## 1. The Problem



Three intuitions are at stake in the nonidentity problem. (1) The
first is the *person-affecting*, or *person-based*,
intuition itself. According to that intuition, an act can be
*wrong* only if that act makes things *worse for*, or
(we can say) *harms*, some existing or future person. Acts, in
other words, that *maximize* wellbeing for each and every
existing or future person cannot be wrong. As Parfit put it: the
"bad" act must be "bad for" someone (Parfit
1987, 363).



(2) The second intuition is that an act that confers on a person an
existence that is, though flawed, worth having in a case in which that
same person *could never have existed at all in the absence of that
act* does not make things worse for, or harm, and is not
"bad for," that person. In other words, conferring the
existence that is *unavoidably* flawed and yet not so flawed
that it is *less* than worth having does not make things worse
for, or harm, and is not "bad for," the person whose
existence it is. 



(3) The third intuition is what the nonidentity cases themselves seem
clearly to show: that the existence-inducing acts under scrutiny in
the various nonidentity cases are in fact *wrong*.



Analogous intuitions similarly collide when our question is whether a
given world is, all things considered, morally worse than another.




Since the nonidentity problem became well-known through the work of
Derek Parfit, James Woodward and Gregory Kavka in the early 1980s,
most philosophers have accepted it as showing that at least one of the
aforementioned intuitions must be false. Here, the most frequently
identified culprit is intuition (1), that is, the person-based
intuition. But if that intuition is false, then the question is raised
whether morality should be understood to have a structure that is
*impersonal* at least in part. Does moral law, that is, provide
that agents on occasion do wrong even though they have at the same
time successfully *maximized* wellbeing for *each person who
does or ever will exist*?



If we answer this question in the affirmative, we must of course then
take up the challenge of explaining just how acts that make things
worse for no one can be wrong. Classical utilitarians think we can
meet this challenge with ease. They would quickly agree that the
person-based intuition is false and could indeed put that fact forward
to bolster their position that moral law is impersonal in nature and
that aggregating wellbeing levels across particular populations at the
relevant worlds is exactly the right way to determine whether an act
is permissible or one world is better than another. Some
non-consequentialists might also be happy to accept the result that
the person-based intuition is false. They might consider that result
to support their position that wrongdoing must be grounded in facts
about the agent's character, motives or intentions and not in
the consequences the act under scrutiny generates for any particular
person. Still other impersonalists - philosophers, for example,
who reject classical utilitarianism (perhaps on the ground that it
leads to the repugnant conclusion; see the entry on the
 repugnant conclusion)
 but remain compelled by the idea that acts, as opposed to agents, are
to be evaluated in light of their consequences - face a more
serious challenge. They must identify a "Theory X" (Parfit
1987, 378) that accounts for the wrongdoing within a consequentialist
framework but does not bring to bear either the principles of
classical utilitarianism or any pre-analytic sense we think we have
that the choice under scrutiny has made things worse for, or harmed,
or failed to maximize wellbeing for, the people who have been made to
suffer by that wrong choice.



It is hard to appreciate the importance of the nonidentity problem
until one understands its sweep. It isn't just close-to-home
choices relating to procreation - for example, the choice to
conceive a child with one person rather than another - that seem
susceptible to the nonidentity analysis. For that narrow range of
cases, the exculpatory implication from intuitions (1) and (2) might
seem perfectly on target and the rejection of intuition (3) at least
plausible. Thus: was it wrong for my parents to choose to have a child
with each other rather than each to have a child with some alternate
partner who (let's suppose) would have brought to the table a
superior genetic contribution? We might think that it wasn't.
Even if I suffer from being less tall, strong, smart or healthy than
alternate children my parents could have produced with alternate
partners in my place, my existence remains worth having. Moreover,
there is nothing they or anyone else - consistent with existing
medical and genetic technologies - could have done to bring
*me* into a better existence. If in that case an intuitive,
person-based moral theory instructs that no wrong has been done, that
result might well seem plausible to us. The case might not, that is,
strike us as a convincing counterexample against the person-based
intuition itself. 



It is when we realize that the exculpatory implication applies not
just to close-to-home cases of procreative choice but also to a
disturbingly large segment of *all* our future-directed choices
- including choices that don't seem on the face of things
to have anything to do with whether one person is brought into
existence rather than another - that we begin to appreciate the
significance of the nonidentity problem. In at least some of those
cases, we are (likely) going to find intuition (3) itself compelling;
we are (likely) going to be convinced - as we shall see -
that the choice under scrutiny is clearly wrong. We will then seem
forced to abandon either intuition (1) or (2). If it's the
former we let go of rather than the latter, then our challenge is to
account for the fact that the choice is wrong *despite* the
fact that same choice seems to be good for - indeed
*maximizing* for - each and every existing and future
person. If it's the latter, then our challenge is to explain how
a choice can make things worse for, or harm, or in some way be
bad for, a given person *despite* the fact that
it is maximizing for that person.


## 2. Nonidentity Cases



As just noted, many nonidentity cases that have been most persuasive
on the point that some bad acts are bad
for no existing or future person involve acts that do not on
their face seem to have anything to do with whether one person is
brought into existence rather than another. They involve acts, that
is, to which no particular person seems to "owe" his or
her "very existence."



That ordinary acts might have such an existence-inducing nature
- that the people they bring into flawed existences would not,
indeed, *could* not have ever existed at all in the absence of
those acts - is related to the phenomenon Gregory Kavka
described as the "precariousness" of existence (Kavka
1982, 93). We understand that the identity of each person who ever
comes into existence - the coming into existence, that is, of
any one particular person in place of any nonidentical distinct person
- depends, among other things, on just who the genetic parents
of that person happen to be. As Parfit observes, the woman who wonders
who she would have been had her "parents married other
people" "ignores the answer," which is "no
one" (Parfit 1987, 351). But it is not just whom one procreates
with that determines the identity of one's offspring. It is also
what Parfit described as the "timing and manner" of
conception. When the act of conceiving a child is moved forward or
backward in time by months or even moments, or when the manner of
conception is itself altered (accomplished, e.g., via in vitro
fertilization rather than coitus), the result, very probably, will be
the conception of a distinct child altogether. After all, any
difference in timing or manner of conception very probably will place
a distinct inseminating sperm cell (out of hundreds of millions!) in
proximity to the ovum or even result in a distinct ovum being
inseminated. And a distinction in sperm and egg cells would seem in
most cases sufficient to insure the conception of a distinct child
(Parfit 1987, 351-55; 2011 vol. 2, 217-231). Moreover, the
exact timing and manner of conception is itself highly susceptible to
variations in whatever complex chain of acts and events it is that has
come before. Much of what has been done in human history, had it been
done differently, would surely have undone the conceptions of vast
numbers of people. "[H]ow many of us could truly claim,
'Even if railways and motor cars had never been invented, I
would still have been born'?" (Parfit 1987, 361).



Consider, then, an act *A* that is performed at a possible
world *w* and yields at *w* positive but low wellbeing
levels for one or more people who will but do not yet exist at
*w*. Suppose that wellbeing levels are low in virtue of the
fact that act *A* performed at *w* causes those people
to endure pain, misery, disease, deprivation or limitation. And
suppose that those low wellbeing levels cannot be justified (on the
ground, for example, that they save many existing people from still
lower wellbeing levels) and that we are accordingly convinced that act
*A* is wrong. Kavka's precariousness-of-existence point
tells us that in many such cases the very future people - call
them the "A-people" - who endure low wellbeing
levels also "owe their very existence" to that act
*A*. Perhaps an act *B* existed as an alternative for
the agents at the time just prior to choice. And perhaps *B*
strikes us as more benign than *A* in the sense that *B*
would have yielded higher wellbeing levels for whatever future people
may happen to have existed had *B* been performed in place of
*A*. The problem is that in many cases - and it takes
just one to produce the relevant problem case, the counterexample
against the person-based intuition - performing *B* in
place of *A* would also have changed (or very probably would
have changed) the timing and manner of the conceptions that take place
at *w*. That means that act *B* would not have made
things better for the A-people but rather would have caused the
A-people - each and every one of them - to have (very
probably) been left out of existence altogether. The pain, misery and
so on that *A* imposes on the A-people is, in other words,
*unavoidable* if those particular people are ever to exist at
all. The same point holds for any other seemingly more benign act as
well. Assuming that the A-people are not so miserable that never
existing at all would have been better for them than their existence
in *w* in fact is, we now find it very hard to see how
*A* has harmed, or made things worse for, or been bad
for, the A-people in any "morally relevant way"
(Parfit 1987, 361-63, 374).


