Of elephants and embryos: A proposed framework for legal personhood

Hastings Law Journal

Volumn 59, Issue 2, 2007, Pages 369-406

  Berg, Jessica ^a  

^a CASE WESTERN RESERVE UNIVERSITY   (United States)

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EID: 40949112884     PISSN: 00178322     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (180)

1. Byrn v. N.Y. City Health & Hosp. Corp., 286 N.E.2d 887, 889 (N.Y. 1972).
2. LA. REV. STAT. §§ 9:121, 123 (1999).
3. See, e.g., Evan Y. Snyder & Jeanne F. Loring, Beyond Fraud - Stem-Cell Research Continues, 354 NEW ENG. J. MED. 321, 321-24 (2006) (describing the generation of stem cells after somatic-cell nuclear transfer and the discovery that a prominent stem cell scientist had fabricated much of his research in this area).
4. President Bush seems to have taken the stance that embryos are moral persons, and thus entitled to legal protections. See Dana Bash & Deirdre Walsh, Bush Vetoes Embryonic Stem-Cell Bill, CNN.COM, Sept. 25, 2006, http://www.cnn.com/2006/POLITICS/07/19/stemcells.veto/index. html.
5. See GAP: Great Ape Project, The Great Ape Project: An Idea, A Book, An Organization, http://www.greatapeproject.org (last visited Nov. 22, 2007).
6. See generally DARPA Office Programs, http://www.darpa.mil/body/ off_programs.html (last visited Nov. 22, 2007) (listing DARPA projects).
7. Consider machines with artificial intelligence or extraterrestrials (E.T.): should E.T. or artificially created persons be considered legal persons? See generally Robert A. Freitas, Jr., The Legal Rights of Extraterrestrials, 97 ANALOG SCIENCE FICTION/ SCIENCE FACT 54, 67 (1977) (noting that an extraterrestrial would not have the status of personhood and would have no legal rights but that Congress could decide to create a new legal classification-the "pseudo-person"-which grants the E.T. a measure of rights and responsibilities).
8. I will adopt an interest theory of rights in this Article, rather than competing "choice" or "will" theories. See generally THEORIES OF RIGHTS 9 (Jeremy Waldron ed., 1984).
9. See generally William E. Buelow, Comment, To Be and Not to Be: Inconsistencies in the Law Regarding the Legal Status of the Unborn Fetus, 71 TEMP. L. REV. 963 (1998);
10. Murphy S. Klasing, The Death of an Unborn Child: Jurisprudential Inconsistencies in Wrongful Death, Criminal Homicide, and Abortion Cases, 22 PEPP. L. REV. 933 (1995).
11. See, e.g., Note, What We Talk About When We Talk About Persons: The Language of a Legal Fiction, 114 HARV. L. REV. 1745, 1746 (2001) (stating that "although no coherent body of doctrine or jurisprudential theory exists regarding [the legal metaphor "person"], a set of rhetorical practices has developed around it"). But see Jane English, Abortion and the Concept of a Person, 5 CAN. J. PHIL. 233, 233 (1975) (pointing out that there is no clear agreement regarding the concept of "person").
12. See, e.g., Lawrence Lessig, The Law of the Horse: What Cyberlaw Might Teach, 113 HARV. L. REV. 501, 502 (1999) (arguing that there may be no specialized law of the Internet, there is something to be learned by examining the legal regulation of cyberspace).
13. See, e.g., Philippe Ducor, The Legal Status of Human Materials, 44 DRAKE L. REV. 195, 199 (1996) (arguing that although "the notion of a 'constitutional person' is uncertain," that "[a]ll persons certainly have ... a minimum bundle of constitutional rights, which can never be suppressed without challenging the person's very dignity and existence," and that "no U.S. case law exists on the equivalent of the hard nucleus" but claiming "it would include the right to due process, the right to own property, the right to bodily integrity, the right to live, and the right not to be owned");
14. Kathleen Guzman, Property, Progeny, Body Part: Assisted Reproduction and the Transfer of Wealth, 31 U.C. DAVIS L. REV. 193 (1997). Although there may well be a core of rights of persons, I will not analyze whether Ducor's list is correct. Furthermore, Ducor takes the position that "everything short of a person will be considered an object"-a framework I clearly reject because I argue that embryos can be considered both subjects and objects of rights. Ducor, supra, at 200. However, since Ducor makes clear he is coming from a continental/civil law perspective it is possible that our disagreements stem from our familiarity with, and embedding in, different legal systems. Moreover, he explicitly "categorizes the embryo or fetus in the womb with other body parts before their separation from the person." Id. at 206. He rejects the notion of giving embryos outside the womb interim status and holds they are objects. Id. at 211. Living fetuses are to be considered subjects while they survive outside the womb (as are viable fetuses after delivery - e.g., babies). Id. at 212.
15. See generally Lori B. Andrews, The Legal Status of the Embryo, 32 LOY. L. REV. 357 (1986) (discussing history of treatment of fetus and embryos as persons or property under various areas of law). For example, the Bankruptcy Act includes individuals, partnerships, and corporations, but not governmental units, as persons. See 11 U.S.C. § 101(30) (2000). Under Ohio's corporate laws, which are typical, "person" is defined to include, "without limitation, a natural person, a corporation, whether nonprofit or for profit, a partnership, a limited liability company, an unincorporated society or association, and two or more persons having a joint or common interest." OHIO REV. CODE ANN. § 1701.01(G) (West 1994). Foreign governments are "persons" with the right to sue for treble damages under § 4 of the Clayton Act. See Pfizer, Inc. v. Gov't of India, 550 F.2d 396, 399 (8th Cir. 1976), aff'd 434 U.S. 308, 320 (1978). Municipalities and other governmental units are "persons" under 42 U.S.C. § 1983. Cook County, Ill. v. U.S. ex rel. Chandler, 538 U.S. 119, 122 (2003);
16. Monell v. Dep't of Social Services, 436 U.S. 658, 690 (1978). An unborn child is a "person" for purposes of tort (wrongful death) and criminal law (feticide/Crimes Against Unborn Children Acts) in many states. See Michael Holzapfel, The Right to Live, the Right to Choose, and the Unborn Victims of Violence Act, 18 J. CONTEMP. HEALTH L. & POL'Y 431 (2002) (summary of state law). Eighteen states follow a "born alive" rule of recovery for prenatal injuries. Id. at 451. Other states apply a viability standard at the time of injury. See Sandra L. Smith, Note, Fetal Homicide: Woman or Fetus as Victim? A Survey of Current State Approaches and Recommendations for Future State Application, 41 WM. & MARY L. REV. 1845, 1851 (2000);
17. see also Miller v. Kirk, 905 P.2d 194, 196 (N.M. 1995) (analyzing state wrongful death cases). In the context of employment law, employers covered by civil rights law include any "natural" or "juridical" persons employing persons in return for any kind of compensation, for profit or nonprofit purposes, as well as their agents and supervisors. See 42 U.S.C. § 1983 (2000). Local governments, municipal corporations, and school boards are "persons" subject to liability under 42 U.S.C. § 1983, which imposes civil liability on any person who deprives another of his federally protected rights. See Monell, 436 U.S. at 683.
