TY - JOUR AU - Dhru, Kelly Amal AB - I. INTRODUCTION In recent times, ‘personhood questions’ come up frequently in a variety of bioethical contexts. For example, consider the classic debates such as the status of embryo and abortion, questions surrounding the status of patients in persistent vegetative state and end-of-life decision-making,1 or permissibility of the scientific experimentations on or eating of animals. Then there are the relatively newer personhood discussions around the responsibility for harms caused in Artificial Intelligence-based medical treatment, or the legal status of one’s genetic materials, or of the newly emergent entities such as organoids,2 synthetic embryos,3 and human–animal chimeras.4 While in the normative discussions, arguments based on ‘personhood’ sometimes argue for increasing legal protections, the conceptual aspects and what exactly the granting of legal personhood in these contexts entails often remain unclear. Visa AJ Kurki’s A Theory of Legal Personhood aims to ‘provide a theoretical framework for understanding legal personhood in contemporary Western legal systems’,5 to address these foundational questions. It largely succeeds in doing so. The many analytic nuances and thought-provoking claims in this work make it a rich playing field for bioethical minds to indulge. As the title itself suggests, the topic of the book is ‘legal’ personhood, as compared to ‘moral’ or ‘metaphysical’ personhood.6 It is divided into three parts: the first part fleshes out and questions what Kurki terms the ‘Orthodox view’, which, to put it roughly, equates legal right-holding with legal personhood. The second part contains Kurki’s own ‘bundle theory of legal personhood’ which distinguishes between ‘active’ and ‘passive’ persons. The third part departs from the mostly conceptual enterprise into an applied one, discussing the examples of the legal personhood of collectivities, artificial intelligences, and finally, animals. The aim of this review is to examine two of the main ideas in Kurki’s book by placing them in bioethical contexts. The first idea is the separation of legal personhood from legal right-holding, which leads to the claim that even things can hold rights, and second, his categorization of active and passive incidents of legal personhood. In order to test their strength, this review examines these ideas in contexts that go beyond the scope of his book, ranging from embryo disposition disputes, end-of-life and supported decision-making, the status of body parts and cells, induced pluripotent cells and organoids, and the creation of human–animal chimera for research. II. THE ORTHODOX VIEW OF LEGAL PERSONHOOD The first part of the book deals with a view that it terms the ‘Orthodox view’, which, roughly put, equates legal right-holding to legal personhood.7 Kurki identifies five different versions of the Orthodox view across history ranging from John Chipman Gray over Savigny to Kelsen, 8 Kurki suggests that his is the first modern and wide-ranging theory that explicitly rejects the formulations of the rarely questioned equivalence of right-holding and legal personhood.9 He takes us through an impressive and painstaking historical overview of personhood in the first part of the book, tracing the discussions from Roman law through the conceptions of Rechtssubjekt and—fähigkeit in the works of Savigny and 19th-century Germany and highlighting the influence of these on the English jurisprudence through the works of John Austin. The argument is that the theorists in the area rarely question such a historically contingent understanding of legal personhood that equates personhood with the holding of rights and duties. Applying the Rawlsian method of reflective equilibrium, Kurki argues that to consider right-holding as an ‘intension’ of the concept does not explain the widely accepted ‘extensions’ of legal personhood.10 For instance, under the Interest Theories of Rights, animals or embryos may be considered to be right-holders even when under legal systems they are not ‘persons’. By contrast, under the Will Theory of Rights, children are not considered to be legal right-holders even though they are persons in law. While we cannot go into this debate over legal rights in detail here, suffice it to say that while one family of theories of rights grants rights to nonpersons, the other leaves out some persons from those who are right-holders. One way to solve this would be to change the conception