### 2.1 Depletion



The phenomenon of the precariousness of existence is nicely
illustrated in Parfit's depletion case. Suppose that agents as a
community have chosen to deplete rather than conserve certain
resources. The consequences of that choice for the people who exist
now or will come into existence over the next two centuries will be
"slightly" better than under a conservation alternative
(Parfit 1987, 362; see also Parfit 2011 (vol. 2), 218). Thereafter,
however, for many centuries the quality of life would be much lower.
"The great lowering of the quality of life must provide some
moral reason not to choose Depletion" (Parfit 1987, 363). Surely
agents ought to have chosen conservation in some form or another
instead. But note that, at the same time, depletion seems to harm
*no one*. While distant future people, by hypothesis, will
suffer as a result of depletion, it is also true that for each such
person a conservation choice (very probably) would have changed the
timing and manner of the relevant conception. That change, in turn,
would have changed the identities of the people conceived and the
identities of the people who eventually exist. Any suffering, then,
that people endure under the depletion choice would seem to be
unavoidable if those people are ever to exist at all. Assuming (here
and throughout) that existence is worth having, we seem forced to
conclude that depletion does not harm, or make things worse for, and
is not otherwise "bad for," anyone at all (Parfit 1987,
363). At least: depletion does not harm, or make things worse for, and
is not "bad for," anyone who does or will exist *under
the depletion choice*.



The risky policy example, also from Parfit, has a similar structure
(Parfit 1987, 371-72). So does the example of climate change.
Parfit 2017, pp. 122-123. See also Broome 1992.


### 2.2 The slave child



We see the same kind of argument but at a less global and more local
level in Kavka's slave child case. In exchange for $50,000, a
couple enters into a binding, enforceable contract with a wealthy man
according to which the couple will conceive and bear a child who will
be transferred at birth to the wealthy man as a slave (Kavka 1982,
100). The child is conceived and born pursuant to the contract -
and, as a slave, suffers in various ways. We think what the couple has
done is "outrageous" (Kavka 1982, 101). And we think that
is so because of what the couple's choice does to the slave
child. But can the latter view be correct? Does the couple's
choice truly make things *worse for*, or *harm*, the
slave child? Is there anything else the couple could have done instead
that would have made things better for that particular child? The
couple certainly had alternatives. They could have not entered into
the contract and *not* taken steps to produce a child, and they
could have not entered into the contract and still taken steps to
produce a child. The former alternative, of course, would not have
been better for the slave child. (We are still assuming that the
existence is itself worth having.) But nor is the latter. For, had the
couple produced a child but not under contract, the timing and
conditions of conception would then (very probably) have changed and
any better off child the couple might then have produced would (very
probably) have been a distinct child, nonidentical to the slave child
(Kavka 1982, 100 n. 15). The slave child, in other words, has no
better alternative than what he or she has in fact been given as a
slave. Once we appreciate that fact, it becomes hard to see how what
the couple has done harms, or makes things worse for, or is otherwise
"bad for," the child. Kavka's "pleasure
pill" case parallels the slave child case (Kavka 1982, 98).


### 2.3 The 14-year-old girl



Another classic case from Parfit focuses on the simple fact that the
egg cell a young girl will produce soon after she becomes capable of
conceiving a child will not be the same egg cell as the one she will
produce a decade or more later. "This girl chooses to have a
child" (Parfit 1987, 358). We think that it would have been
better for the girl to wait "for several years" to have a
child and that, barring exceptional circumstances, what the girl has
in fact done is wrong (Parfit 1987, 358). We also think that the
reason her choice is wrong is that it causes the child the girl bears
to be given a "bad start in life" (Parfit 1987, 358). On
closer inspection, however, we see that that *particular* child
could not have existed at all had the girl waited until she was older
to have a child. Given that the child's life is worth living
- given, that is, that it would not have been better for the
child that he or she never have existed at all - it seems that
the child has not been harmed, or made worse off, by what the girl has
done, and that there exists no plausible basis for the position that
her act is "bad for" the child.



Since Parfit first described the 14-year-old girl case, reproductive
technologies have advanced. The option of cryopreserving gametes or
newly formed human embryos now means that there is at least a
theoretical possibility that the 14-year-old girl really could have
produced the same child - or at least a child from the same
gametes - many years later. Even so, the probabilities of the
situation would need to be taken into account. Changing the manner of
conception - moving, that is, from coitus to in vitro
fertilization - would have surely meant that *very
probably* it would have been a nonidentical (if better off) child
who would have been conceived in place of the one. 


### 2.4 Wrongful life



In any case, not *all* things are possible in the world of new
technologies. Consider, e.g., the legal claim in negligence referred
to as *wrongful life*. The claim there is that medical
personnel either (1) have failed properly to advise couples of their
risk of producing a child with a serious genetic or chromosomal
disorder or of the availability of technologies that would have
enabled them to reduce that risk or (2) have failed to implement those
technologies effectively. The disorders at issue include Down
syndrome, Huntington's disease and hereditary deafness, and the
relevant technologies include preconception genetic testing, in vitro
fertilization followed by pre-implantation genetic diagnosis and
amniocentesis, which can now be performed as early as the 14th week of
pregnancy. Technologies are not yet so advanced that their proper use
would have cured the underlying impairment. But their use would have
enabled the couple to produce either no child at all or a
nonidentical, if (arguably) better off, child instead. At the same
time, it seems clear that, in almost all such cases, the impaired
child's life will be (or, at least, can be made to be)
unambiguously worth living. It is thus very hard to say in such cases
how the negligent act or omission, the act or omission to which the
child owes his or her very existence, has harmed, or made things worse
for, or otherwise been "bad for," the child. 



The question wrongful life raises in the law is whether a gynecologist
or obstetrician who has failed to communicate the advisability of
genetic testing, or the lab that has negligently generated a falsely
reassuring test result, can be held liable to the impaired child under
a claim of negligence. In the absence of the negligent act or
omission, that particular child would never have existed at all. Yet
in most cases the child's life is unambiguously worth living. We
thus seem forced to say that the negligent act has not *harmed*
the child. Harm - in the intuitive, comparative, worse off sense
of that term - being an essential element of any claim in
negligence, it also seems that the child's action against the
doctor or lab should be dismissed as legally invalid. Yet we may well
think that the tort law system should be construed as a way of
incentivizing medical personnel to work to insure that the children
whom their efforts help to produce are born free of impairment. And we
may also think that the parents' claim - called
*wrongful birth* - against those same medical personnel
for the additional expense of caring for an impaired child is not an
adequate incentive - especially in light of statutes of
limitation that cut off the parents' claim (in contrast to the
child's) soon after the child is born. Legally, then, we face a
dilemma - a case where the law of negligence should be
understood as insisting that medical personnel be vigilant in advising
and conducting genetic testing but where, thanks to the logic of the
nonidentity problem, those same personnel are in a position to
understand in advance that any negligence on their part cannot
*harm* their most plausible victims. 



Parfit's "two medical programs" case - more
precisely, the program that would encourage women who have a certain
condition that "cannot be treated, but always disappears within
two months," to delay pregnancy - is structurally similar
to the wrongful life case (Parfit 1987, 367-368; see also Parfit
2011 vol. 2, 221-222, and Parfit 2017, 121). In both cases, the
existence is worth having, and in both cases the impairment is not the
kind of thing agents can, given existing technologies, either cure or
ameliorate.


### 2.5 Historic injustices



The nonidentity problem raises the issue of whether historic
injustices can properly be said to harm, or make things worse for,
people who exist today (Sher 2005; Herstein 2008; Cohen 2009;
Smilansky 2013). According to the nonidentity problem, historic
injustices - including, e.g., U.S. slavery and the Holocaust
- lead to the *very existence* of many of the people whom
they have also caused to suffer in various ways. People conceived well
after the events themselves take place are thus not, according to the
nonidentity problem, victims of those events at all, but rather, if
anything, their beneficiaries. "[H]ow can any person have a
claim to compensation for a wrong that was a condition of her
existence?" (Cohen 2009, 81) If we think that the taking of
funds from presumptively innocent existing and future people so that
those funds can be paid in compensation for historic injustices to
still other existing or future people can be justified only to the
extent that those other people *really are victims* -
really have been harmed or damaged or made worse off - then we
seem forced to conclude that such takings cannot themselves be
justified. (See also the entry on 
 intergenerational justice.)


## 3. Proposed solutions to the nonidentity problem


### 3.1 Seemingly wrong act is not wrong; "biting the bullet"



Some philosophers have understood the exculpatory implication of the
nonidentity analysis - and specifically the application of
intuitions (1) and (2) - to form the basis of a perfectly good
argument in favor of an interesting conclusion we should just accept:
that intuition (3) is false and that the acts under scrutiny are not
after all morally wrong.



