tag:theconversation.com,2011:/id/topics/legal-personhood-7975/articlesLegal personhood – The Conversation2024-03-11T12:24:14Ztag:theconversation.com,2011:article/2251262024-03-11T12:24:14Z2024-03-11T12:24:14ZI’m a political scientist, and the Alabama Supreme Court’s IVF ruling turned me into a reproductive-rights refugee<figure><img src="https://images.theconversation.com/files/580509/original/file-20240307-26-mc43ro.jpg?ixlib=rb-1.1.0&rect=1095%2C1199%2C1403%2C1892&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Spencer and Gabby Goidel hadn't planned to become activists.</span> <span class="attribution"><span class="source">Spencer and Gabby Goidel</span>, <a class="license" href="http://creativecommons.org/licenses/by-nd/4.0/">CC BY-ND</a></span></figcaption></figure><p>The day before the Alabama Supreme Court ruled that <a href="https://apnews.com/article/alabama-supreme-court-from-embryos-161390f0758b04a7638e2ddea20df7ca">frozen embryos created and used for in vitro fertilization</a> are children, my wife, Gabby, and I were greenlighted by our doctors to begin the IVF process. We live in Alabama.</p>
<p>That Friday evening, Feb. 16, 2024, unaware of the ruling, Gabby started taking her stimulation medications, worth roughly US$4,000 in total. We didn’t hear about the decision until Sunday morning, Feb. 18. By then, she had taken four injections – or two doses – of each of the stimulation medications.</p>
<p>For those who don’t know, the <a href="https://theconversation.com/what-is-ivf-a-nurse-explains-the-evolving-science-and-legality-of-in-vitro-fertilization-224476">IVF process is a winding journey</a> full of tests, bloodwork and bills. An IVF patient takes hormones for eight to 14 days to stimulate their ovaries to produce many mature eggs. The mature eggs are then retrieved via a minor surgical procedure and fertilized with sperm in a lab. The newly created embryos are monitored, sometimes biopsied and frozen for genetic testing, and then implanted, usually one at a time, in the uterus. From injection to implantation, one round of IVF takes four to eight weeks. </p>
<p>IVF can be as stressful as it is exciting. However, the potential of having a successful pregnancy and our own child at the end of the process, we hoped, would make it all worth it. The decision by the Alabama Supreme Court threw our dreams up in the air.</p>
<p>I <a href="https://scholar.google.com/citations?user=ow6DhIQAAAAJ&hl=en&oi=ao">study politics</a> – I don’t practice it. I’m not involved in state or local government. I’m a scholar, not an activist or an advocate. But now one of the most intimate, personal events of our lives had been turned into a political event by the state’s highest court. As a result, I became something else, too, which I had not been before: an activist.</p>
<h2>Making sense of the ruling</h2>
<p>Throughout the process of creating, growing and testing embryos in a lab, as many as <a href="https://www.illumefertility.com/fertility-blog/ivf-attrition-rate">50% to 70%</a> of embryos <a href="https://theconversation.com/most-human-embryos-naturally-die-after-conception-restrictive-abortion-laws-fail-to-take-this-embryo-loss-into-account-187904">can be lost</a>. Similarly, in the preimplantation stage of natural pregnancies, <a href="https://doi.org/10.12688%2Ff1000research.22655.1">many embryos don’t survive</a>.</p>
<p>If embryos are children, as the court ruled, then fertility clinics and patients would be exposed to an immense amount of potential legal liability. Under this new framework, patients would be able to bring wrongful death suits against doctors for the normal failures of embryos in the testing or implantation phase. Doctors would either have to charge more for an already expensive procedure to cover massive legal-insurance costs or avoid IVF altogether.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/580233/original/file-20240306-30-vi57hp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A screen shows a microscope's view of a needle and cells." src="https://images.theconversation.com/files/580233/original/file-20240306-30-vi57hp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/580233/original/file-20240306-30-vi57hp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/580233/original/file-20240306-30-vi57hp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/580233/original/file-20240306-30-vi57hp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/580233/original/file-20240306-30-vi57hp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/580233/original/file-20240306-30-vi57hp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/580233/original/file-20240306-30-vi57hp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Lab staff at an in vitro fertilization lab extract cells from embryos that are then checked for viability.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/FrozenEmbryos/ebbb52ebd68b4ab691798f90b3319f05/photo">AP Photo/Michael Wyke</a></span>
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<p>The decision and its implication – that IVF could not continue in the state of Alabama – felt like a personal affront to us. We were infuriated to have this uncertainty injected into the process three days into injecting IVF medication. </p>
<p>While the decision clearly imperiled the future of IVF in Alabama, it was not clear to us whether we would be allowed to continue the process we had begun. We were left completely in the dark for the next four days. Gabby and I had no choice but to continue daily life and IVF as though nothing was happening. </p>
<p>For me, that meant teaching my <a href="https://bulletin.auburn.edu/coursesofinstruction/poli/">political participation course at Auburn University</a>.</p>
<h2>Teaching politics when it gets personal</h2>
<p>I’ll never forget walking into class on Monday, Feb. 19, and telling the students about the court’s ruling and how it – maybe? – was going to jeopardize Gabby’s and my IVF process. </p>
<p>Before starting IVF, Gabby and I had gone through three miscarriages together.</p>
<p>IVF doesn’t always work. Approximately <a href="https://nccd.cdc.gov/drh_art/rdPage.aspx?rdReport=DRH_ART.ClinicInfo&rdRequestForward=True&ClinicId=9999&ShowNational=1">55% of IVF patients</a> under the age of 35 – Gabby is 26 – have a successful pregnancy after one egg retrieval. We couldn’t imagine the pain of telling friends and family that our attempt at having a child had once again failed. So we had agreed we were going to tell as few people as possible about starting IVF. </p>
<p>Yet, here I was now, telling my entire class what we were going through and how the Alabama Supreme Court ruling could affect us. </p>
<p>I wasn’t alone in sharing our story. The night before my Monday morning class, Gabby published an <a href="https://www.al.com/opinion/2024/02/guest-opinion-alabama-supreme-court-embryo-ruling-may-make-it-difficult-for-us-to-have-children.html">opinion column</a> on our local news site about the ruling and our resulting fears and anxieties, which really resonated with people.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/578418/original/file-20240227-26-7ak5sq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Clear batches of containers of eggs and embryos in a large, frozen circular container" src="https://images.theconversation.com/files/578418/original/file-20240227-26-7ak5sq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/578418/original/file-20240227-26-7ak5sq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=360&fit=crop&dpr=1 600w, https://images.theconversation.com/files/578418/original/file-20240227-26-7ak5sq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=360&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/578418/original/file-20240227-26-7ak5sq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=360&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/578418/original/file-20240227-26-7ak5sq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=452&fit=crop&dpr=1 754w, https://images.theconversation.com/files/578418/original/file-20240227-26-7ak5sq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=452&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/578418/original/file-20240227-26-7ak5sq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=452&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Cryopreservation gives prospective parents more time to pursue pregnancy.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/frozen-embryos-and-eggs-in-nitrogen-cooled-royalty-free-image/520157312">Ted Horowitz Photography/The Image Bank via Getty Images</a></span>
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<p>I was, that day and throughout the next few weeks, fixated on the conceptual gulf between the court’s ruling and public opinion. I wondered aloud, “Who’s against IVF? Surely, only 5% to 10% of the public agrees with this ruling.”</p>
<p>The actual numbers aren’t far off my in-class guess. <a href="https://d3nkl3psvxxpe9.cloudfront.net/documents/econTabReport_XLG2Z6p.pdf">Only 8% of Americans</a> say that IVF is immoral or should be illegal. But the story is more nuanced than that. Approximately <a href="https://www.ipsos.com/sites/default/files/ct/news/documents/2024-02/Axios%20Ipsos%20Alabama%20IVF%20Topline%20PDF%202.28.24.pdf">31% of Americans and 49% of Republicans</a> support “considering frozen embryos as people and holding those who destroy them legally responsible.” </p>
<p>In an attempt to tie our personal political experience into the class topic, I remarked that this court decision was a surefire way to get people involved in politics. I had no clue at the time how prophetic my comment would be.</p>
<h2>Fleeing to Texas for reproductive rights?</h2>
<p>On Wednesday, Feb. 21, the <a href="https://www.al.com/news/2024/02/uab-pauses-in-vitro-fertilization-due-to-fear-of-prosecution-officials-say.html">University of Alabama Birmingham’s fertility clinic</a> paused IVF treatments. That wasn’t our clinic, but the move sent us into a total panic. Our clinic’s closure seemed inevitable – and within 24 hours <a href="https://www.nbcnews.com/health/health-news/university-alabama-pauses-ivf-services-court-rules-embryos-are-childre-rcna139846">it had paused IVF treatments as well</a>. </p>
<p>We didn’t know what we were going to do, but we knew we were likely leaving the state to continue IVF. I needed to tell my department chair what was going on.</p>
<p>I was walking out of my department chair’s office when my phone rang. Gabby told me, “We got in, we’re going to Temple.” I ran back into my department chair’s office, told her we were going to Temple, Texas, and then rushed home. </p>
<p><a href="https://www.cnn.com/2024/02/22/us/alabama-embryos-ruling-ivf-treatment-leaving-state/index.html">A reporter from CNN</a> beat me there. It was one of <a href="https://www.washingtonpost.com/nation/2024/02/24/alabama-ivf-treatment-ruling-abortion/">several</a> <a href="https://www.nbcnews.com/health/health-news/ivf-doctors-patients-fearful-alabama-court-rules-embryos-are-children-rcna139636">interviews</a> with <a href="https://apnews.com/video/alabama-assisted-reproductive-technology-courts-legislation-gabby-goidel-8990ee5efaab450b940da1e6a39bf8d1">major</a> <a href="https://www.msnbc.com/katy-tur/watch/-thoughtless-ivf-patients-speak-out-on-alabama-embryo-decision-204655173631">media</a> <a href="https://www.theguardian.com/us-news/2024/feb/22/alabama-fertility-pause-ivf-embryo-ruling">outlets</a> Gabby did in the wake of her opinion column. After the interview, we threw clothes in a suitcase, dropped our dogs off at the vet and drove to the Atlanta airport. We flew to Texas that night.</p>
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<iframe width="440" height="260" src="https://www.youtube.com/embed/9MCbgW7i2I0?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">One of the Goidels’ many media interviews in the wake of the Alabama ruling.</span></figcaption>
</figure>
<p>The thought of not completing the egg retrieval never seriously entered our minds. We were confident that we could get in with another IVF clinic somewhere, anywhere. But we’re affluent. We’re privileged. What if we weren’t so well off? We wouldn’t have wanted to give up, but we wouldn’t have been able to afford the fight.</p>
<p>We spent exactly one week at my parents’ house in Texas. Thankfully, my parents live an hour and a half away from the Temple clinic. We met our new doctor, <a href="https://www.bswhealth.com/physician/gordon-bates">Dr. Gordon Wright Bates</a>, and were immediately reassured. His cool expertise and confidence were calming to a stressed-out couple. The Alabama Supreme Court may have upended our lives, but we felt weirdly lucky to be in such a comfortable place.</p>
<p>The egg retrieval was Wednesday morning, Feb. 28. By all indications, it went well. IVF, however, is full of uncertainties. Now we are waiting on the results from preimplantation genetic testing. After that, there’s implantation and hoping the embryo continues to grow. We’re not in the clear: IVF is a stressful process even without a state court getting in the way. But today we are in a situation more like an average couple going through IVF than we have been in the past few weeks.</p>
<p>Late Wednesday night, March 6, <a href="https://www.nytimes.com/2024/03/06/us/politics/alabama-ivf-law.html">Alabama Gov. Kay Ivey signed into law a bill</a> providing legal protection to IVF clinics in the state. Gabby and I rejoiced at the news. Hopefully, we’re the last Alabamian couple to flee the state for IVF.</p>
<h2>A mobilizing moment</h2>
<p>When state politics directly interferes with your life, it feels like a gut punch, as if the community that you love is saying you’re not loved back. It’s easy to see how such an experience could either discourage or motivate you. Research shows that traumatic events, for the most part, <a href="https://doi.org/10.1017/S0003055422001010">depress voter turnout</a> in the following presidential election. By contrast, families and friends of 9/11 victims <a href="https://doi.org/10.1073/pnas.1315043110">became and remained more politically engaged</a> than their peers. </p>
<p>In this case, the Alabama Supreme Court ruling mobilized Gabby and <a href="https://www.democracynow.org/2024/3/4/alabama_ivf_patients_warning_to_others">other</a> <a href="https://www.today.com/health/news/alabama-ivf-ruling-embryo-transfer-canceled-rcna140029">women</a> going through the IVF process. For better or worse, the women, couples and families mobilized by this decision will likely always be more engaged because of it.</p>
<p>“Oh, God,” I remarked to my dad, “we’re going to be activists now, aren’t we?”</p>
<p>“So?” he asked.</p>
<p>“No one likes activists,” I responded in jest. But if we’re going to have and raise the family we want, this is just the first of many decisions we’re going to make that someone’s not going to like.</p><img src="https://counter.theconversation.com/content/225126/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Spencer Goidel does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>I’m a scholar, not an activist or an advocate. But now one of the most intimate, personal events of our lives had been turned into a political event by the state’s highest court.Spencer Goidel, Assistant Professor of Political Science, Auburn UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2163312023-10-27T00:10:36Z2023-10-27T00:10:36ZAIs could soon run businesses – it’s an opportunity to ensure these ‘artificial persons’ follow the law<figure><img src="https://images.theconversation.com/files/556221/original/file-20231026-19-vrh2ui.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C6000%2C3997&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">If AIs are going to play a role in society, they'll need to understand the law.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/cyber-law-concept-royalty-free-image/1136269425">PhonlamaiPhoto/iStock via Getty Images</a></span></figcaption></figure><p>Only “persons” can engage with the legal system – for example, by signing contracts or filing lawsuits. There are <a href="https://dictionary.law.com/Default.aspx?selected=1516">two main categories of persons</a>: humans, termed “natural persons,” and creations of the law, termed “artificial persons.” These include corporations, nonprofit organizations and <a href="https://www.investopedia.com/terms/l/llc.asp">limited liability companies</a> (LLCs).</p>
<p>Up to now, artificial persons have served the purpose of helping humans achieve certain goals. For example, people can pool assets in a corporation and limit their liability vis-à-vis customers or other persons who interact with the corporation. But a new type of artificial person is poised to enter the scene – artificial intelligence systems, and they won’t necessarily serve human interests.</p>
<p>As <a href="https://scholar.google.nl/citations?user=cI-ZlbcAAAAJ&hl=en">scholars</a> <a href="https://scholar.google.com/citations?hl=en&user=uTmgFB0AAAAJ&view_op=list_works&sortby=pubdate">who study AI and law</a> we believe that this moment presents a significant challenge to the legal system: how to regulate AI within existing legal frameworks to reduce undesirable behaviors, and how to assign legal responsibility for autonomous actions of AIs.</p>
<p>One solution is <a href="https://doi.org/10.1126/science.adi8678">teaching AIs to be law-abiding entities</a>.</p>
<p>This is far from a philosophical question. The <a href="https://www.uniformlaws.org/committees/community-home?CommunityKey=bbea059c-6853-4f45-b69b-7ca2e49cf740">laws governing LLCs in several U.S. states</a> do not require that humans oversee the operations of an LLC. In fact, in some states it is <a href="https://dx.doi.org/10.2139/ssrn.2366197">possible to have an LLC with no human owner</a>, or “member” – for example, in cases where all of the partners have died. Though legislators probably weren’t thinking of AI when they crafted the LLC laws, the possibility for zero-member LLCs opens the door to creating LLCs operated by AIs.</p>
<p>Many functions inside small and large companies have already been delegated to AI in part, including financial operations, <a href="https://www.mckinsey.com/capabilities/people-and-organizational-performance/our-insights/generative-ai-and-the-future-of-hr">human resources</a> and network management, to name just three. AIs can now perform many tasks as well as humans do. For example, AIs <a href="https://doi.org/10.1038/s41746-023-00929-1">can read medical X-rays</a> and do other medical tasks, and carry out <a href="https://doi.org/10.48550/arXiv.2308.11462">tasks that require legal reasoning</a>. This process is likely to accelerate due to innovation and economic interests.</p>
<h2>A different kind of person</h2>
<p>Humans have occasionally included nonhuman entities like <a href="https://people.com/pets/pablo-escobar-cocaine-hippos-become-first-animals-in-u-s-to-be-considered-legal-persons/">animals</a>, <a href="https://www.theguardian.com/us-news/2019/feb/28/toledo-lake-erie-personhood-status-bill-of-rights-algae-bloom">lakes</a> and <a href="https://www.nationalgeographic.com/travel/article/these-rivers-are-now-considered-people-what-does-that-mean-for-travelers">rivers</a>, as well as <a href="https://www.pbs.org/newshour/nation/corporations-people-doctrine-real-legal-concept">corporations</a>, as legal subjects. Though in some cases these entities can be held liable for their actions, the law only allows humans to fully participate in the legal system.</p>
<p>One major barrier to full access to the legal system by nonhuman entities has been the <a href="https://bclawreview.bc.edu/articles/1120">role of language</a> as a uniquely human invention and a vital element in the legal system. Language enables humans to understand norms and institutions that constitute the legal framework. But humans are no longer the only entities using human language. </p>
