (Reference Bayles1976, 300) points out, there are deep epistemic limitations to identifying the future children who we might create, as the designator ‘future child’ may refer to any of the possible children we might create depending on which sperm fertilizes which egg. In this sense, it is not clear to whom, exactly, our procreative duties are owed. But as Heyd makes clear, the problem of identifiability runs even deeper than this, for it is not only that the identities of future children are beyond human knowledge – they are also wholly dependent on human choice. Future children are not concrete individuals ‘waiting in the wings’, so to speak, but depend for their identity on the human choices that bring about their conception. Ascribing rights to future children might then seem paradoxical, for if the identity of a future child depends on our choices, how can those same choices be constrained by a consideration for its rights? Heyd concludes that they cannot be, and that to apply rights in non-identity cases is to ignore their sui generis nature.

Is the identifiability objection sound? Perhaps partly. It is true that among the future children implicated by our procreative choices, there is no numerically identifiable person to whom we can ascribe a right, and thus no particular person to whom we can owe a correlative duty. But this fact is only normatively significant if we accept Heyd’s assumption that rights must be linked to metaphysically identifiable people. This assumption seems false, however, and oddly out of touch with common understandings of how rights function. On one plausible understanding, rights do not attach to people’s numerical identities, but rather to the kinds of creatures they are, and the positions they occupy in relation to others. What is relevant to the ascription of rights, then, is not a person’s numerical identity, but rather their relevant type-description, or the normatively significant set of characteristics that indicates what kind of creature they are, and what kinds of interests they have (Kumar Reference Kumar2003, 111).Footnote ⁵ To see this point more clearly, consider once again the case of Smith. It is true that the individual Smith had a right not to be discriminated against, and that by refusing to sell him a ticket, the airline violated Smith’s right. But Smith did not hold this right by virtue of being Smith, i.e. Smith, born June 17, 1952, on the basis of a prior conception that brought together a particular combination of Mr. and Mrs. Smith’s reproductive gametes. Rather, Smith held this right on the basis of particular characteristics indicative of his type, i.e. a citizen who stands in a particular relation of equality to others. This right is also held by Jones, Brown, Wilson, and all the other citizens who share those particular characteristics, and the airline would have violated their rights in the same way by refusing to sell them tickets.

The non-identifiability of future children should not prevent us from thinking about them as rights-holders to whom particular duties are owed, for we still know the kinds of creatures they will become, and thus the kinds of interests they are likely to have. Regardless of their numerical identities, all children have certain interests qua children, the satisfaction of which is necessary for them to lead minimally decent lives. Thus, our procreative duties are owed to all the future children who we create, whoever they turn out to be.Footnote ⁶ To this end, their numerical identities are not morally important.Footnote ⁷

4.2. Non-existence

Even if we pursue this line of reasoning and regard future children as a class of persons with antecedently identifiable interests, their eligibility as right-holders might be attacked from a different angle. In the existing literature surrounding intergenerational justice, many commentators have denied that rights can be ascribed now to members of future generations who do not currently exist (Beckerman and Pasek Reference Beckerman and Pasek2001; De George, Reference De George and Partridge1981; Macklin Reference Macklin and Partridge1981). The thought behind this claim is that the possession of rights necessarily presupposes the existence of the being who possesses them, such that ‘the ascription of rights is [only] made to actual persons – not possible persons’ (Macklin Reference Macklin and Partridge1981, 151–152). On this view, members of future generations will come to have rights when they exist, but they cannot currently possess rights that impose correlative obligations on members of the present.

A similar objection might be raised in the smaller-scale context of procreation. While future children will come to have rights when they exist, their present non-existence might be thought to imply that they cannot currently possess rights that impose constraints on our procreative behaviour. At the very least, any claim to the contrary would seem to rely on the controversial metaphysical claim that non-existent entities can possess real properties, and to the extent that we reject such a claim, we may be led to reject the notion that future children possess rights.

Is the non-existence objection sound? Again, perhaps partly. There is a coherent argument for the claim that future persons cannot possess now, expressed in the following set of premises:

1. (1) in order to possess rights, one must have interests;

2. (2) in order to have interests, one must exist;

3. (3) future persons do not presently exist; therefore,

4. (4) future persons cannot presently possess rights.

