Who Is a Person? A Short Story

Dennis Holeman

Revised 13 March 2022

The October sun shone through the windows in the breakfast nook of Judge Leticia Washington’s house in Presidio Heights. It was the kind of morning that made living in San Francisco worth it, in spite of everything. She had been so tired of the summer fog, so that a brilliant fall day was extremely welcome. The judge was lingering over coffee, and toying with the last of her breakfast. Her husband Malcom was getting ready to go to a meeting with a new not-for-profit at the Presidio. Malcolm asked, “Were you able to sleep all right, considering what you are going to be doing today? It’s not every day that you get to establish precedents about the meaning of personhood.”

Leticia said, “It was hard not to wake up thinking about the hearing this afternoon. There are so many facets to consider. I’ve had a number of controversial hearings in the past, as you know, but this one is going to be unique in a lot of ways. I hope I can manage all the people who want to make points in this one. I don’t want to set off things that will have all sorts of unanticipated consequences. Especially, I really want to do what’s right for Nina.”

Leticia reflected on all the information she had been given in advance of the hearing. “Nina” was the name given to a being that had last existed over 30,000 years ago. She was a recreated Neanderthal, produced by some remarkable biotechnology work. The work had been led by a group at UC San Francisco, helped by several partner institutes and biotech companies around the world. The project had been initiated by a wealthy Silicon Valley mogul who had insisted on anonymity. Several names were suspected of being the donor for the project, but no one was sure. The work had started over 20 years previously and Nina was the first outcome of the project to be revealed. Nina had just turned 18 years old. Up until now, the effort had been kept as quiet as possible.

Leticia had reviewed the science involved in the creation of Nina. It had started with finding some exceptionally well-preserved Neanderthal remains in a previously unexplored part of a cave in Northern Spain. The DNA in the teeth was particularly intact, allowing a full genome of one of the female Neanderthals to be sequenced. The researchers took a skin cell from a human donor and altered it to make it a stem cell, where it could become almost any type of cell in the human body. Then the human stem cell’s DNA was changed to match the specific Neanderthal genome. The stem cell with the Neanderthal DNA was inserted into a cluster of a few human cells that was at the start of developing into a human zygote. All of the non-Neanderthal cells were kept from growing, so that only the Neanderthal cells reproduced to form a complete embryo. After a number of unsuccessful attempts, a viable healthy Neanderthal embryo was created.

Leticia felt admiration for the courage of Janet, the human woman who volunteered to be the surrogate mother and receive the implantation of the Neanderthal embryo. Janet was the younger sister of the researcher at UCSF who led the project. There were fears that the embryo would be rejected by the woman’s immune system, but with a good deal of luck the pregnancy succeeded and the baby was brought to term with a normal birth. Janet had a wonderfully supportive husband and had already had three children before she agreed to be the mother for the experiment.

Leticia thought about the videos she had been shown of Nina growing up. Nina looked simultaneously human and not human. Compared with a typical homo sapiens woman, Nina was shorter in height and stockier, with somewhat shorter arms and lower legs. Her skull was broader and flatter, and her forehead was lower and sloped more. She had a barrel chest and was heavier-boned. Her nose was quite broad and she had less of a chin than contemporary humans. Her skin was pale and she had red hair. Nina was fully able to talk and be understood, although she spoke with a small speech impediment compared with most humans.

Nina had grown up on an estate in Woodside that was quite private, supported by the foundation set up by the donor. Her human siblings had treated her as an integral part of the family. To avoid the possibility of harassment at public schools, Nina had been home-schooled, with her birth family and a number of trusted tutors that had been brought in under the condition of keeping quiet about Nina. Her Woodside home had a wide variety of animals. Nina had adored the animals and had remarkable bonds with them. The horses and dogs treated her the same way they did the human children. Nina’s medical care had been handled by carefully-briefed colleagues of the UCSF researcher who had led the study that created her. Thankfully, Nina had been generally healthy while growing up.

How Leticia had gotten involved was that Nina had attempted to register to vote in California after turning 18. The registrar had objected in outrage, “You can’t vote! You’re not a human person!” Nina’s guardian had then contacted the local chapter of the ACLU, which agreed to take a suit to the judge’s court. Leticia had dealt before with Bronwyn O’Reilly, the lead ACLU attorney that would be presenting. O’Reilly was a young woman who was very smart and quite fierce in her own measured way.