As before, an assumption of the argument is that the existences under
consideration are worth having. We should understand, however, that at
least in theory a particular existence can be *less* than worth
having: a child will be brought into existence who is made so
miserable (as a result, e.g., of a genetic impairment) that we want to
say that it is wrong, and makes things worse, to bring that child into
existence to begin with. In such cases, some philosophers hold fast to
intuition (3) and others don't. David Heyd thus maintains that
the acts under scrutiny are not wrong. According to Heyd, comparisons
between the wellbeing level a given person has at a world at which
that person exists and the wellbeing level that same person has at a
world where that person never exists are not cogent and hence we are
forced (given intuitions (1) and (2)) to conclude that no wrong has
been done (Heyd, 2009; Heyd 1992, 30-33). Philosophers who
think, however, that such comparisons can cogently be made - who
accept, we can say, *Existence Comparability* - remain
free to limit their "bite the bullet" conclusion to the
case where the existence is worth having. Thus, David Boonin is, for
example, at least neutral on Existence Comparability. That is, he
doesn't reject the view that we can isolate and set aside those
cases in which "life [is] worse than no life at all"
(Boonin 2008, 130 and 135; Boonin 2014; see also Bayne 2010).
Moreover, Boonin implicitly limits his own "bite the
bullet" strategy to cases in which the life *is* worth
living. Only in those cases does he press the point that the acts
under scrutiny are not morally wrong. 



In those cases, moreover, Boonin thinks we can reach a stronger
conclusion than Heyd does. Thus Heyd is willing to say that the acts
under scrutiny are not morally *wrong* but not to say that
those same acts are morally *permissible*. Heyd's view is
that we aren't in a position to evaluate them at all -
that they fall into the category of the *genethical* rather
than the straightforwardly ethical. Boonin, in contrast, thinks we can
evaluate them. And, given, again, that we are in a case in which the
existence is worth having, he thinks we can evaluate them as morally
*permissible* (Boonin 2008, 146-149; Boonin 2014).



One other note on Heyd's approach is in order. At least some of
Heyd's language suggests that he accepts a certain principle
that, to be sure, implies intuition (2) but also goes well beyond that
intuition. According to that principle, the "no harm done"
result is in order, not just in the case where the flawed existence is
*unavoidable* if the person is ever to exist at all and where,
in that strong sense, the person's coming into existence
"depends on" the act under scrutiny being performed, but
also in the case where agents simply retain "control" over
whether that person comes into existence or not (Heyd 1992, 105 and,
generally, 99-106; Heyd 2009, 15-17). According to that
principle, even if the couple has the alternative of bringing the same
child into a better existence - even if the existence is not
*unavoidably* flawed - if the couple also has the
alternative of *not* bringing the child into existence at all,
the act under scrutiny cannot harm, or make things worse for, the
child. The idea here would be that, until we actually produce them,
"we might decide not to make them the subject of any kind of
moral status whatsoever" - a situation that leaves them,
even if they are in fact *on their way* into existence, with
"no moral status of any kind, not even a weak one,"
relative to the act under scrutiny (Heyd 1992, 99). 



Not surprisingly, and even in the case of Boonin's less extreme version, the "bite the bullet" strategy has
encountered substantial resistance. See, e.g., Parfit 2017, pp.
126-129. If forced to choose between the person-based intuition
and the concrete moral judgment that what the agents have done in the
depletion case or slave child case is wrong, we may well opt for the
concrete moral judgment. Among other things, it seems implausible that
our future-directed conduct should get a free moral pass whenever it
affects the timing and manner of conception. So much affects the
timing and manner of conception! Even given the assumption that the
existences we are dealing with are worth having, it seems implausible
that such acts are always morally permissible.



Of course, as Heyd notes, in many cases an act that creates a low
wellbeing level for a person whose existence *depends* on that
act will also create low wellbeing levels for people whose existences
are *independent* of that act. If an agent buries glass in the
wood prior to conceiving a child, then even if that act affects the
timing and manner of conception and thus (according to the logic of
the nonidentity analysis) would not make things worse for the
agent's own child, that act might still make things worse for a
*neighbor's* child. On that ground, the act can be
declared wrong (Heyd 1992, 193-203). The choice of wrongful
life, as well, can have deleterious effects on people other than the
impaired child - burdens, in other words, that the impaired
child itself will then be required to share (Roberts 2009a).



In fact, Parfit himself points out that the 14-year-old girl's
choice to have a child has "effects on other people"
besides the girl's child (Parfit, 1987, 361). However, as Parfit
also points out, the problem arises in a "purer form,"
e.g., the depletion example (Parfit, 1987, 361). As Heyd himself is
fully aware, the "harm to others" response isn't
available in all of the nonidentity cases.



Boonin offers another suggestion for making the "bite the
bullet" strategy plausible. According to Boonin, our intuition
that the acts under scrutiny - in, e.g., the depletion case and
the slave child case - are wrong is itself rooted in the fact
that we have a hard time keeping "present before our
mind's eye" what makes the nonidentity cases
"atypical" and "idiosyncratic" - namely,
that in the nonidentity cases low wellbeing levels do not correlate in
the usual way or the way we have come to expect to a person's
having been made worse off (Boonin 2008, 146-149; Boonin 2014).
We then confuse the atypical case with the ordinary case in which low
wellbeing levels *do* signify a person's having been made
worse off. We then, mistakenly, see wrongdoing not just in the
ordinary case but in the atypical case as well. Once we appreciate
that confusion, we should find ourselves more comfortable abandoning
the view that a wrong has been done in the atypical case.



Boonin's theory is, however, hard to test, especially since we
- post-Parfit - at least feel that we *always* have
the relevant distinction clearly in mind but continue to consider the
depletion choice wrong. 


### 3.2 Act is wrong without making things worse for any existing or future person; impersonal wrongdoing



This proposal accepts the standard nonidentity cases as
counterexamples to the person-based intuition. Thus, it rejects the
person-based intuition itself, that is, intuition (1); it has no need
for but doesn't necessarily reject the "no harm
done" test provided in intuition (2); and it accepts intuition
(3), according to which the choices under scrutiny are indeed wrong.
Having rejected intuition (1), however, this proposal can then succeed
only if combined with a *plausible* account of just how an act
can be wrong even though it makes things worse for no existing or
future person. Several such *impersonal* accounts have been
proposed.


#### 3.2.1 Traditional utilitarianism



Traditional forms of utilitarianism, including both the total form
("totalism") and the average form
("averagism"), have the resources to explain how an act
can be wrong while making things worse for no existing or future
person. If, by waiting a few years to have a child, the 14-year-girl
could have produced a child who is better off but nonidentical to the
child the girl in fact produced, both totalism and averagism will
imply (other things being equal) that what the girl has done is wrong
(Singer 2011, 107-119). The key for both views is the position
that a world's value, and, indirectly, the permissibility of the
choice that brings about that world, is to be determined on an
*aggregate* basis: utilities correlating to the individual
wellbeing levels for each person who does or will exist at a given
world are simply added up to determine the value of that world. On
such an approach, it is immaterial whether we create additional
(average or total) wellbeing (a) by creating additional wellbeing for
a particular existing or future person or (b) by bringing a
nonidentical but better off person into existence. (See the entry on
 consequentialism.)



The nonidentity problem seems to show, as Parfit notes, that the moral
principle we seek - the "Theory X" -
"will not take a person-affecting form" (Parfit 1987,
378). The obvious alternative is a theory that is impersonal at least
in part. Both totalism and averagism fit that description. The
difficulty is that both views raise still other problems. Totalism can
easily explain how an act that makes things worse for no existing or
future person can be wrong. But it immediately generates- for
example - the *repugnant conclusion* (Parfit 1987,
381-90; see also
 repugnant conclusion).
 Averagism does a good job with the nonidentity problem and the
repugnant conclusion but implausibly seems to prohibit bringing an
additional happier-than-average child into existence if it so happens
that prior generations have had especially wonderful lives (Parfit
1987, 420; Feldman 1995, 192-93). It also generates problematic results when applied to the case Temkin calls "Hell Three" (Temkin 2012, 319-320). Surely, a situation that is hellish for everyone who exists is not improved by the addition of still more people whose lives aren't quite so hellish but still far less than worth living. Totalism and averagism, moreover, face objections based on
considerations of justice, fairness and equality. Fashioning a cogent
response to the nonidentity problem that does not create at least as
many problems as it solves has thus emerged as a critical challenge in
population ethics.


