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28 Law & Phil. 1 (2009)

handle is hein.journals/lwphil28 and id is 1 raw text is: Law and Philosophy (2009) 28: 1-57                 © Springer 2008
DOI 10.1007/s10982-008-9031-0
(Accepted 12 March 2008)
ABSTRACT. The issue of wrongful disability arises when parents face the
choice whether to produce a child whose life will be unavoidably flawed by a
serious disease or disorder (Down syndrome, for example, or Huntington's
disease) yet clearly worth living. The authors of From Chance to Choice claim,
with certain restrictions, that the choice to produce such a child is morally
wrong. They then argue that an intuitive moral approach -a person-
affecting approach that pins wrongdoing to the harming of some existing or
future person cannot account for that wrong since the choice to produce
such a child cannot, under the logic of the nonidentity problem, harm that
child. The authors propose that we supplement the person-affecting approach
with an impersonal principle that takes the form of their well-known
principle N. In this paper, I argue that the authors are mistaken to suppose
that a plausibly articulated person-affecting approach cannot account for the
wrong of wrongful disability. We can retain an intuitive, comparative, worse
for account of harm and still identify serious harms imposed by the choice of
wrongful disability. In particular, I argue that harm, both to the impaired child
and to others, comes not in the form of that procreative choice's procreative
effect but rather in the form of its many distributive effects. I also argue that the
rare, residual case in which a person-affecting approach would approve of the
choice of wrongful disability does not function as a counterexample to that
approach. As a separate matter, I address legal claims for wrongful disability,
which are closely akin to claims for wrongful life. The legal claim is brought by
the impaired child, not against the parents, but rather against health care
providers whose negligent failure to diagnose or inform parents of an
increased risk of a genetic or congenital impairment results in the birth of the
impaired child. The authors' treatment of the moral wrong that is done as
impersonal in nature suggests that courts are correct to dismiss any such claim.
Once we identify harm, however, the person-affecting approach can identify a
clear foundation in the law for the wrongful disability claim.

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