18. See, e.g., Jacqueline Lipton, Information Property: Rights and Responsibilities, 56 FLA. L. REV. 135 (2004).
19. See, e.g., Cass Sunstein, Standing for Animals (with Notes on Animal Rights), 47 UCLA L. REV. 1333, 1336 (2000) (suggesting that animals have rights, regardless of whether they have standing, and also that they should be given standing, even though they are not persons).
20. See WESLEY NEWCOMB HOHFELD, FUNDAMENTAL LEGAL CONCEPTIONS 75-76 (Walter Wheeler Cook ed., 1923) (stating that all rights of persons are against other persons, and that there is no such thing as a right against a thing).
21. Id.
22. See Sunstein, supra note 15, at 1336.
23. See, e.g., David Schmahmann & Lori Polacheck, The Case Against Rights for Animals, 22 B.C. ENVTL. AFF. L. REV. 747, 760 (1995) (pointing out that animal rights "must mean reposing in the government a wholly new and undefined set of powers, presumably to be exercised on behalf of an entirely new and vague constituency" and further questioning "[w]hat sort of fearsome bureaucracy would purport to institutionalize, standardize, and write regulations pertaining to animals' rights and interests implicated by all legislation").
24. U.S. CONST., amend. XIV, § 1 ("All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.") (emphasis added). Thus, there appear to be certain fundamental rights of all persons, although citizens may have additional protections compared to non-citizens (as do residents versus nonresidents of a particular state).
25. 410 U.S. 113, 158 (1973).
26. See, e.g., Holzapfel, supra note 13.
27. The Court is understandably wary of recognizing new constitutional rights. Thus, for example, in the recent physician-assisted suicide cases the Court found that there was no federal constitutional right at stake, and thus states would have to decide whether or not to create a state constitutional or statutory right. See Vacco v. Quill, 521 U.S. 793, 797 (1997);
28. see also Washington v. Glucksberg, 521 U.S. 702, 705-06 (1997).
29. Juridical persons are also referred to as "artificial," "juristic," and "fictitious/fictional" persons. See Trs. of Dartmouth Coll. v. Woodward, 17 U.S. (4 Wheat) 518, 636 (1819) ("corporation is an artificial being");
30. Sanford A. Schane, The Corporation Is a Person: The Language of a Legal Fiction, 61 TUL. L. REV. 563,563-65 (1987) (referring to corporations as fictional persons).
31. See, e.g., 1 U.S.C. § 1 (2000) (stating that the word "person" in any Act of Congress includes, unless the context indicates otherwise, "corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals");
32. see also N.C. G.S. § 12-3(6) (1986) (defining "person" to include political bodies and corporations).
33. I do not intend to take issue with this assertion, although one could certainly argue that the preference for natural persons is an artifact of their power at the time we initially created legal protection (had there been non-human persons in power at that time, those other entities may well have had priority in a rights hierarchy). This is an argument for another piece, and thus I start my evaluation of legal personhood from the initial premise that natural persons are entitled to priority.
34. See Roe v. Wade, 410 U.S. 113, 158 (1972).
35. Ronald Green, Toward a Full Theory of Moral Status, AM. J. BIOETHICS, Nov.-Dec. 2005, at 44-45 (2005) (noting that "[b]estowals of status reflect what moral agents allow each other to do with the entities in question, or what is the same thing, what limitations agents are willing to impose with respect to such entities on each other's liberty of action").
36. RONALD DWORKIN, LIFE'S DOMINION 113-14 (1993).
37. Some authors talk about moral status and some talk specifically about (moral) personhood. The term "person" when used in a moral context is not necessarily coterminous with "human being." See, e.g., H. TRISTRAM ENGELHARDT, JR., THE FOUNDATIONS OF BIOETHICS 104 (1986) ("Persons, not humans, are special."). Engelhardt goes on to argue that persons have higher moral standing than other living creatures, including human embryos and fetuses. Id. at 110. His test for personhood revolves around membership in a moral community and specifically "capacity to be self-conscious, rational, and concerned with worthiness and blame and praise." Id. at 107. He also notes that non-humans can be persons, such as extraterrestrials. Id. Other commentators have argued that certain higher reasoning animals should be considered moral persons. Whether these entities are entitled to legal status is an issue I will touch on below. See discussion infra Part II.B.
38. See English, supra note 10, at 234-35 (noting that no single criterion can capture the concept of a person but that a "'person' is a cluster of features, of which rationality, having a self-concept and being conceived of humans are only part").
39. Interestingly, English goes on to point out that "a fetus lies in the penumbra region where our concept of a person is not so simple. For this reason I think a conclusive answer to the question of whether a fetus is a person is unattainable." Id.
40. See generally EMBRYO EXPERIMENTATION: ETHICAL, LEGAL AND SOCIAL ISSUES (Peter Singer et al. eds., 1990). For a bibliography of different moral personhood arguments see James Park, Personhood Bibliography, http://www.tc.umn.edu/ ~parkx032/B-PERSON.html (last visited Nov. 4, 2007).
41. See, e.g., Park, supra note 31. Whether or not one can determine moral status solely on evaluation of characteristics is beyond the scope of this Article. See generally George Khushf, Owning up to Our Agendas: On the Role and Limits of Science in Debates About Embryos and Brain Death, 34 J.L. MED. & ETHICS 58, 59 (2006) (arguing that science will not answer the questions about the moral status of embryos).
42. See generally BONNIE STEINBOCK, LIFE BEFORE BIRTH: THE MORAL AND LEGAL STATUS OF EMBRYOS AND FETUSES (1992) (listing and analyzing the different arguments);
43. MARY ANNE WARREN, MORAL STATUS: OBLIGATIONS TO PERSONS AND OTHER LIVING THINGS (1997).
44. JOEL FEINBERG, HARM TO OTHERS 34 (1984).
45. STEINBOCK, supra note 33, at 40-41. Identifying the exact point at which moral personhood applies to a developing human may be important, but is not necessary for the arguments made in this Article. An entity may or may not meet the criteria for moral personhood, but that does not answer the question of whether legal personhood rights should be recognized.