However, the fact that future persons cannot possess rights now does not preclude the possibility that we can have present obligations that are grounded in rights they will possess in the future. As an example of a case that illustrates this possibility, consider Joel Feinberg’s (Reference Feinberg1984, 97) kindergarten bomber:

The five-year-old victims in Feinberg’s example did not exist, and hence did not possess rights, at the time the bomb was planted, though this fact alone does not seem to preclude a rights-based objection to the criminal’s act. At the time of his act, he knew (or at least had reason to expect) that there would be children present when the bomb exploded, and that these children would then possess rights not to be killed or mutilated. Thus, there is nothing incoherent about claiming that the criminal had an obligation, grounded in the future rights of future children, to refrain from planting the bomb.

The children who we bring into existence through our procreative choices can similarly be thought of as future right-holders: when they come into existence, they will then have rights to the satisfaction of certain basic interests, and will therefore be wronged when they are born into conditions in which those interests cannot be satisfied. Thus, it does not matter that the child of the fourteen-year-old girl does not exist at the time of her procreative decision, for we can still frame an objection to her decision that appeals to the rights he will possess upon coming into existence.

One might object that the preceding response to the non-existence objection is actually a red herring, for the children in non-identity cases are not (yet) future children who will exist in the future, but are rather possible children who may or may not exist in the future depending on the outcome of a particular choice.Footnote ⁸ Thus, we cannot appeal to the rights of a child who will exist in the future in order to guide that choice, as the choice will in fact determine whether such a child ever exists. However, if we cannot appeal to the rights of a child who will exist in the future in order to guide such a choice, then it is not immediately clear how the preceding response to the non-existence objection is relevant for non-identity cases. Indeed, while we may have present obligations that are grounded in the rights of persons who will exist in the future, it does not necessarily follow that we have present obligations that are grounded in the rights of persons who might exist in the future.

There is a simple response to this objection that draws upon the previous response to the non-existence objection. The possible children in non-identity cases are possible future persons, and can therefore be thought of as contingent future right-holders: if they are brought into existence, they will then have rights to the satisfaction of certain basic interests, and will therefore be wronged if they are born into conditions in which those interests cannot be satisfied. Thus, when we refrain from creating such a person, we are not doing so out of concern for a (merely) possible person who is now spared a sub-threshold existence (though see Hare Reference Hare2007, for an argument to the contrary) but rather out of concern for the actual person who would have been born into sub-threshold conditions had we created them. Notice, however, that in cases where children are in fact born into sub-threshold conditions, we still need a response to the potential objection, raised ex post, that they could not have had their rights violated because they did not exist at the time of the act that resulted in the violation of their rights. The original response to the non-existence objection is therefore not a red herring, but rather a necessary component of our ex post judgment that the decision to create such a child was morally wrong.

4.3. Waiving of rights

Suppose then that it is intelligible to think of future children as future rights-holders, and that their rights may be violated when they are born into conditions in which their basic welfare interests cannot be satisfied. A further problem arises from the fact that such children may not regret the rights violation insofar as their existence depended on it occurring. Parfit (Reference Parfit1984, 364) makes this point by citing a letter from The Times, written in response to a British politician who welcomed the fact that there had been fewer teenage pregnancies than the previous year. The man who wrote the letter had been born to a fourteen-year-old mother, and while he did have a difficult upbringing, he now enjoyed his life and balked at the suggestion that it would have been better had he never existed. According to Parfit, this man’s reaction undermines rights-based objections to his mother’s procreative conduct, for even if we claim that his mother violated his rights by bringing him into disadvantaged conditions, he might then decide to waive those rights to the extent that he is happy to be alive. The possibility of waiving rights might seem to diminish the significance of rights violations in procreative contexts. After all, in what sense is a rights violation objectionable if it is not regretted, and is even celebrated, by the supposed victim?

There are two different ways that we might go about responding to the waiving of rights objection. The first is to challenge the significance of a child’s lack of regret by pointing to an intuitive asymmetry between the benchmarks associated with starting and continuing lives. According to some theorists, we tend to assign a higher benchmark to starting lives than we do to continuing them, such that we may judge our lives to be worth continuing with certain disadvantages, but also think that it is better not to start a life with the same disadvantages (Benatar Reference Benatar2006, 22–28; Steinbock Reference Steinbock, Roberts and Wasserman2009, 165–166; Velleman Reference Velleman2008, 273–274). For example, David Benatar (Reference Benatar2006, 23) notes that, ‘while most people think that living life without a limb does not make life so bad that it is worth ending, most (of the same) people also think that it is better not to bring into existence somebody who will lack a limb’. This asymmetry might be thought to undermine the significance of a child’s lack of regret, for the fact that a child (or child-as-adult) judges their life to be worth continuing does not necessarily tell us anything about whether it was permissible to initiate in the first place. David Velleman (Reference Velleman2008, 274) appears to draw this conclusion, claiming that ‘we can hardly justify initiating a life on the mere grounds that there would not immediately be reason to terminate it’.