<p>The <a href="https://openreview.net/pdf?id=yzkSU5zdwD">recent development</a> of AI’s ability to <a href="https://doi.org/10.48550/arXiv.2307.13692">understand human language</a> unlocks its potential to interact with the legal system. AI has demonstrated proficiency in various legal tasks, such as <a href="https://doi.org/10.48550/arXiv.2306.07075">tax law advice</a>, <a href="https://doi.org/10.48550/arXiv.2301.01181">lobbying</a>, <a href="https://doi.org/10.48550/arXiv.2308.11462">contract drafting and legal reasoning</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/556236/original/file-20231026-29-3ui65q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A humanoid robot and a man in a business suit shake hands while standing on an industrial waterfront" src="https://images.theconversation.com/files/556236/original/file-20231026-29-3ui65q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/556236/original/file-20231026-29-3ui65q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/556236/original/file-20231026-29-3ui65q.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/556236/original/file-20231026-29-3ui65q.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/556236/original/file-20231026-29-3ui65q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=565&fit=crop&dpr=1 754w, https://images.theconversation.com/files/556236/original/file-20231026-29-3ui65q.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=565&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/556236/original/file-20231026-29-3ui65q.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=565&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Would you do business with an AI that didn’t know the law?</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/robot-and-man-gretting-at-the-port-royalty-free-image/83988169">SM/AIUEO/The Image Bank via Getty Images</a></span>
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<p>An LLC established in a jurisdiction that allows it to operate without human members could trade in <a href="https://www.investopedia.com/terms/d/digital-currency.asp">digital currencies</a> settled on <a href="https://www.britannica.com/money/what-is-blockchain">blockchains</a>, allowing the AI running the LLC to operate autonomously and in a decentralized manner that makes it challenging to regulate. Under a legal principle known as the <a href="https://www.dlapiper.com/en-us/insights/publications/2020/08/delaware-court-of-chancery-internal-affairs-doctrine-bars-stockholder">internal affairs doctrine</a>, even if only one U.S. state allowed AI-operated LLCs, that entity could operate nationwide – and possibly worldwide. This is because courts look to the law of the state of incorporation for rules governing the internal affairs of a corporate entity.</p>
<p>We believe the best path forward, therefore, is aligning AI with existing laws, instead of creating a separate set of rules for AI. Additional law can be layered on top for <a href="https://doi.org/10.48550/arXiv.2308.11432">artificial agents</a>, but AI should be subject to at least all the laws a human is subject to.</p>
<h2>Building the law into AI</h2>
<p>We suggest a research direction of <a href="https://scholarlycommons.law.northwestern.edu/njtip/vol20/iss3/1/">integrating law into AI agents</a> to help <a href="https://dx.doi.org/10.2139/ssrn.4335945">ensure adherence to legal standards</a>. Researchers could train AI systems to <a href="https://law.stanford.edu/2022/09/25/aligning-ai-with-humans-by-leveraging-law-as-data/">learn methods for internalizing the spirit of the law</a>. The training would use data generated by legal processes and tools of law, including methods of lawmaking, statutory interpretation, contract drafting, applications of legal standards and legal reasoning.</p>
<p>In addition to embedding law into AI agents, researchers can develop AI compliance agents – AIs designed to help an organization automatically follow the law. These specialized AI systems would provide third-party legal guardrails.</p>
<p>Researchers can develop better AI legal compliance by fine-tuning large language models with <a href="https://www.lifewire.com/what-is-supervised-learning-7508014">supervised learning</a> on labeled legal task completions. Another approach is <a href="https://online.york.ac.uk/what-is-reinforcement-learning/">reinforcement learning</a>, which uses feedback to tell an AI if it’s doing a good or bad job – in this case, attorneys interacting with language models. And legal experts could design prompting schemes – ways of interacting with a language model – to elicit better responses from language models that are more consistent with legal standards.</p>
<h2>Law-abiding (artificial) business owners</h2>
<p>If an LLC were operated by an AI, it would have to obey the law like any other LLC, and courts could order it to pay damages, or stop doing something by issuing an injunction. An AI tasked with operating the LLC and, among other things, maintaining proper business insurance would have an incentive to understand applicable laws and comply. Having minimum business liability insurance policies is a standard requirement that most businesses impose on one another to engage in commercial relationships.</p>
<p>The incentives to establish AI-operated LLCs are there. Fortunately, we believe it is possible and desirable to do the work to embed the law – what has until now been human law – into AI, and AI-powered automated compliance guardrails.</p><img src="https://counter.theconversation.com/content/216331/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John Nay is the founder and CEO of Norm AI, and a co-founder and the Chairman of Brooklyn Investment Group.</span></em></p><p class="fine-print"><em><span>Daniel Gervais does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>If a business is run by an AI and it causes you harm, could you sue the AI?Daniel Gervais, Professor of Law, Vanderbilt UniversityJohn Nay, Fellow at CodeX - Stanford Center for Legal Informatics, Stanford UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2106222023-08-18T12:39:21Z2023-08-18T12:39:21ZMemes about animal resistance are everywhere — here’s why you shouldn’t laugh off rebellious orcas and sea otters too quickly<figure><img src="https://images.theconversation.com/files/543322/original/file-20230817-27-rb0yah.jpg?ixlib=rb-1.1.0&rect=299%2C221%2C3598%2C2428&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">It's tempting to envision orcas attacking yachts as the forward troops in an animal uprising.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/killer-whale-family-with-yacht-royalty-free-image/1425229306?adppopup=true">Jackson Roberts/iStock via Getty Images Plus</a></span></figcaption></figure><p><a href="https://cheezburger.com/21059333/orca-gangs-are-attacking-yachts-and-the-memes-are-killer">Memes galore</a> centered on the “orca revolution” have inundated the online realm. They gleefully depict orcas launching <a href="https://www.theguardian.com/commentisfree/2023/may/25/orcas-ramming-yachts-spanish-whale-behaviour-trauma-humans">attacks on boats in the Strait of Gibraltar</a> and <a href="https://www.theguardian.com/environment/2023/jun/21/orca-rams-yacht-off-shetland-first-such-incident-northern-waters">off the Shetland coast</a>.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1669051456085712907"}"></div></p>
<p>One particularly ingenious image showcases an orca posed as a sickle crossed with a hammer. The cheeky caption reads, “<a href="https://twitter.com/rhelune/status/1669051456085712907">Eat the rich</a>,” a nod to the orcas’ penchant for sinking lavish yachts.</p>
<p>A <a href="https://www.npr.org/2023/07/13/1187295769/otter-santa-cruz-surfboard-surfers-california">surfboard-snatching sea otter</a> in Santa Cruz, California has also claimed the media spotlight. Headlines dub her an “<a href="https://www.latimes.com/california/newsletter/2023-07-21/otter-841-essential-california-essential-california">adorable outlaw</a>” “<a href="https://www.today.com/video/otter-remains-at-large-after-series-of-surfboard-thefts-188563013674">at large</a>.”</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/543052/original/file-20230816-27-mcay7s.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="black and white image of otter wearing beret next to text 'Accept our existence or expect resistance ... an otter world is possible – Otter 841'" src="https://images.theconversation.com/files/543052/original/file-20230816-27-mcay7s.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/543052/original/file-20230816-27-mcay7s.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=451&fit=crop&dpr=1 600w, https://images.theconversation.com/files/543052/original/file-20230816-27-mcay7s.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=451&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/543052/original/file-20230816-27-mcay7s.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=451&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/543052/original/file-20230816-27-mcay7s.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=567&fit=crop&dpr=1 754w, https://images.theconversation.com/files/543052/original/file-20230816-27-mcay7s.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=567&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/543052/original/file-20230816-27-mcay7s.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=567&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Memes position the otter as a renegade revolutionary, modeled on Ché Guevara.</span>
<span class="attribution"><a class="source" href="https://www.instagram.com/p/Cu7L_O4L0GC/">thesurfingotter via Instagram</a></span>
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<p>Memes conjure her in a beret like the one donned by socialist revolutionary Ché Guevara. In one caption, she proclaims, “<a href="https://www.instagram.com/p/Cu7L_O4L0GC/">Accept our existence or expect resistance</a> … an otter world is possible.”</p>
<p><a href="https://literature.ucsd.edu/people/faculty/emeriti/aisfahanihammond.html">My scholarship</a> centers on animal-human relations through the prism of social justice. As I see it, public glee about wrecked surfboards and yachts hints at a certain flavor of <a href="https://www.britannica.com/topic/schadenfreude">schadenfreude</a>. At a time marked by drastic socioeconomic disparities, white supremacy and environmental degradation, casting these marine mammals as revolutionaries seems like a projection of desires for social justice and habitable ecosystems.</p>
<p>A glimpse into the work of some political scientists, philosophers and animal behavior researchers injects weightiness into this jocular public dialogue. The <a href="https://doi.org/10.4324/9780203797631">field of critical animal studies</a> analyzes structures of oppression and power and considers pathways to dismantling them. These scholars’ insights challenge the prevailing view of nonhuman animals as passive victims. They also oppose the widespread assumption that nonhuman animals can’t be political actors.</p>
<p>So while meme lovers project emotions and perspectives onto these particular wild animals, scholars of critical animal studies suggest that nonhuman animals do in fact engage in resistance. </p>
<h2>Nonhuman animal protest is everywhere</h2>
<p>Are nonhuman animals in a constant state of defiance? I’d answer, undoubtedly, that the answer is yes. </p>
<p>The entire architecture of animal agriculture <a href="https://brill.com/display/title/32110?language=en">attests to animals’ unyielding resistance</a> against confinement and death. Cages, corrals, pens and tanks would not exist were it not for animals’ tireless revolt. </p>
<p>Even when hung upside down on conveyor hangars, <a href="https://brill.com/display/title/32110?language=enthe">chickens furiously flap their wings and bite</a>, scratch, peck and defecate on line workers at every stage of the process leading to their deaths.</p>
<p>Until the end, hooked tuna resist, gasping and writhing fiercely on ships’ decks. Hooks, nets and snares would not be necessary <a href="https://doi.org/10.5130/csr.v22i1.4363">if fish allowed themselves to be passively harvested</a>.</p>
<p><a href="https://doi.org/10.1111/j.1527-2001.1991.tb00213.x">If they consented to repeated impregnation</a>, female pigs and cows wouldn’t need to be tethered to “<a href="https://www.forbes.com/sites/jamesmcwilliams/2013/10/25/milk-of-human-kindness-denied-to-dairy-cows/">rape racks</a>” to prevent them from struggling to get away. </p>
<p>If they didn’t mind having their <a href="https://press.uchicago.edu/ucp/books/book/chicago/C/bo28907793.html">infants permanently taken from their sides</a>, dairy cows wouldn’t need to be blinded with hoods so they don’t bite and kick as the calves are removed; they wouldn’t bellow for weeks after each instance. I contend that failure to recognize their bellowing as protest reflects “<a href="https://www.jstor.org/stable/43154308">anthropodenial</a>” – what <a href="https://www.britannica.com/science/ethology">ethologist</a> Frans de Waal calls the rejection of obvious continuities between human and nonhuman animal behavior, cognition and emotion.</p>
<p>The prevalent view of nonhuman animals remains that of René Descartes, the 17th-century philosopher who <a href="https://doi.org/10.1093/oso/9780199375967.003.0013">viewed animals’ actions as purely mechanical</a>, like those of a machine. From this viewpoint, one might dismiss these nonhuman animals’ will to prevail as unintentional or merely instinctual. But political scientist Dinesh Wadiwel argues that “even if their defiance is futile, the <a href="https://brill.com/display/title/32110?language=en">will to prefer life over death is a primary act of resistance</a>, perhaps the only act of dissent available to animals who are subject to extreme forms of control.”</p>
<h2>Creaturely escape artists</h2>
<p>Despite humans’ colossal efforts to repress them, nonhuman animals still manage to <a href="https://yalebooks.yale.edu/book/9780300192483/every-twelve-seconds/">escape from slaughterhouses</a>. They also break out <a href="https://content.time.com/time/specials/packages/completelist/0,29569,2041628,00.html">of zoos</a>, circuses, aquatic parks, <a href="https://www.nj.com/union/2015/07/watch_21_horses_escape_watchung_stables_roam.html">stables</a> and <a href="https://www.sciencealert.com/how-a-team-of-baboons-hitched-a-brilliant-plan-to-escape-a-research-lab-in-texas-texas-biomedical-testing-barrel">biomedical laboratories</a>. Tilikum, a captive orca at Sea World, <a href="https://www.akpress.org/fear-of-the-animal-planet-e-book.html">famously killed his trainer</a> – an act at least one marine mammal behaviorist <a href="https://www.orlandosentinel.com/2010/03/07/how-smart-are-killer-whales-and-can-they-decide-to-kill-a-person/">characterized as intentional</a>.</p>
<p>Philosopher Fahim Amir suggests that depression among captive animals is likewise a form of emotional rebellion against unbearable conditions, <a href="https://btlbooks.com/book/being-and-swine">a revolt of the nerves</a>. Dolphins engage in self-harm like thrashing against the tank’s walls or cease to eat and <a href="https://www.theguardian.com/environment/2014/jun/08/the-dolphin-who-loved-me">retain their breath until death</a>. Sows whose body-sized cages impede them from turning around to make contact with their piglets <a href="https://btlbooks.com/book/being-and-swine">repeatedly ram themselves</a> into the metal struts, <a href="https://doi.org/10.1093/pastj/gtu015">sometimes succumbing to their injuries</a>.</p>
<p>Critical animal studies scholars contend that all these actions arguably demonstrate nonhuman animals’ yearning for freedom and <a href="https://press.uchicago.edu/ucp/books/book/chicago/W/bo6407651.html">their aversion</a> <a href="https://www.press.jhu.edu/books/title/9383/chimpanzee-politics">to inequity</a>.</p>
<p>As for the marine stars of summer 2023’s memes, fishing gear can <a href="https://www.theguardian.com/commentisfree/2023/may/25/orcas-ramming-yachts-spanish-whale-behaviour-trauma-humans">entangle and harm orcas</a>. Sea otters were <a href="https://www.nationalgeographic.com/animals/mammals/facts/sea-otter">hunted nearly to extinction for their fur</a>. <a href="https://oceanconservationtrust.org/ocean-advocacy/think-ocean/ways-to-think-ocean/">Marine habitats have been degraded</a> by human activities including overfishing, oil spills, plastic, chemical and sonic pollution, and climate change. It’s easy to <a href="https://www.theguardian.com/commentisfree/2023/may/25/orcas-ramming-yachts-spanish-whale-behaviour-trauma-humans">imagine they might be responding to human actions</a>, including bodily harm and interference with their turf.</p>
<h2>What is solidarity with nonhuman animals?</h2>
<p>Sharing memes that <a href="https://www.instagram.com/p/Cu-2mxcRkpz/">cheer on wild animals</a> is one thing. But there are more substantive ways to demonstrate solidarity with animals.</p>
<p>Legal scholars support nonhuman animals’ resistance by proposing that their current classification as property should be replaced with that of <a href="https://tupress.temple.edu/books/animals-property-and-the-law">personhood</a> or <a href="https://utorontopress.com/9781487525873/animals-as-legal-beings/">beingness</a>.</p>
<p>Nonhuman animals including songbirds, dolphins, <a href="https://www.nonhumanrights.org/wp-content/uploads/Happy-Brief.pdf">elephants</a>, horses, <a href="https://www.animallaw.info/case/suica-habeas-corpus">chimpanzees</a> and <a href="https://changingtimes.media/2017/08/03/habeas-corpus-victory-for-bear-in-colombia-encourages-animal-rights-lawyers/">bears</a> increasingly <a href="https://ssrn.com/abstract=4387696">appear as plaintiffs</a> alleging their subjection to extinction, abuse and other injustices.</p>
<p><a href="https://global.oup.com/academic/product/zoopolis-9780199599660">Citizenship for nonhuman animals</a> is another pathway to social and political inclusion. It would guarantee the right to appeal arbitrary restrictions of domesticated nonhuman animals’ autonomy. It would also mandate legal duties to protect them from harm.</p>
<p>Everyday deeds can likewise convey solidarity.</p>
<p>Boycotting industries that oppress nonhuman animals by becoming vegan is a powerful action. It is a form of political “counter-conduct,” a term philosopher Michel Foucault uses to describe <a href="https://doi.org/10.1057/978-1-137-52120-0_7">practices that oppose dominant norms</a> of power and control.</p>
<p>Creating <a href="http://www.lawatsonart.com/the-roadside-memorial-project.html">roadside memorials for nonhuman animals</a> killed by motor vehicles encourages people to see them as beings whose lives and <a href="https://www.routledge.com/Economies-of-Death-Economic-logics-of-killable-life-and-grievable-death/Lopez-Gillespie/p/book/9780367599331">deaths matter</a>, <a href="https://www.amandastronza.com/passions#:%7E:text=I%20began%20creating%20memorials%2C%20not,seeds%2C%20weeds%2C%20and%20grasses">rather than mere “roadkill</a>.”</p>
<p>Political scientists recognize that human and nonhuman animals’ <a href="https://doi.org/10.1017/CBO9781107045392">struggles against oppression are intertwined</a>. At different moments, the <a href="https://hemisphericinstitute.org/en/emisferica-101/10-1-dossier/akbar-stole-my-heart-coming-out-as-an-animalist.html">same strategies</a> leveraged against nonhuman animals have <a href="https://theconversation.com/when-trump-calls-someone-a-dog-hes-tapping-into-ugly-history-128589">cast segments of the human species as “less than human”</a> in order to exploit them.</p>
<p>The category of the human is <a href="https://press.uchicago.edu/ucp/books/book/chicago/A/bo3622788.html">ever-shifting and ominously exclusive</a>. I argue that no one is safe as long as there is a <a href="https://doi.org/10.2307/300203">classification of “animality.”</a> It confers <a href="https://english.elpais.com/society/2022-12-04/how-nazi-propaganda-dehumanized-jews-to-facilitate-the-holocaust.html">susceptibility to extravagant forms of violence</a>, legally and ethically condoned.</p>
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<figcaption><span class="caption">Otter 841 is the wild sea otter off Santa Cruz, California, who some observers suspect has had it with surfers in her turf.</span></figcaption>
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<h2>Might an ‘otter world’ be possible?</h2>
<p>I believe quips about the marine mammal rebellion reflect awareness that our human interests are entwined with those of nonhuman animals. The desire to achieve sustainable relationships with other species and the natural world feels palpable to me within the memes and media coverage. And it’s happening as human-caused activity makes our shared habitats increasingly unlivable. </p>
