Transhuman Babies and Human Pariahs 211
Chimpanzees and humans share approximately 98.8 percent of their DNA. 251 Yet, despite
this genetic similarity, and the cognitive similarities between the two species, chimpanzees are
non-persons according to the New York court’s ruling. 252 One conclusion deriving from this
reasoning is that there is something essential for legal purposes about Homo sapiens DNA which
entitles the human species to rights and protections associated with personhood which others
cannot have. 253
A hint as to what that essential legal element of Homo sapiens DNA is may be discerned
from the evolving policy on the creation of chimaeras. On August of 2016, the National Institutes
of Health lifted a ban on the creation of chimaeras—part-human part-animal creatures—for
research purposes. 254 One of the concerns in creating chimaeras with human DNA is that scientists
might create a creature with a certain level of human consciousness. 255 Therefore, the ban remains
for creating chimaeras with part human DNA and part non-human primate DNA—such as
chimpanzee DNA. 256 The ban on creating part human part non-human primate DNA illustrates the
concept that there is a biological line between the human person and the non-human person which
is relevant for legal purposes, and that such line is not the clear-cut 99.9 percent collective Homo
By way of illustration, if a Neanderthal were cloned and raised in American culture, and
had the full capability of assimilation into society, 257 would it be just to deny the Neanderthal legal
rights because he or she is merely 99.7% genetically similar to humans? 258 As noted in the previous
discussion, even as science crystalized the notion that humans are nearly genetically identical by
251DNA: Comparing Humans and Chimps, AM. MUSEUM OF NAT. HIST.
http://www.amnh.org/exhibitions/permanent-exhibitions/human-origins-and-cultural-halls/anne-and-bernard-spitzer-hall-of-human-origins/understanding-our-past/dna-comparing-humans-and-chimps/. (last visited May 12, 2017).
252 But see, e.g., Valeria Roman, Argentina Grants an Orangutan Human-Like Rights, SCI. AM. (Jan. 9, 2015),
https://www.scientificamerican.com/article/argentina-grants-an-orangutan-human-like-rights/ (The Argentinean
judiciary, however, has found the opposite. A similar case was brought in an Argentinian court, in which counsel
brought a habeas corpus petition arguing that a captive orangutan, Sandra, had been deprived of her freedom
unjustifiably. Id. (Andres Domingues, a member of the Association of Professional Lawyers for Animal Rights in
Argentina stated that “[t]he ruling was historic because before a nonhuman primate like Sandra was considered an
object and therefore there was no dispute about its captivity.”) Id.
253 The New York Supreme Court Appellate Court rejected the appeal, stating, as reasoning for its decision, that
“only people can be held legally accountable for their actions.” David Grimm, Chimpanzee ‘Personhood’ Fails on
Appeal, SCI. (Dec. 4, 2014), http://www.sciencemag.org/news/2014/12/chimpanzee-personhood-fails-appeal.
254 Rob Stein, NIH Plans to Lift Ban on Research Funds for Part-Human, Part-Animal Embryos, NPR (Aug. 4,
257 Although it is disputed in the scientific community whether Neanderthals were a type of Human or a different
species altogether. See Tabitha M. Powledge, Were Neanderthals a Different Species?, GENETIC LITERACY PROJECT
(Feb. 4, 2014), https://www.geneticliteracyproject.org/2014/02/04/were-neanderthals-a-different-species/.] For
example, scientists believe that Neanderthals were capable of talking at a level similar to that of humans. See also
Kaku, supra note 1336, at 153-54.
258 Larry Thompson, Complete Neanderthal Genome Sequenced, NAT’L INST. OF HEALTH (May 5, 2010),
https://www.genome.gov/27539119/. It is also believed that there was extensive interbreeding between Neanderthals
and Homo sapiens, and that approximately two percent of DNA of people from Asian and European descent comes
from Neanderthals. See Ewan Callaway, Modern Human Genomes Reveal Our Inner Neanderthal, NAT. (Jan. 29,
2014), http://www.nature.com/news/modern-human-genomes-reveal-our-inner-neanderthal-1.14615. See also,
ANDREWS ET AL., supra note 174 at 370.