PARTICULARS
(a) The Deceased’s genetic material was partly human and partly rodent (mus spicilegus);
(b) The characteristics which define a “person” were not present or not significantly present in the Deceased as at 17 June 2023.
117: Rarely have such complex and fundamental matters been diluted to such a simple description. Not surprisingly, the written submissions made in support of the Statement of Claim were more expansive (and the oral submissions more expansive still). It will be helpful to approach the remainder of this judgment by reference to those written submissions.
My approach
118: Before I do that however, I note firstly that the Defendant conceded at an early stage (quite rightly in my view) that I was entitled to, and should, start with the rebuttable presumption that David was in fact a person for the purposes of the Wills Act. The onus is therefore on Marisa to prove otherwise on the balance of probabilities.
119: It cannot be sensibly argued that a child born to a human woman, who walks and talks and in every other respect appeared human for the vast majority of his life should not be presumed to be a human being and a person (if they are distinct). To suggest that every person who approaches this Court must first prove on the balance of probabilities that they are a “person” is obviously untenable and plainly wrong.
120: I therefore turn to the substantive question – whether the Defendant has convinced me that it is more likely than not that David was not a person on 17 June 2023. In this respect, Marisa’s counsel has put to me a number of possible tests which can, he says, be used to determine ‘personhood’. It is argued that to fail but one test would be definitive, and it is said that David fails all of them.
121: I will address each of these proposed tests – by reference to the Defendant’s written submissions - in turn.
“Submission 1 (Genetics) – Animals (including human beings) are distinguished by their genetic makeup. The Deceased had a combination of human and rodent genetic material. Accordingly, he is not a human being but rather a new species.”
122: A mule is the offspring of a donkey and a horse. Donkeys and horses are different species. When their genetic material is mixed, we do not consider the offspring either a donkey or a horse, but a completely new animal – a mule. Marisa argues that the same principles apply here.
123: David acted like a human. For most of his life, he looked like a human. He was considered by all around him to be a human. It is argued by Marisa that he was in fact a new and singular species which bore a striking resemblance to a human being by reason only of sharing significant genetic material with the human being. That does not, Marisa says, mean that he is a human being.
124: It is an argument with some merit, but not one that can settle the question.
125: Take for example a person whose heart has been transplanted with that of a pig. Whilst the advances in therapeutic cloning have rendered this process virtually obsolete, the point is that it has been done. Those individuals for whom it was done were, in a very real sense, mostly human but partly pig. Their heart – the organ on which they rely upon for life – is that of a non-human animal with non-human DNA.
126: Marisa argues that this is distinct from the situation here, where the DNA itself, from birth, is only partly-human. The heart is, in essence, no more than a pump designed to transmit blood throughout the body. DNA on the other hand is the blueprint and, it might be said, the essence of human existence.
127: I accept that there is a distinction, but I have difficulty seeing that it is a substantive one. DNA is not some magic substance. It too is a physical component of a human being – the fact that it is perhaps more complex than the heart or any other part of the body does not in my view give it a greater significance. If a man remains a man when he has the heart of a pig, why should a man not remain a man when he has the blood of a rodent?
128: It may well be that, in scientific circles, David was not considered a human being. That does not mean he is not a human being for the purposes of the law. I do not believe it is that simple.
129: This raises for the first time the question of whether being a ‘human being’ is the same thing as being a ‘person’. If I assume for the moment that Marisa is correct, and that David was not at any stage of his life a human being – could he still be a person?
130: Let us presume that a scientist breeds a dog with a small amount of human DNA. The dog is born and appears for all intents and purposes to be an ordinary dog. It is clearly not human, and it is clearly not a person either.
131: Assume then that this same dog is born, and demonstrates all the facilities and capabilities of a human being. It still looks like a dog, and still walks like a dog, but it can speak, think and feel in exactly the same way as an ordinary human. The dog is still not a human being, but can we really say it is not a person? Can we deny this animal, who is as intelligent and thoughtful as you and me, from the basic rights proscribed to human beings?
132: I consider it is arguable, at the least, that even if David was not a human being, he was still a person for the purposes of the Wills Act. The fact alone that his DNA is not exclusively human is not reason enough to find that he is not a person.
“Submission 2 (Physical) – The Deceased’s physical appearance towards the end of his life was so far from human as to suggest that he was not human to begin with.”
133: This argument was not pressed, and for good reason. I do not find merit in it, yet I will address it briefly for completeness.
134: It is true that the body which was eventually cremated bore little resemblance to a human being. The photographs were graphic and disturbing, to say the least.
135: The physical changes were, the Court was told by experienced medical witnesses, unlike anything they had seen before. They were tumours in the well-known sense, but their size, speed of growth and pervasiveness were, to use the carefully-chosen words of one particular witness, “inhuman”.
136: The most obvious response to this submission is to note that the fact that a human disease is extremely severe does not result in that person losing their humanity. If David had grown fur and a tail, the situation might be different.
137: More fundamentally, I have difficulty in allocating any significance whatsoever to physical appearance in the question of whether an individual is a person or a human being. If you were to perform plastic surgery on a monkey to make it look human, no-one would then argue that it in fact was human. Similarly, if some unfortunate human was born so deformed as to resemble a monkey, they remain indisputably human no matter how severe the deformation.
138: I reject this submission.
“Submission 3 (Psychological/Emotional) – The Deceased has at all times throughout his life demonstrated psychological and emotional characteristics that are inconsistent with being a human being.”
139: Before I can even consider this question, I must first consider what I should be looking for in David’s behaviour. What psychological and emotional characteristics are considered consistent with humanity, or personhood, and which are not?
140: Several possibilities were put before me. The issues here become highly theoretical and delve deep into the territory of advanced philosophy. I will do no more than summarise the highly complex issues that were argued before me.
141: To many, to be human is to understand your own mortality. To the best of our knowledge, lesser animals do not think about their own death in the way that humans do. A lesser animal will of course flee a pursuer or take whatever steps necessary to survive. So will a human. A lesser animal will not however, as far we know, think about its own inevitable demise when such demise is not apparently imminent.
142: To others, the answer is a somewhat circular one – you are a person if you consider yourself to be a person. Therefore, in theory, a highly intelligent animal which, for whatever reason, genuinely believes itself to be a person (and therefore must by definition have the cognitive ability to have that belief) is in
fact a person. This leads inevitably to the finding that, if a human being genuinely believes himself to be something other than a person, he should not be considered one.
143: I do not accept either theory as being a sufficient test in itself. It may be that humans are the only animals to understand their own mortality, but humans are alone in many things. To understand your mortality is the result of a higher intelligence, but I do not see it as being more fundamental than that. We know we are going to die because we have developed sufficient communication skills to understand that what has happened to others is going to happen to us. If a person were born in a forest with only animals for company, it may see those animals dying but never presume that they will die themselves. I have not seen any evidence to suggest that it is an innate characteristic of human beings.
144: The second theory has some obvious flaws when taken to its extremes. A person with severe retardation may have no notion of whether he is a person or not. If it would then be argued that this makes him something other than a person (a complete non-entity perhaps), I do not accept that as a basis for determining at law who is a person and who is not. That does not mean it is not a valid philosophical argument, but it is not one I intend to apply to the Wills Act.
145: It was then argued that intelligence