of legal rights (as has been the debate between the two families of theories), another is to develop a more convincing account of legal personhood, and interestingly, Kurki opts for the latter option, taking us into an otherwise undertheorised territory.11 Kurki’s target are arguments along the lines that ‘animals cannot hold legal rights because they are not legal persons’,12 even if there are certain protections for animals in law. This is the view of the New York State Supreme Court, Appellate Division, which in the context of legal personhood of a chimpanzee held that legal personhood bears a minimum of one right and one duty.13 As compared to the animal rights cases, one of the aspects in understanding legal personhood in the context of bioethics and the legal treatment of the emerging entities is the hesitation by the courts at times to spell out the personhood status of the marginal entities. For example, one finds that for the courts, a legal strategy has been not to rule on the personhood of early-stage embryos. In Davis v Davis,14 the first American dispute over embryo disposition when a couple separated after having frozen embryos, the Supreme Court of Tennessee diverted the ‘personhood’ issue while commenting that the status of embryo is somewhere between that of a person and a thing, and eventually only dealt with the question of whether there is a right of one of the parties to (not) become a genetic parent. One can explain the hesitation of the courts on the grounds that to articulate a problem in terms of personhood already attributes a certain weight to the entity, and that personhood, often seen as all-or-nothing, acts as a reason to attribute certain rights to the entity which is taken to be a person.15 III. LEGAL NONPERSONS AND LEGAL THINGS Kurki complements his rejection of the Orthodox view and his theory of personhood with the (purely) legal conceptual claim16 that some ‘legal things’ or ‘legal nonpersons’ too can hold legal rights,17 and under his account, there is no clear-cut distinction between legal persons and nonpersons.18 For him, while a ‘thing’ is understood as an object of property rights, the category of ‘nonpersons’ is a distinct category.19 Under Kurki’s theory, without sufficient incidents, some entities, even though potentially right-holders under certain conceptions of rights and under the Hohfeldian schema, are not ‘persons’. Giving the example of outlaws, Kurki highlights the category of entities that are neither things nor persons. The idea of things or legal nonpersons holding rights may seem counterintuitive, but for bioethics, it is quite useful. Giving the example of the embryo, Kurki says that it lacks personhood tout court because of a lack of sufficient incidents, as is the case in Roe v Wade which denied fundamental legal protections to first-trimester fetuses, counting as a denial of passive legal personhood.20 Interestingly, under Kurki’s theory, even prohibition of abortion may not lead to the attribution of personhood tout court to the foetus. The status of early human embryos sparks heated debates, especially in light of the recent guidelines by the International Society for Stem Cell Research relaxing the 14 days’ rule, which had not allowed the research on embryo older than 14 days.21 Some had interpreted this prohibition as an indication of the moral status of the embryo after 14 days.22 Similarly, there are also prohibitions and moratoriums, or proposed Bills23 on such prohibitions and moratoriums on the creation of human–animal chimera and concerns regarding ‘humanizing non-humans’.24 Some have understood the justifications of these in terms of ‘moral confusion’ that such entities may cause.25 However, one may interpret these legal provisions as counterfactuals along the lines that ‘if such an entity were to be created, it would have a moral status’ or that ‘it would have to be legally protected’. Of course, one can explain the prohibitions themselves as Hohfeldian legal obligations to not create certain entities, with the corresponding right-holders to be other humans or the society at large. On the other hand, this could also be considered to be something along the lines of what Feinberg has called ‘conditional rights’, which depend on whether the entity in fact comes into existence.26 In another bioethical context, the nonsusceptibility of persons to being ‘owned’ raises questions about the limits of the person, especially, the ownership of the body parts.27 