<p>Solidarity with nonhuman animals is consistent with democratic principles – for instance, defending the right to well-being and opposing the <a href="https://www.worldcat.org/title/8481629">use of force against innocent subjects</a>. Philosopher Amir recommends extending the idea that there can be no freedom as long as there is still unfreedom beyond the species divide: “While we may not yet fully be able to picture what this may mean, <a href="https://btlbooks.com/book/being-and-swine">there is no reason we should not begin to imagine it</a>”.</p><img src="https://counter.theconversation.com/content/210622/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alexandra Isfahani-Hammond does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A few marine mammals in apparent revolt pushed meme-makers into overdrive. But a scholar who thinks about justice and human-animal relations suggests something deeper is behind the schadenfreude.Alexandra Isfahani-Hammond, Associate Professor Emerita of Comparative Literature, University of California, San DiegoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2092932023-07-19T12:22:24Z2023-07-19T12:22:24ZSolving water challenges is complex – learn how law, health, climate and Indigenous rights all intersect in developing solutions<figure><img src="https://images.theconversation.com/files/536663/original/file-20230710-27-7kilk5.jpg?ixlib=rb-1.1.0&rect=6%2C64%2C2038%2C1293&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Americans have come to expect abundant clean water, but there are many stressors on water quality and availability.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/clio1789/7578005278/in/photolist-cxDfXq-R8BLgr-PMPgBA-9cyTMV-QR4skU-6eyUbx-PRjrwu-QX7EYr-yT5M74-PMQ3KS-R5bmiK-iWdCxv-QTHQyn-2iJ2Rvv-21eLgQ-NCejiD-83hhrv-BMx5YX-c1AFu3-Bmjh8e-BMsbiK-EGz72e-2mhVwqZ-7TjMYT-6jgSAw-RTLtfw-cC3YHG-iVP9v-LksTds-MaEoR2-MhQpPr-Bmi8Ar-75tTCe-75tTDi-7SsCVE-cC4SQj-MqUfig-cChXK5-9AFPby-2kCF4ZL-2kCAWZH-MaErPB-QEQnju-5RaYCg-MaEnjV-9NyiQ7-2gjmCZn-2kCF6dN-86XPZU-21a1dr">Jessica/flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-nd/4.0/">CC BY-NC-ND</a></span></figcaption></figure><p><em>In the U.S., most consumers take clean and available fresh water for granted, and water usually becomes front-page news only when there’s a crisis. And the past year has seen its share of water-related crises, whether it’s the <a href="https://theconversation.com/colorado-river-states-bought-time-with-a-3-year-water-conservation-deal-now-they-need-to-think-bigger-206386">effects of a prolonged drought in the U.S. Southwest</a> or floods that covered more <a href="https://theconversation.com/2022s-us-climate-disasters-from-storms-and-floods-to-heat-waves-and-droughts-196713">than one third of Pakistan</a> last year.</em></p>
<p><em>But seeing water problems as only environmental disasters does not capture the deeply interconnected nature of water in our society. To mark the release of the book “<a href="https://www.press.jhu.edu/books/title/33266/conversation-water">The Conversation on Water</a>,” a collection of previously published articles on water, The Conversation hosted a webinar with experts with a range of expertise and different perspectives on water issues and potential solutions.</em></p>
<p><em>The edited text and video clips below convey one or two of the key points each speaker made. The full <a href="https://www.youtube.com/watch?v=NhEyZC0xNOw&t=4s">webinar is available on YouTube</a>.</em></p>
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<figcaption><span class="caption">Indigenous scholar Rosalyn LaPier explains Native Americans’ efforts to gain legal personhood status for natural entities to protect waterways.</span></figcaption>
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<h2>Rosalyn LaPier, Professor of History, University of Illinois</h2>
<p>Native American tribes in the United States think of particular waterways – whether it’s a river, a lake, or an underground aquifer – as a part of the supernatural realm. Tribal communities make an effort to protect certain waterways because <a href="https://theconversation.com/for-native-americans-a-river-is-more-than-a-person-it-is-also-a-sacred-place-85302">it is a sacred place to them</a>, which benefits other people as well. The Taos Pueblo, for example, spent almost an entire century fighting for the Blue Lake in New Mexico because it was a sacred site. They wanted to protect not just the lake but also the watershed of the lake, which they succeeded in doing. </p>
<p>Today, tribes are using different approaches both within the federal legal system and tribal systems. One approach is to set aside water systems that they view as sacred and <a href="https://www.youtube.com/watch?v=d42L4hVJmrA">apply personhood status to them</a>. This has been done in other parts of the world and is beginning to be done in the United States as well, mostly now only within tribal communities. </p>
<p>There are different ways that <a href="https://theconversation.com/native-americans-decadeslong-struggle-for-control-over-sacred-lands-is-making-progress-189620">tribes are thinking more creatively</a>, but it’s connected back to their own religious expression. The reason they’re doing this is not necessarily to protect water from environmental degradation – it often is because of religion and religious practice. We have to distinguish between how we use water in America versus how we revere water in America. Tribes are addressing how to work within the system, because the United States does not protect sacred sites, especially Native American sacred places such as rivers, lakes or other water systems. </p>
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Read more:
<a href="https://theconversation.com/for-native-americans-a-river-is-more-than-a-person-it-is-also-a-sacred-place-85302">For Native Americans, a river is more than a 'person,' it is also a sacred place</a>
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<figcaption><span class="caption">Water law expert Burke Griggs explains how policy around agriculture encourages overuse rather than conservation.</span></figcaption>
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<h2>Burke Griggs, Professor of Law, Washburn University</h2>
<p>We’re pumping so much groundwater out of the planet right now that it has changed the way the Earth is rotating. It is a massive problem that is not very visible but is extremely worrisome. Agriculture uses anywhere between <a href="https://www.ers.usda.gov/amber-waves/2006/november/agriculture-dominates-freshwater-use-in-the-us/">80% and 95% of the water</a> that exists in the West. Rivers are just the icing on the cake of groundwater supplies, winter snowpack and reservoir storage. </p>
<p>Farmers are not breaking the law. They have property rights to pump this water. The fundamental problem is, since the 1850s, and especially since the 1950s, we’ve granted more water rights to pump and to divert than the water systems can support. That’s a bureaucratic problem. It’s called overappropriation.</p>
<p>There’s also a problem in farm policy. Ever since the 1970s, when the agricultural secretary famously said, <a href="https://www.agweek.com/opinion/considering-the-lessons-of-earl-butz">“Get big or get out”</a> and win the cold war for agriculture, we’ve seen the size of farms increase and get bigger and bigger. In order to make money and keep property, farmers have to continually borrow to add acreage, either as owners or as tenants. That in turn encourages them to pump more water to meet their bank loans and their other financial commitments.</p>
<p>So if people are not breaking the law, farmers are not stealing water – and if these subsidy systems promote overproduction and overpumping – what can the U.S. do?</p>
<p>The first thing to do is reform the subsidy system. Instead of rewarding overproduction and making a fetish out of grain yields, we should focus on conservation. We should pay farmers to not irrigate in sensitive areas and during years they don’t need to. </p>
<p>The state law system is critical, because most water rights are state rights. Here, I think it makes sense to make water rights more flexible. Farmers will be willing to trade less water use over the long term for more flexible water use year to year. Most water rights have an annual limit, and if you allow more variability there, then I think that gets us a long way.</p>
<p>Water conservation can happen, but you’ve got to understand water reform within the context of property rights. Property is a very creative tool, and markets can be very creative tools. </p>
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Read more:
<a href="https://theconversation.com/farmers-are-depleting-the-ogallala-aquifer-because-the-government-pays-them-to-do-it-145501">Farmers are depleting the Ogallala Aquifer because the government pays them to do it</a>
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<figcaption><span class="caption">Gabriel Filippelli of Indiana University explains how climate change is making it more challenging to build resilient water infrastructure.</span></figcaption>
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<h2>Gabriel Filippelli, Chancellor’s Professor of Earth Sciences and Executive Director of the Indiana University Environmental Resilience Institute</h2>
<p>In 2014, Toledo, Ohio, suffered a <a href="https://theconversation.com/climate-change-threatens-drinking-water-quality-across-the-great-lakes-131883">massive harmful algal bloom</a>, likely triggered by climate change and related runoff in that area. It occurred right over the only water intake line for the Toledo water system. That meant that they had to issue a rare warning – not only “do not drink the water,” but “do not boil the water,” because these harmful algal blooms produce a toxin that gets even worse if they’re boiled. It showed that a lot of our water systems are not particularly resilient because we built them for 1920 and not for today or tomorrow. </p>
<p>I and a lot of scholars are thinking through the challenges in water security in a lot of parts of the U.S. Around the Great Lakes in the Midwest there are these prolonged episodes of <a href="https://theconversation.com/for-a-flooded-midwest-climate-forecasts-offer-little-comfort-114140">flooding</a> and <a href="https://theconversation.com/what-is-a-flash-drought-an-earth-scientist-explains-194141">drought</a>. Flooding causes the redistribution of harmful algal blooms and pathogens like <em>E. coli</em> in waterways, which are very harmful. Of course, drought also causes its own stress on water supplies. </p>
<p>Unfortunately, a lot of water infrastructure is not built based on our understanding of water today. These massive sewer stormwater upgrades in a lot of cities are only built to hold the capacity of rainfall today, while in the Midwest extreme precipitation events are coming in fast and furious. </p>
<p>The US$2 billion <a href="https://www.in.gov/governorhistory/mitchdaniels/2980.htm">upgrade to Indianapolis’ water infrastructure</a> was built for the extreme rainfall events that we had in the year 2000. Here we are in 2023, and we already have about 15% more extreme rainfall events, and we’ll have another 15% more by 2050. </p>
<p>So rather than only relying on gray infrastructure consisting of tubes, tunnels and pipes to protect and secure our water systems and our safety, we have to also think about the role that <a href="https://theconversation.com/a-20-foot-sea-wall-wont-save-miami-how-living-structures-can-help-protect-the-coast-and-keep-the-paradise-vibe-165076">green infrastructure – nature-based solutions</a> – can play in augmenting some of those solutions. </p>
<p>We also should not be building new infrastructure based on the capacity we have today but based on the capacity we will have in the year 2050 and beyond. A lot of these very large infrastructure projects will and should last until then. </p>
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Read more:
<a href="https://theconversation.com/climate-change-threatens-drinking-water-quality-across-the-great-lakes-131883">Climate change threatens drinking water quality across the Great Lakes</a>
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<figcaption><span class="caption">Andrea K. Gerlak, water policy expert at the University of Arizona, talks about the progress cities around the world are making in water availability and equity.</span></figcaption>
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<h2>Andrea Gerlak, Director at the Udall Center for Studies in Public Policy and Professor in the School of Geography, Development, and Environment at the University of Arizona</h2>
<p>I’ve studied cities around the world and in the U.S., and at the end of the day, there is no perfect city that is doing everything right. But there are little examples. Since the pandemic, we’ve seen <a href="https://theconversation.com/water-quality-in-south-africa-reports-show-what-needs-to-be-fixed-and-at-what-cost-207538">South Africa make a large investment</a> at the city scale around water access and sanitation. Singapore has been focusing on <a href="https://www.voanews.com/a/east-asia-pacific_singapore-turns-sewage-clean-drinkable-water-meeting-40-demand/6209374.html">reusing a lot of their water supply</a>. It’s been imperfect, but we’ve seen some pretty good developments made by Australia’s First Nations to achieve <a href="https://pursuit.unimelb.edu.au/articles/returning-water-rights-to-aboriginal-people">their appropriate water allocations</a> through a legal process. </p>
<p>In the U.S., Tucson has won awards for its green infrastructure and, along with Los Angeles, views stormwater as a resource. Los Angeles recently announced that in the coming decade, the majority of their drinking water will come <a href="https://www.latimes.com/california/story/2023-02-21/progress-on-l-a-stormwater-capture-program-is-slowing">from capturing stormwater</a>, treating it and using it for potable water supply. </p>
<p>Other cities have been good at recognizing equity concerns, like <a href="https://water.phila.gov/green-city/">Philadelphia</a> and <a href="https://thechisholmlegacyproject.org/policy/baltimores-water-accountability-and-equity-act/">Baltimore</a>. Municipal ordinances have been changed to make water available to people who cannot afford to pay their water bills and whose homes would have historically been repossessed as a result. </p>
<p>There are shining moments here and there, but there’s not any perfect package or perfect city.</p><img src="https://counter.theconversation.com/content/209293/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Andrea K. Gerlak has received funding from NOAA, the Inter-American Institute for Global Change Research, Lloyd's Register Foundation, and Morris K. Udall and Stewart L. Udall Foundation.</span></em></p><p class="fine-print"><em><span>Burke Griggs receives funding from the U.S. Department of Agriculture; U.S. Department of Commerce, Commercial Law Development Program; U.S. Department of State, Fulbright Commission. </span></em></p><p class="fine-print"><em><span>Gabriel Filippelli receives funding from the US National Science Foundation, the Environmental Protection Agency, the United States Geological Survey, the Honda Foundation, the Health and Hospital Corporation of Marion County, The American Chemical Society-Petroleum Research Fund, and DLA Piper.</span></em></p><p class="fine-print"><em><span>Rosalyn R. LaPier does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A webinar hosted by The Conversation brings together experts in law, health, policy and Indigenous affairs to explain some of the most pressing problems related to water in the US.Andrea K. Gerlak, Professor, School of Geography, Development and Environment, University of ArizonaBurke Griggs, Associate Professor of Law, Washburn UniversityGabriel Filippelli, Chancellor's Professor of Earth Sciences and Executive Director, Indiana University Environmental Resilience Institute, Indiana UniversityRosalyn R. LaPier, Professor of History, University of Illinois at Urbana-ChampaignLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1840472022-05-30T04:04:35Z2022-05-30T04:04:35ZArtificial ‘inventors’ are pushing patent law to its limits<figure><img src="https://images.theconversation.com/files/465894/original/file-20220530-26-baq322.jpg?ixlib=rb-1.1.0&rect=11%2C3%2C2544%2C1433&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://betterimagesofai.org/images?artist=AlanWarburton&title=VirtualHuman">Alan Warburton / Better Images of AI</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p>It was the veritable search for a needle in a haystack. With drug-resistant bacteria on the rise, researchers at MIT were sifting through a database of more than 100 million molecules to identify a few that might have antibacterial properties. </p>
<p>Fortunately, the search proved successful. But it wasn’t a human who found the promising molecules. It was a <a href="https://www.nature.com/articles/d41586-020-00018-3">machine learning program</a>. </p>
<p>One compound has been patented under the name <a href="https://en.wikipedia.org/wiki/Halicin">Halicin</a> in homage to HAL, the artificial intelligence (AI) in Arthur C Clarke’s classic 2001: A Space Odyssey. Halicin works differently from existing antibiotics, disrupting the bacteria’s ability to access energy, and researchers hope bacteria may struggle to develop resistance to it. </p>
<p>Halicin might be the first antibiotic discovered using AI, but AI programs have played an important role in other patented inventions from electrical circuits, through meta-materials and drugs, to consumer products such as toothbrushes. As we argue in <a href="https://www.nature.com/articles/d41586-022-01391-x">a recent article in Nature</a>, society urgently needs to consider the impact of AI on the innovation system, particularly on laws regarding intellectual property and patents.</p>
<h2>AI patents in court</h2>
<p>Can software be an “inventor”? This question has been the focus of some recent high profile court cases about <a href="https://artificialinventor.com/dabus/">an AI system called DABUS</a> (Device for the Autonomous Bootstrapping of Unified Sentience), created by Stephen Thaler, president and chief executive of US-based AI firm Imagination Engines.</p>
<p>Thaler <a href="https://patentscope.wipo.int/search/en/detail.jsf?docId=WO2020079499">claims DABUS is the inventor</a> of a new type of food container with a specially patterned surface, as well as a light that flashing with a special pattern of pulses for attracting attention in emergencies. The inventions are perhaps not very noteworthy, but the attempts to patent them certainly are. </p>
<p>Thaler’s international legal team, led by Ryan Abbott from the University of Surrey, has filed applications to patent offices around the world in which DABUS is named as the sole inventor. These cases are likely the first to test whether an AI system can be recognised as an inventor under existing intellectual property laws.</p>
<h2>For now, inventors must be human</h2>
<p>Patent registration offices have rejected the DABUS patent applications in multiple jurisdictions, including the United Kingdom, United States, the European Patent Office, Germany, South Korea, Taiwan, New Zealand and Australia. The one outlier is South Africa, where <a href="https://theconversation.com/in-a-world-first-south-africa-grants-patent-to-an-artificial-intelligence-system-165623">a patent has been granted</a> but without substantive examination of the patent application having yet occurred.</p>
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Read more:
<a href="https://theconversation.com/in-a-world-first-south-africa-grants-patent-to-an-artificial-intelligence-system-165623">In a world first, South Africa grants patent to an artificial intelligence system</a>
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<p>In Australia, a challenge against the rejection was initially accepted but <a href="https://www.corrs.com.au/insights/can-an-ai-system-be-an-inventor-full-court-says-no">overturned on appeal</a>. Thaler has sought “special leave to appeal” the case to the High Court of Australia, though it remains to be seen whether this will be granted. </p>
<p>In Germany, the Federal Patent Court set aside the initial patent refusal, instead accepting a compromise position in which <a href="https://www.ipwatchdog.com/2022/04/20/german-decision-provide-answer-ai-inventorship/id=148555/#">“Stephen L. Thaler, PhD who prompted the artificial intelligence DABUS to create the invention”</a> was listed as the inventor. Meanwhile, DABUS cases continue to be fought in other jurisdictions around the world.</p>