46. Id. at 18, 20.
47. Steinbock spends quite a bit of time in her book discussing the implications of the "interests" approach as well as different uses of the word "interests." Id. at 14-41. I will not repeat those arguments here, but will accept the use of the term as defined by her.
48. I am considering whether to apply legal personhood status in the first place, not how to evaluate whether that status has been lost or how it should be handled for individuals who were previously identified as natural persons but have currently lost the ability to form interests.
49. The interests of others can include an interest related to an entity without interests. That is to say, I might have an interest in something happening to my car (which itself does not have interests). Likewise, assuming without argument that plants do not have interests, I might have an interest in preventing the death of my plants.
50. This is consistent with the Supreme Court's recognition that state interests in protecting potential human life become stronger as a pregnancy progresses. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833,869 (1992).
51. STEINBOCK, supra note 33, at 85.
52. Roe v. Wade, 410 U.S. 113,162 (1972).
53. See, e.g., Note, supra note 10, at 1763-64 (describing the conflict between different notions of personhood inherent in abortion and feticide laws). It may be that the application of tort and criminal law to actions involving fetuses are based on concerns about other's rights and are not tied to whether the fetus is a person under the law. Lawrence C. Becker, Human Being: The Boundaries of the Concept, 4 PHIL. & PUB. AFF. 334, 348-50 (1975) (noting that "[a] duty not to kill ... may be justified by reference to the consequence for the agent or society" rather than "reference to the victim's ability and title to lay claim to the duty"). It is also possible that the jurisdictions that have such apparently conflicting statutes are in error and one or the other approaches should be reconsidered.
54. Taber's medical dictionary defines "anencephalus" as a "[c]ongenital absence of brain and cranial vault, with the cerebral hemispheres completely missing or reduced to small masses." TABER'S CYCLOPEDIC MEDICAL DICTIONARY 100 (17th ed. 1993). Interestingly it goes on to state that the condition "is incompatible with life." Id. In fact, anencephalic infants may survive for some short period after birth, if the brain stem is present and with a variety of technological interventions. Cognition, however, remains impossible. Nor do such infants feel pain. See infra note 103 and accompanying text.
55. STEINBOCK, supra note 33, at 30-36.
56. See, e.g., Lawrence J. Nelson & Michael J. Meyer, Confronting Deep Moral Disagreement: The President's Council on Bioethics, Moral Status, and Human Embryos, AM. J. BIOETHICS, Nov.-Dec. 2005, at 33, 35 (2005) (providing a general theory of moral status that gives born human beings the same moral status as moral agents, even if they lack moral agency).
57. See Faith Lagay, Considering Organ Donation by Anencephalic Neonates, VIRTUAL MENTOR, Aug. 2004, http://virtualmentor. ama-assn.0rg/2004/08/code1-0408.html#10;
58. see also AMA COUNCIL ON ETHICAL AND JUDICIAL AFFAIRS, Opinion 2.162, Anencephalic Infants as Organ Donors, in CEJA ANNOTATED OPINIONS 16 (1992);
59. AMA COUNCIL ON ETHICAL AND JUDICIAL AFFAIRS, Opinion 2.162, Anencephalic Infants as Organ Donors, in CEJA CURRENT OPINIONS WITH ANNOTATIONS 30 (1994);
60. AMA COUNCIL ON ETHICAL AND JUDICIAL AFFAIRS, Opinion 2.162, Anencephalic Infants as Organ Donors, in CEJA CURRENT OPINIONS WITH ANNOTATIONS 33 (1996);
61. see also AMA Council on Ethical and Judicial Affairs, The Use of Anencephalic Neonates as Organ Donors, 273 J. AM. MED. ASS'N 1614 (1995).
62. Yet even as our legal system accepts that at birth humans are entitled to full legal protection, it does not truly afford babies and even children equal status with competent adult human beings. Part of the difficulty is certainly the need to have someone else articulate and promote the rights of children since they are unable to do so for themselves. But another part of the lack of equal status is the continued recognition of parent's property interests. Property interests attach at the initial developmental stages of the embryo. They do not extinguish, but rather are progressively limited by the development of personhood interests as the entity matures. For an interesting discussion of parental rights relating to children (although not termed as property rights) see Harry Brighouse and Adam Swift, Parents' Rights and the Value of the Family, 117 ETHICS 80 (2006).
63. Human infants are commonly referred to as neonates during the first six weeks of life after birth.
64. Or, to put it another way, we have limited capacity to test newborns for cognitive ability.
65. Jane English concludes that some of the restrictions on late-term abortions or infanticide can be justified not because the entity in question is a person, but because "[o]ur psychological constitution makes it the case that for our ethical theory to work, it must prohibit certain treatment of non-persons which are significantly person-like ... [lest we] undermine the system of sympathies and attitudes that make the ethical system work." English, supra note 10, at 241;
66. see also PETER CARRUTHERS, THE ANIMALS ISSUE: MORAL THEORY IN PRACTICE 115-16 (1992);
67. CARSON STRONG, ETHICS IN REPRODUCTIVE AND PERINATAL MEDICINE: A NEW FRAMEWORK 57-58 (1997) (discussing the external form and similarity arguments);
68. A.V. Townsent, Radical Vegetarians, 57 AUSTRALIAN J. PHIL. 85, 93 (1979).
69. Legal death, or brain death, is determined by the absence of brain function even though artificial means may be in use to maintain heartbeat and respiration (traditionally death was determined by the absence of heartbeat and breathing).
70. Interestingly, although newborn gorillas are also reminiscent of newborn humans we do not afford them legal personhood protections. Perhaps their form is not close enough, or perhaps it is a mistake not to afford them protections. I will talk about non-human animals in more detail in Part III.
71. It is beyond the scope of this Article to evaluate how personhood status should be handled for entities that have lost the ability to form interests. My focus here is on the initial assignment of personhood status.
72. It may not be true that a state could designate any entity a juridical person. Even if it could, using the juridical person label for an entity without any justificatory basis as defined here, and thus creating an entity with a label but no real rights, may undermine the use of the term in other contexts. In other words, if a state can simply decide to call anything a "person," even something with no rights at all, the label "person" carries less weight.
