THE MORAL STATUS
Essays on the Rights of the Child
Professor of English Law
University College London
MARTINUS NIJHOFF PUBLISHERS
DO CHILDREN HAVE THE RIGHT NOT TO BE BORN?
If the title tantalizes, it is meant to. Even those who accept that children have rights, and most now do 1 , may find the paradox puzzling. The designation of those not yet born as ‘children’ may be thought to embody a particular value position with which some may be uncomfortable. It is not intended to discomfort in this way. This is not an examination of the morality of abortion2 . Why I call the as yet unborn ‘children’ will become apparent in the course of this paper, and it will have implications for abortion3 though again I emphasize that is not my concern.
THE RIGHT TO BE A PARENT
The right to be a parent, to marry and found a family, as it is formulated in international documents 4 , is commonly asserted. Thus, we can expect the Labour party to be attacked if it persists with its intention of removing NHS funding from IVF treatment 5 . Of responsible parenthood we hear rather less 6 . One of the rights I believe children have – and this is seldom invoked – is the right to responsible parents. But that is n at least directly, my concern ot,
here. But responsibility, the moral correlative of rights, is in issue and must be addressed. Without in any way wishing to gainsay the right to have children, the question must be raised as to whether there are any circumstances in which it would be wrong to bring a child into existence. Are there circumstances in which life would be ‘demonstrably so awful’ (the test posited in the first English defective neonate case in 1981 7 ) that is would be unfair tot subject a child to it, circumstances such that never to have been born would have been preferable to being born with particular disabilities? And if such circumstances exist, do potential parents have the duty not to procreate? It has taken a long time for us to conceptualise the parentchild relationship in terms of parental responsibility rather than as a bundle of parental rights 8 . It will be a part of the argument of this paper that our moral reasoning could usefully employ the concept of parental responsibility9 in this context too.
PARENTAL AUTONOMY AND ITS LIMITATIONS
But see Laura M. Purdy, In their best interest? (Ithaca: Cornell University Press, 1992). More conventionally see David Archard, Children: Rights and Childhood (London: Routledge, 1993). 2
A thoughtful article on the intractable conflict involved here is Amy Gutmann and Dennis Thompson, ‘Moral Conflict an Political Consensus’, 101 Ethics 64 (1990).
In particular raising the question of whether there are circumstances in which it is morally right to terminate a pregnancy.
For example, the European Convention on Human Rights, Article 12 (‘Men and women of marriageable age have the right to marry and to found a family according to the national laws governing the exercise of this right’). See also Cyril Hegnauer, ‘Human Rights and Artificial Procreation by Donor’ in (eds.) John Eekelaar and Petar Sarcevic, Parenthood in Modern Society (Dordrecht: Nijhoff, 1993, p. 207). 5
Re B  1 WLR 1421.
The change can be traced back to a Justice report, Parental Rights and Duties and Custody Suits (London: Justice, 1975). I was a member of the Committee.
As now found in the Children Act 1989 sections 2 and 3.
John Stuart Mill, writing in On Liberty many years before many of the problems I am addressing could have been anticipated, was aware of the problem. He wrote: It still remains unrecognised, that to bring a child into existence without a fair prospect of being able, not only to provide food for its body, but instruction and training for its mind, is a moral crime, both against the unfortunate offspring and against society10 . But, as Mill recognized f r this ‘crime’ there was a...
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