<p>For now at least, it seems courts have largely concluded that, for the purposes of patentability, inventors must be human. Nevertheless, the cases have thrown up a range of important questions we need to answer as AI takes on ever more roles in our lives.</p>
<h2>Can an AI invent?</h2>
<p>Given the ever-increasing power of AI, it’s not a wild leap to suppose that AI will take on a greater role in coming up with inventions. </p>
<p>We don’t claim that computer-aided design (CAD) software “invents”. But such software lacks the increasing autonomy that AI is starting to have.</p>
<h2>Can an AI be named as an inventor?</h2>
<p>Patent systems are currently premised on a (human) inventor who owns or assigns the rewards coming from the patent. </p>
<p>Who might own the rewards from an AI patent? The programmer? The owner of the computer on which it runs? And what about the owner(s) of the data on which the AI might be trained?</p>
<h2>Will AI change invention?</h2>
<p>AI might speed up the rate at which inventions are made, potentially overwhelming the patent system. This might widen inequality between the haves who possess AI systems that can invent, and the have-nots who don’t. </p>
<p>It might also change the character of invention. Under well established patent principles, an “inventive step” occurs when an invention is considered “non-obvious” to a “person skilled in the art”. But an AI system might be more knowledgeable and skilled than any one person on the planet.</p>
<h2>A path forward</h2>
<p>In response to these sort of questions, we argue that the patent system must be re-examined to ensure it remains fit for purpose, and that it continues to reward and encourage innovation appropriately. </p>
<p>We suggest society might benefit from a new type of intellectual property designed specifically to deal with AI inventions (which we call “AI-IP”). </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/if-machines-can-be-inventors-could-ai-soon-monopolise-technology-165604">If machines can be inventors, could AI soon monopolise technology?</a>
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<p>The principles underpinning patent legislation are more than 500 years old and have evolved to deal with fresh technological changes from genetic sequencing to human-made living organisms. However, the fresh tests presented by AI inventiveness might be so significant that they push those patent principles to breaking point. </p>
<p>AI presents a watershed challenge that requires us to think once again carefully about how to reward and encourage innovation.</p><img src="https://counter.theconversation.com/content/184047/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Toby Walsh receives funding from the Australian Research Council in the form a Laureate Fellowship. </span></em></p><p class="fine-print"><em><span>Alexandra George does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Can software be an ‘inventor’? As courts wrestle with AI patent applications, the law must change to keep up.Toby Walsh, Professor of AI at UNSW, Research Group Leader, UNSW SydneyAlexandra George, Associate Professor in Law, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1827452022-05-13T12:14:14Z2022-05-13T12:14:14ZWhat is ‘personhood’? The ethics question that needs a closer look in abortion debates<figure><img src="https://images.theconversation.com/files/462571/original/file-20220511-16280-ov3b1o.jpg?ixlib=rb-1.1.0&rect=70%2C8%2C5803%2C3901&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Debate about abortion is often a debate about rights -- but whose?</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SupremeCourtAbortion/60e2430f34f24c27afd483e217f998f7/photo?Query=abortion&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=10431&currentItemNo=19">AP Photo/Jose Luis Magana</a></span></figcaption></figure><p>Controversy over abortion reached a fever pitch on May 2, 2022, when the leaked <a href="https://www.politico.com/f/?id=00000180-874f-dd36-a38c-c74f98520000">draft of a U.S. Supreme Court majority opinion</a> was published by Politico. If the draft’s key points are reflected in the final ruling, this would strike down <a href="https://supreme.justia.com/cases/federal/us/410/113/">Roe v. Wade</a>, a landmark decision that nearly 50 years ago established the right to choose an abortion.</p>
<p>Current constitutional law grants a right to have an abortion until a fetus <a href="https://doi.org/10.1093/jlb/lsaa059">becomes viable</a> – in other words, until there is a reasonable probability it could survive outside the womb with care. Today, this typically occurs between the 22nd and 24th weeks of pregnancy.</p>
<p>The ruling in Roe v. Wade was grounded on the idea that the U.S. Constitution <a href="https://supreme.justia.com/cases/federal/us/381/479/">protects privacy</a>, stemming from the <a href="https://constitution.congress.gov/browse/amendment-14/">14th Amendment</a>. However, the draft majority opinion, written by Justice Samuel Alito, argues Roe v. Wade should be overturned because the Constitution makes no mention of abortion.</p>
<p>While a final ruling is not expected before June 2022, the decision will not put to rest controversy over abortion. Why does the legalization of abortion continue to be hotly contested, nearly a half century after Roe v. Wade? This question is of great interest to me, <a href="https://depts.washington.edu/bhdept/nancy-s-jecker-phd-sheher">as a philosopher and bioethicist</a>, since I study philosophical problems that lie just beneath the surface of contemporary controversies like abortion.</p>
<h2>Defining personhood</h2>
<p>One underlying ethical concern is, “What is a person?” How people answer this question shapes how they think about a developing human being. When philosophers talk about “personhood,” they are referring to something or someone having <a href="https://plato.stanford.edu/archives/spr2021/entries/grounds-moral-status/">exceptionally high moral status</a>, often described as having a right to life, an inherent dignity, or mattering for one’s own sake. Non-persons may have lesser rights or value, but lack the full moral value associated with persons. </p>
<p>To be a person means having strong moral claims against others. For instance, persons have a claim to be treated fairly and a claim not to be interfered with. A healthy adult human being is often considered the clearest example of a person. Yet, most philosophers <a href="https://medicine.missouri.edu/centers-institutes-labs/health-ethics/faq/personhood#:%7E:text=It%20is%20common%20to%20assume,Homo%20sapiens%20(or%20related).">distinguish being a person from being human</a>, pointing out that no one disputes the fetus’s species, but many disagree about the fetus’s personhood.</p>
<p>In current law, fetal viability is often used to mark the beginning of personhood. However, <a href="https://doi.org/10.1093/jlb/lsaa059">viability varies</a> based on people’s access to intensive medical care. It also changes as medicine and technology advance.</p>
<p>Some <a href="https://capitol.texas.gov/tlodocs/87R/billtext/html/HB01515I.htm">state laws restricting abortion</a> identify the presence of a “fetal heartbeat” as morally significant and use this as a basis for personhood. However, many living things have beating hearts, and they are not all considered persons. And as physicians point out, though they may use the term “fetal heartbeat” in conversations with patients, the fetus <a href="https://www.npr.org/sections/health-shots/2021/09/02/1033727679/fetal-heartbeat-isnt-a-medical-term-but-its-still-used-in-laws-on-abortion">does not yet have a functioning heart</a> that generates sound during early development.</p>
<p>Defining the limits of personhood is especially dicey due to its far-reaching consequences. Personhood carries implications for how we treat <a href="https://www.harpercollins.com/products/animal-liberation-peter-singer?variant=32154016415778">animals</a>, <a href="https://global.oup.com/academic/product/a-sand-county-almanac-9780197500262?cc=us&lang=en&">ecosystems</a> and <a href="https://www.researchgate.net/publication/20865310_Anencephalic_infants_and_special_relationships">anencephalic infants, who are born with their cerebral cortex and large parts of their skull missing</a>. It also shapes the rights of <a href="https://plato.stanford.edu/entries/justice-intergenerational/">people who will be born in the future</a>, <a href="https://doi.org/10.1086/454366">people with disabilities</a> and <a href="https://global.oup.com/academic/product/the-ethics-of-killing-9780195169829?cc=us&lang=en&">individuals in a persistent vegetative state</a>. Debates over personhood have recently <a href="https://doi.org/10.1007/s13347-022-00531-5">extended to robots</a>. </p>
<p>Personhood is also important for issues at the end of life, such as disputes over <a href="https://blogs.scientificamerican.com/observations/what-is-death-exactly/">defining death</a>. Physicians have disagreed with families over <a href="https://doi.org/10.1038/nrneurol.2017.72">whether to declare a patient dead</a> or continue to offer medical interventions. <a href="https://academic.oup.com/jmp/article-abstract/26/5/527/1046807?redirectedFrom=PDF">Philosophers have debated</a> whether a person’s death occurs as soon as “higher” brain activity ceases – activity associated consciousness and cognition – or only after all brain activity ends. </p>
<h2>When personhood begins</h2>
<p>In short, there are plenty of reasons to figure out what personhood requires. Doing so demands wrestling with at least three common opposing views. </p>
<p>The first holds that fetuses qualify as persons from the moment of conception. Supporters say that from conception on, the developing fetus has “<a href="https://doi.org/10.2307/2026961">a future like ours</a>,” and abortion takes that future away. A variation on this theme is that at conception, a fetus has the full genetic code and therefore the <a href="https://spot.colorado.edu/%7Eheathwoo/Phil160,Fall02/noonan.htm">potential to become a person</a>, and this potential qualifies the fetus as a person. </p>
<figure class="align-center ">
<img alt="Men in suits speak in front of a poster that says " src="https://images.theconversation.com/files/462573/original/file-20220511-12-r5j7vs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/462573/original/file-20220511-12-r5j7vs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/462573/original/file-20220511-12-r5j7vs.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/462573/original/file-20220511-12-r5j7vs.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/462573/original/file-20220511-12-r5j7vs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=565&fit=crop&dpr=1 754w, https://images.theconversation.com/files/462573/original/file-20220511-12-r5j7vs.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=565&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/462573/original/file-20220511-12-r5j7vs.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=565&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">South Carolina Sen. Richard Cash reintroduces personhood legislation in 2019. The bill stipulated that life begins at conception, and from that moment a developing fetus has the same rights as other citizens.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/AbortionBan/6576cdd5ebd0403c94f31f01a0160900/photo?Query=abortion%20personhood&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=44&currentItemNo=0">AP Photo/Christina Myers</a></span>
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<p>A second view regards personhood as arising at some point after conception and prior to birth. Some people reason that a human being’s moral status is not all-or-nothing, but, like human development, <a href="https://doi.org/10.1111/j.2041-6962.2008.tb00075.x">a matter of degree</a>. Others say that what matters is <a href="https://doi.org/10.1093/acprof:oso/9780198250401.001.0001">consciousness and other cognitive capacities</a>, thought to develop late in the second trimester.</p>
<p>Finally, a third view maintains that personhood begins at <a href="https://www.jstor.org/stable/2264919">birth or shortly thereafter</a>, because this is when an infant first acquires a sense of themselves and an interest in their own continued existence. Another source of support for the third view is Enlightenment philosopher Immanuel Kant’s claim <a href="https://www.jstor.org/stable/24562795">that what makes human beings morally special is their rationality</a> and capacity to be autonomous.</p>
<h2>Conflicts between persons</h2>
<p>Which view about personhood is right? If a society can’t agree about personhood, another strategy would be to imagine that one’s opponent’s view is right, and consider the implications.</p>
<p>Suppose, for example, that fetuses are persons. Since pregnant people are too, how should conflicts between them be settled? Suppose a pregnant person’s life were in jeopardy: whose right to life prevails? Some hold that under these conditions, abortion is justified by appealing to self-defense, but others say killing in self-defense <a href="https://doi.org/10.1111/j.1088-4963.1994.tb00005.x">is not justified</a> if the threat is “innocent,” without intention of doing harm.</p>
<p>Even when a pregnant person’s life is not in danger, some philosophers argue that a fetus’s right to life would not automatically override a pregnant person’s right to <a href="https://www.jstor.org/stable/2265091">live their life as they wish</a>. In a famous article, <a href="https://news.mit.edu/2020/professor-emerita-judith-jarvis-thomson-influential-philosopher-dies-1204">ethicist Judith Jarvis Thomson</a> used the hypothetical example of someone extremely ill, who could only be saved by actor Henry Fonda touching their brow. Must Fonda attend to them? She argued no: a right to life is not usually understood as a claim to whatever one needs to stay alive. Instead, it requires not having one’s life unjustly ended.</p>
<p>When weighing rights, it is important to consider the toll exacted when people wishing to terminate a pregnancy are prevented from doing so. A <a href="https://www.ansirh.org/research/ongoing/turnaway-study">decade-long study</a> showed people in this situation suffered adverse health effects; were less likely to have money for basic living expenses like food, housing and transportation; and were more likely to remain with violent partners. Since the risk of dying from childbirth is much greater than the risk of dying from legal abortion, a ban on abortion is projected to <a href="https://doi.org/10.1215/00703370-9585908">increase maternal mortality</a>.</p>
<p>The constitutional right to abortion will likely soon be settled. If the Supreme Court strikes down Roe v. Wade, this will raise yet more ethical questions – about fairness, for example, considering, that people living in poverty and members of <a href="https://www.pbs.org/newshour/nation/black-and-hispanic-people-have-the-most-to-lose-if-roe-is-overturned">minority groups would be among those most affected</a>, and that a majority of Americans <a href="https://www.pewresearch.org/religion/2022/05/06/americas-abortion-quandary/">support abortion rights</a>. </p>
<p>Only by shifting the conversation from politics and law to ethics will Americans start to reckon with what truly matters in abortion debates.</p><img src="https://counter.theconversation.com/content/182745/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Nancy S. Jecker does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The definition of personhood is a key and contested philosophical issue that has made legalized abortion such a longstanding controversy.Nancy S. Jecker, Professor of Bioethics and Humanities, School of Medicine, University of WashingtonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1661972021-08-16T15:50:48Z2021-08-16T15:50:48ZGeronimo the alpaca – the case for animals having the same legal rights as people<p>The fate of Geronimo the alpaca was seemingly sealed in the UK’s high court <a href="https://www.bbc.co.uk/news/uk-england-gloucestershire-57997877">recently</a> when the appeal against an order to slaughter him was rejected. </p>
<p>After twice testing positive for bovine tuberculosis (TB), Geronimo’s death was ordered by the Department for Environment, Food and Rural Affairs (Defra) back in 2017, with that order upheld in the latest high-court decision. A legal challenge by Helen Macdonald, Geronimo’s owner, had delayed the implementation of the order, and <a href="https://www.dailymail.co.uk/news/article-9892651/Geronimo-alpaca-receives-72-hour-stay-execution.html">further legal proceedings</a> have granted <a href="https://www.bbc.co.uk/news/uk-england-gloucestershire-58241387">another stay of execution</a> ahead of a review.</p>
<p>Given that <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/994066/bovinetb-statsnotice-Q1-quarterly-16jun21.pdf">tens of thousands</a> of animals are slaughtered each year in England and Wales to control the spread of bovine TB, it’s worth asking why Geronimo’s case in particular has attracted <a href="https://www.nytimes.com/2021/08/10/world/europe/geronimo-alpaca-execution-.html">global media attention</a>. The answer is that Macdonald has taken the matter to the courts on multiple occasions. But the very fact that the litigation
is in <a href="https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Admin/2019/1783.html&query=(title:(+macdonald+))">her name</a> and not Geronimo’s highlights how the the definition of legal personhood restricts the rights of animals under the law.</p>
<h2>Non-humans as legal persons</h2>
<p>Legal personhood is a crucial part of any legal system, as only those who are recognised as a person by the law can enforce their legal rights. If animals had their own rights as legal persons, entities other than owners could enforce them, such as anti-cruelty campaigners asking a court to uphold the rights of animals kept in inhumane conditions. The protections and remedies the law provides would be for the benefit of the animal, not its owner.</p>
<p>Personhood is an artificial categorisation that is by no means restricted to human beings – companies and ships are among entities which have been recognised as legal persons in the past. Academics are <a href="http://www.environmentandsociety.org/mml/should-trees-have-standing-law-morality-and-environment">now debating</a> whether legal personhood should be extended to other natural entities besides humans, with some <a href="https://www.jurist.org/commentary/2020/04/sanket-khandelwal-environment-person/">notable successes</a>. Personhood has even been bestowed on environmental features, such as <a href="https://theconversation.com/rights-for-nature-how-granting-a-river-personhood-could-help-protect-it-157117">Muteshekau Shipu</a>, a river in Quebec that was declared a legal person in February 2021, with nine particular legal rights including the right to “<a href="https://www.aljazeera.com/news/2021/4/3/this-river-in-canada-now-legal-person">live, exist and flow</a>”.</p>
<p>But instances of courts recognising the legal personhood of animals are still <a href="https://theconversation.com/happy-the-elephant-was-denied-rights-designed-for-humans-but-the-legal-definition-of-person-is-still-evolving-152410">few and far between</a>. This means that animals are still considered property in most jurisdictions, including the UK, reducing them to the <a href="https://www.peta.org/teachkind/lesson-plans-activities/nouns-animals-not-things/">status of things</a>: objects to which the law is applied, rather than subjects of the law who possess their own legal rights. </p>
<p>Chimpanzees are <a href="https://www.smh.com.au/technology/when-will-my-child-outsmart-a-chimp-not-until-theyre-4-or-more-scientists-say-20170619-gwtycu.html">intellectually comparable</a> to a four-year-old, but a chimp is legally comparable to a chocolate bar, not a child. The high court was not asked to decide on whether Geronimo had a legal right to life. It was asked to decide whether Defra had acted irrationally in ordering the destruction of Macdonald’s property.</p>
