204 Children’s Legal Rights Journal [Vol. 37:2 2017]
that we are specimens of the most highly developed species of organic life, fail us
when we raise the question “and who are we?” 185 (emphasis added).
As noted above, while some Transhumanist proponents of genetic engineering adopt the notion
that human essence is to strive for evolution of the current human form, 186 some opponents believe
that the totality of human DNA in its present form is the essence of humanity. 187 Arendt rightly
rejects arbitrary views of human nature such as these, noting that even “the sum total of human
activities and capabilities that correspond to the human condition do not constitute anything like
human nature.” 188 Arendt’s philosophy, explaining the impossibility of defining what “human
nature” is in an ontological sense, evidences that reliance on unsupported, philosophical notions
of human essence or nature are inherently arbitrary and therefore, cannot serve as the underlying
support for a regulatory or legal scheme.
Instead of arguing broadly about what constitutes “human essence” both sides of the
debate should work towards a functional solution based on the single proposition on which they
agree: that, according to them, there is such thing as a “human essence.” 189 However, the
ideological debate for regulatory purposes as to what constitutes “human essence” must be based
on understanding what such essence is from a legal perspective—in other words, as a legal fiction
and not an ontological truth.
It worth noting that opponents of germline genetic modifications such as Andrews, Annas,
and Isasi are correct to exhibit concern about the application of human rights—and, by implication,
regional rights such as those provided by the United States Constitution—in the context of an
evolved human condition enabled by genetic engineering technologies, as it is unknown to what
extent a genetically modified human would still be considered a person under the law. 190 Legal
commentator Michael Rivard notes this gaping hole in American jurisprudence, and explains that
the ethereal legal definition of human person that we take for granted will become increasingly
ambiguous over time: “The historical distinctions between species will not remain intact. Scientists
using genetic engineering technology will blur distinctions between species as they transfer
characteristic traits – such as intelligence – between species… the line dividing human and
nonhuman will disappear’ it will be replaced by a genetic continuum.” 191
In addition to the aforementioned proposals, which focus broadly on the justifications for
or against the implementation of genetic engineering based on philosophical arguments, legal
scholars have made numerous192 proposals to address specific, narrow issues arising from the
technology. While it is beyond the scope of this article to provide a comprehensive review of the
existing literature, 193 it is worthwhile to address examples of existing proposals and to highlight
why narrow solutions—which fail to take into consideration various important factors—are also
insufficient to address the issues arising from genetic engineering technologies.
185 HANNAH ARENDT, THE HUMAN CONDITION 10 (University of Chicago Press, 2d ed. 1958).
186 Hauskeller, supra note 180. (Hauskeller adopts the definition crafted by Max Moore, one of the founders of the
modern Transhumanist movement.).
187 See Annas, Andrews & Isasi, supra note 13, at 170.
188 ARENDT, supra note 185, at 10.
189 See Annas, Andrews & Isasi, supra note 13, at 170; Hughes, supra note 177, at 93.
191 Rivard, supra note 17 at 1442-43.
192 See, e.g., infra p. 27, notes 194-97 and accompanying text.
193 A comprehensive literature review of the topic would be proper for a lengthy treatise.