73. Many of the constitutional guarantees in the Bill of Rights have been held to apply to juridical persons (usually corporations), including the Fourteenth Amendment Equal Protection and Due Process Clauses with respect to property interests and First Amendment freedom of speech protections. See First Nat'l. Bank of Boston v. Bellotti, 435 U.S. 765, 777 (1978). Corporations can have privacy interests that protect them from unreasonable searches under the Fourth Amendment. See Dow Chem. Co. v. United States, 476 U.S. 227, 235 (1986). Corporations are also afforded double jeopardy protection, but not self-incrimination, under the Fifth Amendment. At least since 1886 in Santa Clara County v. Southern Pacific Railroad Co., 118 U.S. 394, 396 (1886), the Supreme Court has consistently held that the Fourteenth Amendment assures corporations equal protection of the laws, and that it entitles them to due process of law, at least since 1889 in Minneapolis & St. Louis Railway Co. v. Beckwith, 129 U.S. 26, 28 (1889). Justice Douglas, dissenting in Wheeling Steel Corp. v. Glander, 337 U.S. 562, 577-78 (1949), argued that the Equal Protection Clause, intended to remedy "gross injustice and hardship" against the "newly emancipated negroes," applied only to human beings. It was never intended to protect corporations "from oppression by the legislature." Id. at 578. On the other hand, the Privileges and Immunities Clause is not applicable to juridical persons, as are some other "personal" rights. See Grosjean v. Am. Press Co., 297 U.S. 233, 244 (1936);
74. see also United States v. White, 322 U.S. 694, 698 (1944) (holding that neither the Fourth or Fifth Amendments apply to juridical persons). But see Cook County, Ill. v. United States ex rel Chandler, 538 U.S. 119, 125 (2003) (holding that the False Claims Act applies to corporations because they are equally capable of defrauding or exploiting the exercise of federal spending power). The state's powers to grant or withhold rights to a juridical person, however, are not unlimited. See, e.g., R.R. Co. v. Harris, 79 U.S. 65, 81 (1870) (noting that a corporation is limited by the terms of its charter). And states are not free to enact laws that would arbitrarily favor individuals over corporations. See Bellotti, 435 U.S. at 777 (1978);
75. see also Frost v. Corp. Comm'n, 278 U.S. 515, 522 (1929).
76. Using the example from above, if a state gives corporations the right to vote in elections, it would dilute the votes of natural persons. See DWORKIN, supra note 29.
77. In drawing from the literature on corporate personality theory I do not mean to imply that embryos are like corporations, but merely that it is useful to examine previously developed legal theory regarding juridical persons.
78. For example, Alexander Nekam states that any entity, real or imagined, can be recognized under law as a subject of rights, regardless of its characteristics, so long as it is "looked upon by the community as a unit having interests which need and deserve social protection." ALEXANDER NEKAM, THE PERSONALITY CONCEPTION OF THE LEGAL ENTITY 26 (1938). Nekam distinguishes between administrators and subjects of rights. He notes that "[w]hile every right needs an administrator and such administrator can only be a human being not deprived of his will, the subject of the right, the benficiary [sic] of legally protected interest, can be, on the contrary, anything which the community regards as a unit having socially important interests needing and deserving juridic protection." Id. at 33;
79. see also PETER A. FRENCH, COLLECTIVE AND CORPORATE RESPONSIBILITY 34 (1984) (noting that some commentators argue that "juridical person" is simply a label applied to all entities that are the subject of rights).
80. FRENCH, supra note 59, at 88.
81. Id.
82. Id. at 93. French does not want to distinguish moral persons as a subset of persons. Rather he thinks that intentional agency is sufficient to be considered a person and thus a moral person. Id. He would likely take issue with my distinctions between natural persons and juridical persons.
83. THOMAS DONALDSON, CORPORATIONS AND MORALITY 18 (1982).
84. Id. at 23.
85. Id. at 30 (noting that "embody[ing] a process of moral decision-making" requires "(1) The capacity to use moral reasons in decision-making [and] (2) The capacity of the decision-making process to control not only overt corporate acts, but also the structure of policies and rules"). Corporations that fail to meet these requirements should not be considered to be moral agents and also "fail to qualify as a holder of rights or responsibilities." Id. at 32.
86. See, e.g., ELIZABETH WOLGAST, ETHICS OF AN ARTIFICIAL PERSON 88-95 (1992) (summarizing debates about corporate personality and arguing that it is morally hazardous to separate moral accountability from personhood designations and concluding that corporations should not be treated as persons).
87. See Petrogradsky Mejdunarodny Kommerchesky Bank v. Nat'l City Bank of N.Y., 170 N.E. 479, 482 (N.Y. 1930) (noting that the concession theory states that corporate personality is "invariably the gift and creature of the state" and holding the law determines when the life (legal personality) of an artificial person has been terminated, conditioned by the juristic quality of the cause for termination);
88. see also McCabe v. Ill. Cent. R. Co., 13 F. 827, 830 (N.D. Iowa 1882) (holding a corporation is a citizen only in the state of its creation because it cannot exist away from the law which created it);
89. City of Baton Rouge v. Bernard, 840 So. 2d 4, 7 (La. Ct. App. 2003).
90. This theory is based upon the idea that "even in the absence of a charter or other token of the will of government there are groups so natural and so spontaneous as to evoke legal recognition of a corporate existence." Petrogradsky, 170 N.E. at 482. The legal recognition or lack of recognition of the corporation does not extinguish its existence.
91. See Morton Horwitz, Santa Clara Revisited: The Development of Corporate Theory, 88 W. VA. L. REV. 173 (1985) (pointing out that these theories functioned to set guidelines as corporate doctrine developed, and arguing that they were both affected by social developments and, in turn, themselves shaped historical development);
92. see also David Millon, Frontiers of Legal Thought I: Theories of the Corporation, 1990 DUKE L. J. 201, 204, 241-51 (discussing Horwitz's arguments).
93. See, e.g., Carl J. Mayer, Personalizing the Impersonal: Corporations and the Bill of Rights, 41 HASTINGS L.J. 577, 620-51 (1990) (discussing the application of the Bill of Rights to corporations and arguing that the Court has put forth no coherent theory to justify its decisions).
94. See generally Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 COLUM. L. REV. 809 (1935) (suggesting that these questions of law regarding rights of corporations would be better decided based on either empirical evidence or ethical argument, rather than recourse to circular arguments of legal terminology).
