Brief considerations about Neuralink's ambitions

The purpose of this essay is to convey my opinion about Neuralink's ambitions and the consequences that the future breakthrough of the technology developed by this company may have on people, within the framework of bioethics, human dignity and human rights. In this essay I will discuss the issues of whether technology should become available to the public, whether people should have the right to use it and whether or not people have a right to try this technology for therapeutic or non-therapeutic purposes even though it has not been proven safe yet.

1.        

The first thing the reader should know is what Neuralink is. Neuralink is a company which belongs to the serial entrepreneur Elon Musk, founder of Tesla and Space X, registered in the state of California as a medical research company in July 2016. According to the Wall Street Journal, the company investigates explicitly how to implant sensors in the brain so that we can transmit thoughts that the machines understand. That is, to create a symbiosis between the machine and the person, something eternally explored by science fiction, but that Musk wants to make a reality.

This company will first be focused on treating brain disorders with the use of their new technology. For example, epilepsy, depression or Parkinson's disease could be treated. We are not talking about technology that can connect to a telephone and perform day to day tasks. We are talking about technology that can make the brain have a layer of artificial intelligence that allows greater control of the human performance.

If this technology can be proven effective and safe, computer-connected implants could be used in systems, to connect to the internet literally and to achieve faster cognitive functions. This technology would allow the brain to process and generate informational fast as it is incorporated.

2.        

The next thing the reader needs to know is whether this technology should become available to the public or not.

Here we will analyse the legal implications of the development of these technologies and the need for regulation. In 2017, Marcello Ienca, researcher at ETH Zurich, one of the best science and technology universities in Europe, published a document outlining four specific rights for the age of neurotechnology: (1)

1. The right to cognitive liberty: to freely decide the use of a given neurotechnology or to refuse it.

2. The right to mental privacy: to seclude the brain data or to publicly share it.

3. The right to mental integrity: not to be harmed physically or psychologically by neurotechnology.

4. The right to psychological continuity: to be protected from alterations to the sense of self that have not been authorised.

According to these points from Ienca, there will have to be some kind of regulation that promotes the revamping of human rights due to these new technologies. This will be seen later on, when we deal with the issues of whether people could try Neuralink's technology for therapeutic or non-therapeutic purposes even though its safety has not yet been demonstrated.

In terms of the future regulations of these activities, three perspectives will have to be analysed within the bioethical triangle: Liberalism, Utilitarianism and Communitarianism.

In my opinion, this new normative framework should contemplate a perspective from the vision of communitarianism.

This philosophy advocates the protection of communal values and virtues and, therefore, a politics of the common good. According to communitarian philosophers, today's liberal society is too much focused on the individual. They argue that, in order to protect certain common values in society, such as citizenship, solidarity or dignity, governments are even allowed, under the circumstances, to set limits to individual freedoms and choices

This line of thinking can, ultimately, also imply certain duties toward oneself. "Your body is a gift that should be handled with care and respect, also by yourself", many communitarians will argue.

3.        

The third point that is going to be discussed in this essay is whether people would have the right to use this technology or not, and if so under what circumstances.

Going back to what Ienca says: "I'm very concerned about the commercialisation of brain data in the consumer market ...and I'm not talking about a farfetched future. We already have consumer neurotech, with people trading their brain data for services from private companies." I'm tempted to call it neurocapitalism. (2)

So here we start to analyse the concepts of human dignity and self-determination as well as the distinction between people and things.

Firstly Human Dignity and Self Determination will be analysed. The humanistic foundations of liberal legal systems are no longer evident. In one hand, this can especially be seen in debates about the meaning of the legal principle of human dignity. While some liberal authors, such as Mill, Locke and Kant, also recognise certain restrictions to bodily self- determination, on the other hand, authors such as Andorno say that "human dignity plays a crucial role in the emerging global norms related to bioethics and Human Rights" (3)

Respect for people's humanity requires respect for their bodies. Human dignity presupposes a certain unity or special connectedness of person and their body.

