UN INFORTUNIO COMUNICATIVO SEGÚN EL MODELO AUSTINIANO: FALENCIAS EN LOS ELEMENTOS DEL PROCESO

The born alive rule is correctly said to be ill-founded. In the first place, new technologies have rendered the rationale behind it invalid because, if it is the separateness from the pregnant woman that makes live birth significant, it has been proven that the foetus is genetically separate at, or near, conception.459 _{If, however, it is the capability for} independent existence, as is likely to be the case, it has already become possible for pre- term foetuses to survive apart from the pregnant women if they have reached the age of viability,460 _{which is currently around twenty six weeks.}461 _{This means that the foetus is}

457_{Ibid., 521, 522.}

458 _{King, "The Juridical Status of the Fetus: A Proposal for Legal Protection of the Unborn," 1661.} 459_{Ibid., 1660.}

460_Ibid.

461 _{C. Cameron and R. Williamson, "In the World of Dolly, When Does a Human Embryo Acquire} Respect?” Journal of Medical Ethics 31, no. 4 (2005): 215-220, 218. The stage at which viability is confirmed is somewhat contentious, but the scientific consensus locates it around 26 weeks. The British Association of Perinatal Medicine considers that “[i]nfants born 22 - < 28 weeks gestation (approx. equivalent to 500-1000g.) have been termed as having “threshold viability”, though in developed countries this term is more often used in reference to infants of < 26 weeks.” The British Association of Perinatal Medicine (BAPM), "Memorandum: Fetuses and Newborn Infants at the Threshold of Viability a

Framework for Practice,” (2000), retrieved from http://www.bapm.org/documents/publications/threshold.pdf at 20/07/2008. For a discussion of

the effect of scientific development on decreasing the age of viability, see Lee, "The Abortion Debate Today”, 239, 240.

4. Defining Legal Personality

capable of existing independently of the pregnant woman long before normal birth, which usually occurs at around thirty-eight weeks of gestational age.462 463

This has caused courts to question the validity of the born alive rule. The American case of People v Chavez is a clear illustration of this.464 _{When having to decide} whether a woman was guilty of the manslaughter of her newborn child, the court expressed doubts about whether such a conviction required proving that the child had been born alive, in the following long but essential quote:

Beyond question, it is a difficult thing to draw a line and lay down a fixed general rule as to the precise time at which an unborn infant, or one in the process of being born, becomes a human being in the technical sense. There is no much change in the child itself between a moment before and a moment after its expulsion from the body of its mother, and normally, while still dependent on its mother, the child, for some time before it is born, has not only the possibility but a strong probability of an ability to live an independent life. It is well known that a baby may live and grow when removed from the body of its dead mother by a Caesarian [sic] operation. The mere removal of the baby in such a case or its birth in a normal case does not, of itself and alone, create a human being. While before birth or removal it is in a sense dependent upon its mother for life, there is another sense in which it has started an independent existence after it has reached a state of development where it is capable of living and where it will, in the normal course of nature and with ordinary care, continue to live and grow as a separate being. … There is no sound reason why an infant should not be considered a human being when born or removed from the body of its mother, when it has reached that stage of development where it is capable of living an independent life as a separate being, and where in the natural course of events it will so live if given normal and reasonable care. It should equally be held that a viable child in the process of being born is a human

462 _{"Pregnancy n." Concise Medical Dictionary. Oxford University Press, 2007. Oxford Reference Online.} Oxford University Press. Lancaster University. 28 April 2008 <http://www.oxfordreference.com/views/ENTRY.html?subview=Main&entry=t60.e8141>

463 _{About the different methods of calculating the foetus age see fn.} 666 _below. 464_{People v Chavez, (1947) 77 Cal.App.2d 621.}

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being within the meaning of the homicide statues, whether or not the process has been fully completed. It should at least be considered a human being where it is a living baby and where in the natural course of events a birth which is already started would naturally be successfully completed.465

Indeed, the futuristic possible application of ectogenesis has made this point clearer. Ectogenesis is “…the development of artificial wombs that can sustain foetuses to term without the need for women’s bodies.”466 _{It has made possible, theoretically at} least, for a foetus to survive outside the pregnant woman’s body, regardless of its age. Therefore, live birth, as an indication of the capability of living independently from the pregnant woman, is no longer significant.

