The last few years have
seen scientific advancements that were thought to be possible only in the realm
of science fiction. From nuclear
transfer to exogenous pregnancies, implantable brain chips to transgenic
engineering, cyborg to chimera, we may be taking the next step in our own
evolution. As barriers between the species begin to blur and blend, should
humans retain special elevated status? How will these affect notions of
“personhood”? Possible implications range from affecting the abortion debate to
end-of-life decision making to animal rights. If traditional notions of personhood
prevail, are we running the risk of denying essential basic liberties to
sentient beings? If modern expanded
notions of personhood prevail, do we run the risk of somehow being “degraded”
and losing our “human dignity”? Legal
notions of personhood have lagged far behind the philosophical and ethical
discourse, yet some courts and legislatures have seen fit to extend the
definition by creating legal fictions to recognize such entities as
corporations and ships as “persons.” The
law has been notoriously slow in keeping up with ethical issues and
technological advances; legislatures are loath to deal with controversy and
courts must often wait until litigation arises out of a crisis. The next several decades will test the
flexibility of the law in response to evolving advancements.
In this thesis, I
analyze and review the literature of classical ethical, religious and legal
definitions of personhood. I explore
which significant developments in biotechnology may affect evolving legal and
ethical notions of personhood; I also outline a rubric for considering the
definition and scope of the human identity as “person” from different research
perspectives, including legal, philosophical, ethical and technological.
Finally, I examine whether or not there is a recurrent theme, a common thread,
commensurability, some unifying underlying principle, in philosophical and
theological perspectives and in the decisions made by courts, legislatures, and
governmental agencies. In my quest for
commensurability, I argue that a balancing approach is warranted, resulting in
an expanded, evolving notion of personhood.
Les toutes dernières
années ont été le témoin de progrès scientifiques qui jusqu’alorsrelevaient du domaine de la
science fiction . Du transfert nucléaire aux grossesses exogènes, des
puces implantées dans le cerveau à
l'ingénierie transgénique, du cyborg à la chimère, nous sommes peut-être au
seuil de la prochaine étape dans notre
propre évolution. Alors que les frontières entre les espèces commencent à se confondre, l’être humain devrait-il retenir son statut spécial au sommet de la
pyramide ?Comment ces changements
affecteront-ils la notion de « personne » ? Les implications
possibles s’étendent du débat sur l’avortement à la décision de mettre fin à la
vie, aux droits des animaux. Si les
notions traditionnelles de personne
prévalent, est-ce que nous courons le risque de nier les libertés essentielles fondamentales aux êtres
sensibles? Si les nouvelles notions élargies de personne prévalent, courons-nous le risque de nous dégrader d'une
manière ou d'une autre et de perdre
notre dignité humaine ? Les définitions
juridiques de personnalité traînent loin en arrière du discours philosophique
et éthique, pourtant certains tribunaux ont jugé valable d’étendre cette définition en créant des entités juridiques
fictives pour assimiler juridiquement
des sociétés commerciales et bateaux à des “personnes”. La loi est
sérieusement en retard par rapport aux
questions d’éthique et au progrès
technologique; les corps législatifs sont réticents à aborder les sujets
controversés et les tribunaux dovent attendre jusqu'à ce qu’un litige naisse
d’une crise. Les prochaines décennies constitueront un test de la flexibilité
de la loi pour répondre au progrès scientifique.
J'analyse et passe en revue la
littérature qui traite des définitions classiques de la personne éthique,
religieuse et juridique. J'explore les développements significatifs de la biotechnologie susceptibles d’ affecter une notions de personne
éthique et juridique en constante évolution; j’ esquisse également un
cadre pour considérer la définition et l’étendue de l’identité humaine
comme “personne” , à partir de diverses perspectives de recherche , y compris
sur le plan juridique, philosophique, éthique et technologique. Finalement,
j'examine s’il existe un thème commun et
récurrent, un fil conducteur, un
principe d'unification fondamental dans les perspectives philosophique et
théologique et dans les décisions prises par les tribunaux, les corps législatifs, et
les agences gouvernementales. Dans ma quête
d’éléments communs, j’argumente
qu'une approche équilibrée est justifiée, et qu’elle résulte en une notion élargie et évolutive de la personne.
I
would like to express deep gratitude to my advisor, Kathleen Cranley Glass, for
her encouragement as well as her insightful, instructive questions, which
consistently guided and stimulated my thinking in this area. I would also like to thank Professor Walter
Glannon and Professor H. Patrick Glenn for opening new vistas of learning;
their writings and teachings have been a source of inspiration and
enlightenment. I also wish to
acknowledge that part of the title of this paper “at the Margins of Personhood,”
as well as many of the ideas presented, was inspired in part by Walter
Glannon’s article entitled “Tracing the Soul: Medical Decisions at the Margins
of Life.” I wish to thank my husband, Kim G. Glenn, for
his invaluable and unwavering intellectual, emotional and practical support and
my sister, Dr. Jeanann S. Boyce, for lending me her expertise, as well as for
her emotional and intellectual support. This paper is dedicated my faithful
canine companion of 18 years, who recently passed away and who was and always
will be a “person” to me.
Advances in biotechnology, specifically,
transgenics and artificial intelligence, have led us to a place where no one
has gone before: Chimeras,
cyborgs, artificial life forms, new species, and variations or combinations of
all of the above. As barriers between
the species begin to blur and blend, should Homo sapiens retain special
elevated status? Currently, human beings cannot be patented, but the definition
“human being” has yet to be defined by the courts or the legislature. Arguments as to what constitutes “personhood”
are being closely scrutinized and debated in the fields of religion, ethics,
psychology, and law. If traditional notions of personhood prevail, are we
running the risk of denying essential basic liberties to sentient beings? If modern expanded notions of personhood
prevail, do we run the risk of somehow being “degraded” and losing our “human
dignity?” Is there a recurrent theme, a
common thread, commensurability, some unifying underlying principle, in the
decisions made by courts, legislatures, and governmental agencies? In this paper, I explore traditional and
modern notions of personhood, and in my quest for commensurability, I argue that
an expanded legal notion of personhood will be warranted for certain new life
forms, both transgenic and artificial intelligence.
In Greek
mythology, the chimera was part lion, part goat, part dragon, which was slain
by the hero Bellerephon. In modern day biology, a chimera is a genetically
engineered creature created from the DNA of different species. What once was
fiction has now become fact; through the process known as DNA recombinant
research, scientists are able to splice genes together from different species
that would never be able to mate under normal, non-laboratory circumstances. A review of some of the last few years
announcements illustrate the amplitude of the advances:
November 6, 1997 – Boston,
Massachusetts - Genzyme
Transgenics announces that it has created transgenic mice that can produce
human prolactin, a protein which may enhance the body's immune defenses against
disease, in their milk. Other therapeutic proteins in the milk of transgenic
mice, rabbits, goats and cows, focus on treating autoimmune disorders, such
rheumatoid arthritis and lupus, and cancer.
July 22,
1999 – London, England – A British
biopharmaceutical company announces that for the first time they have
successfully inserted human genes into a pair of lambs, Cupid and Diana, who
entered the world implanted with a human gene that gives them the ability to
produce human serum albumin, a protein that is essential to the treatment of
burn victims and is often used in surgeries.
August 16, 2000 – Blacksburg, Virginia – William Drohan, senior
director of plasma development at the American Red Cross, announces that the
work of Virginia Tech dairy scientist R. Michael Akers "holds tremendous
promise for the large-scale production of life-saving human therapeutic drugs
in quantities far greater than could ever be produced through fractionation of
human blood.”
January 4, 2002 – undisclosed location in Missouri
- Scientists at the University
of Missouri announce a
possible breakthrough in xenotransplantation; they have created genetically
engineered pigs whose organs lack a gene that triggers rejection by the human
immune system.
For all the hype about potential
benefits, the potential abuses are equally frightening. The International
Olympic Committee has concerns that athletes will soon employ genetic
engineering to run faster, jump higher, and throw further. Lawyer George Annas suggests that we need to
set up an international criminal tribunal that will ban genetic engineering and
xenotransplantation, as well as other forms of possible alterations of humans
for fear of endangering the species or creation of a slave race. The headlines and fears of potential abuses
raise the question of just how many genes does one need to be considered
“human,” a question that is discussed in a later section of this paper.
In April 1998, biologist Stuart Newman and
biotech critic Jeremy Rifkin applied for a patent for a “humanzee,” part human
and part chimpanzee, in a calculated move designed to re-ignite debate about
the morality of patenting life forms and engineering human beings. The U.S. Patent and Trademark Office
(hereinafter, PTO) denied the patent, acknowledging
that, although it has permitted the extensive patenting of biotech-engineered
life forms and human DNA, 13th Amendment of the U.S. Constitution
forbids the ownership, and they considered this application to be too close to
the patenting of human beings. Since the
United States Supreme Court, Congress or Patent Office have never defined what
a human being is, the debate still continues about whether or not the
PTO as an executive arm of the United States government has the power to define
“human being.”
Transgenics and genetic
engineering are not the only ways that humans have started to re-create or
redefine themselves; the Bush administration’s limitations on use of federal
funding for new embryonic stem cell line research has re-ignited the debate
about whether or not an undifferentiated embryo is a “person.”
Other efforts to change the boundaries
include a White House proposal to provide Medicaid health coverage for fetuses
and the Unborn Victims of Violence Act, a bill making it a federal crime to
harm a fetus during an attack on a woman (terming a fetus a “person” from the
moment of conception, skipping right over the embryo stage). While this is a debate that is not going to
be resolved directly, there are technological developments that will likely
change the focus of the debate. These
developments include 1) advancing techniques of the neo-natal intensive care
unit, where the threshold of extra-uterine viability has been possibly pushed
back to 20 weeks (or five months) gestation,
2) the theoretical possibility of male pregnancy,
and perhaps most importantly, 3) the artificial womb. While these developments may not directly
answer the debate of the moral status of the fetus or embryo, they will remove
the maternal-fetal conflict inherent in the present discussions and disentangle
the issue from the rights of a woman over her own body.
In an effort to
bypass the moral dilemma presented by the use of human embryos, scientists have
sought alternate ways to rebuild the body. As of this time, there appears to be
only two ways to replace injured or diseased body parts: either “re-growing”
them (as with stem cells); or mechanically (as in extensions or
prosthetics). Some possible alternatives
to the controversial embryonic stem cells include:
·
Adult stems cells –Rare, hard to isolate and
purify, hard to grow in culture, these may not exist for all tissues.
Additionally, they are multipotent as
opposed to pluripotent, which means
that they can form only a limited number of tissues; pluripotent cells can form
an unlimited number of tissues.
·
Umbilical cord blood and placentas are rich in
multipotent and some pluripotent stem cells, but as of this time, there is no
centralized mechanism for harvesting these.
·
Skin and scalp cells may be rich in multipotent
stem cells
·
Development of drugs that activate the body's
stem cells to let the body repair itself.
·
Parthenogenesis - from the Greek word for
"virgin birth." Eggs that can be turned into embryos without being
fertilized by sperm, from which stem cells can be extracted. Such embryos
("parthenotes") could never mature, so destruction of them to make
stem cells may not raise the same moral issues as destruction of embryos.
·
Cellular reprogramming, also called de-differentiation aims at getting
specialized body cells to revert to a primordial state, like stem cells, so
they can be turned into various types of tissues.
·
Transdifferentiation aims to turn a cell back to
its primordial state in order to turn that primordial cell into another type of
cell.
What is the
significance of embryonic stem cell research and its alternatives with regard
to evolving notions of personhood? Aside
from the issue of whether or not the embryo is a person, the moral peril is not in the replacement or
transplantation of injured or disease body parts, but in the use of this
technology for enhancement, patentably, commercial profit and the creation of a
market for body parts. In
1984, a leukemia patient, John Moore, had his spleen removed in the
course of treatment; unbeknownst to him, his spleen cells had a unique quality. When his physicians realized this, they used
his cells to develop a commercially valuable cell line, without Moore’s knowledge or
consent. Moore
filed suit on the grounds of lack of informed consent and on a claim of
conversion; the California Supreme Court held that Moore did not retain any property or
ownership interest in cells after they left his body.
Taking this ruling to its extreme, what if instead of Moore’s spleen cells, it had been his brain
cells? Or a large portion of his organs?
Or an entire body transplant?
The notion of
property rights in application to one’s body presents some remarkable
paradoxes.
In the dualistic metaphysic approach, duality of mind and body, the body is
treated simply as a material object,
and the real “self” or person lies in the abstract or in the continuity of
self-consciousness or personal identity.
Lori Andrews subscribes to this approach arguing that definitions of personhood
rarely focus on the possession of body parts, but rather on sentience or
cognitive traits.
If persons are purely abstract rational agents, there is no necessary
connection between persons and property.
Under this approach, theoretically, a cell line derived from Einstein’s brain
cells
or cell lines from the cloned embryos other celebrities, could be patented
cloned and sold, without the donor having a property interest or cause of
action for theft of one’s identity, genetic, personal, or otherwise.
The Canadian Biotechnology Advisory Committee (CBAC), in its interim report to
the Government of Canada
recognizes that there is danger of
“commodification of life” in allowing patenting of higher life forms.
On the other hand,
a popular Western point of view is that our personhood is tied to our physical
bodies;
the “embodiment” approach treats the person as a unique individual who is
inseparably unified in mind, body, and spirit.
