Is the Law Ready for Emerging Neuroprostheses?

By Tugba Basaran Akmazoglu and Jennifer A. Chandler

Image courtesy of Pixabay/RAEng Publications 
As technology has advanced, human treatment and enhancement capabilities have expanded to the point where some technologies are now merging with humans, and the boundaries and components of the human body have become fluid. Technological transformation from prosthetic limbs to AI-enabled, smart neuroprostheses; and from traditional organ transplantation to artificial hearts, insulin pumps, and bioprinting has triggered a paradigm shift in social, ethical and legal concepts as well as in medical perceptions. What kinds of legal claims may arise in relation to these human-object assemblies? Are the instruments in the law’s toolkit adequate to resolve issues arising in relation to these technologies of the body and mind? Is a person’s prosthetic arm worthy of the same legal protection as a natural body part? Or is it just a piece of property? Is damage to one’s exo-skeleton bodily injury or not? Are the end user license agreements applicable to the software included in a pacemaker or neuroprosthesis in violation of one’s integrity and personality rights? Who should be given priority in the use of a ventilator? A patient with chronic lung disease, who has long relied upon a ventilator and regards it as part of her body, or a newly hospitalized COVID-19 patient? And why? What if someone “hacks” a neuroprosthesis, e.g., a brain computer interface (BCI) controlling a robotic prosthetic limb? Will courts address this as an ordinary cybersecurity breach? These and many more questions are discussed in the academy in theoretical terms. With the law of accelerating returns in mind, one can foresee that courts will have to deal with such cases as the use of these integrated devices, sometimes controlled in part using artificial intelligence (AI), becomes more widespread, confronting legal systems with human beings that have become hybrid systems.

In the forthcoming chapter “Mapping the emerging legal landscape for neuroprostheses: Human interests and legal resources” we explore the broad question of whether the principles and concepts used in Western legal systems are ready to answer such questions and adjudicate in concrete cases, and what kind of a legal logic they can use to do this. As a key function and duty of the law is to balance the competing and conflicting interests of different parties living under a legal system, we first identify the interests users have in neuroprostheses and more generally in all prosthetic devices, which will have to be weighed against the interests of others. 

To do this, we retrace plausible disputes back to the original point of departure: the relationship of the human person with the prosthesis in question. 

We sketch out basic relationships and fundamental interests that human beings as users of these devices may have in these technologies. We propose 6 groups of human interests that are raised by prostheses, including neuroprostheses, as: (a) physical integration and the harm of removal, (b) phenomenological integration and the harm of disruption, (c) reliance interests and survival, (d) reliance interests and human functioning, (e) social interests and (f) informational interests. 

These user interests are, in a way, reflections of how a person might see the interests and harms related to the use of prostheses. Yet, how the law sees them is shaped according to its own systems of categorization. 

Summa divisio, suum, proxemics, human-object continuum

Image courtesy of 
Wikimedia Commons/WebHamster
Law treats its subjects differently according to the categories it has created. The Western legal tradition has always put the human in the centre. In this anthropocentric system, all other animate and inanimate subjects of the law are placed in the category of “things”. As a result of this historic summa divisio, the legal protection afforded to objects gradually weakens as they are placed further than the human person, who is placed in the centre with the ultimate legal protection. 

Hence in the sense of proxemics, the closer a thing is to the human person either physically or psychologically, the more it is considered worthy of protection. In Radin’s terms, those things closer to the person are regarded as constitutive of his or her personhood; thus, a wedding ring is afforded better legal protection by the courts—e.g., higher amounts in damages—than other more fungible property. While Radin’s property theory is based on psychological rather than physical proximity, the concept of suum argued prominently by Grotius draws an invisible circle around the person. Any violation of this human-centred sphere of protection covering the limbs, body, and life, and also liberty, reputation, and honor would accordingly constitute an attack on the personality of the person.  This gradation of protection is a reflection of the person-thing continuum in law, divided into categories as mentioned above. Then where in this continuum do neuroprostheses stand? Answering this question will also identify how the law treats or is expected to treat these technologies. And this is what our Chapter seeks to address by mapping out the fundamental interests a person may have in relation to neuroprostheses. The rough taxonomy of human interests in these technologies provided in our work, may it be phenomenological or survival interests, point at an area of the personality sphere or human-object continuum that is the closest to the person, therefore worthy of stronger protection by analogy to the customary approach of the law. Proximity, bodily and mental functionality, and intention to use, we believe, are the key aspects in inferring the importance of human interests in and the person’s relationship with prostheses.

