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virtue of the shared 99.9% of Homo sapiens DNA, 259 the law was never forced to define what it
means to be a human person. Nevertheless, it is clear that legislatures and the judiciary have the
ability and the precedent to extend legal notions of personhood to other living creatures, even to a
Therefore, following existing precedent, or enacting legislation to adopt a legal definition
of ‘human person,” would not require an unreasonable revamp of the current legal system to
address the concerns arising from genetic engineering. The final question then becomes, what is
the best approach to craft a definition of human person which: (1) takes into account the arguments
raised by proponents and opponents of the technology, and (2) is sufficiently meaningful and
practical to be an effective means of protection for the first generation genetically modified
children and their descendants?
VI. THE HUMAN BRAIN AND THE TRANSHUMAN FUTURE: RATIONALE FOR A BIO-
PSYCHOLOGICAL APPROACH TO REGULATION OF THE GENETIC ENGINEERING OF HUMANS
a. The Foundation of a Regulatory Scheme – A Definition
As noted in a previous section, just as the definition of personhood based on the totality of
Homo sapiens DNA is too narrow for practical and sensible regulatory purposes, 260 a legal system
based on undefined “personhood” is too broad. 261 For example, although it would make sense to
extend some notions of personhood to creatures such as chimpanzees, 262 it would be illogical to
extend every right currently associated with human personhood to a chimpanzee—such as the right
to vote and own property. Nevertheless, the most efficient starting point for the creation of a
definition is the intersection between the opposing ideologies; those who argue that human DNA
is the essence of personhood rights, 263 and those who espouse a general notion of “personhood”
and a liberal view of human essence. 264 The intersection, as noted previously in this Article, is that
both sides agree that at least a portion of Homo sapiens’ DNA is necessary in a legal sense, and
as such, there is such thing as “human essence.” 265
Thus, it is that necessary part of Homo sapiens’ DNA that entitles a living being to the
status of human person. The preliminary issue with the aforementioned proposition is that such
“essential” part of the Homo sapiens DNA could derive from a multitude of genetically-generated
traits, such as certain physiological features266 or the manner of conception of the genetically
modified human. 267 Also, as illustrated by Tommy’s case, that something which is critical for legal
purposes is not necessarily dependent on even those features commonly associated as intrinsically
human, such as cognition or consciousness.268 Therefore, the definition cannot be anchored to an
arbitrary element of human genetics; the definition must strive to pinpoint what is essentially
human about human DNA for legal purposes.
259 See SMITHSONIAN NATIONAL MUSEUM OF NATURAL HISTORY, supra note 167.
260 See supra notes 165-170 and accompanying text.
261 See supra notes 177-180 and accompanying text.
262 See supra notes 201, and 246-250.
263 See Annas, Andrews & Isasi, supra note 13, at 170.
264 See Fukuyama, supra note 16.
265 See supra note 189.
266 See Shapiro, supra note 216, at 37.
267 Annas, Andrews & Isasi, supra note 13, at 159.
268 See generally Kaku, supra note 136.