September 20, 2013      



?While the use of technologies has the potential to increase the capacity of individual users to the extent that they are greater than the sum of their parts, the same may be said for the resulting legal issues.

?How society can incorporate such technologies, and how these technologies should be regulated are areas ripe for investigation by academics, law-makers and scientific research organizations.?
?Dr Benjamin Farrand

Socio-legal perspectives from the use of neuroprostheses

SOCIETY FOR COMPUTERS AND THE LAW?The consequences of the mixing of a human and a machine to the extent that it becomes difficult to discern where one ends and the other begins have largely been tackled only within the genre of science-fiction.

However, with the continued development of Human Enhancement Technologies (HETs), these issues are rapidly becoming those of science-fact.

HETs are technologies used to improve upon human capabilities, particularly in cases where those capabilities have been significantly impacted by injury, illness or disease.

Disabled, enabled, differently abled, or over-able?

Whereas HETs are predominantly developed and used in order to improve bodily function in people considered disabled. Whether it is due to a congenital deformity, a severe illness or accident, an artificial limb is used to restore at least some mobility to someone who has lost his or her natural one. While these technologies have improved dramatically over the centuries (think of the difference between a peg leg for a pirate injured at sea and an anatomically correct modern plastic-covered prosthetic), it is only in the last decade that they have reached such a level of technological complexity that we may soon need to reconsider what it means to be disabled, and how disability is legally treated.

The Pistorius Dilemma

To take the example of Oscar Pistorius, even ten years ago, it may have been unthinkable to consider that a man who has lost both his legs would be able to compete in the Olympics. Yet in 2012, Pistorius not only competed in the men’s 400m, but reached the semi-final.

Pistorius was considered able enough that fully-able competitors raised concerns about the unfair advantage he would have over them due to the lightness of his carbon-fibre prosthetics used for racing. While this example may appear to be something of an outlier, as prosthetic technology improves, the potential for prosthetic limbs to equal or even surpass the capabilities of natural limbs is great. Prosthetic limbs may be stronger, and allow the user to carry heavier loads than they may normally be able to carry.

The possibilities nevertheless exist for people once considered ‘disabled’ to become ‘over-able’ in comparison to non-enhanced individuals. Will this give those individuals a competitive advantage over others in employment?

As with Pistorius, will a perceived superiority of the artificial over the natural create resentment between ‘enhanced’ and ‘non-enhanced’ people? As a result, will new categories of discrimination law be necessary?

Under the Equality Act 2010, s 6,[UK] someone is ‘disabled’ if they are considered to have an impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities; if someone is able to surpass the ability of fully-able people to undertake those activities through the use of such technologies, can we truly consider them to be disabled?

Change your environment, or change yourself?

Related to this previous point is the need to consider the way in which we accommodate those with disabilities. Currently, standard practice is to make modifications to the environment of a disabled user. Examples include the installation of wheelchair ramps, stair-lifts, or pedestrian crossings with audible signals.

Indeed, s 20 of the Equality Act [UK] imposes an obligation, particularly upon employers, to make such changes as are necessary to ‘avoid’ the disadvantage caused through a person’s disability. However, should neuroprosthetics become more widespread, will this result in a shift in perception on behalf of governments and society?

Will the externalized obligations to make environmental changes to accommodate those with disabilities become internalized obligations to ‘improve’ or ‘enhance’ oneself, mitigating any disability through the adoption of HETs?

Rather than absorb the cost of architectural changes, will employers instead expect that a wheelchair bound individual seek HET treatment in order to either regain the use of his or her legs through surgery to install experimental electrical spinal cord stimulators (devices that are theorized to have the potential to restore mobility to paraplegics) or, in extreme cases, replace damaged legs with neuroprosthetic ones?

In this respect, the issue of disability, and catering for the disabled, is transformed from a societal to an individual one. In this respect, such questions reflect the strong strain of individualism and techno-emancipation running through transhumanist thought ? there is a moral and ethical duty to improve the human condition through such technologies, both upon the creators of such technology and upon potential recipients to make use of these technologies.