#### 3.2.2 Impersonal pluralism; substitutional consequentialism; radical pluralism; critical level utilitarianism; sufficientarianism



In response to objections, some consequentialists have proposed that
what makes a world better or an act permissible is determined by
reference to the *all things considered* good, where the all
things considered good is a matter both of how much aggregate
wellbeing a world contains and the extent to which that world realizes
still other ideals or values, including, for example, fairness,
desert, equality, human flourishing and the prioritization of the
needs of the least well-off (Temkin 1993, 221-27). An alternate
approach retains additivity for the purpose of determining a world's
overall value but also notes that we might understand what is to be
added up as indicated not by individual wellbeing levels but rather by
those levels adjusted in some way to reflect values beyond how well
off a person is in a given world. See Broome 2015, Broome 1991 and
Feldman 1997. Both sorts of approaches seem able to provide a
plausible response to the nonidentity problem. But they also may have
the ability to avoid the repugnant conclusion - to explain, for
example, by reference to the ideal of human flourishing (Temkin) or
the concept of desert (Feldman) how it can be morally better to
produce a smaller number of extremely well off individuals rather than
a very large number of people whose lives are only barely worth
living.



Still other philosophers have suggested principles that require agents
to create additional wellbeing, including, when necessary, by bringing
a better off person into existence in place of a nonidentical less
well off person, but limit that obligation to the case where agents
can *substitute in* the better off person for the less well off
person on a one-to-one basis. Such principles aim to address the nonidentity
problem without giving rise to the repugnant conclusion. Holtug
2009; Holtug 2010, 160-162; see also Parfit 1987, 369-71
(discussion of Principle Q); Peters 2004, 27-39 (concept of
injury by failure to substitute); and Savulescu 2001 (principle of
procreative beneficence).



Some more radical forms of pluralism incorporate both person-based and
impersonal elements. The impersonal elements of such an approach may
themselves take either an aggregative or a substitutional form. Thus:
consider whether a couple ought to produce a third child, a child who
would be very happy if he or she were to exist but whose coming into
existence would create significant burdens for that child's two
already-existing siblings. Then, we might say that the goal of
maximizing wellbeing in the *aggregate* provides the couple
with a reason to have the third child while the *person-based*
goal of avoiding burdens on behalf of the two siblings provides the
couple with a reason *not* to have the third child. What the
couple ought to do is then determined by how these opposing reasons
balance against one another (McMahan 2006; 2009).



In contrast, Buchanan, et al., favor putting the person-based approach
together with a *substitutional* form of pluralism. On their
view, many of our obligations are person-based in nature, including
the obligation to avoid making a particular person worse off or
causing that person to suffer a "serious loss of happiness or
good" when the agent can do so without imposing
"substantial burdens" on others. This is their
"Principle M" (Buchanan, et al. 2000, 226). In some cases,
however, we have obligations that go beyond Principle M. It is here
that their impersonal "Principle N" is triggered,
prohibiting agents from letting their dependents - including
their children - "experience serious suffering or limited
opportunity or serious loss of happiness or good" if "they
can act ... without affecting the number of persons who will
exist and without imposing substantial burdens ... on themselves
or others ..." (Buchanan, et al. 2000, 249).



The need to address not just the nonidentity problem but the full
range of population problems leads Temkin as well to recognize
impersonal as well as person-based values. Finding that terminology
itself unenlightening, Temkin describes what he calls the *internal
aspects view* of when one world, or outcome, is morally better
than another as well as what he calls the *essentially comparative
view* (Temkin 2012, 363-456). We take for granted that our
ultimate goal is to evaluate a given world for its moral betterness
against other worlds. But on the internal aspects view the good of
that one world as compared against a second world can be discerned
without consideration of what is going on in still other
worlds. Totalism is a paradigm instance of the internal aspects view
(though not a view Temkin, given his emphasis on equality, human
flourishing and other values, himself endorses). In contrast, on the
essentially comparative view we cannot complete the evaluation of one
world against another in the absence of a potentially extensive
inter-world comparison. Moreover, we find that when we engage in such
an extensive comparison it is the *person-based* features of
those worlds that bear most clearly on our evaluation. Thus, suppose
that the only (potentially morally relevant) difference between two
worlds is the addition to the second world of a single person whose
existence is worth having. On the essentially comparative view, that
second world may nonetheless turn out to be morally worse than the
first, if that same person exists in a third world and there has a
still better existence (Temkin 2012, 364-400).



With reference to Temkin, Parfit himself proposed a closer look at
what he called the Wide Dual Person-Affecting Principle: "One of
two outcomes would be in one way better if this outcome would together
benefit people more, and in another way better if this outcome would
benefit each person more." Parfit 2017, 154. According to
Parfit, "this Wide Principle would be only one of our
beliefs." Parfit 2017, 157. It is not, on its own, the
"Theory X" Parfit urged us to seek decades ago. Parfit
1987, 378. But it, like other forms of pluralism (radical or not),
faces an important challenge. Pluralistic theories have ample
resources for generating what many philosophers will consider
plausible accounts of (for example) *both* the nonidentity
problem *and* the repugnant conclusion. The problem is going to
be one of containment. The theories are too rich, and we don't
yet know by what principle the particular view can be stopped from
generating what we consider to be *implausible* accounts of the
problem cases as well. Indefinite and difficult to test, however, as
such theories may be, they nonetheless offer an outline of an approach
that may have more promise than the alternatives for ultimately
providing a plausible analyses of the full range of population
problems.



Both a *critical level* form of utilitarianism (Broome 2014)
and, alternatively, a *sufficientarian* approach (Huseby 2010)
have elements in common with pluralism yet may seem to balance values
against one another in a more transparent way. Both views seem to
provide solutions to the nonidentity problem without generating the
most extreme forms of the repugnant conclusion. A difficulty for the
former view is that it generates the result that a world where many
people have lives below the critical level but still worth living is
worse than a world where many people have lives far worse than a life
worth living (Arrhenius calls this the "sadistic conclusion"; see Arrhenius 2000). An obstacle for the latter position is
that it fails to explain why things are morally worse - and,
indirectly why an act is wrong - in a case where the future
person who is the subject of our concern has a "good life"
(Huseby 2010, 205) but still seems clearly to be a victim of a prior
act we consider clearly wrong. Consider, e.g., a child who has a good
life but who has been *made* to be blind as a result of an act
performed by the child's parents prior to conception. And
suppose that the parents themselves tethered their choice to produce a
child to their choice to produce a child they have blinded in that
way; suppose that is, that the child *would* not have existed,
or at least probably would not have existed, had the parents not
performed the act under scrutiny. We may well consider the act under
scrutiny wrong. But a sufficientarian approach seems to block that
result.


### 3.3 Act wrongs, or harms, or is bad for, person without making person worse off



Some philosophers who accept that the acts under scrutiny in the
standard nonidentity cases are wrong still urge that our best account
of just why those acts are wrong will take a person-based form. They,
in other words, accept intuition (3). Moreover, they accept what they
consider to be the heart of the person-based intuition itself. They
accept, in other words, a *weakened* form of intuition (1), one
that ties wrongdoing in a general way to *what has been done to a
particular person* without requiring that the act under scrutiny
make an existing or future person *worse off* or *harm*
that person (in an intuitive, comparative sense of that term).
Conforming changes are then made to intuition (2), which is rejected
as false.



The positions noted in this part 3.3 are reminiscent of an idea that
Kavka explores. According to that idea, even if the acts under
scrutiny do not make things worse for, or harm (in the intuitive,
comparative sense of that term), the child, they may nonetheless
constitute instances in which the agent acts (by creating a less
"intrinsically desirable," or "restricted,"
life) "wrongly toward" the child (Kavka, 1982, 97 and
104-105) and thus acts wrongly.


#### 3.3.1 Wronging without harming; rights-based account; exploitation account



Thus, one suggestion has been that what makes the act under scrutiny
wrong is that it violates the apparent victim's *right
against being brought into a flawed existence* (Woodward 1986;
Elliot 1989; Elliot 1997; Smolkin 1999; Velleman 2008; Cohen 2009).
Consider, for example, the slave child case. The nonidentity analysis
has it that the couple's entering into the slave child contract
does not make things worse for the child since (very probably) that
particular child would never have existed at all in the absence of
that act. Yet we may agree that everyone has a right not to be made,
or born, a slave. The couple's entering into the slave child
contract and then proceeding to have a child under that contract thus
violates the child's right. On that basis, we can then say that
the couple's act is itself *wrong*.



Similarly, the ticket agent who refuses to sell an airline ticket to
Smith on the basis of Smith's race violates Smith's right
against racial discrimination even in the case where the plane
subsequently "crashes, killing all aboard" (Woodward 1986,
810-11, citing Adams). "What makes racial discrimination
wrong is that it is unfair and that it stigmatizes ... and an
action may have this character - and be wrong for this reason
- regardless of how it affects [a person's] other
interests" (Woodward 1986, 811). 