However, it may well be argued that the foetus placed in an artificial womb is still incapable of independent existence. It still cannot sustain its own life without a womb, albeit an artificial womb this time. Such an objection is unsound since the importance of the ectogenesis argument lies in the fact that it proves that foetal life can be sustained outside natural wombs. This means that traditional birth is no longer inevitable, hence the born alive rule would no longer be applicable in all cases. However, this objection invites a discussion of the necessity of independent existence for legal personality.

465_{Ibid., 625, 626.}

466 _{A. Smajdor, "The Moral Imperative for Ectogenesis”, Cambridge Quarterly of Healthcare Ethics 16, no.} 03 (2007): 336-345, 337. Artificial wombs are already in use at both edges of gestation. Six-month-old foetuses on the one hand are kept alive in incubators and artificially fertilised eggs on the other are also kept alive in vitro for three and four days before implanting them into a womb. What is needed is just filling the gap via the use of artificial wombs capable of sustaining foetuses to term regardless of their age. Jeremy Rifkin, "The End of Pregnancy: Within a Generation There Will Be Probably Be Mass Use of Artificial Wombs to Grow Babies," The Guardian Thursday January 17, 2002. This, according to the most important researchers working on ectogenesis, as Robin Mckie wrote in The Observer, “will become reality in a few years.” ((Robin McKie, "Men Redundant? Now We Don't Need Women Either," The Observer Sunday February 10, 2002.) Yosinori Kuwabara, the Japanese scientist who managed to keep goat foetuses alive in an artificial womb for ten days, predicted that that would happen in less than six years. Others, though did not share the same optimism, see as probable the mass use of artificial wombs after quite a longer time. (McKie, "Men Redundant? Now We Don't Need Women Either.") This has led Jeremy Rifkin to state that “[t]he artificial womb seems the next logical step in a process that has increasingly removed reproduction from traditional maternity and made of it a laboratory process.” (———, "Men Redundant? Now We Don't Need Women Either.") For more details, see S. Gelfand, Ectogenesis: Artificial Womb Technology and the Future of Human Reproduction (Amsterdam-New York: Rodopi, 2006).

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Independent existence, which is the central rationale behind the born alive rule, is in my view, an unsatisfactory criterion for legally defined humanity, and subsequent personality. Independence is unattainable for many people, yet this has not led to weakening their humanity and so their personality. Similarly, the dependence of the foetus, in itself, should not be used to deprive it of any legal standing. As Stanton and Harris ironically point out:

[T]here is a sense in which none of us are capable of [independence] … and certainly in complex modern societies, most people require assistance and are in some sense dependent. Is the person attached to a heart/lung machine or dialysis machine independent or not? Why is independence of the mother so important?467

Similarly, Goldenring sees no reason why an eighty year old patient who, despite being kept alive in an intensive care unit by an external mechanical respirator, is considered alive, as long as s/he has a functioning brain, while an eight weeks old foetus is not, despite the fact that it is “…inside the most advanced intensive care unit ever designed – the uterus … [and] is being maintained by the most complex extracorporeal respirator known – the placenta”, and has a functioning brain.468 _{Making the same point,} Catharine MacKinnon argues:

Foetal dependence upon the pregnant woman does not make the foetus a part of her any more than fully dependent adults are parts of those on whom they are

467 _{Catherine Stanton and John Harris, "The Moral Status of the Embryo Post-Dolly”, Journal of Medical} Ethics 31, no. 4 (2005): 221-225, 222.

468 _{John M Goldenring, "The Brain-Life Theory: Towards a Consistent Biological Definition of} Humanness," British Medical Journal 11, no. 4 (1985): 198-204, 199. It is worth mentioning that this thesis adopts a different perspective about when the brain starts functioning. See Section 5.1 Determining the timing of the ensoulment event.

