Applying the actual/potential person distinction to reproductive torts.

Abstract

As technology has advanced, the level of control that can be exercised over the reproductive process has increased. These advances have resulted in a number of claims in tort law relating to pregnancy and birth. The three reproductive torts considered here are ‘wrongful conception’, ‘wrongful birth’ and ‘wrongful life’. This article will consider the theoretical underpinnings upon which these torts rest and will suggest that the potential/actual person distinction is crucial to these reproductive torts because potential persons should not be able to make claims in tort based on alternative conditions that could never have been. This is because actions (or omissions) prior to birth determine the preconditions for existence. Thus, only actual persons (i.e. those who exist at the time of the action or omission) should be able to bring claims in tort. The analysis will conclude by arguing that no child should be permitted to bring a claim under any form of reproductive tort. The term reproductive torts originates with Nicolette Priaulx's work and encompasses all three terms: wrongful life, wrongful birth and wrongful conception. While these are distinct terms and all fall within negligence for the purposes of this analysis ‘reproductive torts’ is a useful term to identify these particular claims.