<p>Given that legal personhood is <a href="https://www.nationalaffairs.com/publications/detail/are-corporations-people">already bestowed</a> on non-human entities, there is no technical reason to withhold it from animals. In fact, bestowing personhood on animals could provide a lasting benefit for animal rights. After all, for legal rights to be meaningful, they must be enforceable. And to enforce one’s rights in a court of law, one must be recognised by that court. <a href="https://www.ted.com/speakers/steven_wise">Steven M Wise</a>, one of the most influential legal scholars writing on animal rights, <a href="https://www.animallaw.info/sites/default/files/lralvol17_1_1.pdf">has argued</a> that legal personhood is synonymous with the capacity to possess rights, and so personhood becomes a basic prerequisite for meaningful legal rights for animals.</p>
<p>As Geronimo’s story has shown, when animals are considered as individuals rather than an indeterminate mass, our perceptions of fair treatment shift dramatically. Some have argued that the public outcry is because Geronimo is “<a href="https://www.thetimes.co.uk/article/alpaca-owners-must-accept-slaughter-is-a-necessary-evil-rzp5637vv">irresistibly cute</a>”. They may well be right, but perhaps it is not that Geronimo is cute as much as Geronimo is an individual with a name and a face. As the <a href="https://quoteinvestigator.com/2010/05/21/death-statistic/">famous saying</a> goes, “a single death is a tragedy, a million deaths is a statistic”.</p>
<p>The definition of a legal person is also becoming blurred in another way. Legal personhood for artificial intelligence (AI) is a hot topic not just in <a href="https://doi.org/10.1017/S0020589320000366">academic literature</a>, but in the <a href="https://www.supremecourt.uk/docs/speech-190314.pdf">speeches</a> of <a href="https://www.supremecourt.uk/docs/speech-191112.pdf">justices</a> of the US supreme court and in the <a href="https://europeanlawblog.eu/2020/11/25/refusing-to-award-legal-personality-to-ai-why-the-european-parliament-got-it-wrong/">European parliament</a>.</p>
<p>Artificial intelligence is already entering contracts, operating vehicles and making decisions that affect the legal rights of humans. Should AI in these positions not bear legal responsibility? The more <a href="https://ai-regulation.com/refusing-to-award-legal-personality-to-ai-why-the-european-parliament-got-it-wrong/">involved</a> we are with AI, the more a legal identity for that AI is needed. To have meaningful rights in our legal landscape, you must have legal personhood. In this case, it might make it possible for an AI to own the intellectual property it creates, for example. </p>
<p>Geronimo’s fate will be decided long before any such changes take effect. Thanks to his owner’s concern, Geronimo has at least had his day in court. It is time to seriously consider whether that is a right we should extend to other sentient beings.</p><img src="https://counter.theconversation.com/content/166197/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Fred Motson does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Boats and companies have been treated as legal persons in the past. Why not an alpaca?Fred Motson, Lecturer in Law, The Open UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1524102021-01-06T14:17:41Z2021-01-06T14:17:41ZHappy the elephant was denied rights designed for humans – but the legal definition of ‘person’ is still evolving<p>Nobody knows how old Happy is. Sometime in the 1970s, she and six other youngsters were taken from their family group (probably in Thailand) and sold to an entertainment complex in California where they were forced to perform for paying guests. Over time, Happy was separated from her kin and, since 2006, has lived alone in conditions that <a href="https://www.nonhumanrights.org/content/uploads/Affidavit-Joyce-Poole-Scan-1-Oct-2018-at-14.13.pdf">experts suggest</a> could significantly increase her risk of arthritis, depression, bone disease and a host of other physical and mental ailments.</p>
<p>A team of lawyers requested a writ of habeas corpus – a claim of unlawful detention – on Happy’s behalf in an effort to have her rehomed. But on December 17 2020, an appeals court in New York <a href="https://www.nonhumanrights.org/content/uploads/2020_02581_The_Nonhuman_Rights_Pr_v_The_Nonhuman_Rights_Pr_DECISION_AND_ORDER_21.pdf">denied the claim</a>. Their reasoning was simple – Happy cannot claim legally enforceable rights under existing law. This is because <a href="https://www.nonhumanrights.org/client-happy/">Happy is an elephant</a>. </p>
<p>If Happy had been human, the courts wouldn’t have hesitated to find in her favour, and people would consider this justified. But do we actually have reason to think any differently now we know she is an elephant? Does justice require different things for different species in the same circumstances? Or, as the <a href="https://www.nonhumanrights.org/">Nonhuman Rights Project</a> – a civil rights association campaigning for animal legal rights in the US – has argued on Happy’s behalf, is a subject’s species irrelevant in considerations of justice and legal rights? </p>
<p>If the Nonhuman Rights Project is correct here, then the courts need to recognise Happy as a legal person to hear her case. This is necessary because, according to a legal principle created by the ancient Romans but which is still with us today, someone – or thing – needs to be recognised as a “legal person” in order to be able to claim legal rights – and it’s a status currently denied to non-human animals in the US. </p>
<p>Legal personhood shouldn’t be confused with the ordinary meaning of what it means to be a “person”. Non-living entities such as <a href="https://timesofindia.indiatimes.com/india/god-is-not-a-juristic-person-but-idol-is-says-apex-court-in-ayodhya-case/articleshow/72134544.cms">idols</a>, corporations or even ships have long been recognised as legal persons in legal systems worldwide. This means that, if non-living things have had their legal personhood recognised in the past, there should be no conceptual problem with recognising the legal personhood of a highly intelligent being such as Happy. </p>
<p>But this would be a controversial legal shift with huge implications for animal rights. The New York Court refused to wade into the debate and issued a statement saying that integrating other species into legal constructs designed for humans is a matter “<a href="https://www.nonhumanrights.org/content/uploads/2020_02581_The_Nonhuman_Rights_Pr_v_The_Nonhuman_Rights_Pr_DECISION_AND_ORDER_21.pdf">better suited to the legislative process</a>”.</p>
<p>In other words, extending legal personhood needs to be fully thought through and legislated for by Congress, not declared by the courts. In deciding this, the appeals court concurred with several cases from across the US that reached the same conclusion, from the whales and dolphins <a href="https://www.abc.net.au/news/2004-10-21/court-rules-whales-dolphins-cant-sue-bush/571048">denied compensation</a> for disturbances caused by Navy sonar, to the macaque monkey deemed <a href="https://www.bbc.co.uk/news/uk-wales-south-east-wales-41235131">not to be entitled</a> to copyright protection for a selfie it took. </p>
<p>Letting politicians instead of judges deliberate the recognition of new legal persons might seem a sensible approach. It’s one that was recently taken by the New Zealand parliament when it voted to <a href="https://www.nationalgeographic.com/culture/2019/04/maori-river-in-new-zealand-is-a-legal-person/">recognise a river as such</a>. But the US Congress and other legislatures are usually reluctant to recognise new categories of legal persons unless their hand is forced. </p>
<figure class="align-center ">
<img alt="A winding river surrounded by a wooded landscape with hills." src="https://images.theconversation.com/files/377340/original/file-20210106-23-18btzpe.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/377340/original/file-20210106-23-18btzpe.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/377340/original/file-20210106-23-18btzpe.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/377340/original/file-20210106-23-18btzpe.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/377340/original/file-20210106-23-18btzpe.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=565&fit=crop&dpr=1 754w, https://images.theconversation.com/files/377340/original/file-20210106-23-18btzpe.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=565&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/377340/original/file-20210106-23-18btzpe.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=565&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The Whanganui River was granted legal person status by the New Zealand government in 2017.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/aerial-view-beautiful-landscape-whanganui-river-1216887664">RLS Photo/Shutterstock</a></span>
</figcaption>
</figure>
<p>After all, legislatures once turned a blind eye as many human beings were denied the status of legal persons based on their age, sexuality, religion, gender or race. The institution of slavery relied on legal systems denying the legal personhood of human beings, and it was the courts – most notably <a href="https://www.nationalarchives.gov.uk/pathways/blackhistory/rights/docs/state_trials.htm">the Somerset case</a>, heard in England in 1772 – that challenged this, long before slavery was abolished through legislation. </p>
<h2>Legal precedent</h2>
<p>The problem for Happy, then, is that new legislation to benefit her is unlikely given that the issue is considered a low priority – if it’s even on the political radar at all. So any court presented with a case like Happy’s must face a choice – either do nothing and maintain Happy’s suffering, or force the legislature’s hand by following the lead of other legal systems. </p>
<p>Courts in Argentina have recognised the legal personhood of <a href="https://www.independent.co.uk/news/world/americas/argentina-judge-says-chimpanzee-poor-conditions-has-rights-and-should-be-freed-zoo-a7402606.html">Cecilia the Chimpanzee</a>, who was detained in similar conditions to Happy. Chucho the Bear, also held in similar conditions, is a legal person too <a href="https://changingtimes.media/2017/08/03/habeas-corpus-victory-for-bear-in-colombia-encourages-animal-rights-lawyers/">thanks to the Columbian Courts</a>. Both were granted habeas corpus relief from their inhumane captivity as a result. </p>
<p>The New York courts will be confronted with this choice again. Happy’s legal team <a href="https://www.nonhumanrights.org/blog/first-department-decision-new-york-elephant-rights-case/">intend to appeal</a>, and in doing so may bring the case into the orbit of a judge more sympathetic to this kind of activism. The last time an animal personhood case (about chimpanzees) reached the more powerful appellate level in New York, <a href="http://www.nycourts.gov/ctapps/Decisions/2018/May18/M2018-268opn18-Decision.pdf">Judge Fahey</a> noted that:</p>
<blockquote>
<p>The issue [of] whether a nonhuman animal has a fundamental right to liberty protected by the writ of habeas corpus is profound and far-reaching… Ultimately, we will not be able to ignore it. While it may be arguable that a chimpanzee is not a person, there is no doubt that it is not merely a thing. </p>
</blockquote>
<p>If one judge thinks this, then they may not be alone. The New York Court of Appeal may yet acknowledge the elephant in the room and provide a happy ending, with stronger legal rights for non-human animals across the US.</p><img src="https://counter.theconversation.com/content/152410/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joshua Jowitt does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Happy has lived alone in captivity for 14 years, but a New York appeals court recently denied a legal effort to rehome her.Joshua Jowitt, Lecturer in Law, Newcastle UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1152872019-04-25T21:51:03Z2019-04-25T21:51:03ZWhy the southern resident killer whales should have the same rights as people<figure><img src="https://images.theconversation.com/files/270549/original/file-20190423-175539-k93mch.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Two southern resident killer whales surface near Saturna Island, B.C, in September 2012.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/mrmritter/7916068086">Miles Ritter/flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-sa/4.0/">CC BY-NC-SA</a></span></figcaption></figure><p>Each year, the number of southern resident killer whales in the Salish Sea on the Pacific coast declines — yet another species on the road to extinction. Last summer, many grieved as they watched an orca named J35, also known as Tahlequah, <a href="https://www.nationalgeographic.com/animals/2018/08/orca-mourning-calf-killer-whale-northwest-news/">carried her dead calf for more than two weeks</a>. </p>
<p>The Canadian government has since introduced measures intended to save these struggling whales. One proposes to <a href="http://www.pac.dfo-mpo.gc.ca/consultation/fm-gp/srkw-eprs/potential-meas-mes-poss-eng.html">establish small sanctuaries</a> within some areas of their critical habitat. </p>
<p>Another route is to give these killer whales legal rights. Scientists and environmental lawyers agree that whales need the legal rights of personhood to give them a voice in courts and legislatures, and to secure their continued survival and well being. </p>
<h2>Rights for nature on the rise</h2>
<p>In 2014, Lori Marino, a biopsychologist at Emory University in Atlanta, told <em>National Geographic</em>, “<a href="https://news.nationalgeographic.com/news/innovators/2014/05/140528-lori-marino-dolphins-animals-personhood-blackfish-taiji-science-world/">There is abundant, unquestionable evidence for personhood for animals</a>.” </p>
<p>Marino is one of many scientists who find that whales’ intelligence, consciousness and sense of self qualify them as people in the eyes of the law. Dalhousie University professor Hal Whitehead, who <a href="https://www.newscientist.com/article/mg22530030-900-whaleworld-looking-for-cetacean-culture/">wrote a book about the distinct culture of whales and dolphins</a>, is another. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/271051/original/file-20190425-121233-di8tj4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/271051/original/file-20190425-121233-di8tj4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=285&fit=crop&dpr=1 600w, https://images.theconversation.com/files/271051/original/file-20190425-121233-di8tj4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=285&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/271051/original/file-20190425-121233-di8tj4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=285&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/271051/original/file-20190425-121233-di8tj4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=358&fit=crop&dpr=1 754w, https://images.theconversation.com/files/271051/original/file-20190425-121233-di8tj4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=358&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/271051/original/file-20190425-121233-di8tj4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=358&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Corporations have the legal rights of personhood, why not whales?</span>
<span class="attribution"><span class="source">Shutterstock</span></span>
</figcaption>
</figure>
<p>Legal scholars agree that nature deserves rights. “As a matter of law, <a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/tulev31&div=5&id=&page=">rights of nature can be done</a>,” writes Oliver Houck, a professor of law at Tulane University in New Orleans. The exact nature of those rights will take time to define, through legislative acts and court decisions.</p>
<p>One way to extend rights to nature is to provide it with the rights of legal personhood. The key feature of legal personhood is the ability to hold rights and to enforce those rights through the courts. </p>
<p>People have the right to life, liberty and security of the person, as guaranteed by the <a href="https://www.un.org/en/universal-declaration-human-rights/">Universal Declaration of Human Rights</a>. Whales do not. </p>
<p>Yet laws have increasingly extended legal personhood rights to non-human entities. Corporations are the most prominent example. </p>
<p>In the past few decades, governments around the world have passed statutes and adopted constitutions to extend rights to nature. David Boyd, one of Canada’s leading environmental lawyers, made the role of the law clear in his 2017 book, <em><a href="https://ecwpress.com/products/rights-of-nature">The Rights of Nature: A Legal Revolution That Could Save the World</a></em>. </p>
<p>More recently, scientists <a href="https://science.sciencemag.org/content/363/6434/1392.summary">echoed this call when they wrote</a> a commentary in the journal <em>Science</em> titled, “A rights revolution for nature.”</p>
<p>If a whale were given the legal rights of personhood, it could sue for injury, a court would have to take any injury into account and any legal relief granted would have to be for the whale’s benefit. Christopher Stone, an emeritus professor at the Gould School of Law at the University of Southern California, identified these three criteria for exercising legal personhood rights in his classic 1972 book <em><a href="https://global.oup.com/academic/product/should-trees-have-standing-9780199736072?cc=ca&lang=en&#">Should Trees Have Standing?</a></em>. </p>
<h2>Canada’s actions are failing</h2>
<p>The southern resident killer whales are <a href="http://www.dfo-mpo.gc.ca/species-especes/profiles-profils/killerWhalesouth-PAC-NE-epaulardsud-eng.html">threatened by depleted prey populations (mainly Chinook salmon), physical disturbances that interfere with echolocation, pollution and climate change</a>, as well as the projected increased tanker traffic from the Trans Mountain pipeline expansion. The federal government will announce on June 18 whether it will re-approve the expansion project, despite findings of a “<a href="https://www.neb-one.gc.ca/pplctnflng/mjrpp/trnsmntnxpnsn/trnsmntnxpnsnrprt-eng.html">significant adverse environmental effects” on the whales</a>.</p>
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Read more:
<a href="https://theconversation.com/quieter-ships-could-help-canadas-endangered-orcas-recover-107515">Quieter ships could help Canada's endangered orcas recover</a>
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</em>
</p>
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<p>Fisheries and Oceans Canada has been slow to reduce threats to the southern resident killer whales from commercial fishing and shipping, <a href="http://www.oag-bvg.gc.ca/internet/English/att__e_43151.html">despite the tools at its disposal</a>.</p>
<p>Even though the federal environment and fisheries ministers said the southern resident killer whales faced “<a href="https://www.canada.ca/en/environment-climate-change/services/species-risk-public-registry/related-information/summary-ita-sr-killerwhale.html">imminent threats to their survival and recovery</a>,” they did not issue an emergency order to mandate extra steps for protection. Instead, the government made other promises, <a href="https://www.canada.ca/en/fisheries-oceans/news/2018/10/government-of-canada-taking-further-action-to-protect-southern-resident-killer-whales.html">including a plan to look into creating sanctuaries in some of the whales’ foraging spots</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/271102/original/file-20190425-121258-1xe1xbf.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/271102/original/file-20190425-121258-1xe1xbf.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/271102/original/file-20190425-121258-1xe1xbf.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=382&fit=crop&dpr=1 600w, https://images.theconversation.com/files/271102/original/file-20190425-121258-1xe1xbf.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=382&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/271102/original/file-20190425-121258-1xe1xbf.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=382&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/271102/original/file-20190425-121258-1xe1xbf.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=480&fit=crop&dpr=1 754w, https://images.theconversation.com/files/271102/original/file-20190425-121258-1xe1xbf.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=480&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/271102/original/file-20190425-121258-1xe1xbf.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=480&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Critical habitat for the southern resident killer whale, key foraging areas, and proposed enhanced management areas.</span>
