▷ I’m Sander Rabin and I want to welcome you to this webcast.
▷ I want to begin by acknowledging:
☐ Margie Davino, who was able to arrange for me to conduct this webcast from the
☐ Trinity Conference Room
at the offices of
☐ Kaufman Borgeest and Ryan in New York City
As to myself,
▷ I’m a lawyer and a doctor; and, I serve on
☐ The Committee for Medical Research and Biotechnology of the ☐ HLS of
☐ NYSBA.
▷ It was there that:
☐ the legal impacts of human enhancement were first discussed; and,
☐ a team was created to raise the awareness of the BA membership on those impacts.
▷ Now, most people that I speak to have never heard of human enhancement,
so let me explain what human enhancement is.
☐ Human enhancement is what happens when medicine goes from
◇ healing to boosting,
◇ by which I mean,
◇ augmenting all that’s biological about us.
☐ In addition to raising special legal issues directed to specific practice areas, such as criminal law, trusts & estates, and property law, human enhancement:
challenges
◇ legal concepts and presumptions on which our system of law is founded; and,
◇ challenges the ability of our system of law to remain effective in regulating emerging and disruptive technologies.
▷So, I invite you to keep in mind the legal concepts of
☐ personhood,
☐ liability,
☐ rights & duties,
☐ sovereignty, and
☐ legal capacity & competence
☐ as well as how we will maintain the law’s role in in a world increasingly shaped by emerging and disruptive technologies that respect no national boundaries.
☐ You may be aware of a trend in our society that’s so pervasive that it’s largely gone unnoticed.
◇ It’s sort of like the air we breathe.
☐ It’s a trend that’s eroding what I call
◇ “the organic-inorganic divide “-
the increasing integration of organic living things with inorganic synthetic things.
☐ It started for me when I was a doctor, taking note of:
◇ cardiac pacemakers,
◇ cochlear implants,
◇ intraocular lenses. and
◇ total joint replacements
☐ replacing failed human tissues and organs with superior functioning medical implants.
▷The trend is called cyborgization; and, it’s presence and influence are unmistakable.
☐ Your most valuable possession is probably your smartphone;
☐ You are completely dependent on it; and,
☐ It’s loss would be experienced as disabling to your performance.
☐ The loss of no other material thing would cause you as much upset.
☐ The trend of cyborgization points to a certain kind of future –
◇ what I call a Probable, Very Likely Future
◇ I’ve named that future
○ the Age of Human Enhancement
☐ And the
◇ leading edge of this future has now hit the “shores of the law,” so to speak,
◇ with the development of advanced prostheses that are
○ wirelessly controlled by the thoughts of an amputees through a direct Brain-Machine-Interface and
○ which transmit tactile sensation to the amputee.
▷ Last month, I participated in a panel discussion that focused on the following questions
▷This panel explored whether individuals who rely on an advanced prosthesis to perform essential daily activities of living should be able to sue for personal injury when their prosthesis has been damaged by another.
☐ Currently, if someone’s prosthetic gets damaged in an accident, they cannot recover their lost time from work or lost enjoyment of life.
☐ They have only suffered property damage and are only entitled to recover the cost of the repair.
◇ A suspect class is a class of individuals that have been historically subject to discrimination.
“[W]e …[need] to … think about how the law will respond as the divide between human and machine becomes ever-more unstable. … [W]e [need to] consider how the law … will shift as we develop from humans who use machines into humans who partially are machines or, at least, who depend on machines pervasively for our most human-like activities.”
Benjamin Wittes and Jane Chong, Our Cyborg ☐ Future: Law and Policy Implications (September 2014).Available at
http://www.brookings.edu/research/reports2/2014/09/cyborg-future-law-policy-implications (last visited October 20, 2015).
▷ The direction of the trend of cyborgization is from:
Fixed ⇰ Portable ⇰ Wearable ⇰ Applicable ⇰Implantable
☐ Our bodies are becoming less distinguishable from the material products used to enhance them.
☐ The popularity of wearable technology points to a seamless integration of bodily and technological functions and suggests, not only a trend but, an emerging way of life.