Why should environments be altered for you, these arguments run, when you are able to alter yourself to suit your environment? Given the unfortunate discourse regarding those with disabilities and the ‘burden’ they place upon society that appears prevalent in the media, such arguments may not seem so far-fetched.

Transhumanism

The political thinker (and noted bioconservative) Francis Fukuyama has described transhumanism as being one of the most dangerous ideas of all time. While that may be somewhat exaggerated, Fukuyama nevertheless makes a convincing argument regarding equality [Transhumanism, Foreign Policy, 2004].

HETs have the potential to exacerbate socio-economic divides not only between the global north and global south, but also between rich and poor within comparatively rich, industrialized nations.

At least in the short to medium term, HETs are likely to be expensive, and beyond the economic reach of many individuals, whether disabled or not. It is unlikely, for example, that such technologies will be immediately accessible on the National Health Service [UK], and so may be available to benefit only those with access to private health insurance, or the money to spend on such enhancement.

Particularly given the current political and economic climate, in which divides between societies richer and poorer groupings are increasing rather than decreasing, these technologies have the potential to create a growing divide between groups that could be classified as ‘disabled’, ‘normally abled’, and ‘over-abled’.

Yet if such divides are felt within rich nations, the impact upon developing and least-developed nations is likely to be severe. Take the example of the Trade-Related Aspects of Intellectual Property Rights Agreement. TRIPS sets the minimum standard for intellectual property protection throughout the world, and has arguably had a negative impact on developing nations.

One analogous example relates to access to medicines, particularly in Sub-Saharan Africa. Charities, campaigners and non-governmental organizations frequently refer to the health crises occurring in developing nations, often as the result of preventable (or at least treatable) diseases being spread.

Access to medicines, particularly retrovirals for the treatment of HIV, have been of significant concern, and the comparative failure of compulsory licensing for medicines under patent has resulted in a host of initiatives such as prize funds for pharmaceutical companies for the invention of life-saving medications, as an alternative to patenting. It is likely that similar questions concerning access will be raised with regard to HETs.

Such technologies will almost definitely be invented and patented within the contemporary intellectual property framework. There will be copyright in any embedded computer code in the functioning neuroprosthetic, and trademark over the commercialized product. As we have seen with markets for new pharmaceuticals, initial costs of these HETs will be high, and access in developing countries extremely limited.

For example, Angola has the highest proportion of amputees in the world, with approximately one in every 33 people missing one or more limbs as a result of the proliferation of landmines in domestic conflict. According to the UN, Angola constitutes a Least-Developed Country, exhibiting some of the lowest indicators of socioeconomic development in the world.

Arguably, Angola is both the country most in need of HETs such as neuroprosthetics, and the country most unlikely to benefit from such technologies. If there is a shift from a societal appreciation of the difficulties of disability and the associated regulatory response of modifying environmental factors to improve access to a view of individual obligation to overcome those disabilities through the use of such technologies, then the impact upon the economically disadvantaged is likely to be disproportionately high.

For this reason we must be wary of transhumanist arguments relying upon notions of individualism, emancipation and freedom of choice, as to do so ignores certain socioeconomic realities regarding the ability of individuals to be able to afford such treatments.

Are we greater than the sum of our parts?

As this albeit brief article has hopefully demonstrated, the socioeconomic and legal implications of the adoption of HETs are likely to be highly significant. While this discussion has focused predominantly on questions of the nature and treatment of disability, and questions of access and intellectual property, there are numerous other areas of law that may be impacted by neuroprosthetics ? security, surveillance and crime, for example, and biomedical law.

How society can incorporate such technologies, and how these technologies should be regulated are areas ripe for investigation by academics, law-makers and scientific research organizations.

Dr Benjamin Farrand is a Lecturer in Intellectual Property Law and Policy at the University of Strathclyde