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Background: My client has disclosed to me that he is an extra-terrestrial entity who arrived from another planet some time after 1900. He was sent to Earth in a rocket by his (now dead) parents, then placed up for adoption and legally adopted by two US citizens from the state of Kansas.

We are trying to determine whether this adoption was legally valid, specifically whether there is anything in US Citizenship law, US Adoption law (or US law in general) that states that a "person" or "citizen" specifically needs to be human.

  • Comments are not for extended discussion; this conversation has been moved to chat. – Dale M Sep 30 at 0:45
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There is longstanding and well-established legal non-uniformity in defining ‘person’, and in stating laws in terms of ‘persons’. The RICO statutes (18 USC 1961 (3)) states that a person ‘includes any individual or entity capable of holding a legal or beneficial interest in property’. A corporation is a person for the purposes of access to the federal courts, for purposes of forming contracts, and enjoyment of First and Fourth Amendment rights, but not for purposes of voting or 5th Amendment immunity. 1 USC 8(a) states that

the words “person”, “human being”, “child”, and “individual”, shall include every infant member of the species homo sapiens who is born alive at any stage of development

which states a sufficient condition, but not a necessary one.

In Washington state, RCW 1.16.080 says that

The term “person” may be construed to include the United States, this state, or any state or territory, or any public or private corporation or limited liability company, as well as an individual.

Washington does not define ‘individual’, but we can call on Black’s Law Dictionary to learn that

this term denotes a single person as distinguished from a group or class, and also, very commonly, a private or natural person as distinguished from a partnership, corporation, or association; but it is said that this restrictive signification is not necessarily inherent in the word, and that it may, in proper cases, include artificial persons.

And finally, Roe v. Wade 410 U.S. 113, 157 holds that an unborn instance of homo sapiens is not a person for purposes of the Fourteenth Amendment. In short, there is no clear and settled answer to the question.

Courts do not always refuse to hear ground-breaking cases, and in case this issue is ever realized, I am confident that cert. will be granted. The point of law is, after all, to state general principles regarding what is forbidden or allowed in a society, thus it must be capable of addressing novel situations. We will have to await that case, but the prospects for your client are good. It is obvious that “persons” have a special position under the law, it is recognised that they have both rights and responsibilities that other things do not have. Summarizing over millenia of jurisprudential thinking, we can see that the special status of persons (when not reduced to divine gift: not applicable under current US law) derives from the fact that persons have a capacity to reason, and to choose actions based on their reasoning. In the context of our current knowledge, this is mostly coextensive with being an instance of homo sapiens, though in case of severe or complete limitation of those faculties, an instance of homo sapiens may not be legally accorded the full set of rights and responsibilities of homo sapiens.

In fact, the law does not have a definition of homo sapiens. Before objecting that science teaches us that only earthlings can be homo sapiens, we should be remember that courts do not always hold that terms as defined in a scientific discipline are to be interpreted that way under the law, which is how SCOTUS in Nix v. Hedden 149 U.S. 304 was able to hold that a tomato is not a legal fruit. The plain meaning of homo sapiens is completely consistent with extending legal coverage to Kryptonians.

Thus it will be the finding of the court that petitioner, not a member of the species homo sapiens but endowed with the faculty of reason and free will, has all of the rights and responsibilities of a ‘person’ under Kansas law, and has the right to be adopted.