<span class="attribution"><span class="source">Fisheries and Oceans Canada</span></span>
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</figure>
<p>The proposed new sanctuaries are small, voluntary and likely unenforceable, as the term carries no consequences in any of the Canadian laws that protect marine mammals, endangered species or marine marine areas. A new term without a clear definition only clouds the waters. </p>
<h2>Sanctuaries in the age of extinction</h2>
<p>If society is to stop extinction, we must try new approaches. </p>
<p>In the 16th century, a sanctuary was a place of refuge or protection. The definition was later broadened to include lands set aside for wild animals. In the 21st century, a sanctuary could be a place where a species exercises the legal rights of personhood.</p>
<p>This next-generation sanctuary would be a protected area covering all of the species’ critical habitat. For the southern resident killer whale, the sanctuary would cross national borders with the goal of reversing its population decline.</p>
<p>The law would enshrine the legal rights of personhood for these whales. It would appoint a guardian or governance board empowered to act on behalf of the whales and enforce their rights. It could, for example, ask for habitat maintenance and restoration, and could claim and receive compensation for past injuries.</p>
<h2>The rights revolution</h2>
<p>This is not a radical idea. Legal personhood has been granted to corporations, trusts, churches, joint ventures and nation-states. It seems perverse to grant non-living corporations the same rights as people while denying those rights to sentient and intelligent beings such as whales.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/271044/original/file-20190425-121216-19hrvuu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/271044/original/file-20190425-121216-19hrvuu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/271044/original/file-20190425-121216-19hrvuu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/271044/original/file-20190425-121216-19hrvuu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/271044/original/file-20190425-121216-19hrvuu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/271044/original/file-20190425-121216-19hrvuu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/271044/original/file-20190425-121216-19hrvuu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=501&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The Whanganui River in New Zealand has been granted the same legal rights as a human being.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Whanganui_River.jpg">James Shook/wikimedia</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
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<p>New Zealand has granted personhood rights to land and water, including the <a href="https://www.theguardian.com/world/2017/mar/16/new-zealand-river-granted-same-legal-rights-as-human-being">Whanganui River</a> and the former national park of Te Urewara. Governing bodies now act as the “human faces” and must act in accordance with the area’s best interests and Maōri laws. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/indigenous-protected-areas-are-the-next-generation-of-conservation-105787">Indigenous protected areas are the next generation of conservation</a>
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</em>
</p>
<hr>
<p><a href="https://www.economist.com/international/2018/12/18/gradually-nervously-courts-are-granting-rights-to-animals">Courts in several jurisdictions have recently extended</a> legal rights to animals — why not here?</p>
<p><a href="https://www.timescolonist.com/opinion/op-ed/comment-should-b-c-s-killer-whales-have-legal-rights-1.23089015">Boyd has already argued</a> that the rights of southern right killer whales must be recognized, and the U.S.-based <a href="https://www.earthlawcenter.org/salish-sea-initiative">Earth Law Center</a> and <a href="http://legalrightsforthesalishsea.org/">Rights of the Salish Sea Project</a> are campaigning for these rights. </p>
<p>Canada’s proposed postage-stamp-sized sanctuaries won’t offer real protection for the southern resident killer whales. Yet the creation of a new sanctuary in the Salish Sea, where these whales could exercise legal rights — allowing them to forage, breed and find prey, and keep them free from pollution — would be the bold step needed to save these orcas from extinction.</p><img src="https://counter.theconversation.com/content/115287/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Linda Nowlan is affiliated with West Coast Environmental Law Association. </span></em></p>A bold new approach could protect endangered animals.Linda Nowlan, Adjunct Professor, Allard School of Law. Senior Director, UBC Sustainability Initiative, University of British ColumbiaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1028652018-10-05T10:42:00Z2018-10-05T10:42:00ZCould an artificial intelligence be considered a person under the law?<figure><img src="https://images.theconversation.com/files/238476/original/file-20180928-48659-1gkudpd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Sophia, a robot granted citizenship in Saudi Arabia.</span> <span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Roboter_Sophia_MSC_2018.jpg">MSC/wikimedia</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span></figcaption></figure><p>Humans aren’t the only people in society – at least according to the law. In the U.S., <a href="https://www.theatlantic.com/business/archive/2018/03/corporations-people-adam-winkler/554852/">corporations have been given rights of free speech</a> and religion. Some <a href="https://theconversation.com/what-if-nature-like-corporations-had-the-rights-and-protections-of-a-person-64947">natural features also have person-like rights</a>. But both of those required changes to the legal system. A new argument has laid a path for artificial intelligence systems to be recognized as people too – without any legislation, court rulings or other revisions to existing law.</p>
<p>Legal scholar Shawn Bayern has shown that anyone can <a href="https://doi.org/10.1017/S1867299X00005729">confer legal personhood on a computer system</a>, by putting it in control of a limited liability corporation in the U.S. If that maneuver is upheld in courts, <a href="https://cyber.harvard.edu/publication/2018/artificial-intelligence-human-rights">artificial intelligence systems</a> would be able to own property, sue, hire lawyers and enjoy freedom of speech and other protections under the law. <a href="https://scholar.google.com/citations?user=0_Rq68cAAAAJ&hl=en">In my view</a>, human rights and dignity would suffer as a result. </p>
<h2>The corporate loophole</h2>
<p>Giving AIs rights similar to humans involves a technical lawyerly maneuver. It starts with <a href="https://doi.org/10.1017/S1867299X00005729">one person setting up two limited liability companies</a> and turning over control of each company to a separate autonomous or artificially intelligent system. Then the person would add each company as a member of the other LLC. In the last step, the person would withdraw from both LLCs, leaving each LLC – a corporate entity with legal personhood – governed only by the other’s AI system.</p>
<p>That process doesn’t require the computer system to have any particular level of intelligence or capability. It could just be a sequence of “if” statements looking, for example, at the stock market and <a href="https://www.investopedia.com/articles/active-trading/101014/basics-algorithmic-trading-concepts-and-examples.asp">making decisions to buy and sell</a> based on prices falling or rising. It could even be an algorithm that <a href="http://www.randomdecisionmaker.com/">makes decisions randomly</a>, or an <a href="https://scratch.mit.edu/projects/115569822/">emulation of an amoeba</a>.</p>
<h2>Reducing human status</h2>
<p>Granting human rights to a computer would degrade human dignity. For instance, when <a href="https://www.independent.co.uk/life-style/gadgets-and-tech/news/saudi-arabia-robot-sophia-citizenship-android-riyadh-citizen-passport-future-a8021601.html">Saudi Arabia granted citizenship to a robot called Sophia</a>, <a href="https://qz.com/1205017/saudi-arabias-robot-citizen-is-eroding-human-rights/">human women</a>, including <a href="https://www.washingtonpost.com/news/innovations/wp/2017/10/29/saudi-arabia-which-denies-women-equal-rights-makes-a-robot-a-citizen/">feminist scholars</a>, objected, noting that the robot was given more rights than many Saudi women have.</p>
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<figcaption><span class="caption">An interview with Sophia, a robot citizen of Saudi Arabia.</span></figcaption>
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<p>In certain places, some people might have fewer rights than nonintelligent software and robots. In countries that limit <a href="http://www.un.org/en/universal-declaration-human-rights/">citizens’ rights</a> to free speech, free religious practice and expression of sexuality, corporations – potentially including AI-run companies – <a href="https://www.huffingtonpost.com/adam-winkler/corporations-are-people-a_b_5543833.html">could have more rights</a>. That would be an enormous indignity.</p>
<p>The risk doesn’t end there: If AI systems became more intelligent than people, <a href="https://theconversation.com/what-an-artificial-intelligence-researcher-fears-about-ai-78655">humans could be relegated to an inferior role</a> – as workers hired and fired by AI corporate overlords – or even <a href="https://www.imdb.com/title/tt2145829/">challenged for social dominance</a>.</p>
<p>Artificial intelligence systems could be tasked with law enforcement among human populations – acting as <a href="https://theconversation.com/we-need-to-know-the-algorithms-the-government-uses-to-make-important-decisions-about-us-57869">judges, jurors, jailers and even executioners</a>. <a href="https://theconversation.com/losing-control-the-dangers-of-killer-robots-58262">Warrior robots</a> could similarly be assigned to the military and given power to decide on targets and acceptable collateral damage – even in violation of <a href="https://theconversation.com/ban-killer-robots-to-protect-fundamental-moral-and-legal-principles-101427">international humanitarian laws</a>. Most legal systems are not set up to <a href="https://theconversation.com/ban-killer-robots-to-protect-fundamental-moral-and-legal-principles-101427">punish robots</a> or otherwise hold them accountable for wrongdoing.</p>
<h2>What about voting?</h2>
<p>Granting voting rights to systems that can copy themselves would render humans’ votes meaningless. Even without taking that significant step, though, the possibility of AI-controlled corporations with basic human rights poses serious dangers. No current laws would prevent a <a href="https://theconversation.com/fighting-malevolent-ai-artificial-intelligence-meet-cybersecurity-60361">malevolent AI</a> from operating a corporation that worked to subjugate or exterminate humanity <a href="https://www.reuters.com/article/us-usa-court-employment/companies-win-big-at-us-top-court-on-worker-class-action-curbs-idUSKCN1IM1GW">through legal means</a> and political influence. Computer-controlled companies could turn out to be less responsive to public opinion or protests than human-run firms are.</p>
<h2>Immortal wealth</h2>
<p>Two other aspects of corporations make people even more vulnerable to AI systems with human legal rights: They don’t die, and they can give unlimited amounts of money to political candidates and groups. </p>
<p>Artificial intelligences could earn money by exploiting workers, using algorithms to <a href="https://www.seattletimes.com/business/trust-the-machines-these-funds-are-run-by-artificial-intelligence/">price goods and manage investments</a>, and find new ways to <a href="https://www.ibm.com/blogs/watson/2018/04/how-kpmg-uses-ai-to-empower-their-auditors/">automate key business processes</a>. Over long periods of time, that could <a href="https://www.cnbc.com/2018/02/01/apple-earnings-q1-2018-how-much-money-does-apple-have.html">add up to enormous earnings</a> – which would never be split up among descendants. That wealth could easily be <a href="https://www.businessinsider.com/how-corporations-turned-into-political-beasts-2015-4">converted into political power</a>. </p>
<p>Politicians financially backed by algorithmic entities would be able to take on legislative bodies, impeach presidents and help to get figureheads appointed to the Supreme Court. Those human figureheads could be used to expand corporate rights or even establish new rights specific to artificial intelligence systems – expanding the threats to humanity even more.</p><img src="https://counter.theconversation.com/content/102865/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Roman V. Yampolskiy does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A legal loophole could grant computer systems many legal rights people have – threatening human rights and dignity and setting up some real legal and moral problems.Roman V. Yampolskiy, Associate Professor of Computer Engineering and Computer Science, University of LouisvilleLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/749832017-03-23T19:13:47Z2017-03-23T19:13:47ZThree rivers are now legally people – but that’s just the start of looking after them<figure><img src="https://images.theconversation.com/files/162124/original/image-20170323-25762-15za1xp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Whanganui River: now a legal person.</span> <span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File%3AWhanganui_River_Aerial_Photo.jpg">Joerg Muller/Ulanwp/Wikimedia Commons</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span></figcaption></figure><p>In the space of a week, the world has gained three notable new legal persons: the <a href="http://www.abc.net.au/news/2017-03-16/nz-whanganui-river-gets-legal-status-as-person-after-170-years/8358434">Whanganui River</a> in New Zealand, and the <a href="http://www.thenewsminute.com/article/ganga-and-yamuna-are-now-legal-entities-what-does-mean-and-it-good-move-58999">Ganga and Yamuna Rivers</a> in India. </p>
<p>In New Zealand, the government passed legislation that recognised the Whanganui River catchment as a <a href="https://crawford.anu.edu.au/news-events/news/4098/river-personified">legal person</a>. This significant legal reform emerged from the longstanding <a href="https://www.waitangitribunal.govt.nz/">Treaty of Waitangi</a> negotiations and is a way of formally acknowledging the <a href="https://www.theguardian.com/world/2017/mar/16/new-zealand-river-granted-same-legal-rights-as-human-being">special relationship</a> local Māori have with the river.</p>
<p>In India, the Uttarakhand high court ruled that the <a href="http://www.hindustantimes.com/india-news/uttarakhand-hc-says-ganga-is-india-s-first-living-entity-grants-it-rights-equal-to-humans/story-VoI6DOG71fyMDihg5BuGCL.html">Ganga and Yamuna Rivers have the same legal rights as a person</a>, in response to the urgent need to reduce pollution in two rivers considered sacred in the Hindu religion. </p>
<h2>What are legal rights for nature?</h2>
<p>Legal rights are not the same as human rights, and so <a href="http://www.bloomsbury.com/au/laws-meaning-of-life-9781841138664/">a “legal person” does not necessarily have to be a human being</a>. Take corporations, for example, which are also treated in law as “legal persons”, as a way to endow companies with particular legal rights, and to treat the company as <a href="http://www.bailii.org/uk/cases/UKHL/1896/1.html">legally distinct</a> from its managers and shareholders. </p>
<p>Giving nature legal rights means the law can see “nature” as a legal person, thus creating rights that can then be enforced. Legal rights focus on the idea of <a href="https://isites.harvard.edu/fs/docs/icb.topic498371.files/Stone.Trees_Standing.pdf">legal standing</a> (often described as the ability to sue and be sued), which enables “nature” to go to court to protect its rights. Legal personhood also includes the right to enter and enforce contracts, and the ability to hold property. </p>
<p>There is still a big question about whether these types of legal rights are relevant or appropriate for nature at all. But what is clear from the experience of applying this concept to other non-human entities is that these legal rights don’t mean much if they can’t be enforced. </p>
<h2>Enforcing nature’s legal rights</h2>
<p>What does it take to enforce the legal personhood of a river or other natural entity? First, there needs to be a person appointed to act on its behalf. </p>
<p>Second, for a right to be enforceable, both the “guardians” and users of the resource must recognise their joint rights, duties, and responsibilities. To possess a right implies that someone else has a commensurate duty to observe this right. </p>
<p>Third, if a case requires adjudication by the courts, then it takes time, money, and expertise to run a successful legal case. Enforcing legal rights for nature therefore requires not only legal standing, but also adequate funding and access to legal expertise.</p>
<p>And finally, any actor seeking to enforce these rights will need some form of legislative independence from state and national governments, as well as sufficient real-world power to take action, particularly if such action is politically controversial. </p>
<p>Both New Zealand and India face considerable challenges in ensuring that the new legal rights granted to the rivers are successfully enforced. At present, New Zealand seems significantly better prepared than India to meet these challenges.</p>
<p>In New Zealand, the new system for managing the river will slot into existing systems of government, whereas India will need to set up completely new organisations in a matter of weeks.</p>
<p>Granting legal rights to New Zealand’s Whanganui River catchment (Te Awa Tupua) has taken eight years of careful negotiation. The new legislation, introduced at the national level, transfers ownership of the riverbed from the Crown to Te Awa Tupua, and assigns a guardian the responsibility of representing Te Awa Tupua’s interests. </p>
<p>The guardian will consist of two people: one appointed by the Whanganui Iwi (local Māori people), and the other by the New Zealand government. <a href="https://www.national.org.nz/whanganui_river_settlement_passes_third_reading">Substantial funds</a> have been set aside to maintain the health of the Whanganui River, and to establish the legal framework that will be administered by the guardian, with support from independent advisory groups. </p>
<p>In contrast, almost overnight, the High Court in India has ruled that the Ganga and Yamuna Rivers will be treated as minors under the law, and will be represented by three people – the <a href="http://www.newshub.co.nz/home/world/2017/03/india-follows-new-zealand-grants-legal-rights-to-rivers.html">director general of Namami Gange project, the Uttarakhand chief secretary, and the advocate general</a> – who will act as guardians for the river. The court has requested that within eight weeks, new boards should be established to oversee the cleaning and maintenance of the rivers. Few further details of the proposed institutional framework are available.</p>
<h2>Big questions remain</h2>
<p>In both cases, there are <a href="http://www.thenewsminute.com/article/ganga-and-yamuna-are-now-legal-entities-what-does-mean-and-it-good-move-58999">still big questions</a> about the roles and responsibilities of the rivers’ guardians. </p>
<p>How will they decide which rights to enforce, and when? Who can hold them to account for those decisions and who has oversight? Even in the case of the Whanganui River, there remain biting questions about water rights and enforcement. For instance, despite (or perhaps because of) longstanding concerns about levels of water extraction by the <a href="https://www.genesisenergy.co.nz/tongariro-power-scheme">Tongariro Power Scheme</a>, the legislation specifically avoids creating or transferring proprietary interests in water.</p>