Malcolm said, “I’ve seen the names of some of the people that have asked to testify in the hearing. I expect you might have a real challenge keeping Andrew MacIntosh in line. He has the reputation of being a pretty hard-nosed conservative theologian. I’m sure he is going to assert that God made humans in his image, and that means humans, not protohumans. He’s not going to accept granting any human rights to Nina, based on his religious convictions.”

Leticia responded, “I’m not as worried about MacIntosh as I am about some of the others. MacIntosh is a bit of a fanatic and people recognize that. I’m thinking of the implications of a number of the scientists working with animal cognition. You’ve seen the recent reports on two-way linguistic communication with the bottle-nosed dolphins at that center in Florida. Their new AI work is making it quite possible to inter-translate between dolphin-speak and human-speak. It’s downright scary how quickly the dolphins catch on—faster than the humans do, in a lot of cases. We are not going to be able to mistreat dolphins and other highly intelligent cetaceans much longer. I think the hearing is going to have some people with very strong advocacy for the rights of these creatures, let alone a near-human like Nina.”

Malcolm said, “The dolphins are probably at the leading edge of the issue because of the new communications capabilities, but, man, there is so much inter-species research producing results now. It’s not just the primates and the elephants, but the cognitive abilities of the corvids and the parrot family keeps getting more amazing as we continue to look. How do we have to treat them to be ethical? There are going to be more and more folks insisting on rights and protections for these beings.” Leticia thought for a moment about the border collie her best friend’s family had when Leticia was going to Stanford. Good Lord, that dog was smart! Leticia would pit that dog’s practical intelligence against that of half the humans she saw on the streets of the City.

Leticia said, “And how am I going to deal with the people asking for rights and protections of artificial intelligences? I have Melissa Chang scheduled to testify, the leader of that team at the Stanford AI Lab. They have been making news about how some of their latest prototypes have genuine self-awareness and emotions and respond intelligently to human affect. Melissa is going to argue that a machine intelligence with learning and reasoning capabilities that are superior to those of a human comes awfully close to what we think of as having personhood.”

Leticia was also expecting to get some interesting testimony from Jack Morgan, a professor of constitutional law at Berkeley’s Law School. She anticipated he would discuss the evolution of personhood rights and protections, along with the corresponding obligations, in U.S. law. Leticia always thought it was a paradox that corporations had been deemed to be persons in the U.S. legal system, considering this occurred before U.S. women got such basic rights as voting. And the Equal Rights Amendment to the Constitution still had not passed! Leticia hoped she could get a really clear explication of what personhood legal rights currently entailed, and how they were modified in cases such as human persons with qualifications. She thought of the example of a human in a persistent vegetative state—what rights and protections should such a person have in the eyes of the law?

As a Black woman, Leticia was very conscious of how legal rights and protections of human persons had a complex past, particularly for people of different races than the majority. As a child of a Black father and a White mother, she knew that it had not been that many years before that she would have been regarded as improper in many American states, being the product of a prohibited marriage. And only a few generations further back Leticia would have been legally regarded as property, not as an independent person.

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Leticia arrived at the courtroom with plenty of time before the hearing was scheduled to start. Nina’s guardian introduced Nina to Leticia. Nina was nicely dressed in a white pantsuit and had her hair styled in an attractive way for the shape of her face. Nina told Leticia she had been studying some of the decisions that the judge had issued in prior hearings and Nina was pleased with what she had read. Leticia was interested to observe her reactions to seeing Nina face-to-face, even though she had seen her in video and photographs at some length. Nina was definitely different, but at the same time engaging and approachable.

Nina said, “I saw some of the signs that people were carrying outside the courthouse as we arrived. I understand, but it still hurts me to see ‘Human rights are for humans!’ ‘Only human beings are persons!’ ‘Don’t slide down the slippery slope!’ ‘Say no to rights for subhumans!’ The worst was a single word: ‘Abomination’.”

Nina held Leticia’s hands in both of hers. She said, “What I want to establish today is that, although I am not a human being in the same way most people think of, I am a person. I am not property—not of the foundation, or anyone else. I have virtually the same cognitive abilities you do. I feel and have needs and emotions just like you. I feel joy, and I feel sorrow. I am able to love and have compassion. I am 18 years of age, and I want the right to make choices for myself the same as you would allow a competent homo sapiens woman of the same age to have. I want to have a say about my own health, and I particularly don’t want to be the subject of public display and scientific experimentation. The foundation has transferred a substantial amount of money to me on the date of my majority, and I want to have legal control over it.”

“I want to be respected for who I actually am, not treated as a freak.” Then Nina made the statement that put a lump in Leticia’s throat. “I am a healthy young woman. I want to have a baby of my own to love and raise.”