The Non-Identity Problem and Thalidomide Regulation: A Case Study from France
Résumé
Derek Parfit's non-identity problem (NIP) challenges the notion of harm in cases where choices affect the identity and quality of life of future persons. Parfit argues that harm prevention goes beyond individual victims and extends to the occurrence of harm regardless of the identity of a potential victim. The NIP holds significant implications for ethics and legal theory, notably in the context of reproductive decisions. While Mill's harm principle effectively addresses the harm caused to unborn children by administering teratogenic drugs to pregnant women, it struggles to explain why women taking such medication for their personal benefit should abstain from having children. Mill’s principle grounds a person-affecting view of harm, echoed in the French civil code. Besides, legislation was enacted specifically to ban wrongful life cases after the famous Nicholas Perruche case. However, the French thalidomide regulation requires patients to demonstrate non-pregnancy and active efforts to avoid pregnancy to access the medication. This paper argues that a comprehensive understanding of the ethical considerations surrounding thalidomide regulation in France necessitates the adoption of Parfit's theory.