Margaret Jane Radin points out, “Objects are closely bound up with personhood
because they are part of the way we constitute ourselves as continuing personal
entities in the world.”
Radin proposes a continuum approach for
dealing with the property in relation to personhood, proposing that the more
“fungible” an item, the less tied to personhood, and the more “personal” an
item is, the more it is tied to personhood. Under this approach, arguably, items such
Einstein’s brain cells or cell lines from celebrities would be inseparable from
the persons and subject to more protection under the law.
My own experience
with individuals facing end-of-life decision-making suggests that they feel
once their mind (i.e. their consciousness) is gone, so in essence is their
“self.” I have had friends, family, and other loved ones explain, “If my mind
is gone, let my body and spirit go.” Is
the brain a nexus of the mind, or perhaps, an expressive conduit? What will
happen when we can keep the mind (and brain) going through regeneration or other
methods, such as the whole body transplant? Emerging “neuro-remediation” techniques may
soon lead to psychological continuity and change the very definition of death. In November of 2001, researchers reported
reliable ways to coax human embryonic stem cells into becoming brain
cells. Reported in the Journal of Nature Biotechnology, the
researchers said they coaxed the stem cells into becoming the three types of
brain cells – astrocytes, oligodendrocytes and mature neurons.
In one experiment the researchers transplanted about half a million cells into
the brains of newborn mice and saw them integrating throughout the brain and
propagating. The results show promise
for future development of repairs to brain and nerve injuries, even for those
who may have been considered “permanently unconscious.”
Certainly, for individuals like Jeffrey Galli, a young man with a severe spinal
cord injury, who describes himself as a “brain on a stick”,
this research represents an important step towards reconnecting with an
important part of his “self,” his body.
Regardless of whether one
takes the dualistic metaphysic view or embodiment view of personhood, the
advancing technology will change the nature of the debate. The impact of stem cell research, by holding
out promise for repair of injured brain and nerve cells, as well as other body
parts, is forcing us to re-examine and re-evaluate who and what we are; so do
the advances in the integration of man and computer. Artificial limbs, retinas, cochlear implants,
and other prostheses are redefining who and what we are.
The notion of cyborgs is no
longer science fiction; the latest developments in cybernetics, the integration
of living tissue and technology, the melding of man and machine is now taking
place, as chronicled below with an overview of the latest developments in this
field. The distinction between “alive”
vs. “not alive” or “animate” vs. “inanimate” is one that is becoming
increasingly difficult to determine.
Does something have to be conscious to be alive? And what is
consciousness?
January-February
1999 -- Ellen M. McGee and Gerald Q. Maguire
present one of the first ethical analyses of implantable brain chips
and cyborgs. As intelligence or sensory "amplifiers," the implantable
chips will generate at least four benefits: l) increasing the range of senses,
enabling, for example, seeing infrared light, ultraviolet light and chemical
spectra; 2) enhancing memory; 3) enabling "cyberthink" — invisible
communication with others when making decisions; and 4) facilitating access to
information where and when it is needed.
They predict that these enhancements will produce major improvements in
quality of life or in job performance.
They also predict these devices will be in regular use by the military within
10 years, and adopted by information workers within 15 years, and available for
general use in 20 to 30 years.
April 17,
2001 – Chicago, Illinois - Physiologist Sandro Mussa-Ivaldi of Northwestern
University's Rehabilitation Institute of Chicago announces that they have
combined a mechanical device with living tissue, developing a robot that is
controlled by an immature lamprey eel brain.,.
Instead of attempting to emulate a biological nervous system, the technology
goes one step beyond, tapping into the nervous system of a live creature.
This new work opens up the long-term possibilities of learning more about how
brains work so electronic microprocessors can be developed to help human
patients compensate for damage from strokes and other types of nerve trauma.
Kevin Warwick, a cyberneticist at Reading University, believes that it may even
one day be possible to have your brain transferred to a robot when your body dies.
It would be extremely difficult, "but mapping the entire brain to a robot
can't be ruled out,” he says.
More realistic, he says, is connecting electronic devices such as mobile phones
directly into our brains.
Summer, 2001 - Linda Griffith, associate professor of
bioengineering and chemical engineering at the Massachusetts Institute of
Technology of Chips, announces the merger of human cells and silicon in a
“liver chip,”
in the hopes of alleviating the suffering that is caused by lab animals and
humans in Phase I clinical trials. The
Boston Globe quoted Griffith as saying “We hope to someday build the human body
on a chip.”
and took note that in laboratories across the country, the lines between what
is alive and what is a machine are being blurred by innovations such as
toxin-tracking bacteria mounted on chips and a robotic arm directed by monkey
brain waves.
A
few months later, scientists at the Max Planck Institute for Biochemistry
announce that they have linked brain cells and silicon chips electronically
creating a part-mechanical, part-living electronic circuit.
The hope is to develop artificial retinas or prosthetic limbs that are
extensions of the human nervous system; to combine the mechanical abilities of
electronic circuits with the extraordinary complexity and intelligence of the
human brain.
November
2001 – Austin, Texas - Researchers are developing
nanocrystals, or quantum dots, that can connect with individual neurons. This
will allow for new bioelectronic devices, from brain implants, therapies and
prosthetics to neural computers.
Technology at the nanoscale (i.e. at or around a billionth of a meter - about
1/80,000 of the diameter of a human hair, or 10 times the diameter of a
hydrogen atom) is providing the keys to biological
questions, such as the functioning of the immune system, and is leading to the
developments of infinitely modifiable connectivity.
This
technology is paving the way to the brain-machine interface.
MIT’s Technology Review
named the brain-machine interface as one of the technologies that will change
the world.
In a series of animal and human experiments dating back to 1990,
neuroscientists and a team of researchers affiliated with Emory
University in Atlanta created a basic but completely
functional alternative interface using electrodes surgically implanted in the
brain. In 1996, they convinced the FDA to allow two human tests. Author John Hockenberry, a paraplegic himself
in search of alternative remedy to his situation, tells the story of Johnny Ray, a 63-year-old from Carrollton, Georgia,
who suffered a
brain-stem
stroke in 1997, resulting in what is called
"locked-in syndrome,” characterized by complete paralysis of voluntary muscles in all parts of
the body (except for those that control eye movement.)
Individuals with locked-in syndrome are conscious
and have cognitive function, but are unable to speak or move. The disorder
leaves the patient completely mute and paralyzed. Communication may be possible
with blinking eye movements.
The team implanted a subcranial cortical implant,
physically melded with brain tissue.
Within the next year, Ray was able to control a computer cursor with his
thoughts, and also actually started to regain facial movements and expressions. The implant triggered the motor neurons of
his brain to activate and to create new neural pathways to parts of the brain
that were, prior to the stroke, underutilized or unused.
Similar results have been achieved in more than one study.
And so the
question arises again: How much living tissue is needed to make such a cyborg
“alive” or “conscious?” And does it make a difference if animal tissue or human
tissue is used? And if you modify, alter or enhance the brain, when does it
become a different entity? If animal tissue is used, it could conceivably lead
to cybernetic organism that may be equally intelligent to, or even possess
superior intelligence than the average human.
Such a creation might be incredibly rational and even articulate, but
without emotion. Is the ability to feel
pain and pleasure an essential part of being alive and a “person?” Would an
intelligent, sentient creation be property or a person? Could he/she/it be
patented? Patents on animal and other
life forms are allowed in the United States
and likely soon in Canada. European and Asian patent legislation
includes prohibitions on inventions whose commercialization would “offend
society’s fundamental and shared moral standards,”
and could arguably exclude certain higher life forms.
The next challenge
of defining personhood will be exploring notions of “cyberhood”
or alternatively, “cyborghood.” If the Moore case, cited supra, is taken to its furthest reach, the current judicial
approach suggests that it would make no difference if animal or human tissue is
used. The Moore ruling ushers in other problematic questions: Does it matter how much tissue is used? Could
a portion of an individual’s brain could be used to create an intelligent
part-live, part-machine cyborg and that individual or his estate be left with no
property interest or claim in the matter?
What
is Artificial Intelligence? Before
defining artificial intelligence, it
might be prudent to first define what is meant by intelligence. Stan Franklin, the author of Artificial Minds, admitted that he and a group of colleagues
attempted to tackle the definition of intelligence, and after two years of
wrangling, gave up.
Webster’s Dictionary defines it as “1 a (1) : the ability to learn or understand or to deal with new or trying
situations: reason ; also : the skilled use of reason (2) : the ability to apply knowledge to
manipulate one's environment or to think abstractly as measured by objective
criteria (as tests).”
Webster’s also defines artificial intelligence as “the capability of a machine
to imitate intelligent human behavior.” The American Association of Artificial
Intelligence (hereinafter AAAI) defines it as the
simulation of human intelligence processes by machines, especially computer
systems. These processes include learning (the acquisition of information and
rules for using the information), reasoning (using the rules to reach
approximate or definite conclusions), and self-correction.
Stan Franklin
defines artificial life “as the study of man-made systems that behave in ways
characteristic of natural living systems.”
But can it be
argued that artificial intelligence can be self-aware and, therefore, have rights?
Ray Kurzweil, author of The Age of
Spiritual Machines (1999), argues there is no sharp distinction between
human and machine intelligence; that by becoming increasingly “cyborgized” by
the use of permanent and removable implants that we are swiftly removing any
meaningful difference between man and machine. He speculates that eventually we will be able to achieve immortality by “downloading” our minds into secure spiritual machines. Kurzweil refers often to “The Singularity,”
a phrase borrowed from the astrophysics of black
holes. As used by Kurzweil, it refers to the idea that accelerating technology
will lead to superhuman machine intelligence that will soon exceed human
intelligence, probably by the year 2030.
The foundation of this idea grew from what is now known as “Moore’s
law.” In 1965 Gordon Moore, co-founder
of Intel, half jokingly predicted that computer processing power would double
every 18 months. This prediction has
turned out to be an underestimate. Roboticist Dr. Hans Moravec, author of Robot: Mere Machine to Transcendent Mind
(1998), estimates that the computing power of the human brain is about 1014
operations per second, and its storage capacity about 1014 bytes.
At the present rate of exponential growth, Kurzweil, Moravec, and others are
predicting that the machines will exceed these numbers by 2030 and, at that
time, these machines will exceed human intelligence.
Kurzweil has also estimated that by
2030 a $1,000 PC will equal one human mind, and by 2060 it will equal the
mental capacity of all humans. By 2099, assuming our population is 10
billion, one penny will buy computing power with one billion times the mental
capacity of all humans, making it accessible to every man, woman, child, and
any other life form that might want it.
But
does computing power equal intelligence? What yardstick does one use to measure
intelligence? One standard that has been widely used is called the “Turing
Test,” an adaptation of an “imitation game” suggested in 1950 by mathematician
Alan Turing. In the original version of the imitation game, an interviewer
talks to a man and woman through a teletype and has to decide which is which.
Turing suggested that a machine take the place of the man or woman and it would
be up to the interviewer to decide if he or she were communicating with man or
machine. Any machine that could successfully
deceive the interviewer into thinking he/she was talking to another human is
deemed to be intelligent. But the
drawbacks of such a test are numerous. First, such a test could conceivably
reflect the programmer’s skills, rather than the computer’s. Secondly, such a
test is inherently anthropocentric; there are conceivably measures of
intelligence that are not measured in humans, such telepathic ability.
Additionally, aside from math and language skills, some argue that there are
different types of intelligence such as emotional intelligence, musical
intelligence, and spatial intelligence. Despite creators of college entrance exams
proclaiming otherwise, intelligence is multifaceted. Author and futurist,
Jerome C. Glenn, proposes a “spherical approach” to intelligence, education,
and other values and virtues, which may be a more useful way of approaching
measures of learning.
Thomas M. Georges, author of Smarter Than Us?: Intelligent Machines and
Human Values (2001), proposes that instead of rigorously defining
intelligence, that it should be treated as a compilation of characteristics
that is best measured by degree. Those characteristics include:
1)
The
ability to store and retrieve knowledge;
2)
Learning
from experience and adapting to novel situations;
3)
Discriminating
between what is important and what is irrelevant to the situation at hand;
4)
Recognizing
patterns, similarities, and differences in complex environments;
5)
Creating
new ideas by combining old ideas in new ways;
6)
Planning
and managing strategies for solving complex problems;
7)
Setting
and pursuing goals;
8)
Recognizing
one’s own intelligence and place in the world.
Although Georges’
acknowledges that this compilation is limited because it is anthropocentric, by
recognizing that intelligence is a matter of degree, he moves away from the
black-and-white or “either-or” thinking of a being as either intelligent or
not. Georges leaves the door open for the possibility that the list will be
open-ended, but his last characteristic of “recognizing its own intelligence
and its place in the world”
highlights the limitations of a hierarchical worldview, as opposed to a
wholistic or interdependent worldview, discussed infra, later.
From intelligence, artificial or not, Moravec
sees the next step of human “techno-evolution” as opening up the possibility of
liberating mere humans from the crippling limitations of their biology. He sees these super AI machines as our
progeny, "mind children" built in our image and likeness; ourselves
in a more dynamic, almost invincible, form. He argues that like biological
children of previous generations, they will embody humanity's best hope for a
long-term future; and that behooves us to give them every advantage. He envisions a sort of Robo sapiens, a new,
post-biological, transhumanist species that will spread across the stars and
galaxies, creating a vast interstellar culture.
