Abstract
Increasingly, the law has been paying attention to the future child and the prevention of preconceptual harms. Regulation on procreation often appeals to the future child’s interests in order to justify the prevention of the child’s existence. However, besides bioethical critique, there is also a legal-theoretical problem that has been neglected so far. This article argues that the future child whose existence is prevented by an appeal to its own interests does not fit in the “regular” concept of law’s subject: the legal person. This creates two representation problems: First, the law lacks the proper vocabulary to address and represent this non-existent entity. Second, the appeal to its own interests as a justification of the prevention of the child’s existence creates a paradox, as the future child is treated as a subject and a non-subject at the same time. These two representation problems complicate the way law can “deal with” this singular entity. Since the vocabulary of the legal person is not equipped to articulate the future child, this article argues that further research is needed to understand what the future child is and how it functions in law.
Highlights
In several Western legal systems, there has been an increasing amount of attention paid to the future child
This paper argues that the current legal vocabulary is unequipped in representing the future child
Even with the help of the nasciturus fiction, the beginning of legal personhood cannot be expanded to the moment before conception to include the future child and act on its assumed interests in non-existence
Summary
In several Western legal systems, there has been an increasing amount of attention paid to the future child. It has been argued that non-existent entities are not able to have interests [7] and that the anticipation of the future child by law by means of the so-called welfare principle is unjust, disingenuous and incoherent [8,9] Despite this criticism, it is a fact that the future child gains increasing attention in law and that the appeal to its interests serves to justify regulation on procreation. It is a fact that the future child gains increasing attention in law and that the appeal to its interests serves to justify regulation on procreation For this reason, it is important to look further than the wrongful life-debate and entertain a legal-theoretical perspective on this issue. The discussion of these perspectives will lead to the conclusion in the final section that law cannot represent the future child in its traditional legal vocabulary and that the current appearance of the future child in law is paradoxical, for it is treated as a subject and a non-subject at the same time
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