Law Commons^™

"As Long As I'M Me": From Personhood To Personal Identity In Dementia And Decision-Making, James Toomey

Elisabeth Haub School of Law Faculty Publications

As people, especially older people, begin to develop dementia, we confront ethical questions about when and how to intervene in their increasingly compromised decision-making. The prevailing approach in philosophically-inclined bioethics to tackling this challenge has been to develop theories of “decision-making capacity” based on the same characteristics that entitle the decisions of moral persons to respect in general. This Article argues that this way of thinking about the problem has missed the point. Because the disposition of property is an identity-dependent right, what matters in dementia and decision-making is an individual’s personal identity with their prior self, not their moral …

The Global Person: Pig-Human Embryos, Personhood, And Precision Medicine, Yvonne Cripps

Indiana Journal of Global Legal Studies

Chimeras, in the form of pig-human embryos engineered by CRISPR-Cas9 and other biotechnologies, have been created as potential sources of organs for transplantation. Against that background, and in an era of "precision medicine," this Article examines the concept of the global genetically modified person and asks whether humanness and personhood are being eroded, or finding new boundaries in intellectual property and constitutional law.

Preparing The Groundwork For A Responsible Debate On Stem Cell Research And Human Cloning, O. Carter Snead

O. Carter Snead

The debate over both cloning and stem cell research has been intense and polarizing. It played a significant role in the recently completed presidential campaign, mentioned by both candidates on the stump, at both parties' conventions, and was even taken up directly during one of the presidential debates. The topic has been discussed and debated almost continuously by the members of the legal, scientific, medical, and public policy commentariat. I believe that it is a heartening tribute to our national polity that such a complex moral, ethical, and scientific issue has become a central focus of our political discourse. But, …

Shifting Our Focus From Retribution To Social Justice: An Alternative Vision For The Treatment Of Pregnant Women Who Harm Their Fetuses, April L. Cherry

Journal of Law and Health

The ways in which society responds to pregnant women whose behavior purportedly harms their fetuses can be explored from a variety of legal vantage points. This article argues that the criminal law model currently used is ineffective. The assignment of criminal liability to pregnant women is often rooted in fetal personhood and maternal deviance discourse. Criminal law solutions fail because they fail to take into account the fact that maternal behavior is often the result of a myriad of the social and economic conditions over which pregnant women have little or no control. The criminal law model, therefore, simply punishes …

The Concept Of Person In The Law, Charles Baron

Charles H. Baron

The focus of the abortion debate in the United States tends to be on whether and at what stage a fetus is a person. I believe this tendency has been unfortunate and counterproductive. Instead of advancing dialogue between opposing sides, such a focus seems to have stunted it, leaving advocates in the sort of “I did not!” – “You did too!” impasse we remember from childhood. Also reminiscent of that childhood scene has been the vain attempt to break the impasse by appeal to a higher authority. Thus, the pro-choice forces hoped they had proved the pro-life forces “wrong” by …

Lessons From Personhood's Defeat: Abortion Restrictions And Side Effects On Women's Health, Maya Manian

Articles in Law Reviews & Other Academic Journals

State personhood laws pose a puzzle. These laws would establish fertilized eggs as persons and, by doing so, would ban all abortions. Many states have consistently supported laws restricting abortion care. Yet, thus far no personhood laws have passed. Why? This Article offers a possible explanation and draws lessons from that explanation for understanding and resisting abortion restrictions more broadly. I suggest that voters’ recognition of the implications of personhood legislation for health issues other than abortion may have led to personhood’s defeat. In other words, opponents of personhood proposals appear to have successfully reconnected abortion to pregnancy care, contraception, …

Beyond Abortion: Why The Personhood Movement Implicates Reproductive Choice, Jonathan Will

Journal Articles

In 2008, an amendment was proposed to the Colorado Constitution that sought to attach the rights and protections associated with legal “personhood” to any human being from the moment of fertilization. Although the initiative was defeated, it sparked a nation-wide Personhood Movement that has spurred similar efforts at the federal level and in over a dozen states. Personhood advocates choose terms like “fertilization,” or phrases such as “human being at any stage of development,” to identify the “person”-defining moment in the reproductive process, and these designations have profound implications for reproductive choice. Proponents are outspoken in their desire to outlaw …

Lessons From Personhood’S Defeat: Abortion Restrictions And Side Effects On Women’S Health, Maya Manian