The Declaration of
the World Transhumanism Association, a pro-technology group, outlines a
philosophy of balanced deliberation: that the benefits of advancing
technologies must be weighed against the potential harm such technologies could
inflict on all living beings on this Earth; that short-term gains need to be
considered against long-term consequences; that open forums and debate are the
best way to implement rational decisions; and that, the well-being of sentient
creatures (whether in artificial intellects, humans, non-human animals,
possible extraterrestrial species, or some combination thereof) comes first.
Although this declaration does not make any reference to religious or spiritual
beliefs, its overall philosophy encompasses
many principles of modern secular humanism, and also some of the classic
principles of moral philosophy.
Genesis 1:26-31:
|
26
|
Then God said, "Let Us make man in Our
image, according to Our likeness; let them have
dominion over the fish of the sea, over the
birds of the air, and over the cattle, over all the
earth
and over every creeping thing that creeps on the earth."
|
The above biblical
quotation has been widely used to justify humanity’s dominance over the other
species on this planet; because we (humans) are created in God’s own image,
we are deemed to be superior and unique. Because we were given dominion over
“…every living thing,” this has been interpreted to mean that man is supreme on
this earth and should subdue the other creatures. This metaphor for a divinely inspired
universal hierarchy ranking all forms of higher and lower life has been
referred to as the Great Chain of Being.
This idea, originally introduced by Aristotle,
is a fusion of Greek philosophy and Christian theology, with “man” occupying a
unique slot in this chain, and having dominion over lower life forms. This
Great Chain of Being has been depicted with God at the very top of the Chain;
Angels, a level below; Man at the center level below Angels; Animals, a level
below Man; and Plants at the very bottom.
I use the term “man” instead of “human” because neither Aristotle nor the
Catholic Church (hereinafter “the Church”) recognized the equivalent moral
status of humans; Aristotle believed that women, children and slaves were
inferior, and that they lacked immortal souls;
and the Church’s treatment of women
and lower life forms
was less than compassionate. McGill scholar Edward Keyserlingk explains that
there is general agreement between the Protestant and Catholic analyses of the
sanctity of life principle, which are both rooted in the same Judeo-Christian
traditions. A
basic tenet of the Judeo-Christian belief system is that Man is special because
he alone is made in the image of God,
and “above all creatures, he is the object of God’s love and attention; the
other creatures…were given for man’s use.” It is from this view that only human life is
held sacred, that the focus of Judeo-Christian morality is the protection and
care of human beings, and that other creatures may be used to suit humanity’s
purposes;
and the foundation for the “sanctity of life” doctrine.
This hierarchical
view is sympathetic with the prevailing view during the Middle Ages that the
Earth was the center of God’s Universe and everything revolved around it and
mankind. The Church was so protective of this belief,
when Galileo attempted to promote Copernicus’ observation about the Earth
revolving around the Sun and not being the center of God’s Universe, the Church
subjected him to the Inquisition, forced him to recant, and imprisoned him for
nine years.
Only recently, in 1992, did the Vatican admit its error, found Galileo “not
guilty” of heresy,
though being very careful not to acknowledge that this may change humankind’s
status in God’s hierarchy.
How
is this notion of humans holding a uniquely God-given place in the hierarchy
reconciled with the scientific evidence of evolution of the species? In 1950, Pope Pius XII declared that
evolution and the Catholic faith do not conflict with one another, provided that
one believes in "ensoulment," the idea that God inserted a soul into
human beings at some point during evolution.
According to the church, although it may be difficult to ascertain some precise
historical dividing line in the history of evolutionary development, humans are
not just more complex forms of animals; it is humans who uniquely hold the
capacity for immortal souls and transcendence, and therefore, entitled to be
treated with dignity and sanctity.
However,
Keyserlingk cited supra, note 93,
questions whether or not the “sanctity of life” doctrine, is a useful concept
in determining personhood especially since he quotes theologian/philosopher
Daniel Callahan as admitting “the principle is vague in its wording,
erratically affirmed in practice, and open to innumerable differences in interpretation.”
Keyserlingk
also clarifies that this idea has not been adopted as an absolute mandate for
the preservation of every human life.
While consensus is unlikely,
it is this very flexibility to interpretation that yields hope for
commensurability with the world’s other religions, and hope for a workable
dialogue.
While the special
status of man is reflected in the writings of Paul Ramsey,
Leon Kass,
and Richard McCormick,
these authors write in terms of responsibilities and duties of persons as God’s
moral agents, as opposed to rights and moral status derived from man’s
dominance or special position in the hierarchy.
This recognition of duties and man’s value above all else on this earth
is consistent with traditional Kantian notions of personhood, as outlined
below.
A small but
significant Judeo-Christian minority view has understood "dominion"
as a stewardship for which humans will be held responsible;
that is, that humans are to treat their brother and sister animals as one of
God’s creations worthy of respect. Historically, the minority view has been
expressed in by St. Francis of Assisi, Sir Thomas More, and Albert Schweitzer,
among others.
One could derive a
theological basis for respect for all living things from a number of religious
traditions, such as the Jainist/Buddhist/Hindu doctrine of ahimsa. Mohandas Gandhi said in
"In bidding farewell to the reader, ask him to join me in praying
to the God of Truth that He may grant me the boon of ahimsa in mind, word and
deed" Ahimsa is a vow of non-injury to any
living thing - especially to animals. The vow of ahimsa was the first of the
five vows that Jainists would take. The first major vow taken by Brahman
ascetics and by Buddhist, Jain, and Hindu religious monks alike is that life
should not be destroyed, whether in mind, in words, or in deeds. Ahimsa is also directly linked to the
doctrines of reincarnation and karma. Depending on how good or bad one's karma
was, he or she would be reincarnated into a certain thing. If one had caused a
great deal of injury to animals and other living things, he or she would most
likely have bad karma and be reincarnated into an insect or some lower life
form. Therefore, there is a strong desire in these Eastern belief systems to
treat all living things with reverence, increase one’s karma and raise one’s
chance of a higher reincarnation.
That “all life is
sacred” sounds like the aforementioned “sanctity of life” philosophy, but it is
far more encompassing. This approach has
the potential to bridge the gap between Eastern and Western worldviews. Professor
Keyserlingk acknowledges that although the principles maybe vague and
indeterminate, they are not any more so than the principles of justice and
benevolence and that engaging in debate and discussion can lead to basic
agreements that life is precious, should be respected and protected, and
treated with consideration. Professor H. Patrick Glenn
of McGill University argues, in order to achieve real commensurability, Western
society and the rest of the world must go beyond merely tolerating change;
that, in a step towards world understanding, peace and a common language for
ethical principles, we must seek to understand and respect different cultural,
religious, and legal perspectives on such issues as respect for life, notions
of personhood and the attendant rights and duties. After a review of
traditional and current philosophical perspectives, I will return to this theme
of commensurability.
James Rachels succinctly
presents philosopher Immanuel Kant’s approach towards persons:
Kant thought that human
beings occupy a special place in creation.
Of course he was not alone in thinking this. It is old idea: From
ancient times, humans have considered themselves to be essentially different
from all other creatures --- not just different, but better. In fact, humans
have traditionally thought themselves to be quite fabulous. Kant certainly did. On his view, human beings
have “an intrinsic worth, i.e. dignity,” which makes them valuable “above all
price.”
Man’s intrinsic worth or dignity,
Kant believed, derives from man’s ability to be autonomous, a rational agent,
capable of making his own decisions, setting his own goals. Kant had essentially cultivated notions
previously set forth by Aristotle and Plato.
Aristotle and Plato, had also exalted the “rational man,” and had
written that the women, children, and slaves had limited reasoning capability
and therefore were not worthy of the moral respect.
Kant’s emphasis on
the rational, autonomous being and silence on the moral status of children, the
irrational, or the severely physically or mentally challenged, suggests that he
did not consider them worthy of human dignity or moral status. Certainly Kant
did not think animals were worthy of any moral status or respect, as author
Rachels illustrates:
[O]ther
animals, by contrast, have value only insofar as they serve human
purposes. In his Lectures on Ethics
(1779), Kant said: “But so far as animals are concerned, we have no direct
duties. Animals…are there merely as means to an end. That end is man.” We can, therefore, use animals in any way
please. We do not even have a “direct
duty” to refrain from torturing them.
According to Kant,
Animals may have worth insofar as they can be used as research tools, or for
other human purposes, but have no worth in and of themselves. They stand
outside the realm of rights and responsibilities that define our moral
order. The fact that Kant wrote this
during a time when Negro slaves, married women, and children, were not
recognized as persons, but rather as property, suggests his views were not
terribly different from Aristotle and Plato
and that he did not consider them worthy of moral status, either.
The most troubling
aspect of this rights-based theory of personhood is that, carried to an
extreme, it would not recognize that the irrational, comatose, pre-verbal,
severely physically or mentally challenged are necessarily entitled to
duty-based rights. An individual who is incapable of making rational choices
would not be protected by a doctrine of personhood centered on
self-determination. This result conflicts with moral intuitions: our society
protects those without rational thought, such as a newborn infant, the
comatose, the severely physically or mentally disabled, and has enacted animal
anti-cruelty laws and “humane” laws. Sometimes the matter of protection is left
to charitable organizations; sometimes laws are enacted to give government the
power to act or intervene, but only when the particular issue has reached a
public critical mass. In Western society, the law does currently offer
protection to children and incompetents under the doctrines of parens patriae, substituted judgment, or best interests, but that has
certainly not always been the case;
only in the beginning of the last century did the courts start creating these
protections.
The major flaw with the Kantian approach fails to acknowledge moral status or
respect for vulnerable populations, for those who cannot speak for
themselves. The Kantian approach
suggests that human dignity is applicable only to those who can exercise
rational, autonomous choices.
Classic
utilitarian theory, originally proposed by David Hume (1711- 1776), was
developed more fully by Jeremy Bentham (1711- 1776) and John Stuart Mill
(1806-1873). Utilitarian theory seeks to
maximize societal utility. Philosopher
James Rachels explains:
“The primary rule of morality can,
then, be stated quite simply. It is to
act so as to bring about this state of affairs, insofar as that is possible:
This being, according to the utilitarian opinion, the
end of human action, is necessarily also the standard of morality, which may be
accordingly be defined, as the rules and precepts for human conduct, by the
observance of which an existence such as has been described might be, to the
greatest extent possible, secured to all mankind, and not to them only but, so
far as the nature of things admits, to the whole of sentient creation….
In deciding what to do, we should, therefore, ask what
course of conduct would promote the greatest amount of happiness for all those
who will be affected. Morality requires that we do what is best from that point
of view.”
Classic
utilitarian theory carefully considers the treatment of nonhumans and argues
for moral concern and regard.
Traditional theological justifications for use and abuse of animals
include the reasons that man alone is made in God’s image and animals have no
souls, but at least there was the recognition that animals felt pain. Secular philosophical justifications include
reasons that because animals are not rational, and they cannot speak, they
cannot feel painor
at least pain that is not worthy of notice; this is not ancient history;
authors Rachels and Wise gives examples of this logic as recently as the 90’s.
This extreme lack of concern is distressing, if not downright unnerving. In one of his writings, Jeremy Bentham seems
to anticipate the future world of biotechnology and transgenics; he argues that
whether an individual is human or nonhuman is just as irrelevant as his or her
race:
The day may come when the rest of
the animal creation may acquire those rights which never could have been withholden
from them but by the hand of tyranny.
The French have already discovered that the blackness of the skin is no
reason why a human being should be abandoned with redress to the caprice of
tormentor. It may one day come to be recognized that the number of legs, the
villosity of the skin, or the termination of the os sacrum are reasons equally
insufficient for abandoning a sensitive to the same fate. What else is it that should trace the
insuperable lien? Is it the faculty of reason, or perhaps the faculty of
discourse? But a full-grown horse or dog
is beyond comparison a more rational, as well as a more conversable animal than
an infant of a day or week or even a month, old. But suppose they were otherwise, what would
it avail? The question is not, Can
they reason? nor Can they talk? but, Can they suffer?
So, the argument
goes, humans and nonhumans are equally entitled to moral concern. But neither
classic nor modern utilitarian theory argues that moral concern equals moral
respect or that moral concern requires the equal treatment of human and
non-humans. What does matter is that
suffering counts equally, be it human or nonhuman.
In terms of
humans, animals, and transgenic creatures, pleasure or suffering is most often
readily observable and measured in terms of the physical experience. For
example a terminally ill patient can be said to suffer unremitting pain, which
is why we administer morphine and other pain relievers. But can suffering be exclusively in the
mental realm and if so, how is it measured? At least one psychiatrist and
author, M. Scott Peck, M.D., recognizes that there may be such a thing as
unremitting psychological pain,
although he admits that it is unclear if it could be characterized as
existential angst or a chemical imbalance.
If suffering and pleasure can be experienced outside the physical realm,
then might an artificial intelligence be capable of experiencing pleasure or
pain in a non-physical way? In the futuristic films A.I. and Millennium Man,
the main characters – robots endowed with artificial intelligence – are
portrayed as experiencing an existential angst and the question of whether or
not we have created a “moral patient” is presented. As the technology progresses, the question of
what constitutes pain and suffering needs to be explored from not only a
physical basis, but from a psychological, sociological, and spiritual basis.
Philosopher H.
Tristam Engelhardt, based currently at Rice University in Texas, sees
personhood in the following terms:
It is
because members of Homo sapiens are usually self conscious, rational, and
possess a moral sense that being a human is so significant – or at least in
general secular moral terms…As angels, not to mention science-fictional
speculation regarding the rational, self-conscious entities on other planets,
indicate that not all persons need be humans.
