The Personhood Pincer

Original Article

The Nonhuman Rights Project made headlines recently by filing three lawsuits seeking to have chimpanzees declared legal persons entitled to “bodily liberty,” and hence, writs of habeas corpus to end their forced captivity.

The lawsuits—predicated on the intelligence of chimps, their sophisticated behavior, a supposed autonomy similar to that of human beings, and an alleged empathy—were promptly thrown out of court. For now, at least, only humans (and our juridical associations, such as corporations) possess legal rights.

The chimp cases were the merely the latest—they certainly won’t be the last—lawsuits seeking to “break the species barrier” that divides the moral worth and legal status of humans and animals. Last year the People for the Ethical Treatment of Animals (PETA) brought a similar lawsuit in federal court, asking a federal judge to declare Sea World’s orcas to be “slaves.” The case was dismissed—but note: The judge based his decision on an 1864 definition of “slavery” as “the condition of a slave; the state of entire subjection of one person to the will of another.”

But what if animals were declared legal persons? Animal rights activists argue that it would require an end to human ownership of those animals—just as humans cannot own each other. As lawyer Steven M. Wise, the force behind the NHRP lawsuits put it in 2002, animal personhood “would be the first and most crucial step toward unlocking the cage.”

Unlikely as it may seem, utilitarian bioethics is the counterpart to animal rights in the war on human exceptionalism. Rather than seeking to elevate some animals to the level of humans, utilitarian bioethics advocates would reduce some humans to the status of animals—with the concept of “person” again serving as the point of the spear.

Utilitarian bioethicists agree with animal rights activists that it is “speciesist”—unjust discrimination against animals—to treat humans as possessing an intrinsically higher value than animals. As in the chimpanzee cases, moral status is seen as something earned by possessing “relevant characteristics, such as being self-aware.”

Since all human beings are not so capable—some because of immaturity, others due to illness or injury—under bioethics theory, they are not “persons,” and hence, have less moral value than humans (or animals) capable of higher functioning.

Who are the so-called human non-persons? Under this theory, all unborn life, since no embryo or fetus is “conscious.” Also, newborn and younger infants who have not yet developed sufficiently to exhibit these capacities, as well as those who have lost them, such as late-stage Alzheimer’s patients.

The potential consequences of depersonalization can be seen in the ways in which we already treat unborn human life. For example, we permit embryos and all but the most developed fetuses to be killed at will in abortion. In embryonic stem cell research, scientists routinely destroy nascent human lives for their parts. Some worry that the next logical step would be to create genetically tailored fetuses for use in medical testing and treatments.

Indeed, in the late 1960s, researchers conducted live fetal experimentation. One 1968 study, “An Artificial Placenta” even won a coveted research award from the American Association of Obstetrics and Gynecology for having maintained a living aborted fetus for five hours in oxygenated liquid.

When these experiments became known, the public—then more ardent about protecting the sanctity of life—became outraged, leading to an eventual legal ban. But having been bombarded with anti-humanism for decades, I have to wonder whether people would be similarly exorcised today.

There is no question that the cognitively devastated are being looked at increasingly as a potential answer for our organ shortage. Indeed, articles urging the harvesting of permanently unconscious patients are ubiquitous in medical and bioethical literature.

This is the pincer that seeks to grasp us. One claw is represented by animal rights advocacy to personalize some animals based on their supposed human-like capacities. The other, by bioethicists seeking to depersonalize some people based on their lack of capacities.

If either view prevails, our equal rights would become ephemeral, based on subjective personhood rather than intrinsic humanity. Our value would depend on the moment of measuring, leaving us ever vulnerable to depersonalization and perhaps even the concomitant loss of what today are called universal human rights.

Wesley J. Smith

Chair and Senior Fellow, Center on Human Exceptionalism
Wesley J. Smith is Chair and Senior Fellow at the Discovery Institute’s Center on Human Exceptionalism. Wesley is a contributor to National Review and is the author of 14 books, in recent years focusing on human dignity, liberty, and equality. Wesley has been recognized as one of America’s premier public intellectuals on bioethics by National Journal and has been honored by the Human Life Foundation as a “Great Defender of Life” for his work against suicide and euthanasia. Wesley’s most recent book is Culture of Death: The Age of “Do Harm” Medicine, a warning about the dangers to patients of the modern bioethics movement.