A Legal Perspective on Humanity, Personhood, and Species Boundaries

While debates about the morality of therapeutic versus reproductive cloning or whether human beings should be genetically enhanced are currently in vogue, Jason Scott Robert and Françoise Baylis (2003) are correct in noting that little is being said about chimeras and the creation of new species. As I have previously written (Glenn 2003), further advances in the blending of nonhuman animal and human embryonic tissue could result, intentionally or not, in chimeric entities possessing degrees of intelligence or sentience never before seen in nonhuman animals. These mix'n'match creations could impact the next phase of our evolution but most certainly will challenge our concepts of what it means to be human and what it means to be a "person." How might these new creations fit within the context of historical ethical and legal analysis? An analysis of the law adds a further layer of complexity to the "moral confusion," especially because the law, at least in the United States, does not require humanness to be a necessary condition for "personhood." A historical review of the law reveals that nonhuman animals (as well as slaves, women, and children) have been considered "property," while nonhuman entities, such as corporations, municipalities, and ships, have been recognized and given rights as "persons" (Glenn 2003). Yet, slowly and over time (hundreds of years), legal and moral notions of "persons" and "human rights" have evolved and expanded. Despite intermittent setbacks, the overall history of the U.S. Constitution has been one of increasing protection and expansion of individual rights and liberties. Although there has been no attempt on the part of any legislature or court to attempt to define "human," there have been proposed definitions in academic literature, legal and philosophical (Glenn 2003).

Robert and Baylis set forth two standard Western frameworks for attributing moral status, both of a hierarchical nature, then declare them to be incommensurable. Rather than declaring these frameworks to be incommensurable, I would argue that this presents an opportunity to examine other frameworks for attributing moral status, including a wholistic or interdependent approach. As Robert and Baylis note, the idea of the Great Chain of Being has crumbled; alternative frameworks can provide commensurability, starting with the premise that both human and nonhuman life has intrinsic value and is worthy of moral status. This is a view consistent with environmental and global ethics. Does this premise somehow "denigrate" humanity's status? Not if it is applied with the perspective of stewardship (Glenn 2003).

Which leads to another important question raised by the spawning of highly intelligent nonhuman beings through technology: What moral and legal obligations do we have to these novel entities that we have helped to create? Phrased another way, what ethical obligations might science have to promote the survivability of the novel sentient chimera, a de novo endangered species? Is it comparable to the obligation that parents have to their children, because their actions brought them into existence?

Some in the bioethics community have argued that a complete ban on experimentation with human embryos is warranted—that research that blends human nature with other natures alters our understanding of personhood, undermining our notion of human dignity and human rights (Annas, Andrews, and Isasi 2002). But such a ban assumes that tampering solely with the human species presents a meaningful risk; the ban does not anticipate that human genes inserted into another species might create a sentient life-form that is worthy of moral respect and status. Should every human gene sequence be banned from insertion into another species? As Robert and Baylis point out with their introductory examples, we are far beyond that point. Current U.S. and Canadian laws do not prohibit the patenting and marketing of DNA sequences, cell lines, or stem cells of human origin. How many human gene sequences would it take to make another species have those human characteristics we hold so dear? When does a...