THE NECESSARY ARBITRARINESS IN DRAWING A LINE: SOMETHING MUST BE ‘WRONGFUL’

Z. Ilyés

Abstract: Could the life a disabled person be considered a legal injury? Can the courts compare existence and non- existence and find that in some cases the latter is preferable? Is there an asymmetry between ‘a life worth continuing’ and ‘a life worth bringing about’? In the last decades the so-called ‘wrongful life’ cases have raised a series of legal and moral problems. This essay attempts to shed light on some of the underlying problems that are specific to these atypical malpractice cases, to present with critical commentary a ‘wrongful life’ case from Romania, as well as to depict some solutions elaborated by philosophers or legal scholars. Finally, as novelty, in line with Benatar’s distinction between present-life and future-life cases, this short paper proposes thresholds for the admissibility of ‘wrongful life’ cases.
Keywords: ‘wrongful life’ cases, ‘wrongful birth’ cases, malpractice, disability, counterfactual test, existence and non- existence.