Submissions from non-existent claimants: the non-identity problem and the law

Abstract

Some medical interventions (or indeed omissions) determine the identity of a person. Those interventions or omissions may themselves cause harm, for which a child subsequently sues. Even if they do not themselves cause harm they may result in the birth of a child who subsequently brings a claim for being allowed to exist in the state caused by the intervention. The obvious objection to a claim of either class is that in the absence of the medical intervention or omission of which the claimant complains, the claimant would never have existed at all. This objection arises from what philosophers have called the "non-identity problem". This article examines the attitude that the English courts would be likely to have to such a claim. It concludes that the English law has so far failed to appreciate the significance of the non-identity problem, but will have to grapple with it soon.