One view is that something ceases to be a part of one’s body upon severance28 and is then property. There are prohibitions on the buying and selling of person’s body parts, yet the courts try to protect the commercial benefits coming out of, for example, research on one’s cells. Even in the Moore case,29 for example, the California Court struggled with the question of personhood, and decided the case instead on the basis of whether full consent was obtained from Moore while still asserting that body cannot be owned. Human stem cells assembled into complex brain structures or organoids, with the futuristic risk of the development of consciousness raise even further challenges.30 Similarly, with regards to the possibility to create ‘Synthetic Human Entities with Embryo like Features’ (SHEEFs), which are complete or incomplete embryos, uncertainties prevail as to which category they should belong to. In bioethical discussions, the case for legal protection of these entities is often made based on their moral status.31 With the possibility that organoids acquire sentience, and thus potential interests, and if they are shown to have ultimate value and are protected under law, then they may be, even under Kurki’s theory, passive legal persons with claim-rights incidents. Even within the category of organoids, one may be able to differentiate between those that have either the potential for either consciousness and even sentience, and those who do not.32 One can mistakenly think that organoids can be legally protected for their own sake only if they are considered to have a full (or even partial) moral status. For the law to protect such entities, it is not necessary to make such a strong moral move, and Kurki’s theory can account for that. Under Kurki’s account, it would be possible to describe these protections in terms of rights held by these entities while still considering them to be legal nonpersons. The counterargument may be that these are lesser or weaker legal protections, and some may consider these not to be ‘rights’ as such, and certainly not ‘dignity rights’ that are granted to humans. However, the strength of the theory is that it creates conceptual possibilities to describe the legal protection of a range of entities with questionable moral status. IV. THE BUNDLE THEORY: ACTIVE AND PASSIVE PERSONS Under Kurki’s own ‘Bundle theory’, advanced in the second part of the book, legal personhood is not an all-or-nothing category. Under this theory, personhood is a cluster property consisting of separate but interconnected elements that the author (using Hohfeldian terminology) calls ‘incidents’.33 One can understand these incidents as a complex set of disjunctions in formal logic. If, for example, the incidents are A, B, C, D, E, and F, then, under this theory, X is a legal person if and only if X is endowed with incidents A, B, C, D, and E, OR X is endowed with incidents A, B, C, E, and F, OR X is endowed with incidents A, B, D, E and F, OR …’ and so on. None of these incidents alone are either necessary or sufficient conditions for being a legal person. Based on the different incidents possessed, Kurki makes a distinction between ‘active’ and ‘passive’ legal persons. While endorsing the relative independence of the legal system in conferring legal personhood as a status on certain entities,34 Kurki argues against the idea that anything and everything can be conferred incidents of legal personhood.35 For him, the legal person still corresponds to persons as social facts. The passive incidents of legal personhood require sentience or that the entity is of ultimate value. The ‘active’ incidents, on the other hand, require a certain level of agency. The incidents of ‘passive’ legal personhood are divided into substantial and procedural incidents. The substantive incidents of passive personhood are (under Hohfeldian terms) ‘claim rights’ such as the protection of life, liberty, bodily integrity, the insusceptibility to being owned and the ownership of property reinforced by ‘immunity rights’, and the capacity to be beneficiary of special rights.36 Here are the incidents of ‘active’ and ‘passive’ personhood37: Category of Legal Persons . Procedural incidents . Substantive incidents . Active persons Legal competences (as compared to Hohfeldian powers) Onerous legal personhood Genuine legal responsibility Passive persons The capacity to be harmed Victim in criminal law Passive transactional capacity Claim rights, such