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    I'd upvote this if I hadn't given away all of my rep posting a bounty. – Richard Apr 26 '16 at 16:17
  • Is there no clear answer? Or would the court find that "petitioner, not a member of the species homo sapiens but endowed with the faculty of reason and free will, has all of the rights and responsibilities of a ‘person’ under Kansas law, and has the right to be adopted"? – user3851 Apr 27 '16 at 7:51
  • @dawn, I don't see that there is any statute or precedent that could be called on directly to answer the question, in which case a court could use reason and free will to extend rights and responsibilities to such a being, or it could hold that aliens are in fact legal homo sapiens, analogous to legal vegetables. – user6726 Apr 27 '16 at 14:23
  • @user6726 I guess I'm understanding your answer to say that a court will do that, rather than it only saying that a court could do that. – user3851 Apr 27 '16 at 14:25
  • @dawn, okay, I see -- I am saying that they will do one of those two things, but I have no (strong) prediction which it is. – user6726 Apr 27 '16 at 15:48
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There is a part of the Immigration and Nationality Law that specifically applies to toddlers found wandering around in the United States without parents present whose place of birth is unknown. These individuals are automatically U.S. citizens and remain so unless the U.S. government specifically brings an action to establish that the person is a citizen of another country before the person turns twenty-one.

Specifically, 8 U.S.C. § 1401(f) (Immigration and Nationality Act § 301(f)) provides that:

The following shall be nationals and citizens of the United States at birth: . . . (f) a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States;. . .

This was inspired by situations very similar to those of the person in question (and indeed, given that the law was enacted in 1952, could have been specifically included with reference to this individual's case).

Modern adoption laws were just starting to be widely passed with application to parentless children without family at the time that this individual was adopted, before which orphanages were the norm. So, even if modern U.S. adoption laws have specificity about citizenship or species, this would almost certainly have been absent from the laws in force at the time.

But, in any case, this particular individual is human, i.e. species homo sapiens, even if he belongs to a different sub-species of human, because it is know that members of his species are capable of reproducing with ordinary humans on Earth which fits one of the most common definitions of a biological species. The conclusion that this particular individual is human is also supported by his visible appearance, his ability to speak the English language, and the fact the myriad teachers, neighbors, co-workers, employers, and romantic partners treat him as human without question.

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    So the fact that he learned his parentage at the age of 18 would have invalidated his adoption? – Richard Sep 19 '17 at 20:38
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    The way that the law is implemented procedurally requires the U.S. government to take affirmative action to adjudicate that he is not a U.S. citizen prior to his attaining age 21, which didn't happen. His personal knowledge turns out to be immaterial. "Shown" means shown by the INS or the equivalent. – ohwilleke Sep 19 '17 at 20:40
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    @user6726 We have an adoption petition, probably a driver's license, a high school diploma, bank accounts, employment relationships, tax returns, voter registrations, quite possibly a parking ticket or traffic ticket, vaccination certifications or exemptions, a lease, etc. that all corroborate a case for personhood and natural person status under relevant statutes. If science is to be damned, it is to be damned in the direction of preserving existing custom and practice and treating him as a natural person and human. – ohwilleke Sep 20 '17 at 22:57
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    Also 1 U.S.C. § 8 law.cornell.edu/uscode/text/1/8 appears to incorporate by reference into U.S. statutes a technical biology definition of the term species in a way that an ordinary English language term like tomato or vegetable does not. So, an ability to reproduce with homo sapiens sapiens makes him at least homo sapiens uber even if he is not the same sub-species. That would be a very powerful argument legally. – ohwilleke Sep 20 '17 at 23:09
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    There is an interesting theology/first amendment question here too . . . was he baptized or otherwise treated as a human by any religious organization to which he or his parents belonged. If so, arguably, classifying him as not human would violate the 1st amendment right of him and/or his family and/or the church he belongs to or belonged to. And, there is at least one other important example in the religious tradition of someone with extraterrestrial paternity being counted as definitively human under authoritative canon law and Roman law - Jesus. If Jesus can be human, why can't Superman? – ohwilleke Sep 20 '17 at 23:15
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The current state of the law is that, yes, a natural person needs to be human. See http://www.slate.com/articles/news_and_politics/jurisprudence/2015/07/habeas_corpus_and_personhood_for_chimps_judge_barbara_jaffe_gives_liberty.html, specifically, the common law position is that only human beings are natural persons and the Constitutional law position is that the Constitution is a document specifically by and for humans.