Of course, this response depends on an intuitive judgment that is not universally shared, and thus may be open to an easy counter-response: perhaps the fact that life would still be worth continuing after losing a limb simply indicates that starting a life without a limb would not be so bad (Bayne Reference Bayne, Archard and Benatar2010). And if we take the benchmarks associated with starting and continuing lives to be symmetrical in this way, we might then consider a child’s lack of regret to be centrally important, as the fact that a child judges his life to be worth continuing might suggest that it was permissible to initiate in the first place, despite the fact that his rights have been violated.

A second and more promising way of responding to the waiving of rights objection is to challenge its underlying principle of consent. Notice that the waiving of rights objection turns crucially on a principle of consent, or the idea that right-violating conduct can be rendered permissible by receiving the free consent of the person whom it affects. This idea is uncontroversial in cases where the person in question is available to offer their consent. For instance, while my right to bodily integrity prevents you from permissibly cutting me with a scalpel, I might choose to waive that right with respect to you by allowing you to perform surgery on my heart. Assuming I was not coerced, deceived, and had adequate knowledge of the relevant facts and risks, I have meaningfully consented to the surgery, and you do no wrong by cutting me.

In the case of procreation, however, we cannot obtain the consent of the child prior to act that violates their rights, for the act that violates their rights is also a necessary condition of their existence. Does this fact alone undermine the waiving of rights objection? Not necessarily, for as proponents have pointed out, it is not always necessary to secure a person’s consent prior to engaging in a presumptively right-violating act – rather, it is sometimes sufficient that the person would hypothetically consent were they able to do so at the time of the act, or that they will subsequently consent at a later time (Boonin Reference Boonin2014, 120). For example, suppose that I am unconscious because of my heart condition and you perform life-saving surgery on me without first obtaining my consent. In this case, it is true that I have not consented to the surgery, though it still seems permissible for you to perform it given the strong likelihood that (a) I would have consented to it had I been able to do so at the time of the surgery, or (b) I will consent to it later upon regaining consciousness. According to David Boonin (Reference Boonin2014, 119–123, 257–268), this type of example provides a strong basis for the waiving of rights objection, for even if a child cannot consent to being born into sub-threshold conditions, it is reasonable to think that (a) they would have consented to it had they been able to do so, or (b) they will consent to it at a later time.

Do either of these possibilities undermine the proposed rights-based solution? Consider first the possibility of hypothetical consent. Initially, it might seem reasonable to think that if they were given the opportunity and made aware of the available options, a child would choose to waive their right to be born into minimally decent conditions rather than to never exist at all. However, there are at least two problems with this type of reasoning. First, and most importantly, the case of procreation is disanalogous to the case of surgery in a way that makes an appeal to hypothetical consent problematic. When we infer hypothetical consent in the case of the unconscious patient, we are assuming they would have consented to the surgery at the moment it was performed. This is a reasonable assumption in most cases, as people typically have an interest in continuing to exist, and would thereby be deprived by ceasing to exist. However, this type of assumption cannot play the same justificatory role in cases of procreation, for prior to the moment a child is created, there is no existent person who might have given their consent to being born into sub-threshold conditions – rather, there is only a possible person at that moment, one who will be wronged if they are born into sub-threshold conditions, but who will not otherwise be deprived if they are never created. An appeal to hypothetical consent is therefore incoherent, for it falsely attributes to possible people an interest they can only have once they exist.