We thus explain - and explain in person-based terms - how
an act can be wrong even though it makes things *worse for* no
existing or future person.



Woodward goes so far as to say that the act that brings a person into
a flawed existence and thereby violates that person's right
"harms" that person under what he calls a
"nonconsequentialist approach" to harm (Woodward 1986,
818). It might be objected, however, that that use of the term
*harm* seems particularly artificial. Moreover, having
established that the right has been violated, it is unclear why -
to establish wrongdoing - we would need to show harm as well.




The rights-based account does not require that we compile a defined
list of rights. We might take the more general view that each person
has a right to be created with "due consideration for his or her
humanity"; we can understand that life itself is a
"predicament" for which one's children need to be
well-equipped (Velleman 2008, 266 and 276). A "child has a right
to be born into good enough circumstances, and being born to [e.g.] a
fourteen-year-old mother isn't good enough" (Velleman
2008, 275). That a child was "glad to be born"
doesn't mean that that child has waived "his
birthright" (Velleman 2008, 277). If we find this unclear, we
might alternatively take the position that it is wrong to bring a
child into existence when many of his or her rights as outlined in,
e.g., the United Nations Convention, would be violated (Archard 2004,
403-20). Still another approach argues that future people come
into existence with certain "claim rights," or simply
"claims" (Meyer 2016, 49) that can be defined in part in
either sufficientarian (Meyer and Roser 2009) or egalitarian (Meyer
2016, 52-58) terms. Agents who fail to respect those claims fail
to discharge a "duty" they owe "to the person who
has the claim" (Meyer 2016, 49).



Rights-based and claim-based solutions to the nonidentity problem face
certain challenges. The first, from Parfit, is that it is questionable
whether an act an individual would not "regret" and would
even applaud can violate a right or constitute a failure to discharge
a duty. If it can, surely it does so only in some formal way but not
in a way that is sufficient to show that the act is morally wrong.
When respect for the right or claim can be seen in advance not to
promote the interests of the rights-holder in any way, the better view
might be that the right has been implicitly "waived" or
the violation implicitly consented to (Parfit 1987, 364-65 and
373-74). Similarly, the right or claim against bodily injury may
be considered waived, or the violation consented to, when one arrives
at the hospital unconscious and in immediate need of open heart
surgery. We don't think that whatever formal rights violation
there may have been in such a case supports the inference that what
the surgeon has done is morally - or indeed legally -
wrong.



The second objection asks whether a rights-based or claims-based
approach proves too much. Consider the case where a couple is enslaved
and has no means of escaping that status. Any child that the couple
will produce is thus sure to be born a slave. If producing a child in
the original slave child case is wrong in virtue of the fact that it
violates the child's right or constitutes a failure to discharge
a duty owed to the child, it seems that producing a child in the
revised slave child case must be wrong as well. But the evaluation in
that latter case is surely implausible. While a right may have been
violated or a claim disregarded, it remains unclear that a wrong has
been done. 



An alternate account that has features in common with the rights-based
approach but that, by focusing more closely on the question of whether
future people have been 'unfair[ly]' treated as compared
against existing people and thus "*wrongfully*
exploited" (emphasis added), goes some distance in avoiding both
objections. Liberto 2014, 76-81. See also Kavka 1981, 106-109. The
idea is that, in cases where the exploitation is established as itself
wrongful, the first objection, based on waiver, fails. The same idea
provides a defense against the second objection. When the enslaved
couple produce a child who is sure to be born a slave, there seems to
be no basis on which to claim that the *couple* has wrongfully
exploited the child. (The broader *community*, of course, would
remain liable.) A question for the view is whether it can be extended
to address instances of the nonidentity problem in which it seems
clear that a wrong has been done but future people aren't
treated unfairly as compared against existing people. Thus forms of
depletion, e.g, may still be considered wrong and to make things worse
even if existing people gain nothing and even if - due to
technological developments - future people are substantially
better off than are existing people. 



A third objection focuses more narrowly on the rights-based approach.
According to that objection, if the *child* has the right not
to be brought into an existence of a certain sort, it is plausible
that the child's *parents* have various rights as well.
Thus, the couple who opts to produce a child with Huntington's
disease or hereditary deafness in place of a relatively unimpaired
child may be simply exercising their right of procreative liberty.
They may, that is, be using their gametes and their labor, as a matter
of right, in a way that suits them. We quickly see that the
offspring's rights and the couple's rights cannot both be
respected - a fact that raises the concern that the underlying
account of rights may be inconsistent (Persson 2009).


#### 3.3.2 Harming without making person worse off; non-comparative harm; list account of harm; threshold account of harm



The preceding discussion takes for granted that an intuitive account
of harm will be comparative in nature. On such an account, an act
*harms* a person only if that act makes that person *worse
off* than he or she would have been under an alternative act; a
person *p* is not harmed at a given world *w* unless there
exists some alternate world *w*' such that *p* has
more wellbeing at *w*' than *p* has at *w*; an
act that *maximizes* wellbeing for a person at a world *w*
cannot harm that person at *w*. At least: it cannot do so in any
"morally relevant sense" (Parfit 1987, 374). 



Some philosophers have suggested that we also have - or can
construct - a second morally relevant concept of harm, one that
is *non-comparative* in nature. Though narrower in some ways
than the comparative concept, in others the non-comparative concept is
broader. Specifically, it can count bringing a person into a flawed
existence, even in the case where there is no better existence to be
had for that person, as *harming* that person. Having
established that the act under scrutiny harms the person it both
brings into existence and causes to suffer, we can then give an
account - a *person-based* account; an account that
retains, not the original person-based intuition (1), but rather a
weakened version of that intuition - of why that act is
wrong.



Shiffrin uses examples to motivate the view that we have a
concept of non-comparative harm and, just as important, that
non-comparative harm has moral relevance. Thus she argues that, if you
are hit on the head by a gold bar dropped from the sky, you have been
*harmed* even if you have been more than compensated for that
harm in virtue of the fact that you are now in possession of the gold
bar (Shiffrin 1999, 120-135).



In the wrongful life case, a child is born with a serious genetic or
chromosomal impairment, an impairment that is unavoidable if the child
is to exist at all. On a comparative account of harm, bringing that
child into existence does not harm that child - provided the
existence is not less than worth having. But, as Elizabeth Harman
notes, it's indisputable that bringing that child into existence
*does* cause the child to experience "pain, mental or
physical discomfort, disease, deformity, disability, or death";
more generally, it produces a state that is bad for the child to be in
- a "bad state." (Harman 2009, 139). On
Harman's view, an act's imposing any of the listed effects
on the child is sufficient to establish that that act *harms*
the child, whether or not the child has been made worse off (Harman
2004, 92-93 and 107; Harman 2009, 139). It would be hard to
argue, moreover, that harm in that form has no moral relevance. Thus,
even those who think that wrongful life doesn't involve harm
- harm, that is, in the intuitive, comparative sense of that
term - agree that any pain and suffering experienced by the
child must be taken into account in order to determine that the
child's existence is not less than worth having. (In the rare
case in which the child's existence *is* less than worth
having - in which, that is, the child would have been better off
never existing at all - we would say that the child sustains
both comparative *and* non-comparative harm.) 



A related proposal that avoids the difficulties of tethering
non-comparative harm to any particular list of adverse conditions
makes use of the concept of a *threshold-dependent* concept of
harm (Rivera-Lopez 2009, 342; see also Meyer, 2004). On this view,
bringing a child into existence whose wellbeing level falls below
"some normal threshold of quality of life" counts as
*harming* that child even if that existence is itself worth
having (Rivera-Lopez 2009, 337). 



Objections to proposals that rely on a non-comparative concept of harm
to solve the nonidentity problem focus on whether that concept itself
can be clearly worked out. Thus, it may be hard to see how one whose
wellbeing has been *maximized* can at the same time have been
*harmed* in any sense of that term that remains clearly within
our grasp. Moreover, as Parfit suggests, even if we think it correct
on occasion to say that a person who has not been made worse off has
been "harmed," we may still be unclear whether that person
has been harmed in a "morally relevant sense" (Parfit
1987, 374). Finally, there is the question of limits: what adverse
conditions are to appear on the non-comparative harm list? What is the
threshold level below which existence counts as harm? What is
"normal"? And are we really willing to eliminate or at
least to mix up the distinction we think we now can so cleanly draw
between, e.g., the case in which opening up one's chest to
expose the heart serves no purpose at all and the case in which
opening up one's chest to expose the heart is an essential part
of an open-heart procedure that is itself both necessary and
sufficient to restore life and health? For critical discussion of the
non-comparative account of harm, see Gardner 2015.