  • However, this is in the context of an inability to engage in intellectual discourse with any other species. If an extra-terrestrial species were to arrive with which we could engage in intellectual discourse, it's conceivable that a court might find that members of the species are "natural persons" for at least some purposes. – phoog Apr 14 '16 at 19:23
  • @phoog of course, common law is always in a state of flux and the judgement above even foreshadows that the current position may change. – Dale M Apr 14 '16 at 20:17
  • How does the law determine whether the natural person is a human or not? Just by the external appearance? – Gabriel Diego Apr 14 '16 at 21:51
  • @gabrieldiego Yes, by the external appearance - therefore all manikins are natural people, as are all corpses. Clearly not. At present a prerequisite for being a natural person under the law is that you are a member of the species homo sapiens. – Dale M Apr 15 '16 at 2:25
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    @DaleM I'm not ready to accept the statement that a prerequisite for applicability of laws is status as a homo sapien. By that rationale the end of every criminal trial would end with the defense moving for dismissal based on the prosecution's failure to prove every element of the crime. The failed element being that the defendant is in fact human. – jqning Apr 20 '16 at 1:09
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An issue might be that a human being has the benefit of the law for protection and equally, submits to it for others protection. Its a 2 way deal.

Now, our kryptonian might want the benefit of the law, like a human. But can he be made to submit to it like one?

We cannot (says the court) imprison him or forcibly remove his liberty with any ease (assuming kryptonite's effects are not easily obtained, used, or scientifically recognised by multiple research- and how to prove he isn't faking the appearance of more weakness than he has?). So how exactly is he capable of submission to the law, except as a purely voluntary goodwill unilateral offer that may or may not get respected?

For example - how can an ordinary persons rights against voyeurism be protected from Xray vision? What laws can protect aircraft and airspace, or privacy? How will immigration/customs/police be able to be sure he complies with all laws concerning entry and departure from the country, and doesn't (deliberately or accidentally) bring in or put anything those laws are intended to control?

If he undertakes a crime, how will police prove it when he can move objects (no need for keys), detect security or people/alarms, see inside sealed objects and mechanisms and read their contents, and can delete records with his owners? Can a court remove his liberties if it was against hi wishes?

Then there's health. Is he dangerous by virtue of his different origin - pathogens, radiation, or whatever else? Can we prove it? Biology that seems compatible but it might be found not to be in some way? What happens to the rights of citizens not to be harmed (or reasonably fear possible harm) as they go about their day, from the unrestricted and not-provably-safe alien who can go wherever they go, if granted that right?

Many many issues, and no practical reasonably accessible means of enforcement. How can a person who has no need to submit to the law and no way to be brought under it, be granted all its benefits without its leash applying as well?

I see this as the real concern a court case would come to if he wasn't already rejected because of non-national citizenship or illegal entry/residence from childhood.

  • Someone doesn't have to be subject to normal restraints to be subject to law. Some people can just slip out of handcuffs, for example. That doesn't get them special legal treatment, AFAIK. It's illegal to break out of prison even though some people do it. I personally can walk across the Canadian border without being inspected by Canadian customs. There are people who are excellent at committing certain forms of crime and who do not get caught. – David Thornley Dec 3 '18 at 23:45
  • I'm not sure that changes anything. "Some people get away with it or have special skills that nullify one small aspect (use of handcuffs) of one approach (restraint) within law enforcement", doesn't change that broadly, all humans submit (and in principle can be made to submit, if not one way then another) to laws and restrictions decided by their community/country/fellow citizens, if wished. See examples in answer - I'm not sure you can do anything like that for arbitrary non-human life forms, and that's potentially everything, across the board, in their entire life, not just enforcement. – Stilez Dec 5 '18 at 10:05
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My friendly neighborhood game warden tells me if it isn't on the list of endangered or threatened species, and the fish and game laws don't specify any particular hunting season, I can shoot it. Of course, our discussion was about ground hogs.

  • This is just wrong. For example, per the MBTA, it is illegal to kill any non-game native birds. – feetwet Sep 20 '17 at 18:22

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