We can either interpret Human dignity as empowerment or Human dignity as constraint. The first concept considers human dignity as respect for autonomy, while the second consider human dignity as protection against instrumentalisation or objectification.

Biomedical technologies require a greater understanding of the concept of humanity that underpins the human rights concept. The principle of human dignity is totally controversial. However, it should still be applied in the biomedical development's regulations and find a balance between both dimensions from the human dignity.

Secondly we will analyse the topic of persons and things. According to Kant (4), persons can be distinguished from things because of their rational nature; this is the capacity they have of making autonomous decisions. Persons have dignity, things a price. On the other hand, scholars as Dickenson describe the biomedical view of the relationship between person and body 'New biotechnologies disaggregate the body, robbing it of its organic unity and encouraging the view of body parts as separate components which do not sum to anything more than their compilation" (5)

Evidently, the final result of Neuralink's developments would achieve an enhanced human result that could open the debate about person and thing.

According to Koops (6), in general this will not affect the current catalogue of fundamental rights, but we may have to add new fundamental rights as the right to identity for clones, mental integrity for cyborgs and a right to forget or be forgotten.

Fundamental rights has consequences for the development of human enhancement.

4.        

The final point to be discussed is whether people could try these technologies for therapeutic or non-therapeutic purposes when it has not been proven safe yet.

As we have previously discussed some kind of new regulation should revamp the human rights in light of these new technologies. In order to be able to examine this topic and its answer, our analysis will be from the practical side rather than the theoretical one. For this, we will be referring to the case of the European Court of Human Rights, HRISTOZOV AND OTHERS v. BULGARIA (Applications nos. 47039/11 and 358/12) (7)

In this given case, the judgement analysed whether the denied authorisation for several cancer patients when they were in their last phases, to use an experimental medicine (which was not marketed in any country, but was authorised in some countries for humanitarian purposes) infringed the European Convention on Human Rights.

The Court decided that art 2 ( Right to life ) and art 3 ( Prohibition of torture ) of the convention had not been violated. Regarding art 8 ( Right to respect for private and family life ) the Court decided that the concept of wide margin of appreciation could be used by the state to establish a balance between private and public interests or for the rights of the convention.

Furthermore, the ECtHR considers that the Bulgarian authorities have decided to balance the interests by allowing patients who cannot be treated with medicines to obtain, under certain conditions, medicines that are authorised in other countries. Therefore, given the wide margin of appreciation of the authorities in this matter, the regulated solution does not infringe Article 8.

Therefore, in a hypothetical case of request for justice by people who would like to experiment when this new technologies has not yet been declared safe, we could consider a similar solution to the previously described judgment.

As the reader must have already deduced, my opinion about Neuralink's ambitions is in favour of the development of technologies that allow the connection between biological intelligence and digital intelligence. Perhaps when we reach this stage, as Mask says, we can keep up with the pace of AI or maybe, in my opinion, thanks to this kind of human-machine symbiosis we will continue to have a last "human" instance in the decision-making process.

I believe that technological development should not be stopped, but always taking into consideration humanity as a juridical good protected within the framework of human rights.

From the legal and bioethical point of view, as current regulations are not made to understand where the human beings and machine begin and end, the regulation of biomedical developments must not only contemplate the protection of individual rights, the threat of material damage or public health interest, but also, and perhaps in the first place, the protection of humanity.

As Sigal Samuel said, "your brain, the final privacy frontier, may not be private for much longer." (8)

(References)
        

1 S. Samuel, 'Brain-reading tech is coming. The law is not ready to protect us' (2019)

(2) Ibid

(3) Roberto Andorno on human dignity as biolegal principle (2009)?

(4) Immanuel Kant, Groundwork for the Metaphysics of Morals (1785)

(5) Donna Dickenson, 'Do we all have feminised bodies now?' (2007)?

(6) Bert-Jaap Koops, 'Concerning 'Humans' and 'Human' Rights: Human Enhancement from the Perspective of Fundamental Rights' (2013)

(7) ECtHR, Hristozov v. Bulgaria (2013)?

8 S. Samuel, 'Brain-reading tech is coming. The law is not ready to protect us' (2019)