Transhuman Babies and Human Pariahs 207
of the legal system. The next section addresses such scaffold as it relates to the notion of
“personhood,” further evidencing that a legal definition of “human person” would fit the criteria
of a common-sense, practical regulatory approach.
V. TRANSHUMAN CHILDREN AS LEGAL PARIAHS - OVERVIEW OF PERSONHOOD IN AMERICAN
As noted above, while some commentators argue that human rights attach to creatures with
Homo sapiens DNA, 213 other commentators have instead assumed that genetically modified
humans are automatically entitled to legal rights. 214 One such commentator asserts that “since the
purpose of [human genetic modification] is to create a living child, that child has constitutional
rights under the Fourteenth Amendment.” 215 However, there is no reason to believe that under the
current legal system a genetically modified child would be automatically entitled to the protections
afforded by the Fourteenth Amendment, or any other constitutional or statutory rights or
protections. In fact, legal scholars have argued that even a human clone—who, by definition,
would have a 100 percent unaltered Homo sapiens genome—would not be entirely human and
thus would not be entitled to legal protections. 216
In light of the concern that genetically modified humans may not be automatically entitled
to legal rights, the adoption of a strict biological definition of personhood, 217 is tempting. However,
such a definition would run contrary to American jurisprudence. Legal personhood in the United
States—such as in ancient Rome218 and other contemporary legal systems around the world219 —
has never depended on biology, and is instead a malleable legal construct. 220
The earliest indication of what entitles persons in the United States to legal rights comes
from the Declaration of Independence: “We hold these truths to be self-evident, that all men are
created equal, that they are endowed by their Creator with certain unalienable Rights, that among
these are Life, Liberty and the pursuit of Happiness.” 221 However, throughout most of American
history, these “self-evident” truths have not been so self-evident. As Fukuyama notes, “women
213See Annas, Andrews & Isasi, supra note 13.
214 See Pham, supra note 136, at 150-53. The author argues that genetically modified humans would be protected,
inter alia, under the American jurisprudential system of tort law, property law and children’s rights. Id.
215 Id. at 153 133-159.
216 Michael H. Shapiro, I Want A Girl (Boy) Just Like the Girl (Boy) That Married Dear Old Dad (Mom): Cloning
Lives, 9 S. CAL. INTERDISC. L. J. 1, 36 (1999). Shapiro discusses the arguments made by Jean Bethke Elshtain and
George Annas regarding the fact that human clones would not be entirely human. Id. at 6, 36. In fact, Andrews,
Annas and Isasi make the same argument, which directly contradicts their main proposition that human DNA is the
essence of humanity and therefore, what entitles people to human rights. See Annas, Andrews & Isasi, supra note
13, at 152, 153.
217 See Annas Andrews & Isasi, supra note 13, at 152.
218 See ANDREW BORKOWSKI & PAUL DU PLESSIS, TEXTBOOK ON ROMAN Law 87-89 (Oxford University Press
2005). The authors note that, in addition to fulfilling other criteria, the eldest living male of a household was the one
who enjoyed the greatest rights and liberties in ancient Roman society. Id.
219 See SUSAN TIEFENBRUN, WOMEN’S INTERNATIONAL & COMPARATIVE HUMAN RIGHTS 102 (Carolina Academic
Press 2012). For example, only Muslim males in countries under Shari’a law enjoy full legal rights. Id.
220 See infra notes 221–35 and accompanying text.
221 The Declaration of Independence, https://www.archives.gov/founding-docs/declaration-transcript(last visited
May 12, 2017) (emphasis added).