A strategy that avoids disputes surrounding the concept of harm would
be to argue that, even if the act does not *harm* the child,
the fact that it causes the child to suffer may mean that it
nonetheless *wrongs* the child. Bonnie Steinbock thus
recognizes how hard it is to establish that the child brought into the
unavoidably flawed existence has been genuinely harmed (Steinbock
2009, 157-158). But she argues that we still have room to insist
that such a child has been treated unfairly or has been wronged in
cases in which the child's existence fails to meet or exceed a
certain "decent minimum," which is itself achieved
"only if life holds a reasonable promise of containing the
things that make human lives good," such as "an ability to
experience pleasure, to learn, to have relationships with
others" (Steinbock 2009, 163-165). Another approach would
be to draw the line at average wellbeing (for discussion, see Rachels
1998; Tooley 1998). Still another approach would be to focus on
whether the child will face unusual or severe hardships (Benatar 2000;
Kamm 2002).



Matthew Hanser underlines an issue raised by all of the proposals
sketched in this part 3.3.2. Does an act that causes a person to
endure even serious hardship necessarily *harm* that person
even if we agree that person *suffers harm* (in a
non-comparative sense)? Hanser's own view is that an act harms a
person only if the agent stands in some "appropriate
relation" to the harm that is suffered, where that relation will
involve a counterfactual element and accordingly may not obtain if the
suffering is due to a genetic disease or disorder (Hanser 2009). While
Hanser puts the point in terms of harm, it could be extended to the
notion of wronging without harming that Steinbock suggests. 



In raising this issue, Hanser suggests that we can bifurcate the
nonidentity cases, analyzing, for example, the wrongful life case in
one way and the depletion case in another. We can, that is, say that
the future people in both sorts of cases have *suffered harm*
but only the victims of depletion have been *harmed by* the
choice under scrutiny. Or in terms of wronging: the future people in
both sorts of cases are made to exist in a wronged state but only the
victims of depletion have been wronged.



Gardner's alternate account of harm, the "effect-relative" account, avoids asking whether an act makes a
given individual worse off and instead determines harm on the basis of a comparison between various *states* that may be said to be "intrinsically better or worse off" for a given individual. (Gardner 2015, 2017). To make use of such an approach in the nonidentity context, the proposed
analysis would seem to include, as a part of the test for harm, the assumption that
the individual *exists* (Gardner 2015). Thus we ask whether a state in which a person exists and suffers a limitation is worse for that person than a state in which the person exists but does not suffer the limitation (Gardner 2015, 2017). An obstacle
for such an account of harm is that it seems to generate too many instances of harm (in the case, e.g., where the state in which the person exists and does not suffer the limitation is, though possible, physically, or causally, unavailable to the relevant agents). Moreover, the question arises how the account can be generalized to produce acceptable results a broader range of cases. If the assumption of *existence* is part of the test for harm in the nonidentity context, it might seem that we should say as well that the assumption of existence, that is, *survival*, is part of the test for harm in the case of the open-heart procedure described earlier in this part
3.3.2. 


#### 3.4 Nonidentity problem rooted in confusions regarding when a person is made worse off


#### 3.4.1 Expanding the metaphysics of personal identity and harm



Several proposals fall under this heading. Proposal (a) below accepts
that the future person *p* is nonidentical to the person
*q* conceived from distinct gametes and then exploits the fact
that *p* and *q* may fall under the same description;
proposal (b) argues *p* and *q* may be identical despite
a distinction in gametes (despite, that is, a distinction in the
timing and manner of conception); proposal (c) argues, on metaphysical
grounds, that the nonidentity problem rests on a certain equivocation
in the use of the term "person"; proposal (d) exploits
certain predictable mistakes many people will make in thinking about
the identity between *p* and *q*; and proposal (e)
explores an equivocation in what it is to make things worse off for a
particular person.



(a) Though Parfit briefly discusses and sets aside the descriptive
proposal (Parfit 1987, 359-60), interest in that proposal has
been renewed in recent years (Hare 2007, 512-23, advocating a
concept of "de dicto" harm; Reiman 2007, 78-90,
describing a "veil of ignorance" with respect to the
identity of the person harmed; Wolf 2009). The proposal makes use of
the fact that the same definite description can pick out distinct
children in distinct scenarios. Consider the slave child case. Let
*p* be the child who in fact exists and suffers as a result of
the couple's entering into the slave child contract. And let
*q* be any one of the children who might have existed had the
couple not entered into the slave child contract yet still produced a
child. The nonidentity problem argues (among other things) that
*p* and *q* are, at least very probably, numerically
distinct, that is, nonidentical. At the same time, on one
construction, *p* and *q*, even if nonidentical, fall
under a common description: they are equally, for example, "the
child produced by the couple." Moreover, since one choice makes
*p* worse off than the other choice makes *q*, the one
choice, on a certain construction, makes "the child produced by
the couple" worse off than the other choice makes "the
child produced by the couple." And on that basis we can then say
that the one choice makes things ("de dicto") worse for
"the child produced by the couple" than the other choice
does.



Parfit's own concerns about proposal (a) are based on the
apparent explanatory gap between the claim that the couple's act
makes things worse for "the child produced by the couple"
and the result we seek to explain - that the act of entering
into the contract is wrong. The question is whether there is anything
we can grasp in what the couple has done *to the child in fact
produced* that explains *why* the couple's act is
wrong. No "familiar moral principle" takes us from the
shorthand claim to the assessment we are aiming to explain (Parfit
1987, 359; Wasserman 2008, 529-35; for discussion, see Weinberg 2008.)



(b) Proposal (b) challenges the metaphysical claims about cross-world
identity that are inherent in the nonidentity problem. On this
proposal, the child *p* produced as a slave when the couple
chooses to enter into the slave child contract and the child
*q* produced as a non-slave when the couple refrains from
entering into the contract but still produces a child should not
necessarily be considered distinct. *p* and *q* may, in
other words, be *the very same child* despite the fact that
(due to variations in the timing and manner of their conceptions) they
have ended up with distinct genomes. For alternative ways of
developing such a *de dicto* approach to personal identity, see
Hare 2007 and Wolf 2009.



(c) Proposal (c), which rejects theories of personal identity that
reflect a rigid form of essentialism, posits that there exist
"many entities in the vicinity of" the child who
eventually comes into existence in the various nonidentity cases and
is the subject of our person-based concern. If we accept both the
person-based idea that an act is wrong only if it is bad for a
particular person - a person who does or will exist - and
the idea that an act is bad for a person only if that person
"would have existed" had an alternative act been chosen,
we are, without realizing it, focusing on distinct entities, with one
claiming holding of one entity and the other claim holding of another.
Dasgupta 2018, 541-542; 550-554. For a proposal that similarly rejects
a strict form of the origins (genetic) account of personal identity in
favor of a Lewisian "counterpart-theoretic" approach for
the purpose of solving the nonidentity problem and specifically aims
to retain the cogency of certain harm claims in that context, see
Wrigley 2012. An account that also appeals to counterpart theory with
the aim of resolving not just the nonidentity problem but the full
range of population problems can be found in Meacham 2012. For a more
general discussion, see Cooper 2015.



(d) Proposal (d) involves a form of rule consequentialism that, rather
than struggling to avoid, simply exploits two naive mistakes that
many people may well make when they first begin to think about their
obligations in respect of future people. The first is the mistake of
thinking that the population produced when, for example, agents choose
conservation will be identical, at least in part, to the population
produced when agents instead choose depletion. The second is the
person-based intuition itself - the idea that an act that makes
things worse for no existing or future person cannot be wrong. Tim
Mulgan suggests that the "ideal code" - the code
whose internalization by most of a given society will maximize
wellbeing on an aggregate basis - will incorporate both these
mistakes. They are both, after all, easily and efficiently
"taught" since (Mulgan thinks) we are prone to make them
in any case and they in effect cancel each other out. Because the
ideal code is violated by the depletion choice and the 14-year-old
girl's choice to have a child, both are declared wrong (Mulgan
2006, 155-56 and 204; Mulgan 2009).



(e) Cases involving causal preemption seem to show that the simple
counterfactual account of what it is to make things worse for a person
- an act is worse for a person only if it makes that person
"worse off than [that person] would otherwise be" -
fails (Bontly 2016, 1236). For the premises of the nonidentity problem
itself, then, to remain plausible, we must understand what it is for
an act to be "worse for" a person in another way. One
option is to say that an act is worse for someone if and only if it
"affects that person for the worse," where it is
understood that an act that has an "effect" on a person
that is itself adverse in some way is sufficient to show that the act
"affects that person for the worse" (Bontly 2016,
1237-38). We then suspect an equivocation when we realize that
we can't both hold that understanding of what it is for an act
to be "worse for" a person constant and at the same time
insure that still other premises of the nonidentity argument remain plausible.
Specifically: while the claim that an act is not worse for a person
*if* (sufficient condition) that person has a life worth living
and "would never exist had [that] act not been performed"
seems plausible, the claim that that act does not "affect [that
person] for the worse" given those same conditions "seems
rather more dubious" (Bontly 2016, 1238-1241).


