Potential persons and the welfare of the (potential) child test

This article considers and critiques the theoretical basis of section 13(5) of the Human Fertilisation and Embryology Act 1990 (HFE Act),¹ which requires the welfare of the potential child to be taken into account when considering whether parents should be given access to fertility treatment. It will be argued that potential persons, that is, persons who do not yet exist, have no claims, interests or standing that can restrict the actions of actual persons. This claim will be based upon the necessity of existence before things can be said to affect a person. As persons are the subjects for whom ‘good’ and ‘bad’ outcomes apply, actions which establish the preconditions for their existence cannot be subjected to considerations of the effect on the potential person. This is because potential persons are not affected by actions, but are the consequence of actions. Prospective parents, for example, should not be prohibited from having disabled offspring on the basis of the effect on the child, as different decisions relating to that child will change which persons exist, and thus the necessary preconditions for value will change. Based upon this existential framework, it will be argued that only the interests of actual persons can constrain the actions of those involved in reproduction. Thus, the HFE Act’s formulation of the welfare test must be repealed and only the interests of prospective parents and other actually existing people should be capable of constraining reproduction.