Thursday, October 30, 2014

Me and my colony

It has long seemed self-evident to me but I'm not finding others talking about it so maybe this is unusual enough to write about.

Legally, we're all essentially pregnant, or at least siamese twins. That might need some unpacking.

One of the toughest legal questions around has to do with what to do when there's two inseparable individuals that legally fall into different categories, one guilty of a crime and the other innocent, or at least materially less culpable. Case law is not clear on this because it's such a rare condition that it's never come up in a common law country.

In the case of pregnancy, you have two genetically distinct humans with unequal rights. Sometimes the unborn is given a right to life. Other times no rights are assigned. Other times it's something of a case of chattel where the mother-to-be can kill the infant but nobody else can such as the case where it's a double homicide if a pregnant woman is killed but abortion is legal.

Everybody, however, hosts colonies of creatures on and inside our bodies. These colonies have no rights. In a lot of cases, the colonies are beneficial. Without our gut bacteria, we'd all be in significant digestive distress, very unpleasant distress. Other times, they get annoying, such as the various cold and flu viruses that lay us low periodically. There are mostly social sanctions in place for humans who cooperate in spreading those around and like the case of a worker sneezing into a food tray at a cafeteria there can be legal sanctions in terms of fines and operations shut downs for inadequate hygiene.

The most extreme of these legal sanctions is reserved for our hitch-hiking killers. Typhoid Mary, America's first documented asymptomatic carrier of the typhoid virus was isolated twice over the disease, the first time for three years, the second for the rest of her life. Strangely enough, her first major victim cluster was where I grew up, Mamaroneck, NY. Who knew?

Typhoid Mary was diagnosed with an infection of typhoid in her gallbladder but she refused to have the infected organ removed and without that removal she remained a public health hazard and was isolated until she died because she was so irresponsible after her first release from isolation as to change her name and continue seeking employment as a cook while refusing to wash her hands because, in her mind, she posed no threat.

The law could not force the removal of her infected organ. It could imprison her, and did. That's a very relevant distinction today. There is a difference between me and my colonies of various hitchhikers. I have rights and they don't. When they are not too noxious, they benefit from a sort of penumbra of rights. It's too difficult to separate us and they benefit. But if they are too noxious, if they even might be too noxious, I suffer a diminishment of rights. The penumbra goes the other way.

Which way the penumbra effect goes is a difficult question, one that we will never answer in a proper way so long as we do not explicitly lay out the facts as they are, that with every individual is a non-rights bearing set of organism colonies intimately locked in an embrace with our own biology. This is a legitimately hard question for which we have no final answers at the present, just a competing collection of unhappy feelings at whatever solutions are proposed by our political class, whether the disquiet at the laxity of the CDC or the outrage at the state quarantine orders nobody's entirely happy.