as protection of life, liberty, bodily integrity reinforced by immunity rights Capacity to be beneficiary of special rights Insusceptibility to be bought and sold Capacity to own property Category of Legal Persons . Procedural incidents . Substantive incidents . Active persons Legal competences (as compared to Hohfeldian powers) Onerous legal personhood Genuine legal responsibility Passive persons The capacity to be harmed Victim in criminal law Passive transactional capacity Claim rights, such as protection of life, liberty, bodily integrity reinforced by immunity rights Capacity to be beneficiary of special rights Insusceptibility to be bought and sold Capacity to own property Open in new tab Category of Legal Persons . Procedural incidents . Substantive incidents . Active persons Legal competences (as compared to Hohfeldian powers) Onerous legal personhood Genuine legal responsibility Passive persons The capacity to be harmed Victim in criminal law Passive transactional capacity Claim rights, such as protection of life, liberty, bodily integrity reinforced by immunity rights Capacity to be beneficiary of special rights Insusceptibility to be bought and sold Capacity to own property Category of Legal Persons . Procedural incidents . Substantive incidents . Active persons Legal competences (as compared to Hohfeldian powers) Onerous legal personhood Genuine legal responsibility Passive persons The capacity to be harmed Victim in criminal law Passive transactional capacity Claim rights, such as protection of life, liberty, bodily integrity reinforced by immunity rights Capacity to be beneficiary of special rights Insusceptibility to be bought and sold Capacity to own property Open in new tab V. ACTIVE LEGAL PERSONS AND LEGAL COMPETENCES Kurki identifies the incidents of ‘active’ legal personhood as ‘legal competences’, and ‘onerous legal personhood’, the latter understood in terms of being held for ‘genuine legal responsibilities’.38 Legal competences, for Kurki, are defined in terms of ‘acts-in-the-law’, which are defined in terms of the intentional actions to bring about changes in legal relations.39 Kurki attributes Hohfeldian powers to the entities that have properties such as motivational states, and refers to Daniel Dennett’s ‘intentional stance’40 as compared to the ‘physical stance’ for making distinctions about who may be regarded as an entity for active legal personhood. Under Kurki’s theory, the passive incidents are sufficient for personhood tout court, but the active ingredients alone are not. He argues that active incidents alone are not sufficient to grant personhood, even if they may be understood as ‘rights’ under some versions of the Will Theory. An example Kurki gives of beings endowed with only active incidents is slaves in ancient Rome.41 This is contestable in light of, for instance, the debates around AI, where onerous legal personhood has at times been equated with legal personhood tout court.42 To put it simply, under Kurki’s theory, while embryos may be things holding certain rights, AIs are only active persons, infants are passive persons, and full-grown human adults of sound mind are passive and active persons. Infants, while lacking the required agency for holding active legal personhood, have passive legal personhood, and a legal ‘platform’ administered by a human adult guardian.43 Kurki’s acknowledgement that not every adult human being at all times has the same incidents of personhood has implications for understanding adult guardianship, and substituted or surrogate decision-making, particularly in case of severely mentally disabled people.44 Some of the debates in bioethics and medical law, for instance, around Article 12(2) of the United Nations Convention for the Rights of Persons with Disabilities 200645 seem to rest on the idea that active incidents may be necessary for personhood tout court.46 That only (what MacCormick has called) a ‘passive transactional capacity’,47 which is attributed to passive legal persons, is insufficient. While descriptively the distinction between active and passive personhood is helpful, it can turn problematic if one reads it as potentially hierarchical. In principlist bioethics, the importance on autonomy as the first principle48 already makes the attribution of passive incidents alone insufficient for meaningful legal protections. In light of this, Kurki’s distinction between independent and dependent legal competences calls for a future further