Concluding on the distinctive place of these intimate technologies in the continuum, exemplified by proliferating real-life cases, we then ask, how does the law address them and how does it solve issues involving these devices? Examples from the case law tell us that courts comfortably attend to such cases by selecting from within their legal toolboxes the most appropriate instruments available there. For instance, the French Cour de Cassation held that prostheses that are an integral part of the human person cannot be seized due to non-payment, and they follow the legal regime of the body.  Therefore, any attack or harm to these artifacts while they are still in the body are considered bodily harm. Implants and prostheses are subject to the property regime before they are incorporated into the body and after they have been removed by the user voluntarily. This approach of the court was a result of an analogy made to the Roman property law principle accessio following the maxim accessorium sequitur principale: i.e., the accessory follows the principal.

Plasticity of the Law

Image courtesy of
Wikimedia Commons/Ydomusch
Just like the plasticity of the brain, we can say there is plasticity of the law. It is oftentimes used as a tool for social engineering in the hands of policymakers and governments. It creates and uses fictions to meet its ends. We all know that legal personhood is not a status limited to human beings, and over time, the law has created other fictional persons and attached legal personhood status to other things for various reasons. The history of the law is a witness of its capabilities to create legal fictions. While once slaves, women, children, foreigners, and persons of color were excluded from the privileged band of “persons” in some places and at some times; non-human things and places such as rivers (e.g. Whanganui river in New Zealand and Ganga and Yamuna in India), the entire animal kingdom in India, Mother Nature in Bolivia and Ecuador, corporations, associations, and religious objects in India have been granted legal personhood and turned into subjects of rights. There have been discussions on whether to give legal personhood to robots, and a robot named Sophia has even been granted citizenship by Saudi Arabia.  

This legal plasticity also allows some artifacts and animals, such as wedding rings and companion animals, to be afforded stronger protection owing to their proximity to their owners. This can be seen as the extension of the legal protection afforded to the “person.” These animals and artifacts are not protected on a different basis per se, due to their intrinsic nature, but because of their connection with the person and as a part of their personal spheres. You can visualize it as an expanded part of the protective bubble surrounding the person. This is how the law works and it is an indication of its instrumental nature. It is capable of creating fictions and fictional protection bubbles. 

Law fundamentally protects the person, which includes the organic body and also mental integrity. It also protects everything that is person-related on a spectrum according to its degree of central importance to personhood, e.g., a person’s home, furniture, intellectual creations, personal belongings, reputation, land etc. Therefore, it would seem that objects constitutive of a person’s physical and mental functioning would receive the special legal protection proper to the person, i.e., the inner circle.

Emerging technologies now finding their way to being integrated with the human body in the form of e.g., brain-computer interfaces, deep brain stimulators, and mind-controlled bionic limbs, and which involve AI-enabled software components, raise questions about how existing laws apply to these devices and whether the laws need to be modified—whether we need e.g., neuro-specific human rights and so on. Just like the notion of the plasticity of the brain in neuroscience, the law is plastic as evidenced by the flexibility of the concept of legal personhood, which is only the most prominent of many examples. As such, with reference to our example of the courts’ borrowing the Roman property law principle in adjudicating a case concerning a prosthesis, rules governing body parts, fungible properties, or more intimate and personality-constituting property may be applicable to different aspects of neuroprostheses and prostheses in general, depending on the circumstances. Likewise, with regard to the topical discussion on the need for novel neurorights, we should be wary of “rights inflation” – the risk of diluting the weight of human rights when they become too numerous and narrowly specific - as voiced by Prof. Winickoff. In this sense, instead of starting by creating and adopting brand new rights from scratch, a first step would be to determine whether existing rights could be clarified, re-interpreted, or expanded.  This would also be in accord with and within the limits of the flexibility and plasticity capabilities of the law. 

______________


Tugba Basaran Akmazoglu is a Ph.D. candidate at the University of Ottawa Common Law Department, currently doing research on legal questions stemming from human-technology interaction and integration.






Jennifer A Chandler is a Professor of Law at the Centre for Health Law, Policy and Ethics, University of Ottawa, Canada, focusing on the law, ethics and policy of advanced biomedical technologies.







Want to cite this post?


Basaran Akmazoglu, T. & Chandler, J. A. (2021). Is the Law Ready for Emerging Neuroprostheses? The Neuroethics Blog. Retrieved on , from http://www.theneuroethicsblog.com/2021/06/is-law-ready-for-emerging.html

Comments


Emory Neuroethics on Facebook

Emory Neuroethics on Twitter

AJOB Neuroscience on Facebook