However, even if hypothetical consent could be appealed to in the way that Boonin describes, a second problem is that the circumstances seem like those in which the inferred consent would not be morally binding. Suppose that it makes sense for us to imagine a possible person prior to existence who is faced with the choice of either existing in sub-threshold conditions or never existing at all. Even if it were intelligible to assume that such a person has an interest in existence, and would thereby choose the former over the latter option, it is not clear that this has the normative relevance Boonin ascribes to it, as their situation resembles one in which consent is obtained under conditions of duress (see Hurley and Weinberg Reference Hurley and Weinberg2015, 720 and Reiman Reference Reiman2007, 88 for similar arguments). If I hold a gun to your head and offer you a choice between your money or your life, it is reasonable to assume that you would agree to hand over your money. However, this type of agreement has no moral force, as consent that is obtained under an unjust threat of violence is not a morally binding form of consent. By parity of reasoning, consent to a rights-violation that is obtained under a structurally similar threat of non-existence does not seem like a morally binding form of consent. Children in such a scenario face an option set that is itself unjust, so their hypothetical preference for the less bad option should not be taken as an exculpating factor in the violation of their rights.Footnote ⁹

Taken together, these two problems severely undermine the hypothetical consent interpretation of the waiving of rights objection: not only is it incoherent to appeal to hypothetical consent in procreative contexts, but even if it were coherent, the inferred consent would be tainted in a way that renders it morally inert. But what about the subsequent consent interpretation, according to which children (or the adults they become) later consent to being born into sub-threshold conditions? This interpretation, reflected in Parfit’s original example, might seem more promising given the fact that existing persons can and often do express an appreciation for having been born, even when they have been born into disadvantaged conditions. Can the expectation that a child will subsequently waive their right to be born into minimally decent conditions justify the violation of that right?

I do not believe that it can, for a combination of reasons. First, and at a general level, it is not clear that an appeal to subsequent consent actually does any justificatory work in the analogous surgery case. This can be revealed by considering a modified version in which subsequent consent is withheld. Imagine that, upon regaining consciousness, I object to your surgery on the grounds that my religious commitments preclude medical interventions in my body. It seems clear that my withholding of subsequent consent does nothing to affect the permissibility of the surgery, for at the time of the surgery, it was reasonable to assume that I had an interest in continuing to exist and would therefore have offered my consent. However, if the denial of subsequent consent does nothing to render the surgery impermissible, then it is not clear what the obtainment of subsequent consent does to render it permissible. Indeed, it seems like what is really doing the work in this type of case is the reasonable expectation that I would have consented to the surgery at the moment it was performed, though this appeal to hypothetical consent is not applicable in procreative cases.

One might object that it is not the actual obtainment of subsequent consent that justifies presumptively right-violating conduct, but rather the reasonable expectation that subsequent consent will be offered. Thus, it does not matter that a person actually withholds their consent after the fact so long as it was reasonable to expect that they would provide it. This interpretation of subsequent consent survives the previous objection, but it is also implausible as a general principle, for it would seem to permit right-violating conduct that had the effect of increasing the probability of subsequent consent. For example, suppose that you and your associates find me unconscious one day and perform a sophisticated brainwashing technique that wins my allegiance to your cult. Suppose further that this was the only time the technique could be performed, such that it was not possible to secure my consent beforehand. If the reasonable expectation of subsequent consent is sufficient to render a right-violating act permissible, then it seems that you have acted permissibly, for given the effect of the brainwashing technique, it was reasonable for you to expect that I would later consent to your actions. This, however, is a bizarre implication. It is clearly impermissible for you to brainwash me, and at least one explanation for this is supplied by the inapplicable principle of hypothetical consent: given my interests at the time I became unconscious, it was not reasonable to expect that I would have consented to being brainwashed.

