Abstract
In wrongful life litigation a congenitally impaired child brings suit against those, usually physicians, whose negligence caused him to be born into his suffering existence. A key conceptual question is whether we can predicate “harm” in such cases. While a few courts have permitted it, many courts deny that we can, and thus have refused these children standing to sue. In this article the author examines the wrongful life cases and literature enroute to a broader consideration of harm. This literature, and philosophical discussions of harm generally, rely on a definition which ascribes harm by comparing an individual's current condition with that in which he would otherwise have been, but for the allegedly harmful event. The author shows this definition to be conceptually and morally flawed. A superior general definition is offered which, when then applied to wrongful life cases, shows that we can easily ascribe harm in these cases and can find clear potential for tort liability.
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The author wishes to thank Alexander Capron, A. John Simmons, Laurence McCullough, Richard Brandt, Laurance Ulrich, Anthony Woozley, Howard Brody, Gene James, Robert Banks and Terrence Ackerman for their very helpful comments on earlier drafts of this paper. The author completed portions of the manuscript while appointed as Andrew W Mellon Visiting Assistant Professor of Humanities and Medicine at Georgetown University School of Medicine, and would like to thank colleagues there and at the Kennedy Institute of Ethics for their helpful comments as well.
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Morreim, E.H. The concept of harm reconceived: A different look at wrongful life. Law Philos 7, 3–33 (1988). https://doi.org/10.1007/BF00149707
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DOI: https://doi.org/10.1007/BF00149707