discussion. Kurki argues that his ‘bundle theory’ of legal personhood is not ‘value free’ but largely ‘value neutral’ with regards to the Will and the Interest theories of rights.49 This means that even if we reject the normative underpinnings of passive legal personhood as personhood tout court, the theory still stands useful for examining a variety of contexts. VI. CONCLUSION To conclude, this ambitious book is an important and witty contribution to the question of personhood in and outside of bioethics that goes beyond the traditional debates, and a starting point into the normative debates as well as further analytical clarifications. As we saw, under his theory, it becomes possible to articulate some of the complex questions that otherwise get clubbed together under a monolithic, robust, conception of personhood. In particular, his rejection of the Orthodox view has interesting implications for bioethics. To discuss the ‘personhood’ of an entity, particularly, stems cells or organoids, without qualifying the precise incidents, is likely to be meaningless under this account. It saves from the jump from nondestruction of embryos to nondiscrimination, and hopefully the hesitation by the Courts and law makers! As Kurki himself puts it, ‘What can my theory offer here, given its generality? The theory can offer an overall picture of legal personhood and can thus structure the legal debates focusing on more specific issues.’50 In case of bioethical debates, these will likely continue. For this, the book offers new perspectives and directions. Footnotes 1 Eg, Paul Walker and Terence Lovat, ‘Concept of Personhood and Autonomy as they Apply to End-of-Life Decisions in Intensive Care’ (2015) 18 Medicine, Healthcare, and Philosophy 309. 2 See eg, Julian Koplin and Julian Savulescu, ‘Moral Limits of Brain Organoid Research’ (2019) 47 Journal of Law, Medicine, and Ethics 760 , 762. 3 See for instance, Bartha M Knoppers and Henry T Greely, ‘Biotechnologies nibbling at the legal “human”’ (2019) 366 (6472) Science 1455. 4 See eg, the literature including and that has followed Jason S Robert and Francois Baylis, ‘Crossing Species Boundaries’ (2013) 3(3) American Journal of Bioethics 1, see also Sebastian P Mann, Rosa Sun and Göran Hermerén, ‘A Framework for the Ethical Assessment of Chimeric Animal Research Involving Human Neural Tissue’ (2019) 20(10) BMC Medical Ethics, 1–10, , accessed 31 March 2022. See also Julian Savulescu, ‘Should a Human-Pig Chimera be Treated as a Person?’ Aeon (14 July 2016) accessed 8 February 2022. 5 Visa AJ Kurki, A Theory of Legal Personhood (Oxford Legal Philosophy, Open Acess, OUP 2019) 31. 6 However, Kurki does not negate an overlap between these categories. For example, he says, ‘It is not a mere quirk of history that the word ‘person’ is used when referring to moral, metaphysical, as well as legal person.’ p 124. 7 Kurki (n 5) 5. 8 ibid 56. 9 ibid 92. 10 ibid 8. 11 Some of the works on legal personhood include Ngaire Naffine, Law's Meaning of Life: Philosophy, Religion, Darwin and the Legal Person (Hart Publishing 2009). 12 Kurki (n 5) 13. 13 People exRelNonhuman Rights Project, Incv Lavery (2014) 518336, 2014 WL 680276 (New York Appellate Division). 14 Justice Dougherty in Junior Lewis Davis v Mary Sue Davis 842 S.W.2d 588, [1992] (Supreme Court of Tenessee at Knoxville). 15 On how the invocation of fetal personhood is brought in questions of anti-discrimination, see Jeannie S Gersen, ‘How Fetal Personhood Emerged as the Next Stage of the Abortion Wars’ The New York Times (5 June 2019) , accessed 31 March 2022. 16 As compared to, for instance, a Panpsychic claim that would derive the right-holding from any consciousness that what we regard as ‘things’ may be claimed to possess. 17 See also Visa AJ Kurki, ‘Why Things can Hold Rights: Reconceptualising the Legal Person’ in Visa AJ Kurki and Tomasz Pietrzykowski (eds), Legal Personhood: Animals, Artificial Intelligence and the Unborn (Springer 2017). 18 Kurki (n 5) 121. 19 For more on this thought, see Visa AJ Kurki, ‘Animals, Slaves, and Corporations: Analysing Legal Thinghood’ (2018) 18(1069) German Law Journal, 1069–1090. 20 Kurki (n 5) 98. 21 International Society for Stem cell Research, ‘ISSCR Guidelines for Stem Cell Research and Clinical Translation’ (May 2021) accessed 8 March 2022. 22 See Sarah Chan, ‘How to Rethink the Fourteen-Day Rule’ (2017) 47(3) The Hastings Center Report 5, 5–6. 23 Eg, in the USA, the proposed Human-Animal Chimera Prohibition Act, 2016. 