Il diritto a non nascere e il Non-Identity Problem

In wrongful life suits, a person born with certain forms of disability seeks compensation from those who determined his or her existence. These claims are very often rejected. In wrongful life cases, judges are entrusted with a philosophical task. The present work juxtaposes some judges’ pronouncements with the ethical-philosophical reflections that have developed thanks to Derek Parfit’s contributions. Most people believe that a couple has strong moral reasons for delaying conception if by doing so they may conceive a healthy child rather than one affected by a serious handicap. According to the Non-Identity Problem, however, it is difficult to establish what these reasons are, as far as we cannot say that the child has been harmed according to the ordinary comparative conception of harm. On closer inspection, however, the Parfittian system allows us to say that in some wrongful life case the person has been harmed. The article thus focuses on a profound difference between some examples of legal reflection on wrongful life cases and philosophical reflection on the Non-Identity Problem: the contrast between a “monolithic approach” and a “two tier approach” to the right not to be born, revolving around the idea of life worth living.