Let us start with utilitarianism, the ethical theory that says we have to choose the situation or state of the world that has the highest amount of total utility. Total utility is the sum of individual utilities, summed over all sentient beings. Sentient beings are individuals who can value things, and the individual utility of a sentient being measures everything that is valued or considered important by that sentient being. Individual utility includes for example individual well-being, happiness or preference satisfaction.
Based on utilitarianism, we can derive many rights, which are rules that help to maximize total utility. For example the right to vote and the right to free speech are derived rights, designed to promote total utility. These rights are instrumental: they are a means to increase total utility. But there are two rights that are not derived from utilitarianism and that are in that sense intrinsic. This article discusses these two intrinsic rights, and argues why there are two of them.
The right to bodily autonomy
Consider the forced organ transplantation case: the lives of five hospital patients can be saved in only one way, by sacrificing one innocent person and using his five organs for organ transplantations. From a purely utilitarian perspective, this organ transplantation is good, because the utility of the five patients is more than the utility of the one sacrificed person. However, most people have the intuition that such forced organ transplantation is impermissible. The same goes for many other cases: cannibalism, involuntary experimentation, gladiator fights, gang rape, slavery, terror bombing, torture interrogation, blackmail murder,… These things are impermissible, even when they would increase total utility by making many people happy while sacrificing a small minority.
What these examples have in common, is that they all violate the right to bodily autonomy. In all those cases, the body of the victim is used as a means for someone else’s ends, against the will of the victim. The right to bodily autonomy says that one should not use the body of the right-holder as a means against that person’s will for the ends of someone else. In short, it is the right no to be used merely as a means, where ‘merely’ refers to being against the preferences or will of the person whose body is being used. This fact relates the right to bodily autonomy to the ‘mere means principle’.
As ‘bodily autonomy’ and ‘mere means’ contain two words, there are two criteria to test whether the right to bodily autonomy is violated. The words ‘autonomy’ and ‘mere’ refer to the first criterion, that the victim does not want the treatment. The words ‘bodily’ and ‘means’ refer to the second criterion that the presence of the victim, in particular the victim’s body, is required in order to reach the end. In the forced organ transplantation case, the body of the victim is necessary: without that body, no organs could be transplanted. If the end (for example saving lives) could equally be reached when the victim is absent, the victim is not used as a means.
To avoid discrimination, this right should be given to everyone and everything. However, the right explicitly refers to ‘body’ and ‘will’, which means the right is trivially satisfied for non-sentient objects. These non-sentient objects have no subjective perception of their own bodies, which means what counts as their bodies is not well-defined. A plant or a computer has no sentience of its body, and therefore determining the body of a plant or computer becomes ambiguous or arbitrary. Non-sentient beings also do not have a subjective will or subjective preferences. That means it becomes impossible to violate the right to bodily autonomy of a non-sentient object, no matter how you treat that object. Only for sentient beings, who have a sense of their own bodies and a personal will, it becomes possible to violate their right to bodily autonomy.
The right to bodily autonomy is intrinsic in the sense that it cannot be derived from utilitarianism. As the forced organ transplantation case shows, this right goes against the idea of maximizing utility (e.g. maximizing the number of lives saved). There are two reasons why this right is important.
First, it is consistent with a coherent set of strong moral intuitions (automatic or spontaneous moral judgments) in many cases. In the abovementioned cases, such as the forced organ transplantation case, many people have a strong moral judgment that using someone as a means against that person’s will is impermissible. These moral intuitions of impermissibility are often expressed in terms of moral virtues such as ‘respect’ and moral values such as ‘dignity’. Also many other moral principles, such as the difference between doing versus allowing, the difference between positive and negative duties, the permissibility of partiality in imperfect duties of beneficence, can all be derived from the right to bodily autonomy. In other words, a large part of non-utilitarian (deontological) ethics can be derived from this intrinsic right.
Second, this right is special because people cannot complain against it. More precisely, the rights violator (who uses the right-holder as merely a means), does not become better-off when the right-holder were absent. The five hospital patients do not become better-off when the one person to be sacrificed does not exist, because in that case there would be no body and hence no organs to be transplanted. The fact that the violator does not become better-off relates to the second criterion to test the rights violation: the required presence of the victim’s body. This also means that the violator does not become worse-off when the right-holder is present or comes into existence. The existence of the right-holder does not impose a cost on others.