What distinguishes persons is their capacity to be self-conscious,
rational, and concerned with worthiness of blame and praise…Fetuses, infants,
the profoundly retarded and the hopelessly comatose provide examples of human
nonpersons…Adult higher mammals enjoy their lives, pursue their pleasures, and
avoid suffering in elaborate and complex ways…But since they are not persons,
they cannot require that they be respected. … We owe to persons both respect
and beneficent regard. To animals, we
owe only beneficent regard.”
As a libertarian, Engelhardt feels strongly
that laws for protection of animals are inappropriate and are an infringement
upon our liberty rights to property. While in an ideal world, everyone would
have beneficent regard for animals, to dismiss legal protection as unnecessary
is to ignore history and humanity’s behavior to the less fortunate. His stance might likely change with the
creation of transgenic humanoids who are rational and have a moral stance, but
any creation would have to overcome the burden of first being considered
property, as slaves and women were once considered.
Yet, this modern
Kantian notion of personhood is perfectly suited for artificial intelligence.
Computers can possess reasoning skills and be made to appear autonomous.
The computer programs reason and respond in nearly human terms. Expert systems
exist that can take input, apply it to current knowledge, ask more questions if
the input is not enough, make a decision and explain their reasoning. They can
also learn new rules and learn from their mistakes.
Physicist and professor Neil Gershenfeld, author of When Things Start to Think, even proposes a Bill of Things Rights:
Things have a right to:
·
Have an
identity
·
Access
other objects
·
Detect the
nature of their environment
Gershenfeld
specifically rejects the notion of quantum consciousness, as discussed in Part
IV, and holds fast to his argument that consciousness can be replicated, and
that machines are more likely to achieve consciousness than animals, although
he never contemplates the possibility of cyborgized animal.
Peter Singer is a
utilitarian who maintains that the right act is that which
maximizes the best total consequences for everyone who is affected, either
positively or adversely, by the action.
Modern utilitarianism is seen as two types: act-utilitarianism and
rule-utilitarianism. Act-utilitarianism is the view that the rightness or
wrongness of an action is to be judged by the consequences, good or bad, of the
action itself. Rule-utilitarianism is
the view that the rightness or wrongness of an action is to be judged by the
goodness and badness of the consequences of a rule that everyone should perform
the action in like circumstances.
For example, an act-utilitarian when faced with a situation in which one option
is to tell a lie, will judge whether, on balance, the consequences of lying in
that particular case weigh in favor of the lie. A rule-utilitarian, on the
other hand, might not be concerned about the consequences of lying in the
particular situation, but would look to the consequences if everyone were to
lie in the same or similar circumstances.
Singer,
however, claims to subscribe to a modified form of act-utilitarianism, known as
"preference" or "interest" utilitarianism, which provides
that what is intrinsically valuable, is what "furthers the interests of
those affected." This departs from classical utilitarianism in
that more is considered than present pleasures and pains: future-related
desires must be calculated along with present desires in order to achieve
optimal utility, which results in a state of "well-being."
In his book, Animal Liberation, Singer argues that in
assessing the consequences of human actions – including those actions affecting
animals – it is necessary to take the interests of animals seriously. Any
adverse effects on animal interests must be weighed as part of the consequences
of human actions. Failure to do this has resulted in the systematic devaluation
of animal interests. Like Jeremy Bentham, Singer claims that speciesism is no
more morally defensible than racism, sexism or other forms of discrimination
that arbitrarily exclude humans from the scope of moral concern.
Like Jeremy
Bentham and John Stuart Mill, Singer’s notion of equal consideration does not
require that animals receive equal treatment, and it does not preclude the
morality of a decision to exploit a human or nonhuman. As long as an animal's
interests receive equitable consideration (consideration untainted by the
speciesism that discounts animal interests simply because they are the
interests of a supposed "inferior"), Singer's equality principle is
satisfied.
In a lecture at McGill
University in Montreal, March 1, 2001, Singer argued the “sanctity of life”
notion is outdated; that court cases, such as those allowing the death penalty,
termination of treatment, or sanctioning the killing of one conjoined twin to
save the other, evince a lack of “sanctity of life.” However, Singer’s lecture
failed to acknowledge the “sanctity of life” notion is subject to broad
interpretation,
and that many theologians and philosophers do not construe it as an absolute
mandate for preservation of life at all costs. Although he did not put forth an alternative,
perhaps the purpose of his lecture was to illustrate what he perceived to be a
trend that may lead to a reexamination and redefinition of what society values
in life, be it alive, inanimate, digital, or artificial.
The strife between
Kantianism and Utilitarianism is described as “scientific ideology and a denial
of ethics,”
by Bernard Rollin, in his book, The
Frankenstein Syndrome: Ethical and Social Issues in the Genetic Engineering of
Animals. He cites surveys that 80 percent of people (in the United States,
presumably) believe that animals have rights, though 84 percent also believes
that it is permissible to use animals for human benefit,
he goes on to propose a new social ethic for animals. This new social ethic
includes:
·
A belief that proper treatment of animals is a
duty (not just a matter of benevolent regard, as previously put forth by
Tristam Engelhardt, above);
·
That this duty should be legally enforceable
(i.e., through statutes and ordinances and the like);
·
That mandatory regulation be used to change the
nature of industry (agriculture, biotech, etc.) from a culture of property and
contracts to of one well-being and concern for the creatures involved;
·
That regulations ensure a proper consideration
and balancing of human benefit and animal well-being;
·
That the “telos” of an animal not be violated
(for example, the law in Sweden grants cattle “the right to graze” in
perpetuity and abolishes the confinement raising of pigs and chickens in which
the animals are not permitted to move naturally);
·
That this moral concern extend to all animals,
not just favored pets;
·
That society demand control of animal suffering
despite increased costs and loss of “efficiency.”
Unlike the
previous utilitarian-based arguments, Rollins bases his arguments on the telos
of an animal, as opposed to the physical pain and suffering of sentient
creatures. He explains telos as the
animal’s inherent nature, physically and psychologically expressed, which
determine how they live in their environments.
He goes on to explain that animal telos is
not the same as human telos, thus the rights they are entitled to are not the
same as the rights tow which humans are entitled. But he stresses that whether engaging in
transgenics, genetic engineering, cybernetic experimentation, that the animal
should be free of pain and suffering, and that what ever is being done should
not hinder or harm the animal telos. Therefore, chickens and other animals
should not be kept in cramped little cages for the purposes of economic
efficiency.
As mentioned
earlier, pain and pleasure are most often measured in terms of the physical
experience; but Rollins brings up the nature of psychological pain, in the form
of violating the telos of an animal.
He also argues,
that animals should not be considered property, that they should enjoy a status
similar to children and incompetents, although he acknowledges that all too
often, children are treated as property, too.
Joseph Fletcher,
Episcopalian theologian and bioethicist, argued for a list of fifteen
"positive propositions" of personhood. These attributes are:
·
minimum intelligence
·
self-awareness
·
self-control
·
a sense of time
·
a sense of futurity
·
a sense of the past,
·
the capability of relating to others
·
concern for others
·
communication
·
control of existence
·
curiosity
·
change
and changeability
·
balance
of rationality and feeling
·
idiosyncrasy
·
neocortical functioning.
He also posed four “negative criteria” which
are:
·
Man is not non- or anti-artificial
·
Man is not essentially parental
·
Man is not essentially sexual
·
Man is not a “bundle of rights”
This extensive
list suggests that most individuals, at one time or another are not persons.
Fletcher’s comments that a severely retarded Down’s syndrome child was not a
person and his proposal that chimeras and cyborgs be created to do man’s
distasteful or dangerous work,
led to severe criticism from his peers and the public. These beings, Joseph Fletcher called “parahumans” who he hoped would “be
fashioned to do dangerous and demeaning jobs.”
In other words, Fletcher advocated the creation of a slave race of
mostly – humans designed by us and for our use. Although his views have been branded as
“consequentialist,” which is usually viewed as a form of utilitarianism, his
arguments in the Ethics of Genetic
Control bear little resemblance to traditional or modern utilitarian
theories as set forth above. First, Fletcher’s arguments do not address the
issue of suffering, physical or mental, which is the basis of both traditional
and modern utilitarian philosophy. Secondly, the excessive stress on
rationality and intelligence is arbitrary and degrading to those who are
mentally retarded and senile. Keyserlingk notes that Fletcher’s proposal
list consequently casually excludes so many from qualifying as persons, that it
is inconsistent with any interpretation of respect or sanctity of life.
However, Fletcher’s list of traits may be
useful if personhood were a continuum, rather than as a definitive, fixed
state,a
model that has been proposed philosophically, but not yet applied in legal
theory or practice.
In his essay on
the subject, Daniel Dennett synthesized the proposed criteria for personhood
into six themes, or conditions.
For any condition to be necessary and sufficient, Dennett required that it
distinguish humans from animals and that it be objectively verifiable.
The first Dennett
condition requires that persons be rational. The second condition is the
presence of states of consciousness. Under the third condition, "whether
something counts as a person depends in some way on an attitude taken toward
it, a stance adopted with respect to it" (which is inescapably
normative). The fourth condition is the
ability to reciprocate, to view others as persons. The fifth condition is the
ability to communicate. The sixth and final condition is self-awareness, as
expressed by second-order volitional behavior.
Yet, Dennett
recognizes that if his six conditions were strictly applied, they must fail as
a sufficient condition for personhood because no human, only the metaphysical
person, could satisfy all of them at all times, not unlike Fletcher’s lists of
condition cited supra. This fault arises because not all humans
act rationally at all times, nor are humans always conscious (and thus
self-aware). Also, the conditions he sets forth are not objectively verifiable
(e.g. – Prove that I am self-aware); all individual humans lapse from
personhood at some point, utilizing these stringent benchmarks. Dennett, by
setting forth these criteria, has succeeded in creating a paradox, perhaps with
the intent of illustrating how elusive a definition is.
Philosopher Derek
Parfit, in his book,
Reasons and Persons,
argues for a reductionist view of personal identity. According to a
reductionist, persons are nothing over and above the existence of certain
mental and/or physical states and their various relations. Given this, Parfit
believes that facts about personal identity just consist in more particular
facts concerning psychological continuity and/or connectedness, and thus that
personal identity can be reduced to this continuity and/or connectedness. As
Parfit states it, "on the Reductionist View, each person’s existence just
involves the existence of a brain and body, the doing of certain deeds, the
thinking of certain thoughts, the occurrence of certain experiences, and so
on."
In other words, he claims that we should not take persons to exist apart from
the various physical and psychological events that characterize them. Like the
strict Kantian approach, this biologically based approach to personhood, does
not recognize that the irrational, comatose, pre-verbal, or severely
physically/mentally challenged as persons and leaves little room for
recognizing other possibilities of persons.
At the heart of
both Parfit’s and Dennett’s propositions is the notion of consciousness; both view consciousness as a thing, a state of
being; as either being there or not; persons have consciousness; others
don’t. If one views consciousness as a
process, as opposed to thing, as the father of modern psychology William James
suggests, then how one views “thinking” changes radically. In fact, James suggests that the “soul” might
be the unifying entity of the physical actions of many individual brain cells,
resulting in a state of consciousness.
Author Thomas M.
Georges, explains:
A reasonable
answer, it seems to me, is that there are degrees
of consciousness, and that animals (and machines) are conscious to the degree
that they possess the requisite reflexive sensory and neurological component…
It is difficult for us to grasp the idea of degrees of consciousness – probably
because we most often experience what seems to be only one of two states. It seems to most of us that we are either
conscious or unconscious, like switching a light off and on…. Yet we have all
experience altered states of
consciousness, such as being intoxicated or tranquilized…So recognizing
that we actually experience
many shades of consciousness may help us appreciate
that it is more like a continuum than an off-or-on state.
In the book The Teaching of Don Juan: A Yaqui Way of
Knowledge, Carlos Castaneda explains that achieving altered states of
consciousness is a time-honored way of understanding, or sharing consciousness
not only with the world, but all of it inhabitants.
From
this perspective, whether or not consciousness is objectively verifiable
becomes somewhat irrelevant. When we
meet another individual, if that individual acts in all respects as though he
or she is conscious, we treat them as if they are. If there is no scientific
way to objectively verify an observer’s perceptions, then isn’t it the
subjective reality that counts? Similarly, attempts to prove the existence of a
“soul” or “spirit” will defy any scientific or objective test, but that doesn’t
mean it doesn’t exist. The tension
between the search for an objective, scientific truth and subjective reality is
sometimes referred to Reductionism versus
Emergentism
or the Mystic versus the Technocrat.
Are
Reductionism/Technocracy and Emergentism/Mysticism mutually exclusive? What sort of frame of reference do these
viewpoints provide in exploring personhood? Can we reconcile these seemingly
opposing viewpoints or find commensurability? At conferences and in literature,
scientists, philosophers and others gather to seek commensurability between
these approaches, as explored in the next section.
In a call for open
dialogue, Jerome Clayton Glenn, author of Future
Mind: Artificial Intelligence (1989), writes about the merging of the
mystical and the technological in the 21st century:
How
can mystics and technocrats, so long at odds in their version of the universe,
find a common path to the future? The healthy mind of the 21st century
will be a merger of the best attitudes of the mystic and the best awarenesses [sic]
of the technocrat. Mystics must give up
their insistence on the empirical truth of their metaphysics, and technocrats
must stop denying the truth of anything that cannot be proven empirically, for
the both the mystical experience and technology transcend religious and
cultural differences. And it is the
transcendent quality of each that will allow them to merge in the Conscious
Technology of the future.”
