Of Elephants and Embryos: A Proposed Framework for Legal Personhood

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

The Terrors of Everyday Life: The Gothic Novel as a Woman\u27s Conduct Guide to Survival, 1791-1817

The Gothic is often associated with the fantastical, with people and events that only take place within our darkest nightmares. In my thesis, I explore how, in the hands of Ann Radcliffe and Jane Austen, the Gothic exposes the hidden dangers of reality perpetuated by conduct literature. Within conduct manuals, thousands of regulations direct women’s behaviors and identify the perfect woman as one who exists passively within the safety of the domestic sphere. Radcliffe’s The Romance of the Forest (1791) and Austen’s Northanger Abbey (1817) engage in subterfuge against eighteenth-century conduct literature and expose the realities of the domestic sphere: it was often not safe, and women’s passivity did nothing to rescue them from its tyrannical gatekeepers. Through their heroines’ Gothic adventures, Radcliffe and Austen teach their readers that to escape suffocating and dangerous domesticity they must slough off their passivity, enact their sensibility, and actively pursue their desires

Owning Persons: The Application of Property Theory to Embryos and Fetuses

Embryos are all over the news. According to the New York Times there are currently 400,000 frozen embryos in storage. Headlines proclaim amazing advances in our understanding of embryonic stem cells. And legislation involving cloning and embryos continues to be hotly debated. Despite the media attention, theoretical analysis of embryos\u27 legal status is lacking. This article advances a number of novel arguments. First, recognition of property interests does not preclude the recognition of personhood interests. Embryos, fetuses and children may be both persons and property. Second, property law is conceptually more suited to resolving debates about embryos than procreative liberty, as the latter is strongest in those cases where procreation has not yet occurred - e.g., sterilization and contraception. Finally, this article is the first to provide a substantive evaluation of the application of property theories. The approach is sure to challenge commentators on all sides of the debate. For those who argue that embryos and fetuses are persons, the strong property interests will likely be unpalatable. Similarly, the implications of the combined framework for limiting those property rights as the entity develops will likely be unacceptable to advocates of extensive procreative choice during pregnancy. Nevertheless, this framework provides a more accurate understanding of the legal issues, and therefore may facilitate the eventual resolution of the protracted battle regarding the legal status of embryos and fetuses

All for One and One for All: Informed Consent and Public Health

The concept of informed consent is well established in the field of bioethics, but its application is unclear in the area of public health. The increasing prevalence of public health interventions creates a need to analyze the scope of government power as it relates to individual choice. This Article explores three different types of public health measures in which individual choice has been limited: (1) environmental interventions; (2) classic public health interventions to prevent contagious disease; and (3) public health information reporting or use. The reasons for limiting informed consent vary depending on the context, and the implications for the scope of an exception likewise vary. Careful consideration of the theoretical bases for exceptions indicates the importance of information disclosure in almost all situations, and may lead to novel solutions, such as a ‘fair use‘ model for health information. A singular “public health exception” concept is overly broad and superficial. Instead, there should be a fuller debate about the requirements of informed consent in the wide variety of public health settings

Constructing Competence: Formulating Standards of Legal Competence to Make Medical Decisions

A young woman twenty-six weeks pregnant and dying from cancer lies heavily sedated and attached to a respirator. Is she competent to determine what life-prolonging measures should be taken, or to consent to an emergency cesarean section that may save her fetus but will probably shorten her life? A quadriplegic young man wishes to end his life and requests a court order granting immunity for the medical staff who will unhook his respirator and administer sedatives. Is he competent to choose to die? A person\u27s competence will have implications for whether he or she is allowed to decide what type of treatment, if any, is received; whether treatment is discontinued, including life-sustaining treatment; and whether medical professionals implementing decisions are exposed to civil or criminal liability

Constructing Competence: Formulating Standards of Legal Competence to Make Medical Decisions

A young woman twenty-six weeks pregnant and dying from cancer lies heavily sedated and attached to a respirator. Is she competent to determine what life-prolonging measures should be taken, or to consent to an emergency cesarean section that may save her fetus but will probably shorten her life? A quadriplegic young man wishes to end his life and requests a court order granting immunity for the medical staff who will unhook his respirator and administer sedatives. Is he competent to choose to die? A person\u27s competence will have implications for whether he or she is allowed to decide what type of treatment, if any, is received; whether treatment is discontinued, including life-sustaining treatment; and whether medical professionals implementing decisions are exposed to civil or criminal liability

All for One and One for All: Informed Consent and Public Health

The concept of informed consent is well established in the field of bioethics, but its application is unclear in the area of public health. The increasing prevalence of public health interventions creates a need to analyze the scope of government power as it relates to individual choice. This Article explores three different types of public health measures in which individual choice has been limited: (1) environmental interventions; (2) classic public health interventions to prevent contagious disease; and (3) public health information reporting or use. The reasons for limiting informed consent vary depending on the context, and the implications for the scope of an exception likewise vary. Careful consideration of the theoretical bases for exceptions indicates the importance of information disclosure in almost all situations, and may lead to novel solutions, such as a ‘fair use‘ model for health information. A singular “public health exception” concept is overly broad and superficial. Instead, there should be a fuller debate about the requirements of informed consent in the wide variety of public health settings

Symposium: Issues in Bioterrorism -Introduction

This issue of Health Matrix focuses on the legal issues involving bioterrorism