This absence of costs for others can be contrasted with for example the right to live. The right not to be used against one’s will is fundamentally different from the right not to be killed against one’s will. Using someone presupposes that the victim is required to be present. Killing does not presuppose the required presence of the victim. Suppose a group of people is in danger and the only way to save those people is by accidentally or unintentionally killing one bystander. For example, the bystander is in the way of the ambulance. If that bystander was absent, one could equally (or even more easily) save the group of people. Hence, the bystander is not used as a means, and therefore the person’s right to bodily autonomy is not violated. However if that person has a right to live, that right would be violated when that person is killed. If it is impermissible to violate the right to live, the presence of the bystander makes it impossible to save the group of people. The group of people would be better-off if the bystander was absent, if the bystander did not have the right to live or if it were permissible to violate that right. That is why the right not to be killed against one’s will imposes a cost on others: it restricts the freedom of other people to be saved. The group of people who will die due to the presence of the bystander, can complain against that person’s right to live. In contrast, the right not to be used against one’s will does not impose costs on others, and therefore other people cannot complain against that right. They cannot complain against the presence of a person who has that right.
The right to bodily autonomy can be expressed in the utilitarian sum of utilities by subtracting a large disutility from the utility of a right-holder when that person’s right is violated. We get a reduced utilitarian theory, where the sum is reduced by a disutility from the rights violation. This disutility is larger than the sum of the utility increments of the exploiters, i.e. the people who benefit from the rights violation by using the right-holder as merely a means. As the reduced sum of utilities is lowest for the situation where someone’s right is violated, the reduced utilitarian theory implies that the rights violation is impermissible. One could equally say that the right-holder has the right to delete those utility increments from the beneficiaries (exploiters): those utility increments that come from a rights violation, should not be counted in the utilitarian sum.
The right to procreation autonomy
Utilitarianism faces some counterintuitive conclusions in population ethics, where our choices influence not only the utilities (welfare) of people in the future, but also their existence. If we have to choose the state that has the highest total utility, we face the very repugnant conclusion: drastically decreasing the utility of a group of very happy people, making those people extremely miserable, by creating a huge number of new people who have lives barely worth living (small but positive utilities) would be good, because that would increase total utility. In numbers, the initial situation contains say 1000 happy people, each with utility 100, the second situation contains the same group of people, each with negative utility -100, plus a million extra people, all having a small utility 1. The total utility in the second situation is a 900.000 (a million of the lives barely worth living minus 100 times 1000 of the pre-existing, miserable people), which is much higher than the total utility of 100.000 in the initial situation (1000 pre-existing people having high utility 100). Choosing the situation where a group of happy people have to sacrifice a lot and the many other people have lives barely worth living, feels counterintuitive or very repugnant.
It is instructive to make a distinction between necessary people, who exist in all available (eligible) situations or states of the world, versus potential or contingent people who exist in some but not all available situations. The necessary people can make the choice to bring the potential people into existence. In the example of the very repugnant conclusion, the million people with lives barely worth living are the potential people, because they do not exist in the initial situation. If the necessary people choose the initial situation, those million potential people will never be born.
Population ethics presents us with a second class of cases where utilitarianism is counterintuitive. These counterintuitive conclusions can be avoided in a similar way as above, by introducing a right. This time, the right deals with choices to cause the existence of new people. It can be referred to as the right to procreation autonomy, where procreation refers generally to a choice that causes the existence of potential people.
The necessary people have a right to procreation autonomy. This basically means that they have a right not to take the utilities of the potential people with positive utilities into account. Just as a right-holder of the right to bodily autonomy has the right to exclude from the utilitarian sum the utility increments of the rights violators, the necessary people have the right to exclude the positive utilities of the potential people. These positive utilities of potential people are nothing but the utility increments when compared with a zero utility, i.e. the utility corresponding to non-existence. Excluding the utility increments of the potential people from the sum of utilities gives us a reduced utilitarian theory. Using the right to procreation autonomy, we do not have to consider the total utility, but only the sum of the utilities of the necessary people and the potential people who have negative utilities. In other words: the necessary people should choose the situation that maximizes a restricted sum of utilities, including only the utilities of the necessary people and the potential people with negative utilities.