95. John Dewey, The Historic Background of Corporate Legal Personality, 35 YALE L.J. 655, 656 (1926). Although it is true that to the extent we live in a society governed by law there may be no practical distinction between those entities recognized as legal persons because they are natural persons or those that are artificial persons-both are "legal" persons. But there may be fundamental differences between the rights of entities that can claim moral status and the rights of entities that cannot, regardless of official legal status. Moreover, while Dewey's point about historical artifacts of corporate personality theory obfuscating debates about the law applied to associations is important, the current question of whether legal personhood should be recognized for entities which meet none of the characteristics of corporations and only one (genetics) with natural persons, should lead us to reexamine the idea that the state can determine the whole of what it means to be a person under the law.
96. Id. Hohfeld's system applied only to persons. See HOHFELD, supra note 16, at 74-75.
97. See Dewey, supra note 72, at 658 (discussing F.W. Maitland, The Corporation Sole, 16 L.Q. REV. 335 (1900)). As a result, Dewey concludes that discussions of personhood should be divorced from theoretical conceptions of natural or artificial personality. Id. at 669. Thus he would prefer not to use the term "person" to characterize the debate. Id. at 662. I think, however, that given the common use of the term in our language it serves as a good proxy for the underlying issues and brings with it an already developed legal framework.
98. Frederick Hallis, writing from an English law perspective, points out that a legal theory of corporate personality should take into account the real nature of the entities that will be considered juridical persons, as well as pragmatic concerns about how the law will function. See FREDERICK HALLIS, CORPORATE PERSONALITY xxxvii (1930). Hallis argues that there are three elements required to be a juridical person: (1) "It must be an organized collectivity capable of acting as a whole in furtherance of an interest which the law will protect"; (2) "it must have a directing idea, a definite aim" that "controls its internal and external activities"; and (3) it must have "a social value by virtue of pursuing an interest worthy of legal protection." Id. at 241-42.
99. STEINBOCK, supra note 33, at 196-97.
100. For example, the nexus of contracts theory justifies corporate personhood, and the resulting rights that adhere, based on the freedom of contract rights of the natural persons who make up the corporation. Thus the theory functions as a limit on state interference with corporations due to the limits the state generally has in interfering with the freedom of natural persons to contract. In order to enter into such a contract, a group of people "must organize, assume a name and choose from their number trustees" to become an artificial person "with the general rights and powers, and subject to the obligations and duties of a natural person, having power to exist, notwithstanding there be a complete change in its membership." Miller v. Milligan, 1881 Ohio Misc. LEXIS 12, at *8 (Ohio Common Pleas). But see William W. Bratton, The "Nexus of Contracts" Corporation: A Critical Appraisal, 74 CORNELL L. REV. 407, 409-10 (1989) (arguing that the nexus of contracts concept is not entirely accurate and suggesting a replacement model);
101. David Graver, Personal Bodies: A Corporeal Theory of Corporate Personhood, 6 U. Cm. L. SCH. ROUNDTABLE 235, 239-40 (1999) (arguing that the nexus of contracts theory "stretches unduly the notion of contracts" and "fails to account for the ways corporations act in the world").
102. Graver notes that the courts have not been willing to examine the specific motivations of corporations in the same way they've been reluctant to examine the motivations of natural persons exercising constitutional rights. Graver, supra note 77, at 247. However, he argues that the situations are different and we should "draw sharp distinctions among fictional bodies of various types of organizations and accord each type of body constitutional rights based on the benefits or harms such rights for such bodies will bestow on humans." Id.
103. Rule-utilitarianism seeks to effectuate rules that will generally result in the greatest good (e.g., a rule that physicians should keep patient confidences). Act-utilitarianism, on the other hand, focuses on individual acts and in each case evaluates what action will lead to the greatest good (which may or may not result in the physician maintaining confidentiality). See TOM L. BEAUCHAMP & JAMES F. CHILDRESS, PRINCIPLES OF BIOMEDICAL ETHICS 343-45 (5th ed. 2001). Richard Lippke provides an example of this approach when he develops his theory of business ethics (and thus identifies the limits that society should place on corporate actions) based on the extent to which things advance or
104. See, e.g., Tara Radin, 700 Families to Feed: The Challenge of Corporate Citizenship, 36 VAND. J. TRANSNAT'L L. 619, 653 (2003) (suggesting that the courts chose not to extend constitutional protections against double jeopardy and self-incrimination to corporations because the result would have been unjust).
105. This point is often confused. See, e.g., Mayer, supra note 70, at 657 ("A theory of original intent provides no basis for extending rights to corporations because these entities are never mentioned in the Constitution."). Mayer conflates original intent with textualism. Compare id., with David Graver, supra note 77, at 243-44 (advocating a constitutional theory of personhood which he calls "embodied consciousness" focusing on the Framers' intent, and highlighting "three elements: interiority, exteriority, and autonomy").
106. The rights of slaves, of course, are linked to their own moral status as well as the implications for other persons, whereas the rights of corporations are linked only to the interests of persons with moral status.
107. For a list of constitutional rights that have been applied to corporations see Radin, supra note 80, at 652.
108. See Mark Sagoff, Extracorporeal Embryos and Three Conceptions of the Human, AM. J. BIOETHICS, Nov.-Dec. 2005, at 52,54 (2005) (stating that, with respect to extracorporeal embryos, "[t]o determine . . . moral status . . . society cannot consult biological landmarks but must debate what is ethically permissible and culturally appropriate in view of the practical consequences and expressive properties of our decisions" and that "[f]rom a Kantian perspective we may help secure our own humanity by treating embryos with great respect").
109. And perhaps this is a reason to think that the legal treatment of anencephalic infants is incorrect and they should not be regarded as natural persons. Evaluation of this claim is beyond the scope of this Article.
110. A handful of commentators have struggled to define the legal status of embryos. See, e.g., Andrews, supra note 13, at 357-58;
111. Ducor, supra note 12, at 203-06;
112. see Kayhan Parsi, Metaphorical Imagination: The Moral and Legal Status of Fetuses and Embryos, 2 DEPAUL J. HEALTH CARE L. 703 (1999);
113. see John Robertson, Reproductive Technology and Reproductive Rights: In the Beginning: The Legal Status of Early Embryos, 76 VA. L. REV. 437 (1990).