Like Jerry Glenn’s
proposal of blending mysticism with the technological, philosophers, clergy,
physicists, and others are proposing a different
view of man’s position or standing in the arrangement of the earth and
universe; that is, different from the traditional Western notion of a special
niche (because of our rationality or because we were created in God’s image) in
the hierarchical top-down Great Chain of Being.
Although this trend may appear to be modern, it is in fact a notion that has
been with us for a long time. Professor of philosophy and religion Sam Keen
puts one view, which is suggestive of a circle or web of interdependence,
rather than a hierarchy, forth:
[T]he ecological movement has gone beyond the notion of a sustainable
economy and limits of growth to embrace a spiritual commitment to reverence for
life. Within the Roman Catholic Church, creation spirituality is capturing the
imagination of many. Thomas Berry suggests that we put the Bible on the shelf
for twenty years and learn to read the natural world as scripture. There
is a growing awareness that the ecological perspective is, in essence, a
theological revolution based on a sense
of the sacredness of all life [emphasis
added]… Systems theory has emerged as the dominant trend in most disciplines,
from psychology to computer science, replacing the old method of piecemeal
analysis, in which we broke everything down into its component parts. The
tendency in recent thought is to stress synthesis, networks, interaction,
process. The old notion that the whole
is the sum of the parts has been replaced by the idea that the parts can only
be understood as functions of the dynamics of the whole. [emphasis added] The nineteenth-century
vision of lonely billiard-ball atoms accidentally colliding with each other to
form the varieties of life has been replaced by a vision of a universe made up
of an intricate web of relationships, a net of jewels.
Similarly, but in a more popular
than academic genre, journalist and Rabbi Joshua Hammerman declares that the
Hebrew Bible alone contains dozens of different images of God, envisioning the
Sacred as everything from a male warrior to a mother eagle, and that each of
these represents not only a view of divinity, but also a way of looking at the
world and ourselves.
The growing interest in discussing humankind’s status in the earth and
universe, reflected in popular bestsellers illustrates that this discourse is
reaching beyond academic circles.
In a trend toward
converging science and theology (or as Jerry Glenn might say, mysticism), even
twentieth century science has made a departure from the mechanistic outlook
introduced by Newtonian physics and embodied in the philosophy of Descartes. In
The Dancing Wu Li Masters,
physicist Gary Zukov gives a variation on continuity of mind, body and
soul; for in the macroworld of the galaxies and in the microworld of subatomic
particles the Newtonian laws of nature do not apply. Zukov relates them to the
mystical experience of the universe as one interconnected whole. In the modern view of the cosmos, Newton's
theory of gravitation has been incorporated into Einstein's General Theory of
Relativity.
Nobel Laureate
Werner Heisenberg sounds more like a philosopher than a physicist when he waxed
reverent about the dramatic implications of randomness in the universe and the
consequence of human observation on our scientific knowledge, which is more
commonly known as Heisenberg’s Uncertainty Principle. Heisenberg's Uncertainty
Principle, is based on the observation that on the smallest scale, the
phenomena are governed by the quantum theory, and that it is impossible, for
example, to know both the position and the velocity of a particle precisely at
the same time. Paul Davies interprets
this principle to suggest (in layman’s terms) that mind, body, soul,
consciousness, time, matter and space are inter-related and to view humanity as
somehow being separate and elevated is an illusion. He concludes: "Through conscious beings
the universe has generated self-awareness. This can be no trivial detail, no
minor by-product of mindless, purposeless forces. We are truly meant to be
here."
In contrast to the
traditional hierarchical worldview represented by the Great Chain of Being,
these authors present an alternate worldview could be described as a circle of
interdependence or web of interconnectivity, showing humans in a very different
relationship to the world and universe.
The
difference between Reductionism and Emergentism could be described as
“bottom-up” vs. “top-down” theory, but that characterization itself is a matter
of debate. Typically, the religious or spiritual approach has been described as
“top-down” in the sense that God or the Creator is at the pinnacle, acting down
on the world impose order and moral principles,
very much like the Great Chain of Being delineated earlier. The scientific approach has typically been
described at the “bottom-up” theory, starting with the laws of physics at the
bottom level, with principles of evolution creating the more complex levels.
Arthur Peacock writes that a form of reductionism is intrinsic to all
scientific explanation: “The breaking-down of unintelligible, complex wholes
into their component units, the determination of the structures of those pieces
and what functions they can perform, and then the fitting of them together as
best one can, hypothetically at least, in order to see how they function
together in a complex whole, are such common ploys in experimental science that
most practising scientists would consider it scarcely worth remarking upon.” For example, a typical reductionist approach
to understanding the human body would entail breaking it down into its smaller
components (such as heart, kidneys, and liver), then looking at the purpose and
function of those organs and breaking them down to a cellular level, and then
breaking the cells down to molecular and atomic level. An Emergentist view might say that the
significance of the human body is that it is the vessel of our God-given
essence, our soul. The Reductionist
scoffs at the Emergentist because for lack of “scientific proof” and the
Emergentist regards the Reductionist as myopic. Yet, as Albert Einstein said,
“Science without religion is lame, religion without science is blind.”
However, an altogether
new view of Emergentism has been recently put forth in an attempt to “force an
abandonment of both caricatures of explanation as simplistic abstractions.” Biological anthropologist Terrance Deacon,
described this different view of Emergentism as “not yet a scientific theory,
but a metascientific conjecture, born of extensive evidence of systems that
exhibit spontaneous, ‘bottom-up’, self-organizing phenomena and [that are] in
response to a degree of ‘top-down’
influence.” In other words, the universe is
“bio-friendly;” creativity is intrinsic in the system. Deacon gives as an example, snowflakes. Snowflakes are beautiful, intricate, and incredibly,
unique. The usual reductionist analysis
fails to explain why each and every snowflake is unique; the usual emergentist
analysis conjures up an image of a very busy deity, furiously churning out an
infinite variety of crystals; neither approach is very satisfying. Deacon’s emergentism is consistent with a
belief that all that actually exists are physical objects controlled by
physical laws, but the nature of the universe encourages diversity and infinite
variety. In seeking the “middle way”(a
phrase borrowed from Buddhism), this revised version of emergence is consistent
with the view of a holistic inherently self-creative universe as described in
many nonwestern spiritual traditions. This alternative worldview could be
described as a pyramid; while still hierarchical, reflecting a more
interdependent and interconnected view of man in relation to the earth and
universe; this view also suggests that Earth is only one manifestation of
creative processes intrinsic in the Universe’s design.
In addition Deacon’s attempt at commensurability, Arthur
Peacocke calls for an open, global theology, characterized by six main
features:
·
It
will seek a convergence of common core beliefs
·
It
will seek to learn from complementary beliefs in other traditions
·
It
will be prepared to reinterpret its beliefs in the light of new,
well-established factual and moral beliefs
·
It
will accept the full right of diverse belief systems to exist
·
It
will encourage a dialogue with conflicting and dissentient views
·
And
it will try to develop sensitivity to the historical and cultural context of
the formulation of its own beliefs, with a preparedness to continue developing
new insights in new cultural situations.
Whether or not
Peacocke succeeds in convincing the world of a need for a global theology, the
challenge has been summoned; it is a chance to “perceive the natural, evolved
commonalities of humanity in a new light.” As I remarked earlier, this trend towards
re-examining humankind’s source of origin and position in the earth and
universe, is one that is reaching beyond academic circles.
The notion of
personhood and legal rights that attend the status of personhood have evolved
significantly, albeit slowly, over the last few thousand years.
Women, children, and slaves have been considered property, rather than persons,
starting with Plato and Aristotle. In ancient Greece (approx. 500 B.C.), slaves
and women were bought, sold, and traded in the same manner as oxen or other
property.
Five hundred or so years later, Roman law, which had a tremendous impact on the
development of nineteenth century American law,
gave the male head of household the right of life and death over his wife,
children, and slaves. A "person" in Roman law included
every being who had rights, while a "thing" included everything that
could be considered as the object of the right of a person; those beings who
were believed to lack free will — women, children, slaves, the insane, and
nonhuman animals — were classified as property.
From the time of
the Romans until the fourteenth or fifteenth century, the law of Europe was a
melting pot of Roman law, canon law from the Catholic Church, and chthonic
law. Intense debates between theologians and philosophers of the time produced
various justifications for property (divine law, res
nullius,
natural law, human law), but the recognition of
slaves, women, and children as persons rather than property was not a part of
these debates. Even Sir William Blackstone, author of Commentaries
on the Laws of England, who had considerable influence on the
importation and adaptation of English common law in America, relied on a
combination of Roman law and the Holy Bible to sanction his observations of
property rights.
The
focus on the significance of the individual person began to change with the
growing influence of Christianity and the Catholic Church.
Canonical courts were set up by the Catholic Church to resolve territorial
disputes, and one of the first western systems of resolving disputes and
enforcing judgments, in a formal manner, was born.
Canon law, however, was limited to subjects of the Church, but the system grew
to incorporate Roman law, chthonic law, and, eventually, civil law. Ecclesiastical proceedings first were
recorded in the fifteenth century in the areas bordering France, Switzerland,
and Italy, and ultimately took place in Germany, Spain, the Scandinavian
countries, Brazil, and Canada.
Laws started to become codified, courts became the interpreters and the
enforcers of the law.
The Magna Carta, composed in 1215, was inspired and based on a combination of
Roman law and Christian influences.
The status of women improved somewhat in this
environment; much of the law concerning marriage, especially Anglo-American
jurisprudence, is derived from canon law.
Canon law decreed marriage to be a status, a contract, and a sacrament whose
purpose was to produce children and whose properties were unity and
indissolubility.
Despite proclaiming to be
“enlightened” about marriage, the Church took its time in formulating a
universal prohibition against violence in compelling marriage. And the dowry,
which survives today as the trousseau or hope chest, is a vestige of the time
when men purchased women by giving something of value to the woman’s father.
When the husband married the daughter, she was converted, along with the dowry,
into the husband's property.
In fact, the treatment of women as property is still happening today in the
country of India in the practice of
“bride-burning.”
Although the practice is illegal, law enforcement officials and courts are
often slow to prosecute.
Under
the common law of both England and the United States, a married woman enjoyed a
legal status only slightly better than that of a slave.
In 1767 in the United States, women were bought and sold as slaves as evidenced
by the recorded transfer of a wife. At the same time, a man could, in the eyes of
the law and the church, legally beat his slaves, and his wife, as they were
both his property. The phrase "rule of thumb" derives
from the law that a man could beat his wife with a rod no bigger around than
his thumb.
Women didn’t fare much better in Canada; in l860, the Canadian Supreme Court
said the law required the sacrifice of the wife's comfort and convenience to
the wishes and authority of the husband; and, in l873 the Court said that the
law required the wife to bear some indignities, and even some violence, before
the court would sanction her leaving her husband.
And prior to 1929, women were not recognized as “persons” to the courts.
The status of
women did not start to change significantly until the mid-to-late eighteen
hundreds. The emergence of the Woman's
Movement was linked, temporally and ideologically, with the drive to end
slavery. Under laws of the time, neither slaves nor
women could go to school or vote; neither could bring cases in court nor
testify against the master; neither could own property or control their own
bodies.
The
plight of slaves did begin to change in 1772 with the famous English slavery
case of Somerset v. Stewart. James Somerset, a young black man abducted and
forced into slavery, made a bid for freedom in England.
His master, Charles Stewart, sought to retain Somerset as his property;
Stewart’s lawyer argued that slavery could continue in England because no law
forbade it.
Somerset’s lawyer countered, “upon what Principle is it – can a Man become a
Dog for another Man[?]”. Chief Justice of the King’s Bench, Lord
Mansfield proclaimed ‘fiat justicia, ruat coelumtet’ (“let justice be done, though the
heavens may fall”)
and held:
The state of slavery is of such a nature that it is incapable of being
introduced on any reasons, moral or political, but only by positive law… It is
so odious, that nothing can be suffered to support it put positive law. Whatever inconveniences, therefore, may
follow from the decision, I cannot say that this case is allowed or approved by
the law of England: and therefore, the black must be discharged.
In Canada, in 1793
the Lieutenant-Governor of Upper Canada (today’s Ontario), John Graves Simcoe,
presented a bill to the government to abolish slavery in Upper Canada and the
bill passed unanimously; slavery was abolished in the rest of Canada in 1834.
Changes progressed
more slowly in the United States; in 1856, the infamous case of Dred Scott v. Sanford
came to be heard in front of the United States Supreme Court.
Dred Scott sought relief from the
courts against John Sanford, a N.Y. resident, arguing that he was a free
citizen. His former master, Dr. Emerson, a U.S. army surgeon took him to
Illinois and into the Louisiana Territory (Minnesota). Illinois prohibited
slavery in its Constitution, as did the 1820 Missouri Compromise in the
northern portion of the Louisiana territory. Scott sought to assert his freedom
and that of his family. In a seven- to-two decision, Justice Taney delivered
the opinion of the court:
They
[Negroes] had for more than a century before been regarded as beings of an
inferior order, and altogether unfit to associate with the white race, either
in social or political relations; and so far inferior, that they had no rights
which the white man was bound to respect; and that the negro might justly and
lawfully be reduced to slavery for his benefit.