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dependent. The foetus is a unique kind of whole that, after a certain point, can live or die without the mother.469

Besides that, being a biologically based criterion, the born alive rule is subject to the same criticism levelled at basing legal personality on biological criteria. In the following quote, with which I partially agree, Naffine states what she considers to be the limitations of the biologically based definition of a legal person:

The reliance of this definition of the person, at least in part, on a biological paradigm of human being means that it is exposed to controversies between biologists, which are in turn influenced by the new medical technologies. It is therefore also vulnerable to biological arguments that human life starts earlier than birth and that death is a process not an event and therefore its timing is indeterminate. It is also vulnerable to social or cultural considerations because the meaning of biology is always socially determined. What counts as a legal biological human is therefore not just subject to medical (which of course are also cultural) determinations about the beginnings and ends of a human being. What it means to be a biological legal human is also influenced by cultural ideas of what it is to be a whole and proper metaphysical person.470

While agreeing on the first point, I see no reason for the other two. Indeed, the reliance on biology is implausible because of its changeability. Stability in determining who the subjects of law are is certainly needed.471 _{However, criticising biological} definitions because they suggest that human life may well begin before birth is not reasonable. Such a suggestion will be an important proposition to examine, if humanity is considered the basis for legal personality. In addition the fact that biological definitions are subject to cultural and social considerations of what it means to be human is not a

469 _{C. A. MacKinnon, "Reflections on Sex Equality under Law”, The Yale law journal 100, no. 5 (1991):} 1281-1328, 1314.

470 _{Naffine, "Who Are Law's Persons? From Cheshire Cats to Responsible Subjects”, 359, 360.} 471_{Hjāzy, Al-Mdkhl l-Drāsh al-ʿlwm al-Qānwnyt, al-Hq, 387.}

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limitation. Actually, it reduces the pure biology of these definitions, and makes them more non-biological. Therefore, seeing the reliance on cultural and social considerations as a shortcoming, is a reminder of the implausible positivist definition of legal personality, wherein non-legal considerations are excluded.472 _{Furthermore, biological} factors cannot be completely disregarded. Whilst they should not be the final word on who counts as a legal person, they can, and should, as will be explained later in this thesis, be used to apply the criterion of legal personality.473

The other limitation of the definition of humanity as a biologically based concept is itsarbitrariness. As previously indicated, according to this definition, it is sufficient, in order to be a human and so qualify as a legal person, to meet the biological paradigm, regardless of having any intelligence or sentience.474 _{Non-human entities are considered} non-persons, despite the fact that some of them are more intelligent or sentient than some humans, such as babies and cognitively impaired adults who are nonetheless deemed to be legal persons.475

This is what some writers call speciesism. It is the preference given to the members of one species, namely, the human species, over members of other species, just because of membership.476 _{As Hursthouse indicates, speciesism in this sense is as} indefensible as sexism, i.e. preference based on membership of a sex, or racism, i.e. preference based on membership of a race:

472 _{Indeed, Naffine advocates the formal positivist definition of legal personality, that is, as an empty slot} that can be filled with any thing. As such, it, personality, can be conferred on anyone or anything regardless of their sex, age, or species; the positivist definition, in such a case, will provide “…the basis of a law for everyone.” Naffine, "Who Are Law's Persons? From Cheshire Cats to Responsible Subjects”, 366, 367.

473 _{See 5.1 Determining the timing of the ensoulment event.}

474 _{Naffine, "Who Are Law's Persons? From Cheshire Cats to Responsible Subjects”, 361.} 475_Ibid.

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Speciesism is just like racism and sexism built on irrelevant moral differences between the preferable entity and others. Like sexists and racists, speciesists consider their category –fellows their equal while excluding others even if those fellows do not meet the requirements claimed to distinguish that category from others. Retarded humans are considered morally important in the same way normal human beings are though they lack the rationality claimed to distinguish humans from animals. They are “the kind of thing” that deserves to be distinguishable as racists and sexists were defending the inclusion of retarded white men while excluding women and non-white men.477

For these reasons, it seems fair to conclude that the humanity-based definition of legal personality is problematic. However, this does not mean that humanity should be wholly abandoned as a mechanism for deciding the issue of legal personality. As will be explained presently, the most satisfactory definition of legal personality is one that is based on a moral criterion that is exclusively human, i.e. cannot be fulfilled by entities other than humans.

477 _{Rosalind Hursthouse, Ethics, Humans and Other Animals: An Introduction with Readings (London; New} York: Routledge, 2000), 122, 123.

4. Defining Legal Personality