114. See Roe v. Wade, 410 U.S. 113, 163 (1973) (holding that the state's interest in protecting the fetus becomes compelling at viability). There have been a few recent cases challenging the status of embryos or fetuses as persons under different areas of law. Although most of these address the actions of pregnant women, a few do not. For example, in one case a judge dismissed a suit filed against a stem cell research lab which tried to claim embryos were persons. See California Judge Dismisses Lawsuit Against CIRM, BNA MED. RES. LAW & POL'Y REPORTER, Nov. 16, 2005, at 22. In another case a judge rejected a claim that a pregnant woman and her fetus constitute two persons for purposes of driving in an HOV lane. See NPR: Judge: Fetus Doesn't Count in HOV Lane (NPR radio broadcast Jan. 12, 2006), available at http://www.npr.org/templates/ story/story.php7storyIds5151368. There are also some IVF cases that claim embryos are persons, although these claims have generally been rejected. See, e.g., Jeter v. Mayo Clinic Ariz., 121 P.3d 1256, 1259 (Ariz. Ct. App. 2005) (holding that three day old pre-embryos are not persons under wrongful death statute).
115. Although the term "embryo" is the most commonly used label, the appropriate scientific term for the fertilized egg at the earliest stage of development is "blastocyst." A blastocyst is a multi-celled organism (a group of cells around a fluid filled cavity) that forms four days after fertilization. Fertilization is the event that begins with the sperm entering the egg and concludes when the genetic material is combined to form the zygote (e.g., the single-celled organism immediately after the egg and sperm have joined). All so-called "frozen embryos" are in fact frozen blastocysts. The cells of a blastocyst are undifferentiated; they are able to form into any of the cells in the body, and each one of the cells can be separated from the unit and divide to form another blastocyst. This process, called "twinning," would result in two (or more) genetically identical individuals. "Embryo" is the term given to the entity at approximately two weeks after fertilization, which coincides with the formation of the primitive streak (the structure which will eventually develop into the neural system). Occasionally the term "pre-embryo" is used to refer to the developing entity during the two-week stage prior to the formation of the primitive streak. Despite the scientific definitions, the common usage of the term embryo has been extended to cover the many frozen blastocysts currently in storage, as well as those at almost all stages of development following fertilization. For simplicity, this Article refers to all of the entities in question prior to the fetal stage as embryos. A "fetus" is the label given to the entity from eight weeks after fertilization until birth, at which point it is referred to as an "infant," "baby," or "neonate." I do not believe that the use of the terms (or of proposed different terms) necessarily alters the debate. Certainly there are misleading terms, e.g., "developing baby," which imply that the entity in question is closer in attributes to a child than to original gametes (i.e., sperm and egg). But it does not appear to make much of a difference in people's analysis whether the entity is called a blastocyst, a pre-embryo, or an embryo.
116. See, e.g., Bonnie Steinbock, The Morality of Killing Human Embryos, 34 J.L. MED. & ETHICS 26, 26-34 (2006) (describing why embryos do not have interests and the implications for moral status).
117. Extracorporeal embryos may be significantly different from in utero embryos in their potential since, as the science currently stands, they will not fully develop unless implanted. See STEINBOCK, supra note 33, at 200.
118. Becker, supra note 43, at 337 ("Human fetal development is a process analogous to metamorphosis and just as it makes good sense to speak of butterfly eggs, larvae, and pupae as distinct from the butterflies they become (to say that they are not butterflies) so too it makes sense to say that human eggs, embryos, and fetuses are distinct from the humans they become - that they are not human beings, only human becomings.").
119. STEINBOCK, supra note 33, at 59-68, 199-200 (describing the logical problems with arguments that the potential to become an entity with moral status is sufficient to grant current moral status);
120. see also Robertson, supra note 86, at 442.
121. Insoo Hyun and Kyu Won Jung distinguish between biological and circumstantial potential. See Insoo Hyun & Kyu Won Jung, Human Research Cloning, Embryos, and Embryo-Like Artifacts, 36 HASTINGS CENTER REPORT 5, 34 (2006). The first is "potentiality in the biological, quasi-Aristotelian sense of an entity's gradually actualizing its preexisting potential." Id. at 39. Circumstantial potential, by contrast, depends on circumstance and choice. Hyun gives the example of a medical student's potential to become a physician. Id. Extracorporeal embryos may have biological potential (not all of them may be viable), but not necessarily circumstantial potential since they may never be implanted. Id.
122. Despite popular belief, clones would be unique individuals. Environment plays a significant role in development of identity. Thus, at most one could assure that the clone would be genetically identical, as are identical twins, but s/he would not be the same person. Even more complicating, some cells taken from an adult will have mutated, so each of those cells would in fact be unique, again creating a too inclusive standard for personhood.
123. See also David DeGrazia, Moral Status, Human Identity, and Early Embryos: A Critique of the President's Approach, 34 J.L. MED. & ETHICS 49, 53 (2006) (arguing that embryos are "precursor" organisms, not potential humans).
124. See supra notes 33-36 and accompanying text.
125. In this respect embryos are unlike corporations or other entities that have fixed characteristics.
126. John Nobel Wilford, Almost Human and Sometimes Smarter, N.Y. TIMES, Apr. 17, 2007, at FI ("[J]ust a 1.23 percent difference in their genes separates Homo sapiens from chimpanzees ... .")
127. See Jessica Berg, Owning Persons: The Application of Property Theory to Embryos and Fetuses, 40 WAKE FOREST L. REV. 159, 162 (2005). My argument starts from the novel position that recognizing property interests in an entity does not preclude their recognition as persons. Thus, something might have legal personhood status and also be subject to property interests of other persons. At least one author has suggested that corporations are also both "persons" and "things."
128. See Katsuhito Iwai, Persons, Things and Corporations: The Corporate Personality Controversy and Comparative Corporate Governance, 47 AM. J. COMP. L. 583, 585 (1999). I argue that property rights are the appropriate basis for legal analysis of embryo disposition, asserting that property theory provides a conceptually better fit than the competing procreative liberty framework.
129. See Berg, supra, at 163. Not only is the property framework conceptually accurate, it is normatively compelling;
130. application of utilitarian, labor, and personality theories of property leads to the conclusion that individuals (specifically progenitors) can have property interests in embryos, fetuses, and even children. Id.
131. Finally, property law provides both a descriptively accurate explanation of courts' decisions in embryo cases and also allows judges to draw on an existing framework of law to resolve disputes. Id.
132. These arguments are developed and explored in my previous article. Id.
133. For the current Article, the important point is that individuals have property interests in their offspring that must be considered in evaluating legal rights, and these property interests do not disappear upon the development of the entity's personhood interests. Id.
134. For a description of Louisiana law and the development of the statute, see Jeanne Louise Carriere, From Status to Person In Book I, Title I of the Civil Code, 73 TUL. L. REV. 1263, 1263-86 (1999). Other states, however, have attempted to define when life begins for purposes of feticide or child abuse statutes. See, e.g., WIS. STAT. ANN. §§ 48.01(1)(bg)(2), 48.02(1)(a) (1998).