Of course, one might object further that the consent offered in this example would not be morally binding given that it was offered under the judgment-corrupting influence of the brainwashing technique. This line of objection might seem promising, though it does not actually help proponents of the waiving of rights objection, for as many theorists have noted, human existence contains its own judgment-corrupting influences that predispose people toward existence and make it more likely that they will subsequently consent to having been born into sub-threshold conditions. For example, many theorists have noted the deceptive role that various psychological phenomena play in our subjective quality of life assessments, including positivity bias, status quo bias, and preference adaptation (for a useful overview of these phenomena and their relevance for procreative decision-making, see Marsh Reference Marsh2014). One potential effect of these phenomena is to make us subjectively satisfied with unsatisfactory states of affairs, leading us to question whether a child’s subsequent consent can be sufficiently informed to justify the violation of their right. However, in addition to these general phenomena, there is also a more specific judgment-corrupting influence at work in the subsequent waiver scenario, which is the false sense of deprivation involved in comparing one’s current existence with a counterfactual scenario in which one never existed. When we ask a presently existing person whether they would prefer existing in their disadvantaged condition to having never existed at all, we are asking them a loaded question, for the experience of existence makes it very difficult to imagine non-existence in anything but a negative light. Indeed, by inviting a person to consider a counterfactual scenario in which they never existed, we are implicitly directing their attention toward the various goods in their life they would have ‘missed out on’, making their counterfactual non-existence seem inherently deprived by comparison. However, in a subsequent waiver scenario, this is problematic for two reasons. First, unlike death, preconception non-existence is not in fact a deprived condition, as there are no goods in that condition to be deprived of, and no person to be deprived of them (Cohen Reference Cohen, Fotion and Heller1997, 33–35). The sense that it is a deprived condition is merely the product a faulty ex post comparison that considers information irrelevant to the evaluation of the alternative scenario: had the child never existed, he would not have experienced the goods of existence, and would therefore not have been deprived by their absence. Second, to the extent that it is foreseeable that a child will view their counterfactual non-existence as a deprived condition, the case of bringing a child into sub-threshold conditions exhibits the same problematic features as the brainwashing case presented above: it is a rights-violation that has the effect of increasing the probability of subsequent consent by means of a judgment-corrupting influence. Thus, the consent that is subsequently offered cannot serve a justificatory role in the violation of that right, as it is again tainted a way that renders it morally inert.

One might wonder whether this view implies that other proposed standards for valid life-affirmation – such as David DeGrazia’s (Reference DeGrazia2012, 158) principle of ‘undeluded gladness’ – are difficult or impossible to come by. I am unsure about this strong view, though given the various factors that bias one toward affirming existence even under adverse conditions, I do not think that we can point to a child’s subsequent gladness to be alive to justify the violation of his rights. The point is not only that the child might be deluded in a way that invalidates his subsequent consent, but also that he is taken advantage of in an unfair way. His parents are able to shirk their duties of procreative care with respect to him in the reasonable expectation he will later absolve them of their wrongdoing, as his experience of existence will predispose him to favour it over a counterfactual scenario in which he never exists. The fact that the deck is stacked in favour of their exculpation should lead us to seriously question the moral relevance of any subsequent consent that is offered (for a related though distinct view about a child’s inevitable self-attachment to his own regrettable existence, see Velleman Reference Velleman2008, 272).

4.4. Lack of legitimate complaint

A related but even deeper worry is that even if a child did not waive their rights and were to protest their violation, they would nevertheless lack a legitimate complaint against their progenitors insofar as the only alternative to having their rights violated was non-existence. This has often been the verdict in so-called ‘wrongful life’ torts, in which a child (or their representative) claims damages against their parents or others for bringing them into a miserable, disadvantaged, or unwanted life. Courts have typically rejected such claims on the grounds that they depend on an impossible comparison between the value of non-existence relative to existence, which does not allow for the establishment of injury on the part of the child. As one judge wrote in response to a case in which a doctor was sued for permitting the birth of a severely disabled child,

Now in one sense, this common objection to wrongful life torts simply begs the question against rights-based solutions, as it relies on the contentious ‘no worse off’ argument that such solutions reject. Conceiving of injury as the comparative worsening of one’s condition, it deduces that the child has not been injured in wrongful life cases because she cannot be shown to have been made worse off than she otherwise would have been (as such a judgment would entail an allegedly impossible comparison between the value of a defective life and no life at all). But this is the very premise that rights-based solutions seek to discredit. Even if a child cannot be made comparatively worse off by a procreative act, she may nevertheless be wronged by being born into conditions in which her basic welfare interests cannot be satisfied. Viewed in this way, such a child does appear to have a legitimate moral complaint against those responsible for her birth: that her rights have been violated, or that she has been born into conditions in which her rights cannot be fulfilled.

In another sense, however, this common objection to wrongful life torts might indicate a much more problematic notion for rights-based solutions, namely, that there are cases in which a person lacks a legitimate complaint for having their rights violated. As an example of a case that might fit this description, consider another surgery case, based on one originally introduced by Parfit (Reference Parfit1986, 855). Suppose that you are unconscious after a car accident. Your arm, currently lodged under one of the vehicles, must be amputated imminently in order to save your life. Fortunately, a surgeon happens to be on scene to perform the operation. Knowing what he must do, he successfully amputates your arm, thereby saving your life.

