Personhood v. property: A difficult line to draw with no clear answers

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A brain dead pregnant woman with a 14 week fetus lies in a hospital room on life support.

A corporation endorses candidates for office and makes independent expenditures on their behalf.

A slave in 1836 is taken by his owner to Fort Snelling, Minnesota.

A primate communicates with its keepers.

A robot or computer wins Jeopardy.

A highly intelligent space alien visits Earth.

Six bizarre scenarios, but all raise the same question: Which is a person? The woman, the fetus, the corporation, the slave, the primate, the robot, or the space alien?

One of the most perplexing questions ethically and constitutionally is who is a person and therefore entitled to protection under the Constitution? There may be no simply answer but the line between property and personhood is a difficult one to draw but it is one that is dividing America politically and it will continue to be one that shapes policy debates into the future, much as they have in the past. However, when it comes to debates such as abortion or corporate free speech rights, too many people think there are simple answers to resolving questions by simply asserting that something is a person or not.

Beyond recent events in the news, the occasion for raising this issue is that about a week ago I debated University of St Thomas professor Teresa Collett. It was at a forum about the concept of free will and free choice–issues that underlie the pro-life and pro-choice debate. We debated the day before the anniversary of Roe v. Wade. My task was to defend the philosophical or ethical concept of choice–she took the contrary position. What she really wanted to do was argue against abortion. She and the crowd were adamant in asserting that they knew the fetus was a person. In the end, I argued their position was a matter of faith. There is no scientific answer defining who or what is a person. In part, the philosophical basis for pro-choice is about skepticism about what it means to be a person. Skepticism about ultimate truths also underlies in part the concept of recognizing individual freedom and toleration for diverse opinions. Whatever I believe may not be correct and others may not share this view.

It is just not so easy as some think to define who or what is a person. The Constitution does not define who or what is a person and there seems to have been a binary switch in terms of how to think about persons–either you were one or not. If you were a person you had certain rights, although exactly what those rights were was debatable. Few debated that children, women, or non-US citizens were persons, yet they did not enjoy all the same rights and privileges as did mature men. Even today rights are qualified–children have limited rights and are not entitled to vote until a certain age and they face other restrictions (smoking, drinking, and driving) that adults do not. Non-citizens are also restricted in what they are permitted to do. And take us back more than 100 years, or even simply today, and women were restricted in what they could do. Similarly, gay and lesbians are persons but in many states still face restrictions on marriage. All of these people are persons constitutionally, but face limits on their rights.

But if something is not a person constitutionally, what is the alternative? Property. Slaves prior to the Civil War and the passage of the 13th Amendment were simply viewed as property of their owners. That is why when Dred Scott was taken north to Fort Snelling and free territory he was not considered free under the Missouri Compromise. He was human but nonetheless property and could not be taken away from his owner less it would be a violation of the Fifth Amendment eminent domain clause. Property status means no rights except as they attach to the owner. Animals were historically viewed as property and therefore owners could do whatever they wanted to them. The same with computers, or robots.

But for so many reasons, the line between property and personhood has become more complex legally to draw for a simple reason–there is no objective answer to what constitutes a person. Contrary to the assertions of many, especially in the pro-life community, there is no objective scientific answer to what constitutes a person. Simply asserting that one is a member of the homo sapiens species is not an answer–it is not even the beginning or the end of the analysis.

Rightly or wrongly the Supreme Court has ruled corporations to be persons and entitled to some rights, yet no one would claim these entities to be homo sapiens. A human zygote is genetically a member of the homo sapiens species, but to call it a person is also foolish since it lacks all the other attributes we attribute to persons including a sense of self-awareness or maybe a concept of will. A brain dead person on life support is genetically human, but not alive, is she really a person? Or consider a primate who shares 99%+ human DNA is compared to a child born with severe genetic mutations. Genetically how much of a difference is there really between the two.

Now push the issue into a stranger direction. What about super smart computers or robots who can think and develop a sense of self-awareness of the world? Think of HAL in the movie 2001: A Space Odyssey. Or how about a day in the future when humans are rebuilt along the lines of Lee Majors in the old television show Six Million Dollar Man and a human is half machine and half flesh and blood? Compare him to a robot? What if both kill someone–who can be charged with a crime? Or what if space aliens from a more advanced civilization visit Earth and they are a lot smarter than us? They may not be humans but if they had superior intelligence and were self-aware, they have attributes they we presently use to distinguish us from animals in denying them rights.

Defining who or what is a person is a complex task. There may be no one correct answer and I contended at the debate on free will and abortion that ultimate answers rely in part on reaching social consensus on this question. But even there the answer is not resolved. By that, even if something is recognized as a person that does not resolve the issue of what rights are entitled. Rights also must be adjudicated in light of the rights of others and in regarding to competing social values that must be weighed. Even if we treat corporations as persons, that does not mean that they get all the rights as other homo sapiens and it may be the case that we favor or let the rights of real humans trump that of corporations. Similarly, even if we concede that a fetus is genetically homo sapiens, that does not mean it is a person and even if a person we do not know what rights it is entitled to and how those rights must be weighed in comparison to other social values–such as respect for a right for women to control their bodies.