135. Roe v. Wade, 410 U.S. 113,158 (1972).
136. See, e.g., Robert Destro, Is Roe v. Wade Obsolete?, 24 HUM. L. REV 55, 61 (1998).
137. Pain perception may occur even later than the onset of sentience. See, e.g., Susan J. Lee et al., Fetal Pain: A Systematic Multidisciplinary Review of the Evidence, 294 J. A.M.A. 947, 952 (2005) (concluding that given the timeline for neural development, it is extremely unlikely that a fetus perceives pain before twenty-seven to thirty weeks gestation).
138. STEINBOCK, supra note 33, at 84-85.
139. See Lee, supra note 103, at 952. A few letters written in response to the article questioned the twenty-seven-week cut-off point, but even these individuals did not question the lack of pain perception before sometime late in the second trimester. See Laura Myers et al., Bobbi Lyman, Brian Sites, Letters to the Editor, 295 J. A.M.A. 159,159-60 (2006).
140. Perhaps there are other interests that might justify such a requirement, although it is a more difficult argument to make. For example, requiring that women be informed after twenty-two weeks, that abortions may cause fetal pain may be based on the state's interests in preserving fetal life (assuming that some women will choose not to undergo the procedure if told the misleading information).
141. Additionally, at this point infant mortality rates decrease as compared to preterm births before thirty-two weeks. See Michael Kramer et al., The Contribution of Mild and Moderate Preterm Birth to Infant Mortality, 284 J.A.M.A. 843,844 (2000).
142. See Michael S. Kramer et al., The Validity of Gestational Age Estimation by Menstrual Dating in Term, Preterm, and Postterm Gestations, 260 J. A.M.A. 3306, 3307 (1988).
143. This is not to say that the neonatal euthanasia is simple, but that the situations should be considered comparable. See Carl E. Schneider, Rights Discourse and Neonatal Euthanasia, 76 CAL. L. REV. 151, 175-76 (1988) (discussing neonatal euthanasia).
144. In fact, it may become possible to fertilize and develop a fetus completely outside the womb. See generally ECTOGENESIS: ARTIFICIAL WOMB TECHNOLOGY AND THE FUTURE OF HUMAN REPRODUCTION (Scott Gelfand & John R. Shook eds., 2006) (discussing ectogenesis).
145. There are also fetuses born prior to viability, which live for a brief period of time. In one case the court determined that the lack of viability meant the fetuses could not be considered "persons" under the Ohio wrongful death statute. See Griffiths v. The Rose Ctr., No. 2005CA00256, 2006 Ohio App. LEXIS 1474, at *10 (Ohio Ct. App. Mar. 29, 2006).
146. Also of interest would be cases of fetal surgery where the fetus is either partially or fully removed from the womb temporarily or the uterus is removed from the woman temporarily. See generally Maggie Jones, A Miracle, and Yet, N.Y. TIMES MAGAZINE, July 15, 2001, at 40-43.
147. Becker identifies the eighth month of development as the time of "metamorphosis." Becker, supra note 43, at 345. He goes so far as to suggest that a fetus born before metamorphosis is complete, such as an extremely premature infant, should be regarded as the birth of a human becoming. Id. at 345-48. But cf. Nealis v. Baird, 996 P.2d 438, 454 (Okla. 1999) (conceding that there may be a distinction between biological existence and personhood, but rejecting the idea that the distinction extends beyond live birth). There are also issues of when to withdraw legal status protections from a human being that no longer meets the moral status requirements. See Douglas O. Linder, The Other Right-to-Life Debate: When Does Fourteenth Amendment "Life" End?, 37 ARIZ. L. REV. 1183, 1188 (1995) ("When history and constitutional text yield ambiguities rather than answers, constitutional interpretation should be guided by the moral and economic consequences that might follow from equally plausible alternative meanings.").
148. See Berg, supra note 99, at 214.
149. See Sunstein, supra note 15, at 1339-40. Sunstein, however, would argue in favor of legal standing for animals. Id. at 1336.
150. STEINBOCK, supra note 33, at 24 ("[The interest view] . . . does not locate beings on a scale of moral importance. In particular, it is silent as to whether all beings who have moral status have it equally. Perhaps such features as species membership, rationality, and potentiality are relevant to moral status, providing principled reasons for counting the interests of some beings more heavily than others.").
151. See STRONG, supra note 51, at 41-62 (suggesting that moral status increases along with fetal development).
152. See, e.g., sources cited supra note 100.
153. Most of the statutory restrictions are based on state interests in potential fetal life, not directly on fetal interests. The two may be the same or may entail a slightly different focus. Analysis of this issue is beyond the scope of this Article.
154. 505 U.S. 833, 874-79 (1992).
155. 530 U.S. 914, 938-46 (2000).
156. Schneider, supra note 109, at 157-161.
157. Of course the question will be how extensive that right is and what it entails.
158. See, e.g., Veronica E.B. Kolder et al., Court-Ordered Obstetrical Interventions, 316 NEW ENG. J. MED. 1192, 1192-96 (1987).
159. Given the post-viability time period, abortions would not be permissible in most states except to save the mother's life/health, or, in a few states, because of severe fetal abnormalities. The former case involves a balancing of mother's interests against fetal interests. The latter case may rest on a determination that the fetus in question does not have interests or has lesser interests because of the abnormalities. This determination may be more controversial since it rests on the assumption that we can evaluate sentience/interests based on disability. I have suggested that this is extremely difficult in most cases but perhaps not impossible. See Schneider, supra note 109, at 170 (discussing the conservative dislike of attempts to distinguish between people based on worth).
160. See generally PAOLA CAVALIERI, THE ANIMAL QUESTION: WHY NONHUMAN ANIMALS DESERVE HUMAN RIGHTS 3-12 (Catherine Woollard trans., 2001);
161. ANIMAL RIGHTS: CURRENT DEBATES AND NEW DIRECTIONS (Cass R. Sunstein & Martha C. Nussbaum eds., 2004) [hereinafter ANIMAL RIGHTS].
162. Bernard Rollin takes this a step further and points out that if the potential to become rational is sufficient reason to grant non-rational humans moral status, animals should also be afforded moral status because they have the potential to evolve into rational beings. See BERNARD ROLLIN, ANIMAL RIGHTS AND HUMAN MORALITY 33-34, 50 (rev. ed. 1992).