Maya Manian

State personhood laws pose a puzzle. These laws would establish fertilized eggs as persons and, by doing so, would ban all abortions. Many states have consistently supported laws restricting abortion care. Yet, thus far no personhood laws have passed. Why? This Article offers a possible explanation and draws lessons from that explanation for understanding and resisting abortion restrictions more broadly. I suggest that voters’ recognition of the implications of personhood legislation for health issues other than abortion may have led to personhood’s defeat. In other words, opponents of personhood proposals appear to have successfully reconnected abortion to pregnancy care, contraception, …

Measure 26: Fear Mongering, Self-Execution & Potential Implications For Birth Control, Jonathan Will

Journal Articles

Depending on what we mean by “fertilization,” there could be impacts on many reproductive choices including birth control, fertility treatments like in vitro fertilization (IVF), and of course, women’s ability to choose to have an abortion. Certain proponents of Measure 26 suggest that even discussing these implications (other than perhaps abortion) amounts to fear mongering. While primarily focusing on birth control, the goal of this essay is to introduce readers to why the concerns regarding these reproductive choices are very real, and how these concerns are further complicated by the issue of whether, if passed, Measure 26 would be deemed …

Giving In To Baby Markets: Regulation Without Prohibition, Sonia M. Suter

Michigan Journal of Gender & Law

The commodification of reproductive material evokes different responses. Some argue that the sale of reproductive material should be prohibited. Others argue in favor of unfettered baby markets on principle or to achieve broad-scale access to reproductive technologies. In this Article, the author responds to the emergence of baby markets with great skepticism, but reluctant acceptance. Drawing on a relational conception of autonomy and self-definition, she argues that commodification of reproductive material is intrinsically harmful. Moreover, such commodification poses a number of consequential harms. Nevertheless, in spite of these concerns, the author "gives in" to baby markets, which is to say …

The Children Of Science: Property, People, Or Something In Between?, Star Q. Lopez

ExpressO

How should states classify embryos? The war has often waged between two classifications, people versus property. But what if a state assumed something in between, finding the embryo to be a potential person entitled to special respect? If a state adopted this position, how would the law affect medical research?

Presuming embryos constitute potential persons, the debate would continue with how to define “special respect.” The status of a potential person runs along a spectrum between property and personhood. How one defines “special respect” determines where the potential person falls along this spectrum. Special respect would create a spectrum of …

Restructuring The Debate Over Fetal Homicide Laws, Carolyn B. Ramsey

Publications

The worst problems with the fetal homicide laws that have proliferated around the nation are quite different than the existing scholarship suggests. Critics often argue that the statutes, which criminalize the killing of a fetus by a third party other than an abortion provider, undermine a woman's right to terminate her pregnancy. This concern is overstated. Although supported by anti-abortionists, many of the fetal homicide laws embody the perspective of the so-called "abortion grays," who eschew the absolutism of the doctrinaire pro-choice and anti-abortion camps. This Article explores how a contextual view of life-taking allows us to reconcile legal abortion …

Preparing The Groundwork For A Responsible Debate On Stem Cell Research And Human Cloning, O. Carter Snead

Journal Articles

The debate over both cloning and stem cell research has been intense and polarizing. It played a significant role in the recently completed presidential campaign, mentioned by both candidates on the stump, at both parties' conventions, and was even taken up directly during one of the presidential debates. The topic has been discussed and debated almost continuously by the members of the legal, scientific, medical, and public policy commentariat. I believe that it is a heartening tribute to our national polity that such a complex moral, ethical, and scientific issue has become a central focus of our political discourse. But, …

Choice, Conscience, And Context, Mary Crossley

Articles

Building on Professor Michael H. Shapiro's critique of arguments that some uses of new reproductive technologies devalue and use persons inappropriately (which is part of a Symposium on New Reproductive Technologies), this work considers two specific practices that increasingly are becoming part of the new reproductive landscape: selective reduction of multiple pregnancy and prenatal genetic testing to enable selective abortion. Professor Shapiro does not directly address either practice, but each may raise troubling questions that sound suspiciously like the arguments that Professor Shapiro sought to discredit. The concerns that selective reduction and prenatal genetic screening raise, however, relate not to …

The Concept Of Person In The Law, Charles Baron

Charles H. Baron

The focus of the abortion debate in the United States tends to be on whether and at what stage a fetus is a person. I believe this tendency has been unfortunate and counterproductive. Instead of advancing dialogue between opposing sides, such a focus seems to have stunted it, leaving advocates in the sort of “I did not!” – “You did too!” impasse we remember from childhood. Also reminiscent of that childhood scene has been the vain attempt to break the impasse by appeal to a higher authority. Thus, the pro-choice forces hoped they had proved the pro-life forces “wrong” by …

Personhood And The Contraceptive Right, Joseph W. Rebone

Indiana Law Journal

No abstract provided.