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Who is being banned from having children? I said that selection of certain genetics harms a child, I didn't say people weren't allowed to have children. Even if we're not talking raising children (such as through adoption), you can still biologically procreate by borrowing genetics from other places. The only thing our huntington's example would be doing is preventing the use of that person's particular genetic material in the creation of a child.
OK, perhaps there's a misunderstanding around the phrasing "having children". At least in Australia/NZ, this pretty exclusively refers to giving birth to children that are genetically related to you. No adoption, no sperm donors, no funny business.
Given that that's what I was referring to with "having children", you can see how your Huntington's example bans that person from giving birth to a child that is biologically related to them.
Well I'm glad we can focus on this and not the entire concept. So in principle, we agree that choosing to create a child which is harmed should be prevented, it's just a matter of degree.
Look, I'm not 100% sold but that's not really the point. The point is that to further the discussion and allow you to define this more in such a way that I might be convinced, I'm willing to grant you this as a foundational statement.
I think I've been careful to avoid saying that abortions should be required. I'd say my position is more like: if it can be determined that you knew you had a high likelihood of passing on huntington's disease, and you chose to create a child anyway, and if that child is afflicted with huntington's disease, you have committed a crime. The crime of negligently risking afflicting a child with huntingtons.
Sure, poor wording on my part.
The fact that you did it before the child was born is not particularly relevant to me. I'd be interested to see if someone can demonstrate why it should be. If your child was born without huntingtons and you opted to give it huntingtons, that would be a crime would it not? Would it not also be a crime to subject the child to a 50% chance of receiving huntingtons?
Well, genetic disorders don't work like that (as I'm sure you're well aware) but let's assume that you could give a healthy child Huntington's. Yes, that would be a crime, but I think that's a distinct case for reasons that I hope will become clear below.
It would be a matter of "what did you know", "how great was the risk", and "how demonstrable is the harm". Which is basically the case in all legal analysis. You'd need to show intent, or reckless disregard for consequences, and significant demonstrable harm to the child.
I think the last two quoted portions both sort of tie into an interesting philosophical point. Let's see if I can explain this without disappearing totally up my own butthole.
The idea of someone causing harm relies on the idea that there could have been an alternate state of affairs where different actions meant that the harm didn't occur. That seems obvious, but bear with me.
When we're talking about unborn children or foetuses with some genetic disorder, there is no possible state in which that child exists but without that genetic disorder. In much the same way as I am not my brother, a child with a genetic disorder either exists with that disorder or they don't exist at all. There is no reasonable way you could make a statement in court along the lines of "well Your Honour, if my parents hadn't done X then I wouldn't have this genetic disorder". If you didn't have the genetic disorder, you wouldn't be you.
And you can't say because you didn't get pregnant in February that same baby was waiting until March when you did get pregnant. Those were different potential people with different genetics. It's not a DND character where you get to keep rolling stats until you get ones that you like. I'm sorry if that's flip or dismissive sounding, but I feel like that image best conveys the misconception that I think is happening here. Every child, potential or otherwise, is unique and cannot be separated from their genetics.
Harm does not exist in the same way as we commonly understand it when you're talking about things like genetics that are fundamental to a person's self, because removing those things is not and was never an option for that particular individual. The only option that was ever available was not having the baby or having it terminated, and realistically that same option to render themselves non-existent is always available to the person themselves (ridiculous anti-suicide laws and such notwithstanding).
This gets even weirder again because a non-trivial portion of these disorders end up with impaired intelligence and/or perception, so it gets real in the weeds if you're in a court trying to get a meaningful opinion out of such a person as to whether they would prefer to have never been alive. But on the other hand, at least in that sense they are given a chance to voice their opinion rather than simply never existing at all.
This starts to get into why I think "harm" here is not something to be handwaved. This is not something that is particularly analogous to "traditional" harms like property damage or personal injury, it needs to be treated at the unique situation it is and explained with care and precision. Because the potential here is that this is just eugenics in disguise.
Eugenics as a word has a lot of negative baggage associated with it, but in a modern sense I don't think it's necessarily something that should be dismissed offhand. I'd be more than happy to have a discussion around whether there are reasonable ways in which the genetic pool can be cultivated to improve the society without violating people's rights. But if that's what we're talking about then I'd prefer that we call a spade a spade instead of dressing it up as preventing harm to children.
One way to do it without the creation of new laws would be the one I alluded to with the botched abortion case. Let an afflicted adult bring a suit or case against their parent for their parent's harmful choices which have left them with a significantly diminished quality of life. There are a few obvious problems with that, one of which is that some children can be so afflicted that they do not survive to adulthood. And also that people can be so afflicted that as an adult they are incapable of taking action. In fact, I suspect that in many cases in the US, the person who made the decision to afflict their child with such a disease (or take that risk) can end up that child's legal guardian throughout their entire life.
In that situation I think it would make sense for the state to bring the case against the parent, even while the injured party is a minor.
Either that can be done now or it would require the creation of new law. I suspect it's the latter in the vast majority of jurisdictions. Civil law is still law.
It's more difficult to argue that people should be prevented from doing it in the first place, since the parent can argue all sorts of things, including that the risks are not correctly calculated, or that the test was faulty, etc. But if they have the information, and they act, and it turns out that harm did actually result, it's harder to argue those things. There's just a more clear legal case.
Agreed. But I think if you can establish the case for an early viable pregnancy with a reliable test indicating that a genetic disorder is present, then it's not a big reach to work that back to cases where the genetics of the parents would have a high chance of resulting in a child with a disorder.
How about someone does drugs while pregnant and gives birth to a baby who has NAS, and lives a short life of pain, seizures, and ultimately dies. Any crime there?
I think this definitely feels like it should be a crime, and it certainly works better with regards to a more traditional view of harm as discussed above. If the mother hadn't done drugs, the same child would have been born but without the damage from the drug taking. No problem, the mother's actions caused objective harm to that specific child.
I think this can also be viewed in a similar way to standard requirements for parental care. As a parent, you have a certain duty to do your best to provide a safe living environment for your child. In the case of a foetus, this child happens to be intimately connected to your body and dependent upon it for support. There is going to be some reasonable concessions that you may be expected to make for the duration of the pregnancy to ensure that your womb is not an actively damaging environment, such as not taking certain drugs.
But this is another case where a clear action results in the difference between a child with damage or injury and one without. With a genetic disorder, there is no action that you can take that will result in that child existing without a genetic disorder. Is it harm worthy of compensation or justice when there was no way that the "harm" could have been avoided short of ensuring that particular individual didn't exist?