As with the right to bodily autonomy, there are two justifications for this right to procreation autonomy. First, it matches moral intuitions in population ethics, such as the intuition that we have to avoid the very repugnant conclusion. It is easy to see that excluding the positive utilities of potential people allows us to avoid the very repugnant conclusion: the million utilities of +1 are excluded from the sum. The sum of the utilities in the initial situation equals 100.000, which is higher than the sum of remaining utilities in the second situation, which equals -100.000.
Second, no-one can complain against this right. When avoiding the very repugnant conclusion by choosing the initial situation, there are a million potential people with positive utilities who are not brought into existence. They could have had happy lives (although barely worth living, their lives were still positive), but as they do not exist, they cannot complain against the choice for the initial situation. Non-existent people cannot complain at all, and hence cannot complain against the necessary people exercising their right to exclude the positive utilities of potential people.
If on the other hand a choice is made that brought a potential person with a negative utility into existence, that person exists and hence can complain against that choice. A negative utility by definition means that that person prefers non-existence above having a live with that utility, all else equal. If you have a negative utility, you would prefer a situation where you do not to exist and everyone else remains equally happy (keeps the same utilities). As potential people with negative utilities can complain against the choice to bring them into existence with a negative utility, the necessary people do not have a right to exclude those negative utilities from the sum of utilities.
When the necessary people apply their right to procreation autonomy, we end up with an asymmetric person-affecting utilitarian theory. The theory is person-affecting in the sense that a situation can only be better than another situation if it is better for at least someone, and worse than another situation if it is worse for at least someone. Total utilitarianism, which maximizes the sum of everyone’s utilities, faces the very repugnant conclusion and is therefore not person-affecting: it says that the initial situation is worse than the second, very repugnant situation, because the first situation has a lower sum of utilities, but for no-one in the initial situation is that initial situation worse than the second. A person-affecting theory says that we have to make people happy rather than make happy people.
As the right to procreation autonomy does not apply to potential people with negative utilities, our person-affecting theory becomes asymmetric: it is always bad to cause the existence of a life with negative utility (all else equal), but not always good to cause the existence of a life with positive utility (all else equal). Potential people with negative utilities are included, but potential people with positive utilities may be excluded from the sum of utilities. Necessary people have to take into consideration unhappy potential people but not happy potential people.
Why there are two intrinsic rights
A right involves a relationship between two (groups of) people: the right-holders who have the right and the duty-holders who have the duty to respect the right of the right-holders. With the right to bodily autonomy, we have to consider the right-holders who may not be used as merely a means, and the duty-holders who are potential beneficiaries in the sense that they may be helped by using the right-holder as merely a means. With the right to procreation autonomy, we have to consider the necessary people as right-holders and the potential people as duty-holders who have to accept the right-holders exercising their right to procreation autonomy (i.e. their right to exclude the positive utilities of potential people).
The two intrinsic rights have two justifications. The first justification refers to moral intuitions. The second justification refers to the possibility to complain. That possibility to complain relates to the presence or existence of a person. As there are two kinds of people, the right-holders and the duty-holders, there are two kinds of complaints and hence two kinds of intrinsic rights. The right to bodily autonomy refers to the presence or existence of the right-holder, the right to procreation autonomy refers to the existence of the duty-holder. In the case of the right to bodily autonomy, the duty-holders (the beneficiaries) cannot complain against the right-holders having the right to bodily autonomy, because non-existence of the right-holders would not make the duty-holders better-off. In the case of the right to procreation autonomy, the duty-holders (the possible people with positive utilities) cannot complain against the right-holders having the right to procreation autonomy, because non-existence of the duty-holders would not make the duty-holders better-off. (Potential people with negative utilities can say they would be better-off in the situation where they do not exist, because they prefer non-existence above having a life with a negative utility.)