<p>Ultimately, both of these examples show that conferring legal rights to nature is just the beginning of a longer legal process, rather than the end. Although legal rights can be created overnight, it takes time and money to set up the legal and organisational frameworks that will ensure these rights are worth more than the paper they’re printed on.</p><img src="https://counter.theconversation.com/content/74983/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>New Zealand’s Whanganui River and the Ganga and Yamuna Rivers in India have been given the right to ‘sue’ over issues like pollution. The challenge now is to ensure these legal rights are enforced.Erin O'Donnell, Senior Fellow, Centre for Resources, Energy and Environment Law, The University of MelbourneJulia Talbot-Jones, PhD candidate, Environmental/Institutional Economics, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/649472016-10-10T12:16:02Z2016-10-10T12:16:02ZWhat if nature, like corporations, had the rights and protections of a person?<figure><img src="https://images.theconversation.com/files/140611/original/image-20161005-20110-9ipkfz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The forest around Lake Waikaremoana in New Zealand has been given legal status of a person because of its cultural significance.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/58611670@N04/6090717440/in/photostream/">Paul Nelhams/flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p>In recent years, the U.S. Supreme Court has solidified the concept of corporate personhood. <a href="http://www.theatlantic.com/politics/archive/2015/06/raisins-hotels-corporate-personhood-supreme-court/396773/">Following rulings</a> in such cases as <a href="http://www.scotusblog.com/case-files/cases/sebelius-v-hobby-lobby-stores-inc/">Hobby Lobby</a> and <a href="http://www.usnews.com/news/articles/2015/01/21/5-years-later-citizens-united-has-remade-us-politics">Citizens United</a>, U.S. law has established that companies are, like people, entitled to certain rights and protections.</p>
<p>But that’s not the only instance of extending legal rights to nonhuman entities. New Zealand took a <a href="http://www.nytimes.com/2016/07/14/world/what-in-the-world/in-new-zealand-lands-and-rivers-can-be-people-legally-speaking.html?_r=0">radically different approach</a> in 2014 with the <a href="http://www.legislation.govt.nz/act/public/2014/0051/latest/DLM6183601.html">Te Urewera Act</a> which granted an 821-square-mile forest the legal status of a person. <a href="http://maorilawreview.co.nz/2014/10/tuhoe-crown-settlement-te-urewera-act-2014/">The forest is sacred</a> to the Tūhoe people, an indigenous group of the Maori. For them Te Urewera is an ancient and ancestral homeland that breathes life into their culture. The forest is also a living ancestor. The Te Urewera Act concludes that “Te Urewera has an identity in and of itself,” and thus must be its own entity with “all the rights, powers, duties, and liabilities of a legal person.” Te Urewera <a href="https://vertigo.revues.org/16199?lang=en#bodyftn5">holds title to itself</a>.</p>
<p>Although this legal approach is unique to New Zealand, the underlying reason for it is not. Over the last 15 years I have documented similar cultural expressions by Native Americans about their traditional, sacred places. As an anthropologist, this research has often pushed me to search for an answer to the profound question: What does it mean for nature to be a person?</p>
<h2>The snow-capped mountain</h2>
<p>A majestic mountain sits not far northwest of Albuquerque, New Mexico. Like a low triangle, with long gentle slopes, Mount Taylor is clothed in rich forests that appear a velvety charcoal-blue from the distance. Its bald summit, more than 11,000 feet high, is often blanketed in snow – a reminder of the blessing of water, when seen from the blazing desert below.</p>
<p>The Zuni tribe lives about 40 miles west of Mount Taylor. In 2012, <a href="http://www.ingentaconnect.com/content/saa/aap/2014/00000002/00000004/art00001">I worked with a team to interview 24 tribal members</a> about the values they hold for Dewankwin K’yaba:chu Yalanne (“In the East Snow-capped Mountain”), as Mount Taylor is called in the Zuni language. We were told that their most ancient ancestors began an epic migration in the Grand Canyon. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/140766/original/image-20161006-32727-1ssijxc.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/140766/original/image-20161006-32727-1ssijxc.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/140766/original/image-20161006-32727-1ssijxc.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/140766/original/image-20161006-32727-1ssijxc.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/140766/original/image-20161006-32727-1ssijxc.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/140766/original/image-20161006-32727-1ssijxc.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/140766/original/image-20161006-32727-1ssijxc.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Mount Taylor in New Mexico, a sacred site to the Zuni who believe it is a living being.</span>
<span class="attribution"><span class="source">Chip Colwell</span>, <span class="license">Author provided</span></span>
</figcaption>
</figure>
<p>Over millennia they migrated across the Southwest, with important medicine societies and clans living around Mount Taylor. After settling in their current pueblo homes, Zunis returned to this sacred mountain to hunt animals like deer and bear, harvest wild plants like acorns and cattails, and gather minerals used in sacrosanct rituals that keep the universe in order. Across the generations Dewankwin Kyaba:chu Yalanne has come to shape Zuni history, life, and identity no less than the Vatican has for Catholics.</p>
<p>But unlike holy places in the Western world, Zunis believe Mount Taylor is a living being. Zuni elders told me that the mountain was created within the Earth’s womb. As a mountain formed by volcanic activity, it has always grown and aged. The mountain can give life as people do. The mountain’s snow melts in spring and nourishes plants and wildlife for miles. Water is the mountain’s blood; buried minerals are the mountain’s meat. Because it lives, deep below is its beating heart. Zunis consider Mount Taylor to be their kin.</p>
<p>There is a stereotype that Native American peoples have a singular connection to nature. And yet in my experience, they do see the world in a fundamentally different way from most people I know. Whether it is mountains, rivers, rocks, animals, plants, stars or weather, they see the natural world as living and breathing, deeply relational, even at times all-knowing and transcendent.</p>
<p>In my work with Arizona’s Hopi tribe, I have traveled with cultural leaders to study sacred places. They often stop to listen to the wind, or search the sky for an eagle, or smile when it begins to rain, which they believe is a blessing the ancestors bestow upon them. </p>
<p>During one project with the Hopi tribe, we came across a rattlesnake coiled near an ancient fallen pueblo. “Long ago, one of them ancestors lived here and turned into a rattlesnake,” the elder Raleigh H. Puhuyaoma Sr. shared with me, pointing to the nearby archaeological site. “It’s now protecting the place.” The elders left an offering of corn meal to the snake. An elder later told me that it soon rained on his cornfield, a result from this spiritual exchange.</p>
<h2>Violent disputes</h2>
<p>Understanding these cultural worldviews matters greatly in discussions over protecting places in nature. The American West has a long history of battles over the control of land. We’ve seen this recently from the Bundy family’s <a href="http://www.npr.org/2016/01/05/461997746/how-protests-turned-into-an-armed-takeover-of-a-wildlife-refuge-in-oregon">takeover of the federal wildlife refuge</a> in Oregon to the <a href="http://www.salon.com/2016/07/12/war_on_federal_parks_radicalized_republicans_try_prevent_turning_bears_ears_in_utah_into_a_national_monument/">current fight over turning Bears Ears</a> – 1.9 million acres of wilderness – into a national monument in Utah.</p>
<p>Yet often these battles are less about the struggle between private and public interests, and more about basic <a href="https://theconversation.com/does-nature-have-value-beyond-what-it-provides-humans-47825">questions of nature’s purpose</a>. Do wild places have intrinsic worth? Or is the land a mere tool for human uses? </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/140767/original/image-20161006-32734-tw46du.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/140767/original/image-20161006-32734-tw46du.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/140767/original/image-20161006-32734-tw46du.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/140767/original/image-20161006-32734-tw46du.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/140767/original/image-20161006-32734-tw46du.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/140767/original/image-20161006-32734-tw46du.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/140767/original/image-20161006-32734-tw46du.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A Hopi elder making an offering to a snake to protect a sacred space.</span>
<span class="attribution"><span class="source">Chip Colwell</span>, <span class="license">Author provided</span></span>
</figcaption>
</figure>
<p>Much of my research has involved documenting sacred places because they are being threatened by development projects on public land. The Zuni’s sacred Mount Taylor, much of it managed by the U.S. National Forest Service, has been extensively mined for uranium, and is <a href="https://www.hcn.org/issues/41.21/dueling-claims">the cause of violent disputes</a> over whether it should be developed or protected.</p>
<p>Even though the U.S. does not legally recognize natural places as people, some legal protections exist for sacred places. Under the National Historic Preservation Act, for example, the U.S. government must take into consideration the potential impacts of certain development projects on “traditional cultural properties.” </p>
<p>This and other federal heritage laws, however, <a href="https://theconversation.com/why-the-native-american-pipeline-resistance-in-north-dakota-is-about-climate-justice-64714">provide tribes a small voice in the process</a>, little power, and rarely lead to preservation. More to the point, these laws reduce what tribes see as living places to “properties,” obscuring their inherent spiritual value.</p>
<p>In New Zealand, the Te Urewera Act offers a higher level of protection, empowering a board to be the land’s guardian. The Te Urewera Act, though, does not remove its connection to humans. With a permit, people can hunt, fish, farm and more. The public still has access to the forest. One section of the law even allows Te Urewera to be mined.</p>
<p>Te Urewera teaches us that acknowledging cultural views of places as living does not mean ending the relationship between humans and nature, but reordering it – recognizing nature’s intrinsic worth and respecting indigenous philosophies. </p>
<p>In the U.S. and elsewhere, I believe we can do better to align our legal system with the cultural expressions of the people it serves. For instance, the U.S. Congress could amend the NHPA or the American Indian Religious Freedom Act to acknowledge the deep cultural connection between tribes and natural places, and afford better protections for sacred landscapes like New Mexico’s Mount Taylor. </p>
<p>Until then, it says much about us when companies are considered people before nature is.</p><img src="https://counter.theconversation.com/content/64947/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Chip Colwell does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>An anthropologist argues for new ways to value sacred landscapes.Chip Colwell, Lecturer on Anthropology, University of Colorado DenverLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/606982016-06-08T06:59:19Z2016-06-08T06:59:19ZHow do we weigh the moral value of human lives against animal ones?<p>Imagine a unique set of scales that measures the value of life. If a single human were on one side, how many chimpanzees (our closest genetic relatives) would need to be on the other side before the scales tipped in their direction?</p>
<p>This may seem like an abstract, irrelevant or even offensive question to some people. But it was made horrifically real by the <a href="http://www.bbc.com/news/world-us-canada-36414813">death last week of Harambe</a>, the Cincinnati Zoo gorilla who was shot after a young boy fell into his enclosure.</p>
<p>Zoo handlers were faced with the agonising decision to take Harambe’s life to ensure the young boy would not lose his. The response to this event online has varied from anger, to sadness, through to considerations of <a href="https://theconversation.com/harambe-the-gorilla-put-zoo-in-a-lose-lose-situation-by-being-himself-60278">how much choice the zoo’s staff really had</a>. How do we decide what our own lives are worth compared with other species?</p>
<p>Perhaps we can try to frame the comparison in relative terms. There are <a href="http://www.worldometers.info/world-population/">7.4 billion human beings on the planet</a>, whereas Western lowland gorillas are <a href="http://www.iucnredlist.org/details/9406/0">critically endangered</a>. Does a human life hold more value than that of a member of a critically endangered animal species?</p>
<p>Harambe’s death suggests that the instinctive answer is yes, but is there a point at which some people’s moral scales might tip the other way? Our research suggests there might be.</p>
<h2>The concept of ‘moral expansion’</h2>
<p>No one expects an easy answer to this question. But the fact that we can even ask it shows that our <a href="http://press.princeton.edu/titles/9434.html">moral sensibilities have expanded</a> beyond the boundaries of our own species.</p>
<p>Many of us feel a deep moral responsibility not just to protect our fellow humans, but to guard the moral rights of entities the world over. This change, which has <a href="http://stevenpinker.com/publications/better-angels-our-nature">spanned the past few centuries</a>, has resulted in some serious ethical challenges to the ways we interact with other species and the environment.</p>
<p>Recently, animal rights organisations in the United States have fought for the legal personhood status of chimpanzees like <a href="http://www.nonhumanrightsproject.org/category/courtfilings/tommy-case/">Tommy</a>, while animal advocates have petitioned the United Nations for a <a href="http://www.projetogap.org.br/en/noticia/universal-declaration-rights-great-apes/">Declaration of the Rights of Great Apes</a> since 1993. </p>
<p>In the meantime, a <a href="http://www.huffingtonpost.com/2012/09/18/new-zealand-whanganui-river_n_1894893.html">river in New Zealand</a> has been officially granted legal personhood status (similar to the status <a href="http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10830586">given to corporations</a>), making the river a legal “person” with its own rights and interests under law.</p>
<p>In line with the concept of <a href="https://www.psychologytoday.com/blog/animal-emotions/201508/compassionate-conservation-meets-cecil-the-slain-lion">compassionate conservation</a>, these examples highlight the narrowing of the gulf between the moral rights of humans, non-humans and the environment.</p>
<p>For supporters of these causes, human rights and corresponding moral standing should no longer be restricted to humans.</p>
<h2>Are you willing to sacrifice?</h2>
<p>The legal semantics are interesting, but what about when it really comes to the crunch? <a href="http://www.ncbi.nlm.nih.gov/pubmed/26751743">Our recent research</a> has examined how widely people spread their moral concern to others. We found that this is a key predictor of the type of moral decision-making that compares the value of a human life to that of another animal.</p>
<p>We asked people the following question: how many other human beings would need to be in danger before you sacrificed your own life to ensure their survival? But our research didn’t stop at humans.</p>
<p>We also asked how many chimpanzees would need to be at risk. How many ants? How many redwood trees?</p>
<p>Responses to these questions were as varied as the responses to the shooting of Harambe.</p>
<p>Some people said they would sacrifice their life if it meant that just a few chimpanzees would keep theirs. Others said it wouldn’t matter how many animals or trees were in danger; a human life was simply worth more.</p>
<p>We found that we could predict people’s responses to specific questions based on their position on what we call the “moral expansiveness scale” (you can find out your own score <a href="https://uqpsych.qualtrics.com/SE/?SID=SV_ahgXNP6p53wz5Jz">here</a>). Those whose moral outlook stretched further beyond humans were more likely to say they would sacrifice themselves to benefit other animals or nature.</p>
<h2>A moral dilemma</h2>
<p>Human beings are becoming increasingly morally expansive. As a species we are adopting a moral standard that represents ethical and altruistic responsibilities on a global scale. This is reflected in the extension of human rights to chimpanzees and the granting of legal rights to elements of our natural environment.</p>
<p>However, this trend is accompanied by an <a href="https://www.researchgate.net/publication/295800797_The_Moral_Psychology_of_Resource_Use">escalating moral conflict</a>. The extension of our moral boundaries is happening just as the global human population is growing exponentially, leading to tension and competition over scarce resources.</p>
<p>As a consequence, we are increasingly likely to face ethical dilemmas over the value of human versus non-human life. It won’t be in the form of a quick decision to kill an animal to save the life of a child. These dilemmas will play out in courtrooms and parliaments, as human needs are pitted against environmental ones, and as the battle for natural resources brings threats of deforestation and species extinction.</p>
<p>As we edge ever closer to the brink of the Earth’s <a href="https://theconversation.com/earths-sixth-mass-extinction-has-begun-new-study-confirms-43432">sixth mass extinction</a>, perhaps we need to consider just exactly what a human life is worth.</p>
<p><em><a href="https://uqpsych.qualtrics.com/SE/?SID=SV_ahgXNP6p53wz5Jz">Complete our survey to find out how morally expansive you are</a>.</em></p><img src="https://counter.theconversation.com/content/60698/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Brock Bastian receives funding from The Australian Research Council. </span></em></p><p class="fine-print"><em><span>Charlie Crimston, Matthew Hornsey, and Paul Bain do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>We tend instinctively to value human lives over non-human ones. But is there a point where the scales might tip the other way?Charlie Crimston, PhD Candidate in Psychology, The University of QueenslandBrock Bastian, ARC Future Fellow, Melbourne School of Psychological Sciences, The University of MelbourneMatthew Hornsey, Professor, University of Queensland Business School, The University of QueenslandPaul Bain, Lecturer in Psychology, Queensland University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/455962015-08-03T20:07:41Z2015-08-03T20:07:41ZAnother chimpanzee personhood claim fails, but there’s hope yet<figure><img src="https://images.theconversation.com/files/90569/original/image-20150803-6019-m6a7s5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">To challenge their unlawful detention, the claimant must first be recognised as a person in law.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/owenbooth/126288240/">owenbooth/Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc/4.0/">CC BY-NC</a></span></figcaption></figure><p>Late last week, Judge Barbara Jaffe of the New York State Supreme Court <a href="http://www.nonhumanrightsproject.org/wp-content/uploads/2015/07/Judge-Jaffes-Decision-7-30-15.pdf">declined to recognise the personhood of two chimpanzees</a>, Hercules and Leo, for the purpose of a <em>habeas corpus</em> claim brought on their behalf. The chimpanzees are in the custody of Stony Brook University, where they are used for scientific research.</p>
<p><em>Habeas corpus</em> is a legal claim that allows a person to challenge the lawfulness of their detention and to seek release. To pursue such a claim, the claimant must first be recognised by the law as a person who is capable of exercising that particular right to challenge their detention.</p>
