Transhuman Babies and Human Pariahs 201
person’s genetic material raises legal concerns which cannot be overlooked in light of the complex
law of parentage,162 surrogacy163 and estates and trusts164 in the United States.
Although existing proposals and scholarly discussions of genetic engineering have
addressed issues that arise from the technology, including the significance of the legal notion of
“personhood” in this context, a review of a cross-section of the existing literature reveals the
problems inherent with some proposals, namely, that they either take a very broad, philosophical
approach embracing an extreme side of the Transhumanist debate, or a very narrow legal approach,
both of which fail to take important factors into consideration. A review of such proposals
reinforces the argument that the best regulatory approach is a middle-ground solution in the form
of a legal definition of human person.
IV. CRITICISM OF EXISTING PROPOSALS - ADDRESSING GENETIC ENGINEERING
TECHNOLOGIES AND TRANSHUMANISM
As mentioned above, the Transhumanism debate is lengthy, complex, and heated. Some
proposals focus on broad, philosophical concepts to propose a solution to the problems posed by
the implementation of genetic engineering technologies and the Transhumanist movement.
However, as set forth in the following discussion, such proposals are inadequate to resolve the
problems presented by genetic engineering technologies and the evolution of Transhumanism into
a societal value.
For example, opponents of Transhumanism and germline genetic modification
technologies such as Andrews, Annas, and Isasi, argue that germline genetic modification
threatens the foundation of human rights.165 Their justification for this proposition is their belief
that “membership in the human species is central to the meaning and enforcement of human
rights.”166 This means that the authors espouse a biological theory of personhood, to which the
Homo sapiens genome—the 99.9% of DNA all humans share across the earth167—is the
162 See Nancy D. Polikoff, A Mother Should Not Have to Adopt Her Own Child: Parentage Laws for Children of
Lesbian Couples in the Twenty-first Century, 5 STAN. J. CIV. RTS. & CIV. LIBERTIES 201 (2009). See also Linda
Wray Black, The Birth of a Parent: Defining Parentage for Lenders of Genetic Material, 92 NEB. L. REV. 799
(2014). The author notes, for example, that “maternity has been understood as a question of fact, the fact of
childbirth. Maternity is still a question of fact, but the scientific facts have changed to permit two biologically
related females for one child. It has become prescriptive rather than descriptive to limit the label of biological
mother to either ( i) the genetic mother or ( ii) the gestational mother. If a biological connection to the baby is the
starting point for legal parentage, the law must embrace the science supporting the biological connection of not only
the genetic mother but also the gestational mother.” Id. at 807. Applying the authors’ reasoning in the context of
MRT for example, there would be a biological connection—albeit tenuous—between the child and the
mitochondrial donor, which can lead to genuine parentage disputes absent a clear regulatory system.
163 See Joseph F. Morrissey, Surrogacy: The Process, The Law and the Contracts, 51 WILLAMETTE L. REV. 459
164 See generally Lee-Ford Tritt, Sperms and Estates: An Unadulterated Functionally Based Approach to Parent-Child Property Succession, 62 SMU L. Rev. 367 (2009) (discussing the issues of inheritance and intestacy in
relation to changing societal structures and technologies).
165 Annas, Andrews & Isasi, supra note 13, at 151-52.
166 Id. at 153.
167 What Does It Mean to Be Human? Genetics, SMITHSONIAN NAT’L MUSEUM OF NAT. HIST.,
http://humanorigins.si.edu/evidence/genetics (last visited May 12, 2017).