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Parsing Perinatal Personhood
Kyle Munkittrick   Mar 7, 2009   The Transhumanist  

If personhood ever becomes a basis for law, we will develop a set of rights structures for the stage between birth and personhood. Until then, we must understand personhood as a scale comprised of several traits. This scale is still being developed, but, as a concept, shows it’s usefulness over the reductionist “human species” as a category for rights. Just as our DNA doesn’t determine our identity and personality, neither should it determine our rights.

My good friend, Tyler, is studying divinity over in Michigan. He is also newly a father and an all around great dude. In reaction to my post on Martin Luther King Jr. Day and personhood, specifically the penultimate paragraph, Tyler had this to say:

I think your argument ultimately is on some less than solid ground when you say that protecting a person is to protect a “sentient, morally capable, rational, feeling entity…”

I don’t want to simply use him as an argument, but I think he applies to the situation. My son, Colin, unfortunately still does not seem to qualify as a person according to some of your criteria (I am working within your comparison of personhood and human life). While he may be alive, breathing, and taking in nutrients, I can’t say he’s able to have control over his senses nor be cognizant of his own self (sentience). He certainly is nowhere close to having any sense of a rational self and is perhaps at least a decade away from being able to use logic in a way that will prove beneficial to his life. I also question as to whether or not he is able to “feel” as I would define it. He certainly can feel hunger, heat, cold, and is even soothed by the heartbeat of a parent, but he doesn’t feel love (while he can possibly receive it), or grief, of happiness (though he can smile now). But above all, Colin is not morally capable right now. In fact, it probably won’t be for 2 years before any kind of morality will begin to develop within him.

So it is with this in mind that I think you might be on a slippery slope on what defines a person, and therefore a person worth saving. One could possibly argue that there are thousands (millions?) of adults who don’t meet the criteria you have set.

Tyler presents a complex set of rebuttals and arguments and I haven’t really defined personhood on this blog very well yet, so now is as good a time as any. Given that it’s a critical component of transhumanism, it needs to be addressed. So let’s break things down into parts to be handled:

1. What is a person/personhood?
2. What are a person’s rights?
3. What kind of person is a child?
4. What happens to those who don’t have personhood?

That established, let’s begin:

To answer the first question, a person his someone who possess personhood. That was easy, but what is personhood? That’s, well, not so easy. Personhood is, as simply as I can put it, the degree to which an entity exhibits a combination of aspects of the mind and consciousness, such as sentience, creativity, intelligence, sapience, self-awareness and intentionality. Given that each of those concepts is rather problematized by philosophy, you can imagine how complex the idea of personhood if it is comprised of all of them. The important part of personhood, however, is not just that it is comprised of these traits, but that it is a spectrum. To quote myself:

[Personhood theory has] two unique capabilities [in contrast to species-based ‘humanness’]: scalability and portability. Scalability  is exemplified in Steven Wise’s Drawing the Line: Science and the Case for Animal Rights in which he argues that living beings can be ranked from “stimulus-response machines” at 0.0 up through to fully-functioning, rational adult humans at 1.0.78 The critical note here is that humans themselves can be placed on the scale, with a blastocyst ranking at 0.0 and five year-old somewhere in the range of 0.8. Wise does substantial work substantiating the limits and qualifiers for the scale. An example of one such creature that may benefit would be the former student of Irene Pepperburg, Alex, a grey parrot of noteworthy intelligence79, who would above the 0.7 intelligence threshold for ‘limited personhood.’

Portability  is created via the fact that personhood is not located in any physicality - such as a race, sex, or species – but instead embodies a given physicality,  allowing rights discourses to overcome many of the current frustrations that arise from identity politics. Furthermore, it presents a form of elasticity clause, doing the work of the Fourteenth Amendment by de facto, and in addition allowing for the easy creation of a tiered rights structure for non-human intelligences that show personhood. If an artificial intelligence system or ‘uplifted’ animal passes a personhood Turing test, that is, “capable of achieving the same level of reason and mature reflection”80 as an adult human, then it would be granted the same rights as an adult human.

This moves us into question 2, what are a person’s rights? Because personhood is tiered, this answer requires explaining what the tiers might look like. For example, mature personhood would be akin to that of an adult citizen of the United States of America, including but not limited to, the right to vote, run for office, marry, engage in contracts, and procreate. This also includes being fully subject to the law, that is, responsible for how rights are exercised. Another right, commonly unaddressed, is the right to care for a dependent person, such as a child. This brings up the realm of just ‘personhood’ not yet matured, which applies to children and the mentally disabled. The critical aspect of personhood is self-awareness. Here, James Hughes’ chart is especially helpful:

Image Source: Cyborg Citizen, pg. 224

As you can see, Hughes leaves a gap precisely where Tyler’s question lies: what about a newborn child? That Colin is, in many ways will be, ‘sentient property’ until he becomes self-aware, which is a somewhat ambiguous moment in and of itself, at which point he will become ‘person’ and a ‘disabled citizen.’ In spite of this liminal existence, there are some important ideas about personhood for Colin that would protect his rights from conception through development to an adult.

Before getting to Colin and question 3 with him, we should explain why embryos and fetuses are different from a newborn or toddler. For this, I recommend the “12 Questions for Pro-Lifers” from Feministe which exposes the absurd fallacy of personhood beginning at conception. Read the whole thing, it’s really good, I’ll wait. Ok, now that that’s taken care of, the personhood of a child.

Two very important aspects of Hughes’ rights structure protect Colin independently of one another. The first is that of the child as sentient property. Colin is ‘owned’ by his parents and, therefore, under their protection. Personhood law regarding human children starts with the parents having rights over and regarding the child, just as now. But lets say a parent torments and brutalizes their child. Even as sentient property, a child has a right not to suffer. This is the secondary protection, in which the state and law ensure safety for the child.

Now, I understand this is just a cursory explanation and leaves a lot of gaps. But what I am addressing is Tyler’s worry that Colin would be without rights until he was not just self-aware and moral. This worry is actually an excellent example of the scalability of personhood: it is able to grow and change as Colin does, from the moment of conception through to old-age. Furthermore, it provides a stable foundation upon which those rights are built and solidifies the legal parent-child connection while establishing a more effective means of questioning it. Personhood protects children better than our current, ambiguous legal system.

The final issue is, what things are without personhood and what happens to those things? Well, as the chart above shows, they are treated as things. The list from Feministe shows what we would have to ask ourselves if we didn’t already, unconsciously consider objects without personhood to be things, alive or not. This question of ‘aliveness’ is the final advantage of personhood. We no longer have to fret over whether or not something is, technically, alive. We can, instead, see where it falls on the scale of personhood and act accordingly.

So, in summary: Yes, Tyler, Colin has rights under personhood. He is currently in the ambiguous realm between sentient property and personhood. Perhaps, if personhood ever becomes a basis for law, we will develop a set of rights structures for the stage between birth and personhood. Until then, we must understand personhood as a scale comprised of several traits. This scale is still being developed, but, as a concept, shows it’s usefulness over the reductionist “human species” as a category for rights. Just as our DNA doesn’t determine our identity and personality, neither should it determine our rights.

Kyle Munkittrick, IEET Program Director: Envisioning the Future, is a recent graduate of New York University, where he received his Master's in bioethics and critical theory.
Nicole Sallak Anderson is a Computer Science graduate from Purdue University. She developed encryption and network security software, which inspired the eHuman Trilogy—both eHuman Dawn and eHuman Deception are available at Amazon, the third installment is expected in early 2016. She is a member of the advisory board for the Lifeboat Foundation and the Institute for Ethics and Emerging Technologies.

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