#### 3.4.2 Is there an explanatory gap?



An ongoing controversy raised by the proposals described in part 3.4.1
is whether they successfully explain the wrongness of the wrong act in
terms of the adverse consequences that act has *for the person
whose plight has drawn our concern to begin with*. Or do those
proposals either (i) trace the wrongness of the wrong act to something
other than what is bad for that particular person or (ii) ask us,
without adequate justification, to abandon the handful of clear
intuitions that we do seem to have regarding personal identity? (i) Do
they retain the person-based intuition in a sufficiently robust form?
Or are they *person-based* in name only and in fact root their
explanation of wrongness not in what is bad *for the person*
but rather in what is bad *for the world*? (ii) Do they ask us
to *concede* that *p* and *q* are one and the
same person in cases where we really can't bring ourselves to
*believe* that *p* and *q* are one and the same
person? Could my father's first-born child have been *me*
had he never met my mother at all and instead produced a very
different child with a very different genome born at a very different
time? We should agree we can figure out a theory that implies such a
claim of identity. What is unclear is the justification that compels
us to accept that theory.



If we *both* confine our scrutiny to what has been done to the
particular child *and* insist on retaining some of our clearest
intuitions regarding personal identity, a second concern immediately
arises. As David Wasserman notes, if the child's life is itself,
though flawed, worth living and if that flaw is unavoidable if that
particular child is ever to exist at all, it may seem that any
difficulty the child then faces is a "perfectly acceptable price
to pay for a life he [or she] could not have without it"
(Wasserman 2006, 145). We again are left with the kind of explanatory
gap that Parfit noted in connection with the descriptive view
discussed in part (a) above. Confining our scrutiny just to what has
been done to the child and properly taking into account the good that
has been done for the child as well as the bad, we cannot discern why
what has been done is, by any stretch, bad for the child and hence
cannot discern any person-based ground for the claim that what has
been done is wrong.



The position that the nonidentity problem can be resolved as an
equivocation on what is to make a person worse off raises another
issue. As the nonidentity cases are typically understood and in
contrast to the preemption cases, it remains unclear that the act
under scrutiny - the very act that brings the apparent victim
into the worth-having existence to begin with - truly affects
the person *for the worse*. 


### 3.5 Nonidentity problem rooted in mistakes in calculating the relevant probabilities



This proposal claims we can retain the person-based intuition, thus
recognizing that bringing a person into an existence that is worth
having but *unavoidably* flawed does not make things worse for,
or harm (in a morally relevant sense), that person and yet insist that
the acts under scrutiny in the class of cases that most seriously
challenge the person-based intuition do, after all, make things worse
for the people they bring into the flawed existence (Roberts 1998;
2003; 2006; 2009; Roberts and Wasserman 2017).



The proposal thus retains intuitions (1) and (2) but argues that the
condition set forth in intuition (2) - that the existence is
*unavoidably* flawed - has not been satisfied for that
class of nonidentity cases. And it retains intuition (3) for that same
class of cases while rejecting (3) for those cases in which the
existence truly is unavoidably flawed (and arguing that, for that
class of cases, the claim that the act under scrutiny is permissible
is perfectly plausible). 



The strategy here is limited to the class of nonidentity cases that
reason from (a) had the act under scrutiny not been performed, the
person who exists and suffers as an effect of that act *very
probably* would never have existed at all and (b) that existence
is worth having to the conclusion (c) that act does not make things
worse for, or harm, that person. That class of cases includes
Kavka's slave child and pleasure pill cases, Parfit's
depletion and risky policy cases, Broome's climate change case
and cases involving historical injustice. The proposal does not,
however, suggest that there is still a further class of nonidentity
cases that *does* challenge the person-based intuition. Rather,
it considers that further class of cases - which includes cases
in which the existence is worth having but *unavoidably* flawed
due to a genetic or chromosomal disorder - as less worrisome in
the sense that it is surely less clear to us that the acts under
scrutiny are themselves wrong.



The broader argument, then is that, in any case in which it is clear
to us that what is done is wrong we can, on closer inspection,
identify just how the people caused to exist have been made worse off.
And, in any case in which we *are* forced to concede that the
person caused to exist has *not* been made worse off -
any case in which the existence is unavoidably flawed but still worth
having - we should acknowledge that it is not really clear to us
at all that what has been done is wrong. 



What, then, is the argument for the claim that such a significant
mistake in reasoning has been made? The first step in unwinding that
mistake is to clarify that when we say an act makes a person *worse
off*, we are *not* trying to press the claim that the act
makes the person worse off than that person *would have been*
had that act *not* been performed. The simple, counterfactual,
"but for," account of harm that kind of effort involves
was - rightly - rejected decades ago. An alternative
position is that an act makes a person worse off at a given world if
there is some alternate act agents could have performed instead at an
alternate world that would have made things better for that person at
that alternate world. If, in other words, it is (physically and
metaphysically) possible for agents to make things better for a given
person - if such an alternate world is *accessible*
relative to the one world - then what the agents have done makes
things worse for, and, we can say, *harms*, that person. For
defense of a maximizing account of harm, see Roberts 2011, Roberts
2009, 209-217, and Roberts 2007. For critical discussion of the
simple counterfactual account and the alternative maximizing account
of harm, see Carlson forthcoming. For a reconstruction and defense of
the simple counterfactual account, see Klocksiem 2012. 



The second step is to note that in the class of nonidentity cases that
most seriously challenge the person-based intuition agents
*did* have some way of making things better for the person who
has been brought into a flawed existence. Thus, nothing in the laws of
physics or metaphysics or in the acts of other agents bars the agents
in the slave child case from *not* entering into the slave
child contract and still following the *identical* timetable
for conception they in fact followed and bringing into existence as a
non-slave the very same child they in fact brought into existence as a
slave. 



It might be objected that, while such a better-for-the-child outcome
is physically and metaphysically *possible* - that is,
*accessible* - it is surely highly *improbable*.
The third step of the proposed solution addresses that objection. It
acknowledges Kavka's point about the precariousness of any given
person's coming into existence: the probability that that
*identical* child will come into existence, given that the
agents do anything other than perform the clearly wrong act they in
fact perform, is very low. We might say: the probability that agents
will follow the *identical* timetable for conception -
that the timing and manner of conception will be at least close enough
to the original to result in the conception of the *identical*
child - is very low. But it notes that the probability
calculation must itself be made as of that moment just prior to
choice. (It is, after all, that calculation that is relevant to a
calculation of the act's *expected* value. If it is
*actual* value we are interested in instead, we've
already shown that some alternate act exists that has more
*actual* value to offer the child than the act in fact
performed.) It then notes further that - again calculating
probability just prior to choice - the probability of the
particular child's coming into existence is also very low, even
given that the agents *do* enter into the slave child contract.




Suppose, that is, that it is *Harry* who is in fact brought
into existence as a slave, the couple having entered the slave child
contract and conceived and produced a child. The proposal here simply
notes that the probability, calculated just prior to choice, that
Harry will exist, given that the couple enters into the slave child
contract, is also very low. We might say: prior to choice, the
probability that the couple will follow exactly the timetable they in
fact end up following (or anything sufficiently like it) is just as
minuscule whether the couple enters into the contract and conceives a
child or the couple doesn't enter into the contract and still
conceives a child. The probabilities, either way, are *very*
low and, indeed, a wash. For an objection that concedes such an
account supports a claim that choice under scrutiny makes things worse
for the child but argues that the adverse effect is so minuscule that
the account nonetheless fails to support to the claim that the choice
under scrutiny is wrong, see Greene 2016. 



One might object that in fact there is *no* probability Harry
would exist in the absence of the couple's entering the
contract, for without the contract the probability that couple would
together have produced any child at all is 0. That may be right, but
it doesn't bear on whether Harry has been made worse off. As
noted above, the simple, counterfactual, "but for,"
account of when a person has been made worse off (or harmed) must be
rejected. It isn't what agents *would* have done, but
what they *accessibly could* have done, that determines whether
what they have done makes a person worse off or harms that person. If
I shoot you in the arm and would have shot you in the heart had I not
shot you in the arm, I have still made you worse off. I have made you
worse off - not worse off than you would have been had I not
shot you in the arm, but rather off worse off than you would have been
had I just stood there quietly instead. It's the best I *accessibly could* have done that should be our *baseline*
in Feinberg's sense - not what I *would* have done
- for purposes of determining when a person has been made worse
off (or, in a morally relevant sense, harmed) (Feinberg 1988).



