By: Graham J. McAleer
This article concerns the controversial wrongful life
tort. Three state judiciaries in America – California, New
Jersey, and Washington – agree that a child can sue a doctor
because the doctor harmed the child by not aborting him.
State jurists argue that the child was harmed because it is better
never to have been born than to live a life with a
disability. By failing to facilitate the abortion, the doctor
unjustifiably takes from the child the preferred state of
nonexistence when the alternative is a suffering existence.
Taking away the good of non-being in such circumstances is the
foundation for a wrongful life tort. The tort is
controversial: at least eighteen American states have legislated
against the tort. It is crucial to appreciate that a wrongful
life tort does not rely on the premise that the doctor is
responsible for the disability. This is not the harm.
Rather, in wrongful life tort the harm is the failure to
abort.
This article demonstrates that whilst humanitarianism makes the
tort intelligible, the tort’s appeal rests on its formality of
suicide. Strangely, Catholic moral theology agrees that the
tort is intelligible. Although the tort is coherent, papal
moral theology must deny the tort is just. John Paul II’s
Evangelium Vitae reasserted Aquinas’s philosophy of law
respecting homicide. In it, suicide is again condemned by the
Church. Aquinas argued that suicide could only be justified
if God’s sovereignty were replaced by human sovereignty.
Humanitarian ethics has just such an aim and so, amongst Aquinas’s
five arguments against suicide, this one is typically thought the
weakest. Recently, John Paul the Great strongly re-affirmed
this argument in his claim that the culture of death can be traced
to the eclipse of God. McAleer defends the argument of
Evangelium Vitae and in particular Paragraph 20 where John
Paul II argues that contemporary liberal democracy is “a form of
totalitarianism,” which is regarded as the most outrageous claim of
the encyclical. Furthermore, McAleer argues that John Paul II
is right that humanitarian love is totalitarian.