He was bought and sold, and treated as an ordinary article of
merchandise and traffic, whenever a profit could be made by it… [the
Constitution] then proceeds to say: "We hold these truths to be
self-evident: that all men are created equal; that they are endowed by their
Creator with certain unalienable rights; that among them is life, liberty, and
the pursuit of happiness; that to secure these rights, Governments are instituted,
deriving their just powers from the consent of the governed." The general
words above quoted would seem to embrace the whole human family, and if they
were used in a similar instrument at this day would be so understood. But it is too clear for dispute, that the
enslaved African race were not intended to be included, and formed no part of
the people who framed and adopted this declaration;
The decision had
the effect of placing blacks, even freed black slaves, at the same level
legally as domestic animals. The decision helped propel the United States
toward the Civil War. After the Civil
War, the Supreme Court ruling was rendered impotent by the passage of the
Thirteenth and the Fourteenth Amendments to the United States Constitution, in
1865 and 1868 respectively. In these
amendments, Congress abolished slavery and involuntary servitude,
and expressly granted males liberty, regardless of race or citizenship status,
and sought to protect their civil rights.
However, Congress did not extend the right to vote to black males until it
adopted the Fifteenth Amendment
in 1870.
Until
the adoption of the Fifteenth Amendment, advocates of the women's rights
movement in the United States in the nineteenth century considered black males'
legal status to be similar to their own – that of "second-class
citizens" – citizens with some civil, but no political rights.
In December 1872, Virginia L. Minor challenged Missouri's constitutional
restriction of voting rights to males as a violation of the Fourteenth
Amendment.
Although the Court recognized that although women were United States citizens,
under the 14th Amendment, the Privilege or Immunity clause did not
encompass voting rights for women.
Women's rights advocates compared the Supreme Court's holding in Minor to that in Dred Scott, supra,
constitutionalizing women's status as second-class citizens.
Just as with Dred Scott, the effects
of Minor ultimately would only be
reversed by constitutional amendment. The Nineteenth Amendment finally gave
women of the United States the right to vote in 1920.
In Canada, a
breakthrough for women came in a decision rendered by the British Privy
Council, acting as Canada's highest Court of Appeal, determining that women
were “persons” in Canada.
Lord Sankey likened the Canadian constitution to a “living tree capable of
growth and expansion within its natural limits”
in his expanded interpretation of the Canadian constitution. The adoption of Section 15
of the Canadian Charter of Rights and Freedom in 1982 has statutorily
solidified the equality of women.
Just as the progression of
women and slaves from no-rights-as-property to persons-with-full-rights had a
turbulent history, the historical legal status of children has been fraught
with obstacles, also. Barbara Bennett Woodhouse explains that well into the nineteenth century, a father could enroll his
male children in the army and collect the enrollment bounty, betroth his minor
female children to persons of his choice, put his children to work as day
laborers on farms or factories and collect their wage packets.
As recently as 1920, a parent who killed a child in
administering punishment could claim a legal excuse for homicide in nine
states. A father had the power to decide where and
with whom his child would reside, and to transfer his children by testamentary
disposition to someone other than their mother.
Those who have
supported a child-centered vision of parents' rights encountered opposition from those who
viewed such a vision as an attack on the fundamental rights of parents.
The resistance to accepting children as persons with rights of their own has
been illustrated in historic moments such as the movement to limit child labor;
when legislation to protect children from exploitation was proposed, it was
greeted by alarmist opposition as an attack on the fundamental rights of parents to control their children.
Political theorists such as Thomas Hobbes and John Locke
put forth arguments justifying adult power over children. Hobbes argued that parental power was based
on an implicit contract (the infant "agrees" to obey the parent in
exchange for the parent's forbearance from allowing the helpless infant to
perish). Locke contended that God was the true owner
of children; that God created children and gave them into their parents' care;
therefore, parental powers were a form of trusteeship of the Creator's
property. Even Blackstone accepted this conception of
parental right as a reflection of parental responsibilities without question.
Although the status and protection of children has
improved, and parents have been given broad authority to speak and act on
children's behalf, Woodhouse argues that the ratification of the United Nations
Convention on the Rights of the Child is necessary to clarify
the status of children; that the convention will ensure that courts worldwide
will look at the “best interests” of the child first, rather than parental
rights.
Compared to the
state of the world thousands of years ago, as in the case of Egyptian and Roman
slaves, or even in the Middle Ages, with serfdom and feudalism, or even a few
hundred years ago with slavery in North America, the notion of basic human
rights has taken roots and grown strongly, albeit slowly. From the original
seed(s), be it from religious or secular, we have grown to embrace the notion
of basic human rights (with notable exceptions).
These rights have
been recognized in documents such as the Magna Charta, the United States
Constitution, the Canadian Charter of Rights and Freedom, the European
Convention on Human Rights, the UN Declaration on Human Rights; but even these
are subject to interpretation by courts and cultural values, as explored
below. It has been asserted that human
rights can be accommodated within a variety of cultures if a wider view is
taken of the nature of human rights.
Persons,
recognized in the courts through judicial and statutory definition, have come
to include a variety of entities and characters, including the
"natural" – women, slaves (as exemplified in the previous section),
human aliens,
illegitimate children,
minors, as well as “unnatural,” such as corporations, labor unions,
nursing homes, municipalities, and government units.
Currently,
“natural” persons are biological beings, limited only to humans, although
“human” is not defined.
A more proper term for “unnatural” persons as referred to above is “juridical”
person.
How does a court create a “juridical” person?
The United States Supreme Court has employed the “legal fiction” – a
construct used to create rights for convenience and to serve the ends of
justice. It has been typically used under the guise of a court’s interpretation
of statutory language. For example, in 1886 case of Santa Clara County v. Southern Pacific Railroad Co., 113
U.S. 394, the United States Supreme Court, for the first time, declared that a
corporation is protected by the same rights as natural persons for purposes of
the Fourteenth Amendment Equal Protection Clause, rather abruptly and without
much explanation or analysis. Two years later, in Pembina Consolidated Silver Mining & Milling Co. v. Pennsylvania,
125 U.S. 181 (1888), the Court reaffirmed corporate personhood under both the
Due Process and Equal Protection clauses of the Fourteenth Amendment, again,
without detailed analysis.
Despite its
dubious origins, the corporation now undoubtedly qualifies as a
“constitutional” person (i.e. a person who is protected by the Constitution of
the United States; one who is granted constitutional rights), though not
without limitations. For example, a corporation cannot claim Fifth Amendment
Due Process rights against self-incrimination.
American case law
has been grappling with the question of fetal and embryonic life for over a
hundred years;in
1884, the case of Dietrich v. Inhabitants
of Northampton,
was perhaps one of the earliest. In this
case, the Supreme Court of Massachusetts reviewed a lower court decision
regarding a fatal injury to a fetus: a
woman who was four to five months pregnant fell on a defective road in the town
of Northampton; the fall precipitated a miscarriage of the fetus.
The fetus lived for about ten to fifteen minutes, and plaintiff brought a claim
based on a statement by Lord Coke of England; Coke had conjectured that if a
woman is "quick with child,” takes a poison or is beaten, thereby causing
the death of the child, then this constitutes a murder. Holmes, however, noted that no court had
ever permitted an action to be maintained by an infant who experienced injuries
in his mother's uterus and went on to distinguish the Dietrich case, arguing
that at the time of the injury, the fetus was part of the mother, and therefore the mother could recover damages for injuries to the fetus. The fetus, being an appendage, however, had
no standing to sue separately.
Kayhan Parsi
explains that the metaphor of a person, property or as appendage has been used
by the courts to describe the human embryo or fetus. Citing Bonnie Steinbock, Parsi comments that
this makes the status of the unborn very unclear:
For example,
the legalization of abortion in 1973 was based in part on the unborn's never
having been recognized in law as a full legal person. At the same time, fetuses
have been considered as persons for the purposes of insurance coverage,
wrongful-death suits, and vehicular homicide statutes. The legal status of the
unborn thus appears to vary from jurisdiction to jurisdiction, from context to
context, according to our purposes.
The minimalist view, illustrating
the appendage metaphor, is where the nonviable fetus is little more than a form
of the pregnant woman's bodily tissue; it is part of the woman without separate
identity or status.
This view de-emphasizes the importance of the fetus's separate genetic identity
and recognizes no moral status; fetal remains are discarded in the same manner
as other by-products of surgery, simply thrown away.
The metaphor of fetus as property
gives quasi-property rights, giving
family members the right to dispose of the fetal tissue, but not the right to
sell or profit from it.
The metaphor of fetus as person,
applicable to 3rd trimester fetuses, derives not from complex
biological or scientific study, but is based on the simple, emotional reaction
to the fact that it looks like a baby.
The
legal status of early embryonic life started becoming an issue in the 1970s and
1980s, with IVF (In Vitro Fertilization) and frozen embryo cases, where the
plaintiff’s claim and treatment by the courts implied the quasi-property approach.
Some philosophers, notably Tristam Engelhardt, have defended the notion of
viewing embryonic material and fetuses as property, albeit, "as a special
form of very dear property ... [and that] privately produced embryos and
fetuses are private property."
A “14-day
standard” approving the experimentation of human embryos has been adopted by
ethics commissions in several nations, including Australia, Canada, the United
Kingdom (the Warnock Report),
Denmark, and until reversed recently, the United States.
Up to 14 days, a "pre-embryo," is not differentiated from other
tissue; at 14 days, a structure called the “primitive streak” appears, which
will become the brain and spinal column and which differentiates embryo from
placenta.
Before 14 days, there is no possibility of pain or sentience and no cells that
will definitely become part of an individual.
Although this standard has not yet been utilized in setting a legal standard
for status by any courts yet, it will likely set a foundation for future
deliberation.
As Kayhan Parsi has argued, “embryos and fetuses are neither persons in a
strict sense, nor are they mere things. Because of their potential personhood,
as well as their relational status to persons, they merit a certain moral
status…conferred status, in addition to a certain intrinsic status. Embryos and
fetuses have an intrinsic status because of their potential personhood, as well
as being a part of the continuum of biological human life.”
Currently, the
United States Supreme Court has chosen to exclude 1st and 2nd
term fetuses as “persons” under statutory or constitutional protection,
under the case of Roe v. Wade, citing
viability as the drawing line between appendage and person. The drawing
of this line as a way of balancing the maternal/fetal conflict has come under
fire in more recent cases;
the difficulty with setting the line at viability is that is not biologically
fixed in time. The Supreme Court noted in Planned Parenthood v. Danforth, that
“[W]e recognized in Roe that
viability was a matter of medical judgment, skill and technical ability, and we
preserved the flexibility of the term.” As mentioned earlier,
advancements in technology are sure to lead to earlier viability status,
particularly if the plans for the artificial womb come to fruition.
Currently, in Canada, viability plays no role in determining personhood; in the
case of Winnipeg Child and Family
Services v. D.F.G., the Supreme Court of Canada held:
The law sees
birth as the necessary condition of legal personhood. The pregnant woman and
her unborn child are one. Finally, to make orders protecting fetuses would
radically impinge on the fundamental liberties of the pregnant woman, both as
to lifestyle choices and how and as to where she chooses to live and be."
This ruling in Canada leaves an
uncomfortable lacuna from a moral standpoint. While it is heralded in women’s
rights circles as a victory,
the Court’s denial of any rights to the viable, sentient unborn ignores the
ambivalence of what has been called the “troubled middle.”
If there is anything approaching a consensus on the status of fetuses and
abortion, it is that later term (i.e., 2nd and 3rd
trimester) abortions are significantly more morally problematic than early
abortions.
The balancing of
the maternal-fetal interests is presently unavoidable, but will be irrelevant
once the technology of artificial or exogenic wombs develops further; the
courts and/or legislatures will need to revisit the issue of what constitutes a
“person.”
As illustrating by the cases cited
in Part V, Section B-1, the courts have the power to extend rights and
liberties depending on its interpretation of “person.” Michael Rivard has
suggested such an interpretation that would possibly extend the rights of
transgenic humanoid species.
Could a genetic definition
of personhood be helpful in working our way through this maze of ethical and
legal issues?
Each human cell
has 46 chromosomes. These 46 chromosomes are duplicates (i.e. there are 23
pairs of them). Males have one chromosome pair that is different and it is
called XY, in females these matching chromosome pairs are XX (identical chromosomes
in the pair). The problem of using a genetically based definition of humans or
persons is that even minor variations or genetic alterations on the human
genome would cause the exclusion of certain individuals from “personhood.” Hypothetically, a gene sequence from an
animal could be inserted into a human chromosome for the purposes of
enhancement, and there would be no way to verify if that had occurred or not.
In other words, if
one were to look at the human genetic code as a jigsaw puzzle, even a slight
rearrangement of the pieces can result in an entirely different creature. Ninety seven percent of our genome consists
of the genes we share with other species – chimps, fruit flies, even common
brewer's yeast. An analogy might be found in a comparison
between a dictionary and the Bible – although both are printed word, using the
same alphabetic code, the result and impact is extremely different. Because so much of our genetic make up
overlaps and is commonly shared with a great number of species, a genetic
definition is of little use.