24 Knoppers and Greely (n 3) 40, Also Julian Koplin, ‘Human-Animal Chimeras: the Moral Insignificance of Uniquely Human Capacities’, (2019) Hastings Center Report 49, No 5, 23–32. 25 Robert and Baylis (n 4). 26 See Joel Feinberg, ‘Wrongful Life and the Counterfactual Element in Harming’ (1986) 4(1) Social Philosophy and Policy 145. 27 For the jurisprudence on the application of property principles to human body parts, See, eg, Imogen Goold, ‘Why Does It Matter How We Regulate the Use of Human Body Parts?’ (2014) 40(1) Journal of Medical Ethics 3. 28 See R v Bentham [2005] 18 UKHL (House of Lords) 18(1), as quoted in Muireann Quigley and Semande Ayihongbe, ‘Everyday Cyborgs: On Integrated Persons and Integrated Goods’ (2018) 26(2) Medical Law Review 276, 288. 29 John Moore v The Regents of the University of California (1990) 271 California Reporter No 146 (Supreme Court of California). 30 See, eg, Sergiu P Paşca, ‘Assembling Human Brain Organoids’ (2019) 363(6423) Science 126, 126. 31 Eg, see Henry T Greely, in the section on ‘the rights of the surrogates’ writes ‘The creation of human brain surrogates could have the unexpected result of forcing us to reconsider what is “legally” a person or what is “death”’, Henry T Greely, ‘Human Brain Surrogates Research: The Onrushing Ethical Dilemma’ (2021) 21(1) The American Journal of Bioethics 34, 41. 32 Of course, whether or not organoids have interests or suffering is a complex matter. See Koplin and Savulescu (n 2) 762 give the example of ‘sensory deprivation’ as ‘suffering’. 33 One could understand them as different ‘elements’. These closely resemble ‘rights’, but perhaps a reason Kurki does not term them as such is that theories of legal rights may not consider all of these to be rights as such. 34 ibid 92. Referring to what Naffine calls the ‘legalist’ account in Naffine (n 11), Kurki says, ‘One thing that the legalists got right … Whether or not x is a legal person is an institutional fact.’ 35 Kurki (n 5) 92–93. Here I cannot go into Kurki’s arguments against legal fictions and the status of corporations. 36 ibid 95. 37 ibid 95, 191. 38 ibid 116. 39 Kurki’s definition is as follows: ‘Act A, performed by X, constitutes an act-in-the-law if and only if (1) X performs A with the intention to bring about the legal consequences r, and (2) the fact that X has performed A in order to bring about r is an element of a set of actually occurrent conditions minimally sufficient for r.’ Kurki (n 5) 116. 40 Daniel Dennett, The Intentional Stance (7th edn, MIT Press 1998). 41 Kurki (n 5) 121. 42 See, for example, Bert-Jaap Koops, Mireille Hildebrandt and David-Olivier Jaquet-Chiffelle, ‘Bridging the Accountability Gap: Rights for New Entities in the Information Society’ (2010) 11(2) Minnesota Law Review 497, 19. 43 He invents the device of ‘legal platforms’ to denote a legal status, which can be administered by typically adult humans, at times on someone’s behalf that may be considered to be a ‘beneficiary’. Kurki distinguishes platforms from the persons in the sense that every person at least has one legal platform. See Kurki (n 5) 116, 128. 44 Some of the literature in the field of Mental Capacity, published in this journal, eg, seems to endorse what Kurki calls the ‘Orthodox’ view and an all-or-nothing conception. See John Coggon, ‘Mental Capacity Law, Autonomy, and best Interests: An Argument for Conceptual and Practical Clarity in the Court of Protection’ (2016) 24(3) Medical Law Review 396. 45 art 12, which deals with ‘equal recognition before law’. See , accessed 31 March 2022. 46 Eg, Eilionoir Flynn and Anna Arstein-Kerslake, ‘Legislating Personhood: Realising the Right to Support in Exercising Legal Capacity’ (2014) 10(1) International Journal of Law in Context 81. 47 Which is defined as the ‘capacity to take the benefit or the burden created through a certain transaction’. MacCormick, as cited in Kurki (n 5) 86. 48 Tom L Beauchamp and James F Childress, Principles of Biomedical Ethics (4th edn, OUP 1994). 49 Kurki (n 5) 25. 50 ibid 192. © The Author(s) 2022. Published by Oxford University Press; All rights reserved. For permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model) TI - Visa A. J. Kurki, A Theory of Legal Personhood JO - Medical Law Review DO - 10.1093/medlaw/fwac010 DA - 2022-05-18 UR - https://www.deepdyve.com/lp/oxford-university-press/visa-a-j-kurki-a-theory-of-legal-personhood-1JOV5aISWv SP - 392 EP - 399 VL - 30 IS - 2 DP - DeepDyve ER -