Nor is it appropriate to determine whether a person has been made
worse off by a given act by comparing the *actual* value
produced for that person by that act against the *expected*
value produced for that person by any alternate act. The proposal here
takes no position on whether the expected or actual value approach is
correct. But it does take into account that the view that an act can
be considered at least as good for a person than an alternate act if
the *actual* value the one act generates for that person is at
least as great as the *expected* value the alternate act
generates for that person is inconsistent (Roberts 2009). 



That philosophers would mistakenly reason to the result that the
apparent victim has not been made worse off is understandable. We see
how things in fact are for the slave child under the act in fact
performed, we see how precarious the child's coming into
existence is under any alternate act and we fail to notice that
- calculated as of that moment just prior to choice - the
child's coming into existence is just as precarious under the
act in fact performed. 



Probabilities under the act under scrutiny may decline even further in
cases that involve clearer risks to health and wellbeing. Consider a
man whose great-grandparents suffered in the Holocaust and who now
must ask himself what his attitude should be toward those atrocities.
Since he is grateful for life itself, should he feel bad that he must
also be grateful to the agents of those atrocities for the role they
played in bringing him into existence? On this proposal, he need not
be torn; his gratitude is misplaced. The atrocities may indeed have
been a part of the causal chain ending in his existence. But there
were alternate causal chains as well that equally would have ended in
his existence had the relevant agents gone down those paths instead.
If anything, by jeopardizing the lives of Harry's own forebears
on a daily basis, the atrocities only served to further reduce his own
chances of ever coming into existence at all. For critical discussion,
see Smilansky 2017.


### 3.6 Act is wrong in virtue of agent's reasons, attitudes and intentions


#### 3.6.1 Act violates principle of mutual respect



A contractualist approach to the nonidentity problem will focus on the
legitimate expectations future people have in respect of the agents
whose acts cause those future people both to exist and suffer. Such
expectations can be violated - and future people wronged -
even in cases where those people have not been made worse off, or
harmed, by what the agent has done. What is important is not the
outcome for the person but rather the "culpable failure"
on the part of the agent, including the failure to respect a future
person's "value as capable of rational
self-governance" by way of failing to take
"risk-managing" measures (including, e.g, pre-conceptual
genetic testing) on behalf of that future person (Kumar 2003,
104-114; Kumar 2018). An issue that immediately arises is
whether a measure that makes it the case that the person who will suffer can never
exist at all is genuinely risk-managing *in respect of that
person*. Drawing from Scanlon 1998, Kumar describes an alternative
position that focuses, not on how acts may affect particular people,
but rather on *types* of persons, or *standpoints*, and,
specifically, "the reasons that persons in certain circumstances
... typically have for caring about or wanting certain
things." Principles reflected in such reasons - principles
"no one can reasonably reject" - include preferences
against the risk of living a life that is seriously compromised.
Failing to take such reasons into account (depending on other facts)
is counted as a *wrong* against (though not a *harm* to)
any particular person who eventually exists and, as a result of the
act under scrutiny, suffers. Kumar 2018. Left unclear is how to
reconcile the *standpoint* against the *personal* risk.
A future standpoint may include the "generic" preference
not to suffer the side effects of a particular infertility treatment.
But if that treatment is necessary for the person ever to exist at
all, it is unclear that the treatment itself wrongs that person. 



Finneron-Burns offers an alternative account of how Scanlon's
contractualism can be applied to solve the nonidentity problem. That
account avoids phrasing the debate in terms of types or standpoints
that need not be tied to any particular individual and instead argues
that we can think about future people - people who will in fact
one day exist - in the same terms we think about existing people
(Finneron-Burns 2016, 1151-1153; 1160-1162). At the same time, on this
view "possible people are not included in the scope of those to
whom we owe justification" (Finneron-Burns 2016, 1163). The
view, accordingly, will face the same hurdles as will any other view
that claims that existing and future people have a special moral
status that the merely possible lack. See part 4 below. 


#### 3.6.2 Act's agent fails to have appropriate concern for future person's plight



A second approach that shifts the analysis of wrongdoing away from
what has been done to the future person and toward the situation of
the agent focuses on the agent's reasons for making one choice
rather than another. On this approach, attitudes themselves can be
"morally defective" (Kahane 2008, p. 203). Whether the
agent's act wrongs the future person will depend on whether the
agent is motivated by an appropriate level of concern for the needs
and interests of (among others) the future person. Is the agent
appropriately sensitive both to the degree of suffering that person
can be expected to endure and to the various aspects of that
person's life that can be expected to render that life (on
balance) worth living (Wasserman 2006, 146)? The parent may have a
principled objection against pre-implantation genetic diagnosis but
also have an appropriate level of concern for the child's
plight. In that case, the parent's producing the impaired child
in place of the better-off but nonidentical child does not wrong the
impaired child. On the other hand, if a parent fails to undergo
genetic testing out of laziness and never considers the challenges
that the child might face as a result of being born impaired, then
what the parent has done is wrong. Thus, on this view, the act's
permissibility is a function not of the expected good for the child in
fact being counterbalanced by the expected bad but rather of the
parent's careful determination of how the one balances against
the other (Wasserman 2006, 146-151). An implication of this view
is that there need be nothing wrong in choosing to have a less happy
rather than a happier child.



Choices by policymakers (in, e.g., the context of the depletion
example) can be similarly evaluated. The parent's and the
policymaker's roles may differ in respect of the future people
their choices will cause to exist but agents in both roles can
plausibly be held to a role-appropriate standard of concern (Wasserman
2009).


## 4. Further challenges to the person-based intuition



Part of the reason the person-based intuition has been so attractive
is its good fit with what Jeff McMahan calls *the Asymmetry*
(McMahan 1981; 2009). According to the Asymmetry, it is wrong (and
makes an outcome morally worse) to bring a *miserable* child
- a child whose life is *less* than worth living -
into existence but it is perfectly permissible (and does not make an
outcome worse) to leave the *happy* child out of existence.
While (arguably) leaving the happy child out of existence makes things
worse for that child, the person-based intuition requires for
wrongdoing not that things be made worse for a person who
*never* exists but rather that things be made worse for a
person who *does or will* exist.



Jan Narveson was an early advocate of both the person-based intuition
and the Asymmetry. His defense of the Asymmetry, however, has been
subject to criticism by McMahan, Persson, Singer and Parfit. At this
juncture, conceptual concerns about the Asymmetry have been just as
important in leading philosophers to question the person-based
intuition as the nonidentity problem has been.



The conceptual concerns arise when attempts are made to explain the
Asymmetry by reference to principles that assign a special moral
status to actual people (or people who will exist if the act under
scrutiny is performed; or people who will exist independently of
whether that act is performed) that they do not also assign to merely
possible people (or to never existing people; or to people whose
existence depends on that act being performed) (McMahan 1981; 2009;
Persson 2009; Singer 2011, 114; Parfit 2011 vol. 2, 224-225).
Similar concerns arise in connection with cases involving cycling, e.g., Parfit's Tom, Dick and Harry case. See Parfit 2017, 140-146. See also Hare 2007, 503-507 (discussion of double wrongful life; discussion of the Asymmetry).



An alternate defense of the Asymmetry avoids the claim that there is a
critical moral distinction to be drawn between classes of people
(between, e.g., actual and merely possible people, or between people
who do or will exist at the world at which the act under scrutiny is
performed and people who will never exist at that world). On that
defense, we should instead distinguish, for any given person *p*
in any such class, between *p*'s being made worse off at a
given world (compared to how well *p* fares at any alternate
world) where *p* *does or will exist* and *p*'s
being made worse off at one world (compared, again, to how well
*p* fares at any alternate world) where *p* *never
exists*. And we should say that *p*'s being made worse
off in the former scenario has full moral significance while
*p*'s being worse off in the latter has no moral
significance at all. Then, even conceding that leaving the happy child
out of existence makes that child worse off than that child might have
been - even conceding, that is, that the happy child sustains a
"loss" or "harm" when left out of existence
- we can say that that loss does not count *against* the
choice to leave the happy child out of existence or *in favor
of* the choice to bring that child into existence. In contrast,
bringing the miserable child into an existence that is less than worth
having has full moral significance. It counts, that is, against the
choice to bring that child into existence and in favor of the choice
to leave that child out of existence. Why? Because the miserable child
exists at the world where he or she sustains that loss (Roberts 2010,
2011a, 2011b).