What of a
biological definition that relies on species definition? A scientist could argue that distinguishing
traits between species are manifestations of the genetic material of each
species. However, the definition of
species is a hotly debated and contentious issue among scientists, producing
reams of publications. Darwin argued that "species" are
not "real" entities in nature. A summary of some definitions of
species grouped as different species concepts shows the
deliberation among scientists:
Typological species concept: A species is a group of individuals
expressing an underlying unitary ideal in which the variation seen among the
individual’s imperfect manifestations of the "type." Its conceptual origins
lie with Plato and Aristotle.
Morphological
species concept: Morphological similarity (or dissimilarity) is the sole
criterion for determining species. Thus, the degree of individual morphological
similarity or difference (vs. distinctiveness) is the primary, decisive
criterion of species status. In other words, different species are organisms
that look different.
Biological species concept: In basic biology, every student is
taught that the designation "species" is one level of classification
in what has come to be known as the "Linnean Hierarchy" of Taxonomic
levels. Other levels of classification include the
genus, the family, the order, the class, the phylum, and the kingdom. So what is commonly referred to as Homo sapiens, Homo is the genus, and sapiens
designates the species.
The family is Hominidae (apes and man), the order of Primates (femurs, monkeys,
apes, and man), the class is Mammalia, the phylum is Chordata (or vertebrates),
and the kingdom is animal. In principle, individuals from one population
could mate with individuals from another population of the same species and
crossbreeding between species would not occur.
Evolutionary
species concept: A species is a lineage (an ancestor descendant
sequence) of populations or organisms that maintains its identity from other
such lineages and which has its own evolutionary tendencies.
Phylogenetic
species concept: An irreducible cluster of organisms that is distinct from
other such clusters, and within which there is a parental pattern of ancestry
and descent. This concept focuses on biological traits used to differentiate
one lineage of organisms from another and the branching patterns, and where
lineages diverge.
Recognition
species concept: A species is the most inclusive population of individual
biparental organisms that share a common fertilization system. This concept
focuses on those biological traits (reproductive traits) involved with the
reproductive systems within species: fertilization processes and genetic
compatibilities.
Ecological species concept: A species is a lineage (or a closely
related set of lineages) that occupies an adaptive zone minimally different
from that of any other lineage in its range and which evolves separately from
all lineages outside its range.
Nominalist species concept: A species is an arbitrary class or
cluster of organisms given a name as a handle.
The huge varieties
of definitions reflect changing theory, and the different purposes to which the
species are used by individuals. Even if
we could agree that the biological species concept would be the accepted
definition of species, species grade into one another in time as they evolve
one into another. As populations evolve
through time, they change enough that any scientist looking at them would
decide they are two separate species (the morphological species concept). For
example, it is accepted now that orangutans and humans are separate species.
But about 15 million years ago, when the ancestor of orangutans and humans was
dwelling in East Africa, if one could create a genealogical chart of the
populations that descended from that ancestor, we would find that two separate
lines have descended from that single species. Each thread would contain multiple species;
we could not tell when one species evolved into the next, because all along the
way, parents had offspring, and the offspring found compatible mates, and so
on. How do we decide where Homo erectus
has evolved into Homo sapiens?
Currently, anthropologists are avoiding the issue by coining new names for
"species" in between: Homo heidelbergensis, Homo antecessor, Homo
neanderthalensis, for example, but that simply underscores the difficulties in
the shades of gradation.
There was no event when suddenly all the adults in a particular population had
mutant offspring who were the first generation of a new species; the process
was so subtle, so gradual, it almost defies these arbitrary groupings. The uncomfortable truth is that species
differentiation is not as clear-cut as some would like it to be.
George J. Annas has proposed an international
“human species protection treaty,”[302]
with
the intent of protecting basic human rights.
His proposal suggests that we need to set up an international criminal
tribunal that will ban “human replication cloning and genetic engineering, but
also human/machine cyborgs, xenografts, artificial organs, embryo research, and
brain alterations.”
The treaty
proposal overlooks several points: aside from the obvious difficulty there
would be in reaching a consensus as the definition of human, there is an
underlying assumption that tampering only with the human species presents
a risk; the proposal does not anticipate that human genes inserted into another
species or artificial intelligence may create a sentient life form that is
worthy of moral respect and status. Should the use of every human gene sequence
be banned from insertion into another species? Too late for that.
How many human genes would it take to make another species have those human
characteristics we hold so dear? When does a "non-human" with human
genes become human, deserving full human rights? If we hold with the biological species
concept definition, you could conceivably have a gene-altered or implantable
brain chip enhanced orangutan who has almost every human quality except the
ability to interbreed with humans.
Should this creature be denied basic rights, such as the right to be
free from torture, enslavement, murder, and imprisonment because he or she
cannot mate with a human? Annas rightly
asks “if human rights and human dignity depend on our human nature, can we
change our ‘humanness’ without undermining our dignity and rights?”[305] Nonetheless, in light of the fact that
current laws of the United States or Canada do not prohibit patenting and
marketing of DNA sequences, cell lines or stem cells of derivative of human
origin,[306]
the question needs to be rephrased: “Can we preserve human rights and human
dignity despite that fact our ‘humanness’ and human nature is changing?”
The Council for
Responsible Genetics (CRG) is an international nonprofit organization of
scientists, environmentalists, public health advocates, physicians, lawyers and
other concerned citizens. The CRG last year drafted its “Genetic Bill of
Rights” which asserts that “all people have a right to a world in which living
organisms cannot be patented, including human beings, animals, plants, and all
of their parts.”[307] If this were to become international law, it
would be a major step towards preventing the scenario that Annas so rightly
fears of a race of slaves or sub-humans; any incentive to create such creatures
would be lost for lack of financial gain.
The elimination of patents would also “preclude granting any one scientist
or group of scientists dominion over the future of the species.”
[308] Unfortunately, given the current “culture of
property”[309]
and emphasis on economic rights, this seems unlikely to occur. Annas’ treaty proposal is an admirable
attempt to create an international tribunal to enforce basic rights and
dignity. His draft proposal does not attempt to define the “human species”,
either because of difficulty in reaching a consensus or perhaps, because in
order for this tribunal, as well as other courts, to prevent the nightmare
scenarios that Annas outlines, the definition of “human” needs to be liberal
and take into account that man does not exist in a vacuum. As Kayhan Parsi has argued, it is unnecessary
for a person to be biologically human; a creature with a very different genetic
structure can be classified as a person.[310] As Annas points out, “Science cannot save us
from our inhumanity toward each other”[311], but the
hope is that the law can.
This issue is explored in depth in a
law review comment published in 1992 by Michael Rivard, entitled Towards a General Theory of Constitutional
Personhood: A Theory of Constitutional Personhood for Transgenic Humanoid
Species.
Rivard starts off
with a strong analysis and compelling arguments as to why a judicial
interpretation should be expansive, as opposed to restrictive, in granting
“constitutional” personhood. He falters,
however, when he cites Dennett’s criteria
and
then uses those criteria to justify restriction of liberties to the “mature,
average self-aware” species whose mental capacity matched or exceed the mental
capacity of humans.[314]
Why Rivard cites Dennett’s
propositions, particularly self-awareness, as evidenced by what Dennett terms
‘second-order volition’ as a characteristic that distinguishes human from other
animals, is puzzling. Dennett cites
evidence of self-awareness in nonhumans with two illustrations of second-order
thinking in animals. In one example, he had a friend whose dog was whining to
get into the only chair in which he was allowed to sit, but was occupied by his
master at the time. When the master would not get up, the dog went to the door
and scratched as though wanting to go out. But when the master rose to open the
door, the dog quickly ran back to seize the chair. Dennett sees this act of
deception, based upon anticipating the reaction of the master, as not only
second-order, but also third-order intentionality. Likewise, when my longtime
canine companion stealthily seeks to pull down the tablecloth off the dining
room table to cause the food to come crashing down, this reflects second-order
thinking. Dennett insists that the actions of the dog are done with
intentionality and are sufficient to posit intelligence, not just thinking the
thoughts, and reflect just as much a second-order intentional system as any
human.[315] Just as Dennett’s criteria fail to meet the
requirement of being objectively verifiable, Rivard’s proposal needs to be
reconsidered if it is to be consistent with the criteria he sets forth,
including Dennett’s yardsticks.
In a Georgetown
Law Journal article entitled Is There a
Person in That Body?: An Argument for
the Priority of Persons and the Need for a New Legal Paradigm,Charles
Kester argues for a Uniform Definition of Persons Act (UDPA).
The proposed act
reads as follows:
§ 1. An individual whose body sustains the
functions necessary for consciousness is a "person" for the purpose
of construing any and all statutes. An
individual whose body is irreversibly incapable of sustaining the functions
necessary for consciousness is not a person.
§ 2. If
an individual whose body is irreversibly incapable of sustaining the functions
necessary for consciousness at one time was an individual whose body sustained
the functions necessary for consciousness, that individual is a dead person.
§ 3.
Bodily functions necessary for consciousness shall be defined by
accepted medical theories.
§ 4. The presence or absence of bodily
functions necessary for consciousness shall be determined in accordance with
accepted medical standards.
§ 5. Membership by an individual in a genetic
species whose constituents possess bodies that sustain functions necessary for
self-consciousness creates a rebuttable presumption that the individual is a
person.
§ 6. A biological organism is an individual for
purposes of § § 1 to 5 if and only if that organism possesses a complete
genetic code. All non-biological objects
are individuals for purposes of § 1 to 4.
[317]
His definition,
would eliminate problems with a strictly biological definition, and be more
encompassing. But support for this
definition needs to be analyzed from moral and ethical viewpoints. Also, this
definition fails to acknowledge the view that moral respect and legal status
may be granted to nonconscious persons. Also, Kester goes on to state that both
animals and the fetus possess minimal consciousness, although not
self-consciousness. He makes the
distinction that the fetus, however, has the potential to develop
self-consciousness, whereas animals do not.
He argues that the distinction is neither pedantic nor merely semantic,
for consciousness is of “ontic” significance to personal identity.[318]
This definition is flawed at a
variety of levels: first, he fails to define consciousness and then fails to
distinguish that from self-consciousness.
Also, he presumes that everyone knows what self-consciousness is, even
though it fails the test of being objectively verifiable. Like Rivard, supra,
Kester cites Dennett’s criteria in support of this view, but fails to come to
the logical conclusion from Dennett’s observations that animals are capable of
self-consciousness, as evidenced by second-order volition. Interestingly enough, this section 6 of
Kester’s definition might allow for a human cyborg to be recognized as a
person, but Kester deliberately allows for artificial intelligence.[319] If consciousness is of “ontic significance,”
how could he prove that AI develops consciousness when he dismisses out-of-hand
for other creatures? In the words of
Kayhan Parsi, it is puzzling to me why so little attention should be paid to
the interests of sentient animals, who can suffer, and so much concern
expressed on behalf of beings, who, we have good reason to believe, cannot
experience harm or suffering at all.[320]
a.) Rachel
Fishman’s Statutory Proposal
Rachel E. Fishman,
in a law review article that was a first of its kind,[321]
raises
the possibility of “biohackers” and refers to science fiction visions of armies
of genetically engineered slaves. She
argues that to prevent the loss of legal rights of an altered human being who
may no longer be found to be a member of the human species, it is imperative
that the definition of "human being" be expanded. Is it not better to
err on the side of generosity rather than parsimony when depriving a being of
his or her legal rights? Is it not preferable that the definition be broad
rather than narrow, particularly when it comes to protecting basic liberties?
Although defining the qualities that make a creature human is a perennial
problem in philosophy and medicine, she argues that it is worth striving for.[322]
To address these potential
future problems, Fishman proposes legislation that the term “human being” mean:
(i) any genetically altered
animal possessing one or more higher faculties such as:
a) the ability to
reason (including, but not limited to, the ability to use facts and argue them,
to arrive at conclusions from premises in a logical
manner, to explain observed phenomena and to form beliefs based on facts);
b) the ability to
evaluate principles and observations to arrive at reasoned
decisions;
c) the ability to
formulate speech and communicate;
d) the ability to
develop meaningful personal relationships with other human
beings on the basis of equality;
e) the
demonstration of awareness of self as a unique and separate being;
the ability to feel concern for others; or any
other higher faculty;
or
(ii) any creature
born of the ovum and sperm of parents who are human beings, whether or not the
union of ovum and sperm was in utero, and whether or not the
genetic material of the resulting embryo was scientifically altered.
This definition is
the only one of the three proposed above in this paper that satisfies our intuitive
moral considerations; but some might argument that this definition is overly
broad so as to include too many animals. However, this approach is one that is
gaining recognition; the Canadian Biotechnology Advisory Committee recognizes:
[W]hereas current
laws can make the decision not to patent humans essentially one of practicality
if not ethics, the question becomes more difficult when the exclusion of
animals of various species is considered. If certain non-human animals are to
be excluded, should it be those that are quantifiably similar to humans (for
example, a certain percentage of genetic variance from humans), or animals that
are qualitatively similar to humans (for example, their ability to think and
reason)?”
Also, some might argue that considering
other species somehow “denigrates” the human race. But when a broad category of beings exists
whose lives are considered expendable, almost anyone can be assigned there, as
the history of slavery shows.
Once someone has been reclassified as a “lesser” being or less than fully
human, they too can be exploited and manipulated with impunity.
b). The United Nations Resolution
In a similar
manner, the broader approach to “persons” can be accommodated if a wider view
is taken, striving for commonalities rather than distinctions.