The accident case appears to be one in which the violation of a person’s rights does not affect the permissibility of the act in question. It is true that by amputating your arm without your consent, the surgeon violates a number of your rights, including your right to bodily integrity. However, given the available alternatives, the violation of that right does not provide a strong reason against amputating your arm. If the surgeon does not amputate your arm, your right to bodily integrity will be respected, but only at the much higher cost of your life. In this sense, even though the surgeon has violated your rights, you appear to lack a legitimate complaint against him insofar as you would have died otherwise.

An analogy with the accident case appears to undermine the significance of rights violations in procreative contexts. Just as your rights were violated by the surgeon amputating your arm without your consent, so too is a child’s rights violated when he is born into conditions in which his basic welfare interests cannot be satisfied; and just as you lack a legitimate complaint against the surgeon insofar as your life depended on him violating your rights, so too does a child lack a legitimate complaint against his parents insofar as his life depended on them violating his rights. If sound, this analogy serves as a compelling reductio ad absurdum, for if we want to claim that a child does in fact have a legitimate complaint against his parents, we seem forced to take on board the more counterintuitive claim that you also have a legitimate complaint against the surgeon, and that his act was therefore impermissible.

However, there are at least two important differences between the procreative context and the accident case that preclude such an analogy, and which by extension undermine the lack of legitimate complaint objection as a whole. The first difference involves the consequences of not acting, or of refraining from engaging in the right-violating conduct. By not acting in the accident case, the surgeon allows you to die, which results in an even worse outcomeFootnote ¹⁰ from the perspective of your own interests, and which may also violate a general duty of easy rescue. However, by not acting in the procreative context, there is no comparable loss: the parents would not be allowing a worse outcome to occur – a possible child is not made worse off by never existing – and assuming that there is no duty to procreate, they would not be violating any duties owed to particular people (see Shiffrin Reference Shiffrin1999 for a similar argument). Thus, while there are strong reasons in favour of acting in the accident case – in light of the consequences of not acting – there are only reasons against acting in the procreative case, suggesting that the violation of a child’s right to a minimally decent existence is not analogous to the violation of your right to bodily integrity. This disanalogy is significant in the present context because it provides the surgeon with a justification for his actions that parents lack: if he does not violate your rights, then things will go worse for you.Footnote ¹¹

However, a second and arguably more important difference between the two cases involves the causal relationship between the right violator(s) and the circumstances of the rights violation. In the accident case, you were by chance put in a position where the only available options were to have your arm amputated or to die, a circumstance that apparently leaves you with no legitimate complaint against the surgeon for violating your rights. However, in the procreative context, the parents are responsible for creating the comparable circumstance. By conceiving amid conditions in which their child’s rights could not be satisfied, they electively put him in a position where he lacks a legitimate complaint against them, insofar as the only alternative to having his rights violated was to never exist. A truly analogous accident case would then be one in which the surgeon was responsible for putting you in a position where the only available options were to have your arm amputated or to die – perhaps he was in the other vehicle and deliberately crashed into you to perform a surgery. However, in this revised accident case, it would seem odd to attach significance to the fact that you lack a legitimate complaint against the surgeon, for he is responsible for putting you in that compromised position: had he acted with due consideration for your interests, you would not have been in a circumstance where the best available option was to have your arm amputated. In a similar vein, it seems misguided to attach moral significance to a child’s apparent lack of complaint against his parents. Had his parents acted with due consideration for his interests – or, more accurately, the interests of whatever child they might have created – he would not have been put in a position where having his rights violated was the best available option for him. The fact that he would not have existed otherwise should not get his parents off the moral hook, for they still appear to have done wrong: not only for creating a child whose rights could not be fulfilled, but also for putting him in a position where the cost of protesting that injustice is denouncing his own existence.

When reflecting on this response to the lack of legitimate complaint objection, one might wonder whether it is always appropriate to think of a child’s parents as electively putting him in a position where having his rights violated was the best available option for him. For instance, in cases where a child’s basic welfare interests cannot be satisfied because of a serious congenital disorder, it might seem more appropriate to say that the disorder, rather than the parents, is responsible for putting the child in a disadvantaged condition. But if this is the case, there seems to be a relevant disanalogy between the case of procreation and the revised accident case presented above, for while the surgeon is responsible for creating the limited option set faced by the accident victim, a set of procreators cannot always be held responsible for the limited option set faced by their progeny.