Limits to rights
The two rights are not necessarily absolute. They may have finite strength. For example, if a huge number of people can only be saved by using the body of one victim only a little bit against that person’s will, it should be permissible or even obligatory to use that victim to save the many people. The victim does not have the right to refuse saving the many people. Similarly, if the welfare of very happy necessary people only decreases a little bit when adding a huge population of extremely happy extra people, it should be permissible or even obligatory to add those extra people. The necessary people do not have the right to refuse bringing those extra people into existence.
The limit to the right of procreation autonomy means that potential people with sufficiently high positive utilities may or should be included in the sum of utilities. In other words: only the potential people who have utilities in a range between 0 and an upper bound (a maximum positive level), can be excluded from the utilitarian sum. As this range contains zero utility, it is a neutral range, and hence this population ethical theory can be called person-affecting neutral-range utilitarianism. According to this theory, we (i.e. the necessary people) should choose the state or outcome that maximizes the sum of individual utilities, excluding the utilities of possible people that lie in a neutral range.
People can democratically choose how strong the rights to bodily autonomy and procreation autonomy are. They can choose the minimum number of lives that have to be saved in order to justify the use and sacrifice (death) of one person. They can choose the size of the neutral range. If they choose an infinitely large neutral range, i.e. a range without an upper bound, they face an extinction conclusion: it may be better not to procreate, because a potential person with a positive utility does not add any value to the world, but any potential person with a negative utility adds a disvalue to the world. That means adding people (creating future generations) cannot make things better, and could easily make things worse. When the neutral range is finite, potential people with a sufficiently high positive welfare still contribute to the total value of the world (the sum of utilities). When this added value is larger than the total disvalue of the potential people with negative utilities, it is good to add the potential people.
According to utilitarianism, we have to choose the situation that has the highest sum of individual utilities, where all sentient beings are included in the sum. However, this utilitarianism has two kinds of counterintuitive implications: if it increases the total utility, a person may be sacrificed (used against that person’s will) for the sake of others, and people may have to drastically decrease their welfare by creating a huge population of individuals with lives barely worth living. These two kinds of counterintuitive implications of utilitarianism can be avoided by introducing two rights: the right to bodily autonomy and the right to procreation autonomy. These rights are intrinsic, because they cannot be derived from utilitarianism. There are two such intrinsic rights, because a right involves a relationship between a right-holder and a duty-holder. A duty-holder cannot complain against a right-holder having and exercising the right to bodily autonomy, because the absence of such a right-holder does not make the duty-holder better-off. A duty-holder cannot complain against a right-holder having and exercising the right to procreation autonomy, because the non-existence of the duty-holder does not make the duty-holder better-off. Hence, these two rights are special in the sense that the duty-holders, i.e. the people affected by those rights, cannot complain against those rights. These rights do not have to be absolute: they may have a finite strength and their limits can be democratically decided. With these two rights, we arrive at a restricted utilitarian theory that says we have to choose the situation that has the highest sum of utilities of everyone except potential people with utilities between a neutral range, and we cannot choose that situation when that choice involves the use as a means of the bodies of too many people that is too much against their will. In other words, right-holders of the right to bodily autonomy have the right to exclude the utility increments of the beneficiaries (those who benefit from the use of the right-holder as merely a means) from the utilitarian calculation (the sum of utilities), except when the sum of those utility increments is very large. Similarly, right-holders of the right to procreation autonomy have the right to exclude the utility increments (the positive utilities) of the potential people from the utilitarian calculation, except when the sum of those utility increments is very large. In general, people have the right to exclude the utilities of others, or the right to subtract a certain, large amount from their own utility in the sum of utilities, as long is no-one can complain against that.
 Someone’s individual utility can be a function of that person’s well-being. Individuals can (democratically) choose their own utility function. If everyone chooses a concave utility function, the utilitarian theory (maximizing the sum of utilities) reduces to prioritarianism, where the objective is to maximize everyone’s well-being, but giving priority to increasing the well-being of the worst-off (the people with the lowest levels of well-being). We should increase someone’s well-being, except when this is at the cost of a too strong reduction of well-being of a worse-off person. The concavity of the utility function also reflects inequality aversion: if everyone chooses a very concave utility function, people have a strong preference for a more equal distribution of well-being. Hence, preferences of equality and justice can be incorporated in the individual utility functions.
