Non-Identity: Solving the Waiver Problem for Future People’s Rights

In a familiar interpretation, the Non-Identity Problem (NIP) claims that persons whose existence depends on a seemingly harmful action cannot in fact be harmed through such an action. It is often objected that the persons in question can nevertheless be wronged through a violation of their rights. However, this objection seems to fail because these persons would readily waive any violated right in order to come into existence. The present article will analyze this Waiver Counter Argument in detail and show why it does not succeed. First, it is necessary to distinguish between a prospective and a retrospective waiver scenario. In the prospective scenario an imagined person (or a proxy) must consider whether she wants to waive a right in order to come into existence. In the retrospective scenario a person is asked whether she would prefer a wronged existence to never having been born. In both scenarios the conditions of a legitimate waiver of rights are not met, but for different reasons. On this basis, an argument against NIP can be developed.