Does this disanalogy undermine the argument at hand? Not necessarily, for even if procreators are not responsible for the limited option set faced by their progeny, they are still responsible for creating a child who will foreseeably face a limited option set, and this is sufficient to establish the moral wrong. To illustrate the plausibility of this reasoning, consider the following pair of cases. Imagine that I promise to help you paint your house, and then renege on that promise because I am too hungover to perform physical labour. In this case, I have wronged you by failing to fulfil my promise and I am responsible for my inability to fulfil that promise – I should not have had so much to drink the night before I agreed to paint your house. Now imagine an alternative case in which I promise to help you paint your house knowing that my heart condition precludes me from performing physical labour. In this case, I am not responsible for my inability to fulfil my promise – this is due to my heart condition – though I have still wronged you in a virtually identical sense by making a promise I knew I would not be able to fulfil. By parity of reasoning, even if procreators are not directly responsible for the non-fulfilment of their child’s rights, they still wrong their child by creating her amid conditions in which they know her rights will go unfulfilled. That this outcome is foreseeable at the time of the child’s conception is sufficient to render their act of procreation wrongful.

4.5. Unfairness

A fifth and final objection focuses not on the intelligibility of attributing sufficientarian rights to future children, but rather on the potentially unattractive normative implications of doing so (DeGrazia Reference DeGrazia2012, 167–169; Wasserman Reference Wasserman2005, 137–138). As David Wasserman (Reference Wasserman2005, 138) writes,

Wasserman’s worry can be understood as one about unfairness to potential procreators, particularly those who are unable to secure minimally decent conditions for their progeny due to circumstances beyond their control. Does this type of worry provide grounds for rejecting the proposed rights-based solution?

As a preliminary response, it is worth noting that Wasserman does not deny the claim that giving due consideration to children’s interests implies that some persons are unable to procreate permissibly – on the contrary, he concedes that persons who are unable to provide their children with ‘lives worth living’ are morally prohibited from procreating, even when that inability is due to circumstances beyond their control (Wasserman Reference Wasserman2005, 135). In this sense, Wasserman’s objection has more to do with where a rights threshold is set, rather than the very idea of a rights threshold itself. Indeed, the crux of his objection seems to be that higher thresholds fail to strike an appropriate balance between the interests of procreators and the interests of progeny, and in so doing, exclude too many people from permissibly having children.

One possible response to this objection is to exempt procreators from the requirement to secure minimally decent conditions for their children when their inability to meet that requirement is due to circumstances beyond their control. This is the approach taken by DeGrazia (Reference DeGrazia2012, 168), for example, who claims that disadvantaged prospective parents are morally ‘off the hook in those circumstances in which their inability to meet a basic need [for their children] is a consequence of external circumstances and not their own character deficits or pathology’. However, it is not clear that Wasserman’s objection necessitates this type of conciliatory response. It is certainly regrettable that some persons will, through no fault of their own, be unable to permissibly pursue their procreative projects, and depending on how much value we attach to procreation, this might give us an additional reason to address the various structural injustices that put persons at such a disadvantage. However, provided that we have good independent grounds for attributing to children the rights in question, it is unclear why this provides a reason to reject a rights-based solution to the non-identity problem. Consider, by way of analogy, how this reasoning would reduce to absurdity if applied in a structurally similar context. It is generally accepted that children have a right to a minimally decent upbringing, and that parents who are either unable or unwilling to provide such an upbringing are morally ineligible to parent. In this case, attaching a certain amount of weight to children’s interests has the effect of disqualifying certain individuals from permissibly parenting, even when their inability to satisfy a child’s interests is due to circumstances for which they are not personally responsible, e.g. a lack of parenting competence that is rooted in a traumatic upbringing of their own. However, the bare fact that a particular conception of children’s rights disqualifies some persons from permissibly parenting does not necessarily count as a consideration against that conception. While we might have an obligation to offer assistance to such people, or to take certain measures to improve their capacities or resources, it is an odd response to increase their eligibility by weakening our conception of children’s rights.

By parity of reasoning, the bare fact that a particular conception of children’s rights disqualifies some persons from permissibly procreating does not necessarily count as a consideration against that conception. While it plausibly generates duties of assistance toward such persons, and diminishes the extent to which they are to blame for bringing children into sub-threshold conditions, it does not necessarily impact on the separate issue of whether those children have been wronged by being brought into existence.