163. See L.W. SUMNER, ABORTION AND MORAL THEORY 32-33 (1981) (discussing moral personhood and stating that a criterion of personhood "must have some plausible connection with the possession of certain moral rights" and "[t]here must, therefore, be some reason for thinking that it is in virtue of an entity's possessing just these properties that it has such rights, that these properties mark the crucial watershed between entities with these rights and entities without them").
164. For example, it is common knowledge that humans and chimpanzees share over 98% of their genetic code. See, e.g., Wilford, supra note 98. It is unlikely that the 2% genetic difference is a sufficient basis for according legal personhood, without some consideration of other factors.
165. Of course this was part of what was at issue at the times when women and black people were excluded from legal protections. Both were thought to be intellectually inferior to white men, and lacking the criteria necessary to be considered of equal moral status to white men. Black people were also sometimes referred to as "sub-human," a label which presumably was designed to imply that black people were not even human and thus had even less claim to legal status.
166. Some advocates for animal rights accept the analogy with women and slaves and argue that the denial of rights to "nonhumans endowed with intentionality... does not simply deprive the victims of the objects of their rights, but is a direct attack on those very rights themselves." CAVALIERI, supra note 126, at 142-43. Others reject the analogy. See, e.g., Richard Epstein, Animals as Objects, or Subjects, of Rights, in ANIMAL RIGHTS, supra note 126, at 143,151. It will be interesting to consider the future legal status of chimeras (animal-human) mixes, particularly those that are sentient. See, e.g., Jamie Shreeve, The Other Stem-Cell Debate, N.Y. TIMES MAGAZINE, Apr. 10,2005, at 42-47.
167. See Rebecca J. Huss, Valuing Man's and Woman's Best Friend: The Moral and Legal Status of Companion Animals, 86 MARQ. L. REV. 47, 54 (2002) (noting that some historical views generally hold that animals are part of the "Great Chain of Being" with humans at the top of the moral chain and "progressively lower rungs" are inhabited by "rational beings, sentient beings," and '"creatures who are barely alive"' (quoting GARY L. FRANCIONE, INTRODUCTION TO ANIMAL RIGHTS: YOUR CHILD OR THE DOG? 112 (2000))). Even strong advocates of animal rights, such as Peter Singer, accept that persons (which he defines as "sentient beings that are self-aware and capable of reason") are more valuable than non-persons. See WARREN, supra note 33, at 69 (discussing Singer). Likewise, our society is built on the notion that laws focus on the highest actors in the moral hierarchy, human persons, rather than non-persons, regardless of whether the non-persons have a morally valuable life and interests such as avoiding pain.
168. See Gary L. Francione, Personhood, Property and Legal Competence, in THE GREAT APE PROJECT 248, 248-57 (Paola Cavalieri & Peter Singer eds., 1993);
169. Lee Hall & Anthony Jon Waters, From Property to Person: The Case of Evelyn Hart, 11 SETON HALL CONST. L.J. 1, 1-68 (2000);
170. MARY MIDGLEY, Is a Dolphin a Person?, in UTOPIAS, DOLPHINS AND COMPUTERS: PROBLEMS OF PHILOSOPHICAL PLUMBING 107, 107-17 (1996).
171. Many animal rights advocates would accept such a system. For example, in their brief in favor of granting personhood rights to great apes Lee Hall and Anthony Jon Waters note that their premise is based on the fact that there are only two categories-person or property. Hall & Waters, supra note 133, at 2. Presumably they would be open to categorization of the great apes in a third category if one were available. See, e.g., Morgan v. Kroupa, 702 A.2d 630, 633 (Vt. 1997) (stating that pets occupy '"a special place somewhere inbetween a person and a piece of property'"(quoting Corso v. Crawford Dog & Cat Hosp., Inc., 415 N.Y.S.2d 182, 183 (1979)));
172. see also David Favre, A New Property Status for Animals, in ANIMAL RIGHTS, supra note 126, at 234, 234-50 (describing a system of equitable self-ownership for animals).
173. See, e.g., Linda MacDonald Glenn, Biotechnology at the Margins of Personhood: An Evolving Legal Paradigm, 13 J. EVOLUTION & TECH. (2003), http://www.jetpress.org/volume13/glenn.html. (discussing genetic engineering, transgenics and newly- or to-be-created life forms; attempting to define each "new" or "altered" entity as a person, from historical, moral, societal, philosophical, theological, and legal perspectives; and concluding by arguing that all life forms, including pre-embryos, should be treated as persons or property, depending upon where they fall on a continuum of property to persons and accorded rights commensurate with the degree of "personhood" each entity possesses).
174. Consider, for example, whether elephants should have legal protections to avoid psychological trauma. See Charles Siebert, An Elephant Crackup?, N.Y. TIMES MAGAZINE, Oct. 8, 2006, at 42-48, 64, 71-73 (describing the possibility of post-traumatic stress disorder in elephants).
175. Moral obligations may not preclude killing of the entity in question. See, e.g., Ronald Green, supra note 28, at 44 (suggesting that "one can use an entity (embryo; animal) in research, and even kill it when necessary, without necessarily failing to respect the moral claims that the entity has on us").
176. See generally John Markoff, Brainy Robots Start Stepping into Daily Life, N.Y. TIMES, July 18, 2006, at A1.
177. See Linda MacDonald Glenn, A Legal Perspective on Humanity, Personhood, and Species Boundaries, 3 AM. J. BIOETHICS 27. 27-28 (2003) (considering human-nonhuman chimeras);
178. Richard Lucas, Why Bother? Ethical Computers-That's Why!, in ACM INTERNATIONAL CONFERENCE PROCEEDING SERIES, VOL. 7: SELECTED PAPERS FROM THE 2ND AUSTRALIAN INSTITUTE CONFERENCE ON COMPUTER ETHICS 33-38 (John Weckert ed., 2000) (arguing that computers, and other artificial intelligence, may be held to moral standards as persons because they possess the following characteristics: reason, the capacity for choice, self-awareness, nurturance, co-operation, respect for all life-forms, and moral reciprocity and that "Computer-ethics" must contain, at least, computer (not human) versions of anonymity, duty, equality, intentionality, judgment, and responsibility);
179. Michael D. Rivard, Toward A General Theory of Constitutional Personhood: A Theory of Constitutional Personhood for Transgenic Humanoid Species, 39 UCLA L. REV. 1425, 1428-1510 (1992) (considering transgenics).
180. See BLADE RUNNER (Blade Runner Partnership 1982).