alone defines personhood. It is not seriously doubted amongst the scientific community that humans are the most intelligent species on the planet. Can this be used as a definition of personhood?
146: In itself, I do not think so. Again, I refer to the hypothetical unfortunate with severe retardation. On every scale we have available to us, their ‘intelligence’ would be marked lower than, at the least, an intelligent monkey or dog. I have already said that this result would be unacceptable and, for the purposes of the law, plainly wrong.
147: Perhaps more fundamentally, I have difficulty with the notion that humanity can be defined by something that varies so markedly within the species itself. Is it suggested that a person with a high IQ is more human than a person with a low IQ? If that were the inevitable result of this logic, it must be wrong. At least for the purposes of the law, an individual is either a person or they are not.
148: A further test, and one which has particularly attraction to the legal community, is whether an individual has a moral stance on what is right and wrong. It must be stressed that this is differentiated from a dog who displays guilt after he has eaten a rogue biscuit – it is generally accepted that the dog feels ‘guilt’ only because it knows it may be punished. If it had not been trained to know that eating rogue biscuits was bad, it would have devoured the item with eagerness and pride.
149: This test is a popular one in the community generally. When people speak of serial killers, they are described as “monsters” who have committed “inhuman acts”. It is said they should be “put down like dogs” or even “disposed of like you might dispose of any trash”. The basic notion of understanding right and wrong is one that humans hold dearly, and are apt to dehumanise those who lack such understanding.
150: These examples however prove in themselves that the test cannot be decisive. The serial killer is, for the purposes of the law, undoubtedly human. Only the most extreme commentators would suggest that a serial killer should be put down like a dog without a trial to establish his guilt – indeed, I would suggest that taking such a position would demonstrate in that commentator the very confusion as to right versus wrong that he ascribes to the alleged killer.
151: It should also be noted that there was evidence led in this trial to the effect that humans do not have a true understanding of what is right and wrong at all, but merely a more complex set of rules than lesser animals. To put it simply – we do what is ‘right’ because we know it will give us approval from others or make us feel good about ourselves. We avoid doing what is ‘wrong’ for the opposite reasons – people will disapprove, we will feel guilt and, in extreme circumstances, will face punishment.
152: This debate between true altruism and punishment/reward is one that has vexed philosophers and scientists for years and will no doubt continue to do so. I certainly will not attempt to resolve the question here, particularly as I have already found that the mere fact that someone knows the difference between right and wrong cannot in itself be sufficient to define personhood or humanity.
153: A number of other tests were proposed, but the ones mentioned above are both the ones which were pressed the hardest and the ones which I consider the strongest. For those interested in the other evidence presented (and I have no doubt it would constitute a valuable research tool for any budding philosophists), the transcript is available in the usual way.
Summary
154: For the reasons described above, I am of the view that, for the purposes of the Wills Act, there is no one single test that can be applied definitively to an individual to determine whether they are are a person or whether they are not. Whilst a number of the tests can be sensibly and appropriately applied when looking at the human race as a whole, they fall down when applied to individuals. There are certain individuals who are indisputably (in my view) human and persons, but fail a number of the tests proposed. There are also lesser animals that, if certain tests were applied, would find themselves with all the rights of their human masters. Like so many things in the law, there is no simple answer. I must now, therefore, look for a complex one.
Factors to be considered
155: As mentioned, there is no caselaw which directly bears upon the question of whether a cloned chimera constitutes a “person” for the purposes of the Wills Act. The law is not however devoid of assistance.
156: The first case of relevance is McEwen v Simmons[9], which addressed the somewhat unsavoury question of whether pictorial representations of the younger characters from the long-running television show The Simpsons could fall within the definition of child pornography.
157: “Child pornography” was defined in the Crimes Act 1900 at section 91H as meaning “material that depicts or describes, in a manner that would in all the circumstances cause offence to reasonable persons, a person under (or apparently under) the age of 16 years...” (my emphasis) engaging in sexual activity or the like.
158: The argument that the characters were not real people or based on real people by virtue of the very fact that they were cartoon characters was quickly disposed of. The Plaintiff then argued that these particular characters were not “persons” as they lacked a number of fundamental human qualities – for example, they were coloured yellow, their facial features were exaggerated, they had four fingers instead of five, and so on.
159: Adams J found as follows[10]:
“Whether any particular drawing is a representation of a person must be a question of fact and degree. The representation of human genitalia might, in some cases (such as, I rather think, the present), be decisive. However, as the figure departs from the form of a recognisable human being it may become less like a person and, at some point, not depict or represent a person at all. Merely giving some human traits to say, a rabbit or a duck, may well still leave the image outside the requirement that a ‘person’ be represented, even though the ‘rabbit’ or the ‘duck’ has character traits that are distinctly human and not at all rabbit or duck like. On the other hand, many cartoon characters, though by no means all, are drawn to closely resemble human beings.”
160: It was ultimately found that The Simpsons characters were sufficiently human to fall within the definition of a ‘person’ and consequently the relevant images were indeed “child pornography” for the purposes of that particular definition.
161: Another useful case is that of Attorney-General for the Commonwealth v Kevin and Others[11] (“the Kevin case”).
162: The issue in that case was whether a marriage between Kevin, a post-operative transsexual person who, at the time of his birth, was registered as a female, and a woman was a valid marriage under the Marriage Act 1961 (Cth). The specific question which the Court had to decide was, at the time of his marriage, was he a “man”? If so, the marriage was valid under the law as it was at the time[12]. If not, the marriage was invalid.
163: Chisholm J held at first instance – and the Court of Appeal agreed – that the marriage was valid. His reasoning is summarised at [16] and includes the following:
“6. In the present case, the husband at birth had female chromosomes, gonads and genitals but was a man for the purpose of the law of marriage at the time of his marriage, having regard to all the circumstances and in particular the following:
(a) he had always perceived himself to be a male;
(b) he was perceived by those who knew him to have had male characteristics since he was a young child;
(c) prior to the marriage he went through a full process of transsexual re-assignment, involving hormone treatment and irreversible surgery, conducted by appropriately qualified medical practitioners;
(d) at the time of the marriage, in appearance, characteristics and behaviour he was perceived as a man, and accepted as a man, by his family, friends and work colleagues;
(e) he was accepted as a man for a variety of social and legal purposes, including name, and admission to an IVF program, and in relation to such events occurring after the marriage, there was evidence that his characterist
ics at the relevant times were no different from his characteristics at the time of the marriage;
(f) his marriage as a man was accepted, in full knowledge of his circumstances, by his family, friends and work colleagues.”
164: The point to be taken from McEwen v Simmons is that, at least in the eyes of the law, there is no absolute rules for what makes a person. It is a sliding scale – one in which every factor and circumstance must be taken into account and looked at as a whole. To isolate a particular element of an individual as being definitive of whether they are considered a person or not would be to wrongly simplify what it means to be a person. In the eyes of the law, humans are special. The effect of being a human is dramatic – burdened and benefited by tens of thousands of laws, interpreted and moulded by thousands of years of caselaw. It is not something to be taken lightly, nor is it something that should be bestowed upon someone or taken away on the basis of one factor alone where others are contrary to it.
165: The same view is taken in the Kevin case with respect to the similar (but substantially different) question of what it means to be a ‘man’. If it were a mere biological question – as it was argued by the Attorney-General in that case – that would make my decision very easy.
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