 There is one technical caveat: once the necessary people choose to bring potential people into existence, those potential people also become necessary people, because undoing their existence becomes impossible. Once they become necessary people, their utilities should be included in the utilitarian sum of utilities. As the sum changes and the goodness of a situation relates to this sum of utilities, it is possible that the ranking of the available situations changes. Once the utilities of the newly existing people are included, the chosen situation may no longer have the highest sum of utilities, and another situation may become better by having a higher sum. Hence we have at least three situations: the initial situation where the necessary people choose not to bring potential people into existence, the second situation where potential people with positive utilities are brought into existence, and a third situation where the same people as in the second situation exist, but their sum of utilities is higher than in the second situation. In particular, it is possible that the newly existing people, who have positive utilities, would have even higher utilities in the third situation than in the second. If that is the case, those newly existing people could complain against the choice of the second situation, because they prefer the third situation. This could imply that the second situation, which initially seems to be the best, is later (when the situation is chosen and the potential people become necessary people) dominated by another alternative state which initially seems worse. If that happens, the initial better-seeming situation (the second situation) should be excluded from the available options of the initial decision. If you know in advance that if you choose the initial best-seeming situation, that best-seeming situation will no longer be the best situation in the future, then you should not choose that best-seeming situation.
As a concrete example, consider the case of animal farming, represented by a choice between three situations. The first situation contains only humans. The second situation contains the same humans, plus an extra population of farm animals who have lives barely worth living (i.e. positive but small happiness levels). The humans breed the animals, who have short lives because they are killed and eaten by the humans. The third situation contains the same humans and animals, but this time the animals are much happier (having very high utilities), as they are not killed, but taken care of by the humans. In the third situation, those animals are sanctuary animals instead of farm animals. The third situation can even resemble a very repugnant conclusion, where the humans are extremely miserable and the sanctuary animals are huge in numbers but have lives barely worth living. The humans may prefer the second situation, because in that situation they maximize their happiness by enjoying the taste of meat. However, once they bring the animals into existence, the third situation may have a higher total utility than the second. In that case, the humans should not be allowed to choose the second situation, because they know in advance that once the second situation is chosen, the third situation becomes better and should consequently be chosen. If the humans do not prefer that third situation (as they cannot enjoy eating the animals and have to spend costs taking care of the sanctuary animals), it is better for them to choose the first situation and not breed animals at all. Next to this argument against animal farming, which applies even when the farm animals have positive utilities, the right to bodily autonomy offers a second argument against animal farming: when they are killed and used for their meat, the bodies of the farm animals are used as a means against the animals’ will. Animal farming violates the right to bodily autonomy of farm animals, and is inconsistent with the right to procreation autonomy of humans.
 The asymmetric person-affecting utilitarian theory can be considered as a kind of variable critical level utilitarian theory. In critical level utilitarianism, we have to choose the situation that maximizes the sum of relative utilities, where someone’s relative utility is that person’s utility minus a constant critical level. In variable critical level utilitarianism, that critical level can be variable and may be autonomously chosen by individuals. Different people may choose different critical levels, and those critical levels may depend on the situation and even on the choice set (the set of all available or eligible situations). In the case of asymmetric person-affecting utilitarian theory with its right to procreation autonomy, the necessary people have the right choose their own critical levels, with two conditions. First, their critical levels have to be positive (this creates the asymmetry). Second, the sum of critical levels has a maximum equal to the maximum sum of positive utilities of the potential people.
The sum of relative utilities contains the critical levels of the necessary people and the utilities of potential people. When necessary people choose their critical levels equal to the positive utilities of possible people (which is their right to do), those positive utilities are cancelled by the critical levels. That is how the positive utilities of potential people are excluded from the utilitarian sum of utilities.
 And subtracting the size of the neutral range from the utilities of all possible people who have utilities above the neutral range. The size of the neutral range counts as a maximum critical level, as in critical-level utilitarianism. Person-affecting neutral-range utilitarianism maximizes the sum of all negative utilities plus all positive relative utilities, where a positive relative utility is the part of the utility that is above a threshold level. For necessary people that threshold level is 0, for potential people that threshold level is a positive value.