The end of human rights?

According to a recent report by Reuters, a court in Argentina has ruled that Sandra, an orangutan living in a Buenos Aires zoo, is a “non-human person.” The court determined that Sandra’s internment in the zoo is therefore an unlawful violation of her fundamental rights. According to Paul Buompadre, the lawyer representing Sandra, “[t]his opens the way not only for other Great Apes, but also for other sentient beings which are unfairly and arbitrarily deprived of their liberty in zoos, circuses, water parks and scientific laboratories.”

Now in many countries, including the United States, members of the species Homo sapiens are not granted legal rights until they are born. The landmark Supreme Court ruling Roe v. Wade declared, “The unborn have never been recognized in the law as persons in the whole sense.” In other words, the law considers a fetus belonging to the species Homo sapiens a “human non-person.”

According to this logic, the term “human rights” is a misnomer. If a “non-human person” possesses these rights and a “human non-person” does not possess these rights, then the determining factor is clearly personhood, not humanity. Thus, individuals do not have “human rights”; they have “person rights.” The U.N. Commission on Human Rights has been misnamed.

We should notice, however, that replacing “human rights” with “person rights” is no small change.

The term “human” is clearly defined. Every member of the species Homo sapiens is a human. Therefore, the humanity or non-humanity of an individual is a scientific fact; it is not open to debate.

The term “person,” on the other hand, is not clearly defined. For example, Sandra has been deemed a person in Argentina because she has attained some unspecified level of cognitive function. However, in the United States, the personhood of a fetus is not determined by cognitive function at all. The law currently considers a premature infant a person, while an older fetus at full term is not deemed a person, despite the fact that the fetus is more developed than the infant and thus has greater cognitive function. The criterion is not cognitive function, but birth.

Therefore, unlike the designation “human,” which is entirely objective, the designation “person” varies from country to country. One country may declare that orangutans are persons; another may declare that orangutans are not persons. One country may declare that fetuses are persons; another may declare that fetuses are not persons. One country may declare that infants are persons; another may side with scholars such as Alberto Giubilini and Francesca Minerva, who recently gave this opinion in the prestigious Journal of Medical Ethics:

Both a fetus and a newborn certainly are human beings and potential persons, but neither is a ‘person’ in the sense of ‘subject of a moral right to life’….Merely being human is not in itself a reason for ascribing someone a right to life.

The notion of human rights is revolutionary precisely because it places the individual above the state. The notion of person rights, on the other hand, is not revolutionary at all. On this view, individuals have rights only because the state has deemed them persons. In other words, individuals have rights only because the state has decided to grant them rights. Thus, the state remains the final authority.

The shift from “human rights” to “person rights” is therefore not a progressive move toward a more enlightened understanding of justice; it is simply a return to the old view that the state has absolute power.

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