<p>Despite the evolving nature of the law, which at one time was not open to some human beings, to date no entity other than a human being has ever been recognised as entitled to claim <em>habeas corpus</em>.</p>
<h2>The decision</h2>
<p>Last week’s decision is the most recent in a series of similar lawsuits being run by the <a href="http://www.nonhumanrightsproject.org/">Nonhuman Rights Project</a>. Ostensibly, the cases aim to secure the release of specific chimpanzees from their current circumstances of detention into sanctuaries that better replicate conditions in the wild.</p>
<p>This would be a meaningful welfare outcome for those chimpanzees, but the cases have a deeper legal agenda. They seek to challenge the law’s simple and uniform designation of animals as property, at least in respect of cognitively, emotionally and morally advanced animal species.</p>
<p>While the focus of the cases has so far been chimpanzees, the <a href="http://www.nonhumanrightsproject.org/qa-about-the-nonhuman-rights-project/">intent of the Nonhuman Rights Project</a> is to eventually include other nonhuman animal species with attributes that suggest their inner lives are closer to human experience, such as other great apes, elephants, and whales. </p>
<p>Last week’s decision, while rejecting the petitioner’s claim, provides some basis for cautious optimism among those who support the attempt to achieve recognition of animal legal personhood under common law. It’s certainly not a hostile judgment given it will now be <a href="http://www.nonhumanrightsproject.org/2015/07/30/new-york-justice-denies-habeas-corpus-relief-for-hercules-and-leo-given-precedent-set-in-previous-case-for-now/">appealed</a> to the New York Supreme Court Appellate Division.</p>
<h2>Reason for hope</h2>
<p>Importantly, the decision was not made on the merits of the legal arguments as to whether a chimpanzee might be a legal person for the purpose of <em>habeas corpus</em>. Instead, Judge Jaffe carefully explained how her court was bound – because of technical rules of precedent – by a previous decision of a separate but superior New York court, which had <a href="http://www.nonhumanrightsproject.org/wp-content/uploads/2014/12/Appellate-Decision-in-Tommy-Case-12-4-14.pdf">denied a similar claim</a>. But at no point did her comments demonstrate support for the legal reasoning that underpinned that court’s decision.</p>
<p>Indeed, I read in Judge Jaffe’s own brief treatment of the concept of legal personhood the potential that she, if free to pursue the matter on its merits, may have reached a different conclusion. She acknowledges, for instance, that the concept of a legal person is context-specific rather than fixed in the way the other court’s decision suggests. </p>
<p><a href="http://castancentre.com/2015/01/22/rights-and-the-non-human-animal/">I think the reasoning of the earlier decision</a> was incorrect in that it treated the concept of a legal person as premised on certain fixed attributes. The court in that case linked legal personality to social contract theories of civil participation. It held that, to be recognised as a person entitled to rights in law, an entity must also be capable of accepting legal duties. And as animals cannot be held legally responsible for their actions, they cannot be legal persons.</p>
<p>But this reasoning ignores that the law often recognises personality in a more limited and context-specific sense. While an infant is a person for certain legal purposes (if they are wilfully killed, it would constitute murder), for instance, they’re not a legal person for the purposes of settling or enforcing a contract or being held criminally liable for their acts.</p>
<h2>A higher court</h2>
<p>Judge Jaffe also noted the legal question she was being asked to resolve, involving as it does a kind of legal evolutionary leap, is more appropriate for the next court in the hierarchy, the Court of Appeals. Indirectly, she seems to encourage the Court of Appeals to at least hear the case, noting its “role in setting State policy” and citing cases reminding courts that the parameters of <em>habeas corpus</em> are not solely a matter for the legislature.</p>
<p>The US animal personhood cases are a fascinating part of evolving legal dialogues on animals and their status under human law. Indeed, in some areas of US case law, companion animals are at times being treated as “quasi-persons” or at least a unique kind of property. </p>
<p>Some courts have recognised the emotional relationship between owners and pets, for instance, in determinations of <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1694977">pet custody</a> after family breakdowns, and in deciding <a href="https://www.animallaw.info/article/determining-value-companion-animals-wrongful-harm-or-death-claims-survey-us-decisions-and">damages for harm</a> caused by others to a pet. </p>
<p>The question is how much farther such incremental shifts of legal status will be taken and whether it will ever extend to fundamental rights being directly accorded to animals.</p><img src="https://counter.theconversation.com/content/45596/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joanna Kyriakakis is the current recipient of a small grant from Voiceless the Animal Protection Institute, for research into teaching Animal Law at Australian Universities. She is a member of the Voiceless Legal Advisory Council.</span></em></p>A New York State Supreme Court has declined to recognise the personhood of two chimpanzees being used by Stony Brook University for research. But the case is far from over.Joanna Kyriakakis, Lecturer in Law, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/220762014-01-21T03:31:40Z2014-01-21T03:31:40ZBrain death, pregnancy and ethics: the case of Marlise Munoz<figure><img src="https://images.theconversation.com/files/39465/original/2hcjqtgn-1390260381.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Marlise’s husband and parents say her body is being used as an incubator.</span> <span class="attribution"><span class="source">Image from shutterstock.com</span></span></figcaption></figure><p>In November, 33-year-old Texas woman Marlise Munoz <a href="http://www.nytimes.com/2014/01/08/us/pregnant-and-forced-to-stay-on-life-support.html?_r=0">collapsed</a> at her Fort Worth home after suffering a suspected blood clot in her lungs. She was later declared brain dead. </p>
<p>When the hospital determined that she was 14 weeks pregnant, it continued to support her biological life under a Texas law that prohibits the withdrawal of life support from a pregnant patient. </p>
<p>Marlise’s body is now 21 weeks pregnant; at 24 weeks, doctors will <a href="http://www.wfaa.com/news/local/Lawyers-Munntildeoz-is-not-in-a-coma-shes-dead-241039421.html">attempt to determine</a> whether the fetus can function independently and decide how to proceed. </p>
<p>But is it ethical to keep a brain dead pregnant woman alive to sustain the pregnancy? It’s a tough question to answer, even for those with strong views on abortion, withdrawal of treatment and advance care planning. </p>
<h2>The law</h2>
<p>Similar laws prevail in roughly half the states of the US, albeit in variable form. The Texas law is among the most restrictive: regardless of the progression of the pregnancy, a woman must remain on life-sustaining treatment until she gives birth. </p>
<p>There is <a href="http://www.centerwomenpolicy.org/programs/health/statepolicy/documents/REPRO_PregnancyExclusionsinStateLivingWillandMedicalProxyStatutesMeganGreeneandLeslieR.Wolfe.pdf">considerable variation</a> elsewhere, with factors including the probability that the fetus will develop to the point of birth, and the existence of advance wishes of the mother, playing variable limiting roles. Some states have no relevant legislation, while a small number allow women to state positive wishes about pregnancy in their advance care plans. </p>
<p>Australian jurisdictions have no such pregnancy-triggered restrictions for advanced care planning. </p>
<p>Marlise’s husband and parents have objected to continued life support on the basis of Marlise’s advance wishes that her life not be sustained in such circumstances, and that her body is now being utilised as an incubator.</p>
<p>The hospital considers that it is upholding existing law, but this has been strongly challenged. The <a href="http://www.statutes.legis.state.tx.us/Docs/HS/htm/HS.166.htm">relevant legislation</a> defines life-sustaining treatment as that which “sustains the life of a patient and without which the patient will die”. </p>
<p>But by definition, life-sustaining treatment cannot be provided to someone who is dead, and Marlise’s parents maintain that they were told she was brain dead some weeks ago. </p>
<p>Her husband has since <a href="http://www.latimes.com/opinion/commentary/la-oe-caplan-pope-texas-pregnancy-life-support-20140116,0,3476520.story#axzz2qXeV8XWC">lodged a lawsuit</a> against the hospital in order to have treatment removed.</p>
<h2>Ethical dilemma</h2>
<p>The ethical dilemma in this case arises from the complex interrelation of distinct issues such as abortion, withdrawal of treatment and advance care planning. </p>
<p>To what extent, for example, should the now well-recognised right to refuse treatment in advance, and the right for families to make decisions for loved ones who have lost decision-making capacity, be modified by the rights of the developing fetus? </p>
<p>And how do we balance the interests of the state in preserving the life of the fetus against <a href="http://healthland.time.com/2014/01/10/why-the-dad-has-no-say-in-dismal-texas-brain-death-case/">those of the father</a>, who may be forced to care for a new infant in the absence of its mother, and with possibly significant medical problems?</p>
<p>The question of fetal status is often overlooked, or presupposed, when pro-abortion advocates invoke women’s rights over their bodily integrity as the only consideration relevant to abortion. Given what abortion amounts to, it cannot be ethically or legally legitimate in the absence of an account that explains why fetuses do not deserve the same moral consideration as children and adults. </p>
<p>The legislatures of states such as Texas that insist on sustaining the life of the severely compromised mother, to maximise the chances that the fetus survives, reflect the belief that no such account holds water. This, in turn, reflects the greater religious influence on politics in these jurisdictions than in Australia, where a number of states and territories have <a href="http://www.abc.net.au/news/2013-11-22/tasmania-removes-abortion-criminal-code/5109554">liberalised abortion law</a>.</p>
<p>Some people may see the recently introduced <a href="https://theconversation.com/zoes-law-will-changing-foetuses-legal-status-endanger-abortion-rights-18096">Crimes Amendment (Zoe’s law) Bill 2013</a> in New South Wales as a threat to abortion rights. The Bill would criminalise grievous bodily harm to a fetus of 20 weeks gestation or more by recognising the fetus as a legal person. </p>
<p>However, similar <a href="http://www.austlii.edu.au/au/legis/qld/consol_act/cc189994/s313.html">1996 legislation in Queensland</a>, albeit not explicitly bestowing legal personhood on the fetus, has not impeded access to abortion. And the Bill explicitly exempts “anything done by or with the consent of the pregnant woman that causes the destruction of or harm to a fetus”.</p>
<h2>Life of the fetus</h2>
<p>There are <a href="http://www.ncbi.nlm.nih.gov/pubmed/3392814">precedents</a> for maintaining the biological life of a brain-dead mother to sustain the pregnancy. Over 30 years ago, a 27-year-old woman who was 22 weeks pregnant was sustained, albeit in a brain-dead state, for nine weeks before the delivery of a normal, healthy baby. </p>
<p>Interestingly, the ethicists <a href="http://www.ncbi.nlm.nih.gov/pubmed/3392814">reporting on the case</a> stated that maternal autonomy ceased with her death and that even a refusal expressed before death should not override the obligation to save endangered fetal life.</p>
<p>If Marlise’s husband’s lawsuit is successful and her life-support is switched off, it would mean that not even the restrictive law in Texas is sufficient to provide the protection for the fetus that some Texans and others would like. </p>
<p>There have been <a href="http://www.centerwomenpolicy.org/programs/health/statepolicy/documents/REPRO_PregnancyExclusionsinStateLivingWillandMedicalProxyStatutesMeganGreeneandLeslieR.Wolfe.pdf">calls</a> for women to receive better information about what their state advance care planning laws stipulate in relation to pregnancy. But the more fundamental need is to continue working towards greater coherence, across national and international jurisdictions, on how we should value the life of the fetus. </p><img src="https://counter.theconversation.com/content/22076/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Malcolm Parker receives funding from the Australian Research Council.</span></em></p>In November, 33-year-old Texas woman Marlise Munoz collapsed at her Fort Worth home after suffering a suspected blood clot in her lungs. She was later declared brain dead. When the hospital determined…Malcolm Parker, Professor & Head of Ethics, Law and Professional Practice, The University of QueenslandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/199852013-11-17T20:26:51Z2013-11-17T20:26:51ZWhy losing my daughter means I don’t support Zoe’s law<figure><img src="https://images.theconversation.com/files/35245/original/rbc8zc7s-1384391141.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Mothers are best placed to make decisions about what to do with the life within them.</span> <span class="attribution"><span class="source">Flickr/Peej's photos</span></span></figcaption></figure><p>A bill currently before the NSW Parliament attempts to criminalise harm to late-term foetuses that die due to injuries inflicted on their mother. But is foetal legal personhood the best way to recognise the particular harm of losing a much-wanted pregnancy due to someone else’s violent or careless act? </p>
<p>As a feminist legal academic, I have professional insight into the prospective law; I also have personal insight as a mother who lost her unborn child in a car accident.</p>
<p>It reads like a macabre riddle – someone died within my body, and yet I live. It’s one that I’ve puzzled (and wept) over many times since a 4WD hit our station wagon when I was eight months pregnant in December 2009, causing our <a href="http://news.smh.com.au/breaking-news-national/judge-in-tears-over-babys-car-crash-death-20101109-17li3.html">baby daughter to die</a> before she could be born. </p>
<p>The current law’s attempt to answer this riddle is a clumsy one. It characterises our daughter’s death as one of my “injuries”, because she died in utero, and was not a legal “person” with a separate existence from me at the time she died. </p>
<p>It is exactly this riddle which <a href="http://www.parliament.nsw.gov.au/prod/parlment/NSWBills.nsf/1d436d3c74a9e047ca256e690001d75b/fac0ca5b63719485ca257bce001bfe76?OpenDocument">Zoe’s law (No 2)</a> attempts to resolve. </p>
<h2>What the bill does</h2>
<p>The bill defines a foetus over 20 weeks or weighing more than 400 grams as a legal “person”, for the purposes of dangerous driving causing grievous bodily harm and a number of other criminal offences. </p>
<p>Zoe’s law is named after Brodie Donegan’s daughter, Zoe, who also died in utero due to dangerous driving in December 2009. </p>
<p>For Zoe’s parents, this bill seeks to close what they see as a gap in the law:</p>
<blockquote>
<p>We have never felt that Zoe’s loss of life was <a href="http://www.mamamia.com.au/social/zoes-law/">acknowledged or taken into account</a> …I couldn’t reconcile that the child I’d applied for a stillbirth certificate for, held a funeral for, received the baby bonus for, received paid parental leave from work for; wasn’t recognised separately to me.</p>
</blockquote>
<p>The law’s response touches a raw nerve because so much of the grieving process is about developing an understanding of who you are mourning – a process already complicated when your child dies before (or around the time of) birth. </p>
<p>Calling our loss an “injury” fails to acknowledge the depth of sorrow involved in grieving a child. But is foetal legal personhood the best way for the law to recognise our loss?</p>
<h2>Legal personhood</h2>
<p>A key difficulty here is that legal personhood has been interpreted as the definition of human life and worth. Legal personhood is a technical category that sometimes includes non-humans, such as corporations. Its purpose is not to define human life but to enable an autonomous interaction with the law.</p>
<p>Legal personhood doesn’t make sense for a baby in utero. The physical reality of pregnancy means that the baby is the opposite of autonomous – it depends completely on the mother and is completely contained within her body until birth. </p>
<p>While inside the mother, a baby is covered by her legal personhood. Birth is the moment of separation when the baby is no longer contained within the mother and her legal personhood. </p>
<p>I have no doubt that my daughter was a person - but I am comfortable with the idea that, at the time she died, she was protected by my legal personhood rather than her own.</p>
<p>Once the foetus is defined as a legal person, the law has a direct relationship with it, and the mother’s consent becomes irrelevant. She becomes invisible in the eyes of the law, despite the physical realities of pregnancy meaning that any interaction with the foetus necessarily involves her. </p>
<p>Zoe’s bill is drafted to create exceptions for anything done to the foetus by the mother, with her consent or by a medical professional. But this creates a situation where it is legal to take the life of some legal persons, but not others, depending on the consent of a third party (the mother).</p>
<p>And it opens up the prospect of human rights claims being brought on behalf of a foetus. With that comes the prospect of challenges to the pro-choice exceptions built into Zoe’s law.</p>
<h2>Reproductive autonomy</h2>
<p>My own view is that the foetus is a life. But because it is a life completely contained within a legal person (the mother), any interests or rights it could have can only be advanced through the consent of the mother.</p>
<p>As a pregnant woman, what you choose to do with the life within you is a huge moral decision. But because that decision is completely contained within your body, and because you are already the mother to any child that might potentially be born, you are the best person to make that decision. </p>
<p>You are the most qualified person, the most concerned person, the person most at risk, and the most interested person. </p>
<p>For anyone to take that decision out of your hands, whether to insist that you continue with a pregnancy or to terminate a pregnancy against your will, is a violation. It goes beyond pain and physical injuries – it violates the mother’s decision for her own body and for any potential child. </p>
<p>It is <em>this</em> violation that I would suggest would be a much more effective base for a law recognising the harm Brodie Donegan and I experienced.</p>
<p>This could involve, for example, a specific offence addressing conduct that ends the life of a foetus without the mother’s consent. </p>
<p>Our current laws misconstrue forced pregnancy loss as just another type of bodily injury, rather than recognising it as a violation of reproductive autonomy. Like rape, forced pregnancy loss deserves its own offence centred on the notion of violation, rather than injury.</p>
<p>A law that frames forced pregnancy loss as a specific offence could acknowledge the family’s suffering in cases like mine and Brodie’s – and protect reproductive autonomy.</p>
<p>It doesn’t resolve the heart-breaking riddle of losing a child, but I’m not sure that any law could.</p><img src="https://counter.theconversation.com/content/19985/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Hannah Robert does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A bill currently before the NSW Parliament attempts to criminalise harm to late-term foetuses that die due to injuries inflicted on their mother. But is foetal legal personhood the best way to recognise…Hannah Robert, Lecturer in Law, La Trobe UniversityLicensed as Creative Commons – attribution, no derivatives.