Of Elephants and Embryos: A Proposed Framework for Legal Personhood

Abstract

What is a person? What responsibilities or obligations do we have to entities that we recognize as persons under the law? These are not simply theoretical questions. Louisiana recently became the first state to statutorily designate ex utero embryos as "juridical persons," with rights to sue and be sued. The battle over stem cell legislation is at base a battle over whether the embryos destroyed to harvest the cells should be considered persons. The international "Great Ape Project" seeks to imbue non-human primates with attributes of legal personhood. The Defense Advanced Research Projects Agency (DARPA) is pushing the limits of human-machine interfaces in an attempt to create better persons, or even replacement "persons" that can perform jobs in lieu of human beings. One might easily imagine the creation or discovery, in the near future, of an entity that is of equal moral status with human beings, but not genetically human. Far from being mere science fiction, questions of legal personhood have already faced courts and legislatures and are likely to become more relevant as technology advances.

Despite the need to provide answers to these issues, legal personhood has largely been ignored outside the corporate context, although many philosophers have struggled with the concept of moral personhood. Although this Article deals indirectly with questions about moral status, its focus is on legal status and the ways in which the law should recognize rights and interests of certain entities. It argues that there are two bases for according legal personhood status (either natural or juridical), and consequently the rights and protections that go along with the status. It then considers the implications of the proposed framework to various entities including: embryos and fetuses, non-human animals, and machines with artificial intelligence. The result of the analysis provided should be three-fold - a richer understanding of legal personhood as currently applied (e.g., to human beings and to corporations), the development of a framework for evaluating the personhood status of novel or not currently recognized entities, and a better theoretical reconciliation of some apparently inconsistent laws regarding persons.

Keywords

Embryos, fetuses, legal personhood, non-human animals, machines with artificial intelligence

Publication Date

2007

Document Type

Article

Place of Original Publication

Hastings Law Journal

Publication Information

59 Hastings Law Journal 369 (2007)

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COinS Jessica Wilen Berg Faculty Bio