United Nations Resolution A-RES-37-7, the World Charter for Nature, declares:
a) Every form of life is unique, warranting
respect regardless of its worth to man, and, to accord other organisms such
recognition, man must be guided by a moral code of action…
The resolution is
a plea that life forms, other than those falling with the traditional concepts
of human, are worthy of moral status. It also establishes a common scale of
value that both human and nonhuman life have intrinsic worth. Some might argue that humans need to learn to
live peacefully with other humans before we can learn to live with other
intelligent beings, human-or-not. The process need not be exclusive – in fact,
I would argue that the processes of learning to live with each other and others
are intertwined and inseparable. Perhaps
those who fear that granting dignity and rights to other life forms will result
in loss of human dignity do so because of the lack of dignity that has
historically been afforded to “lesser” beings.
If we are no longer at the top of the heap, then can we expect to be
treated with respect and dignity?
In a manner akin
to Ivan Illich’s call for a return to “proportionality”
and H. Patrick Glenn’s search for commensurability,
a balancing approach, in the form of property – personhood continuum is
suggested in the next section.
Just
as legal traditions reflect so much of the normativity of a culture, the ways
that the four principles of bioethics (autonomy, beneficence, nonmalificence,
and justice) are weighted and considered also reflect many of the norms of a
culture. So it is with this in mind, that I
propose the property – person continuum, with a balancing approach at each end
point of the continuum. If one views the
concept of personhood on a legal continuum, at one end of the spectrum, you
would have property, such as inanimate objects, land, and those things that
cannot suffer at the other end. Towards the center of the spectrum would
recognize the notion of quasi-property,
an idea that was recognized long ago in 1872 by the Rhode Island Supreme Court,
with regard to the treatment of dead bodies, as well as used recently in frozen
embryo cases. Further along the spectrum, the notion of quasi-personhood would provide an
opportunity to address what Kayhan Parsi has referred to as the “troubled
middle.” As one approaches the center of the continuum
you would have basic rights, which would consist of primarily negative
liberties, such as the right to be free from torture, the right to be free of
restrictive physical confinement or imprisonment, and right to maintain bodily
integrity. At the other end of the
spectrum, you have the Kantian ideal of the fully autonomous rational
individual, with the attending full course of negative and positive rights,
such as the right to vote and the right of self-determination as well as the
responsibilities that attend those rights. A balancing test is applied; the more
apparently rational, autonomous, or communicative an individual is, the more
rights he, she, or it has. To a large extent, the development of the case law
by the United States Supreme Court could be interpreted to have created such a
continuum, balancing test. For example, minor children cannot vote and do not
have full legal rights of self-determination, nor do the incompetent; but we do
not conduct experiments on them simply because they cannot communicate.
Similarly, a corporation has rights to own property, but cannot maintain the
Fifth Amendment privilege against self-incrimination. When we create sentient Artificial
Intelligence and/or transgenic creatures should we extend to them, at the very
least, the same protections as we currently extend to children and
incompetents? As “creators,” like parents, do we have attendant
responsibilities as moral agents? Could this approach be used to deny sentient
beings rights? The pros and cons of this balancing approach is perhaps best demonstrated
through some illustrative, not-too-far-in-the-future, hypothetical case
scenarios:
Case scenario 1: Through genetic manipulation, scientists have
created baby chimpanzees with human vocal cords. Although it unclear how extensive the
vocabulary of the chimps might be, preliminary reports indicate that some of
chimps have a similar capacity for language as young children under the age of
five. Some of the scientists herald this
as a major breakthrough for clinical trials and other biomedical research;
other scientists and animal rights groups argue that experimentation on and
restrictive confinement of these chimpanzees is unethical and constitutes the
creation of a slave race. One side is
saying that these chimpanzees are “property” and the community has no say in
their living conditions or treatment, but at the same time, quick to reassure
the public that the chimps are being treated “humanely.” Animal rights groups, who have been arguing
all along that chimpanzees can communicate, say this is just one more reason
that chimpanzees and other primates should be granted moral and legal status as
“persons.”
A petition is filed seeking a declaratory judgment. Statutory law in the United
States and Canada provides no clear-cut answer.
One of the advantages
to applying the property – personhood continuum and a balancing approach would
be in the flexibility of the courts in considering the issues. What facts are
relevant? Does the fact that these
creatures are over 99% genetically identically to humans merit consideration,
especially with the addition of vocal cords and language? Does the fact that they have the ability to
communicate change things, or is it that up until now we have been unable or
unwilling to communicate? What liberty
and/or property interests are at stake? Another advantage that courts have is
the ability to administer a remedy that is proportionate to the rights and
interests of those who lack full autonomy.
For example, a court can recognize a minimum negative rightor
liberty interest to maintain bodily integrity, and thus be free from
enslavement or vivisection, without extending any other positiverights
or liberties.
On
the flip side, the same flexibility can be seen as a possible disadvantage in
that this balancing approach could be used to strip existing rights from the
weak or disabled and to justify racism, bigotry or other hierarchical bias, as
was done in the Dred Scott case,
discussed supra. The adoption and
endorsement of statutory language like that proposed by George Annas, Rachel
Fishman, and the United Nations is critical in delineating intent and
preventing a detrimental outcome. Whatever the decision would be, such a
scenario would open a debate on how our society treats sentient beings and
would hopefully, help us think “outside the box” of our current laws.
Case scenario 2:
A few years
ago, Mr. and Mrs. D came into a fertility clinic; Mrs. D had a partial
hysterectomy and was unable to carry a child to term, but the couple indicated
they would like to have children sometime in the future. The couple has several
embryos frozen for future use, to be implanted into either the husband (a male
pregnancy) or an artificial womb; both husband and wife agree that in the event
of death or divorce, the embryos may be donated to another couple or used for
research. Several years later, the
artificial womb or male pregnancy technology is perfected, but the couple
divorces. Mr. D remarries, goes into the
fertility clinic with his new wife (the new Mrs. D), doesn’t inform the clinic
about the divorce (and the clinic either doesn’t think to ask or perhaps Mr. D
even deliberately misleads the clinic) and proceeds to have the clinic implant
the embryos into the new artificial womb the clinic installed a few months ago. Two of the embryos take, and within six
weeks, are developing nicely; the formation of a brain and spine is readily
evident. Of course, about the same time,
the former Mrs. D. finds out what her ex-husband has done and hires a lawyer to
go into court and have the embryos destroyed.
The
application of the property – personhood continuum allows the court to go where
no court has gone before: with the issue
of viability no longer applicable and the problem of the mother as
“reproductive conduit”
removed, the court need not be limited to the appendage metaphor. In this scenario, while the application of
the continuum allows new notions of personhood and property to emerge, the
impact of such decisions may negatively impinge other interests (e.g. – a
person’s interest not to have his/her genetic material dispersed?) and bring up
questions with which we are not yet prepared to deal (e.g.- Does the State have
an interest in protecting these developing embryos?).
Case Scenario 3: The Shadow Government has covertly designed a
new breed of cyborg-soldiers,
for the purposes of law enforcement or “peace-keeping” missions. They are
physically more machine than organic tissue, but their intellect is run by a
neural interface with brain tissue that has been donated for research. They have the ability to communicate, make
rational decisions and have served their purpose. As time goes by, the cyborg-soldiers are no
longer needed, or become outdated, and are relegated to cleaning toxic waste,
hazardous duties, or repetitious chores.
Some of the cyborg-soldiers simply seek freedom; others revolt, and
declare that they are superior, and start acting violently, destroying
property, possible creating a threat to the community and public at large. The government seeks to destroy them,
claiming they are mere property, but some have escaped and seek refuge.
The application of
the property–personhood continuum allows the courts to recognize potential
rights or liberties, and also to attribute responsibilities that correspond to
the recognition of rights and rationality. With the granting of rights to
rational autonomous beings, comes the burden of responsibility. Under the current dichotomy, a court cannot
hold a piece of property liable; but in applying the property-personhood continuum
the court can allocate responsibilities corresponding to the rights. Also, in
the same way that parents may be held responsible for the actions of their
children,
the creators or manufacturers of the cyborg could be held liable; their actions
as creators of sentient beings could very well imbue them with duties as moral
agents. The right to create potentially
sentient beings carries with it the corresponding responsibility to an as yet
indeterminate, but definite, degree for the their (the created sentient beings)
actions and impact on the human community, the biosphere of the earth and the
universe as a whole.
A comment in the
April 2001 Harvard Law Review,
notes that law often serves as a repository for expressions of anxiety about
powerful and divisive social issues, as in the case of slavery dividing the
country prior to the Civil War. In addition to functioning as a “conceptual
bran-tub,”
the law can actually shape behavior by creating social norms that people use to
measure the morality and worth of their actions. Eric Posner argues that when the law signals
a certain set of values, it facilitates behavioral changes, by sending a signal
about what behavior is unacceptable (perhaps causing people to engage in those
actions less frequently), and acts hermeneutically, shaping and changing the
beliefs people hold. The casuistic approach of the property –
personhood continuum is not an easy one, but it is an approach that can grow
and evolve, and take into account the complexities of new developments in both
society and biotechnology.
As to the argument that we somehow
“denigrate” humanity by granting moral respect and/or standing to a nonhuman
through the legal system, I respond that this is a classic problem with the
“hierarchical” perspective. Although the
courts are necessarily engaged in the interpretation and application of
fundamental notions of status, the current case law in the United States is
based primarily on the Judeo-Christian hierarchical paradigm, despite the claim
of separation of church and state.
The system has yet to recognize that other worldviews and other valid
perspectives exist; at some point a claim will arise that the state has
violated religious freedom by refusing to acknowledge that the distinction
between person and property is not as clear cut as the current economically
conservative United States Supreme Court of today might say.
The other flaw in suggesting that we somehow
“devalue” humanity by granting respect and protection to other creatures is
that it suggests that things and people are valuable because we value them, not
because they have inherent value. I argue that it is important to recognize
fundamental interests, such as the liberty and dignity and worth of each life, regardless
of its worth to man; that rights are based on irrefutable principles of
justice, fundamental fairness, and reasonableness.
Much
of this argument relies on the age-old debate of cultural relativism versus
absolutes: Are things or beings or ideas valuable because we value them or
because they are inherently valuable? If they are valuable only because we say they
are, then it follows that they must lack value if we don’t value them. This cultural relativist approach would
suggest that slave trade was morally acceptable because of the time and norms;
that the killing doctors of the Nazi concentration camps did nothing wrong; and
that the Tuskegee syphilis researchers were justified in their approach because
the victims were less than human. If one
takes a cultural relativist approach, the entire notion of basic human rights
is a fraud and the work of the United Nations is worthless. If things, beings,
ideas are valuable, then they must be accorded basic respect and liberties, and
the law needs to enforce and recognize those. To paraphrase Kayhan Parsi, the
metaphor of stewardship suggests a certain moral regard that does not
necessarily invoke the traditional metaphors of person, property or appendage;
the metaphor of stewardship suggests that these creatures are within our moral
regard; that they should not be treated as mere things, but rather, with the
recognition they have certain intrinsic and conferred interests. I believe that the way we treat ourselves is
a reflection of the way we treat the universe; what we give out is what we get
back; and that the law should express our most noble aspirations.
As different forms of life are created
through transgenics, genetic engineering, and artificial intelligence, the
courts and legislatures will be forced to determine where these creations fall
on the person – property continuum.
Although the current trend in the United States Supreme Court is to
emphasize economic and property rights, cultural change eventually leads to
legal change. Despite intermittent
setbacks, the overall history of the United States Constitution has been one of
increasing protection and expansion of individual rights and liberties.
In proposing my property-personhood continuum,
an approach that is broader rather than narrower, I am striving for
commensurability, a concept that has been put forth eloquently by H. Patrick
Glenn, in his book, Legal Traditions of
the World.
Incommensurabilities exist when there is a vacuum of a common scale of
values. However, two people who hold
incommensurable values can create common ground when one or
both changes their values, empathize, or agree to disagree and work towards a
common goal. When this happens it is a joy to behold;
witness the shift from acceptance of slavery to the abolishment of it; witness
what happened in South Africa with Apartheid.
Thankfully, a small but emerging part of humanity seems to realize that
finding common ground is the key to our survival on our planet; unfortunately,
a good part of humanity has not yet come to grips with that. Unless we humans strive for commensurability,
the alternative is war and strife.
A recently popular bumper sticker proclaims, “Change is inevitable; Growth is
optional.” In the parlance of today’s youth, another way to say this might be:
“Change Happens; Deal with It.” Although I may not see this balancing approach,
property – personhood continuum, adopted as a legal standard in my lifetime, if
the world is to survive, eventually the intersection/interaction of this world’s
cultures, philosophies, religions, and laws will force this to occur.
As
to the argument that we somehow “denigrate” humanity by granting moral respect
and/or standing through the legal system, I respond that this is a matter of
perspective. I do not see it as
denigrating to have humanity shift from a hierarchical
paradigm
to a paradigm of humanity as nurturing caregivers, protectors of life and
liberty, guardians of the weak and fragile, and stewards of the earth and all
its inhabitants. Indeed, that is one of
the most ennobling aspects of being a lawyer, an advocate, a counselor-at-law.
Although the hierarchical paradigm may still be the most predominant, other
paradigms are emerging, such as the circle of interdependence and emergent
pyramid. These paradigms are gathering strength from modern philosophers,
lawyers, bioethicists, theologians, and the general citizenry, all of whom can
and should provide input to prudent changes in the legal system.
Until then, we can
expect intense cross-disciplinary debate, and discussion as new intelligent
life is created through science and medicine and recognized legally, morally,
and ethically.
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