▷ Cyborgization is an aspect of a new technological possibility called human enhancement.
▷ We’re all familiar with medical technology that’s used to:
☐ manage or cure disease; and,
☐ replace or repair damaged body parts.
▷ Human enhancement is the application of a variety of medically-relevant technologies to go beyond the restoration of bodily functions to the augmenting bodily functions.
▷ Human enhancement refers to the use of any technology to:
☐ extend the human lifespan; and
☐ boost human physical and mental capabilities beyond their inherent biological limitations.
▷DRIVERS OF HUMAN ENHANCEMENT
☐ IMMORTALITY
◇ To the extent that human enhancement seeks to radically extend the human lifespan, it’s the modern-day expression of a quest for immortality that’s been part of our human nature and history for millennia.
☐ CONTROL
◇ To the extent that human enhancement seeks to improve the human condition by optimizing our adaptation to the environment and our interaction with nature, it’s the modern-day expression of the tool-making that’s a large part of our human nature and history.
◇ Beginning with the stone axe, every technological advance can be viewed as a human enhancement.
☐ VANITY AND IDENTITY
◇ Plastic surgery, transexual surgery, hair transplantation, Botox, off-label uses of human growth hormone and testosterone, anabolic steroids, Viagra and it’s female analogue filbanserin, are current products an procedures of human enhancement technology.
☐ MEDICALTECHNOLOGY
◇ Regenerative medicine, stem cell technology and bionic implants are poised the blur the line that divides
○ healing and restoration from ○ enhancement.
◇ The unspoken goal of regenerative medicine is radical life extension.
☐ DIGITAL CULTURE
◇ The Apple watch is an icon of our digital culture.
◇ This culture is generating a growing demand for information relating to fitness and well-being.
◇ Biohackers and neurohackers want biological and neurological data out of their own bodies.
☐ Grinders are people who are implanting digital devices into their bodies on their own.
▷ As of 2015, there are no laws anywhere on human enhancement.
▷Human enhancement enabling technology (“HEET”) is a set of emerging technologies that extend the human lifespan, or augment human physical and mental capabilities.
▷Included among these technologies is;
☐ Biotechnology (including synthetic biology [explain, as necessary] and genetic engineering;
☐ Computer Technology (including artificial intelligence and robotics);
☐ Neurotechnology; and,
☐ Nanotechnology
▷ The artifacts of HEET are all around us, although currently limited to restoration, as opposed to augmentation.
▷Transhumanism is a philosophy and a [political] ideology that supports
☐ freedom of choice and
☐ freedom from coercion
in the use of HEET
☐ consistently with the maintenance of a stable democratic society
▷ Transhumanism stands on four human or civil “rights”:
☐ “Morphological Freedom:”
○ a right to amplify human physical abilities and lifespan;
☐ “Cognitive Liberty:”
○ a right of privacy for thoughts and feelings where they show up within the brain
and
○ a right to amplify human mental abilities;
☐ "procreative liberty:”
○ a right to produce genetically enhanced children; and,
☐ "participant evolution:”
○ a right to genetically modify forms of life and to bring new forms of life into existence.
▷ The leading edge of the Age of Human Enhancement has already arrived.
☐ The issues are no longer hypothetical.
☐ Here are a few current examples.
Chris Bryant and Richard Waters
Worker at Volkswagen plant killed in robot accident
Financial Times
July 1, 2105.
http://www.ft.com/intl/cms/s/0/0c8034a6-200f-11e5-aa5a-398b2169cf79.html#axzz3oT5vFDcv
Kia Kokalitcheva
Worker killed by robot at VW plant
Fortune
July 1, 2105
http://fortune.com/2015/07/01/volkswagen-factory-death/
▷ Only legal persons have legal rights and duties.
▷ Only legal persons are entitled to constitutional protections.
▷The capacity to enter into legal transactions outside of court and the competency to invoke the law within a court are afforded only to legal persons.
▷ A most critical legal issue will be whether nor not constitutional protections are afforded to human hybrid creations of human enhancement, (virtual) artificial intelligence entities and robots.
Stuart Russel
Ban lethal autonomous weapons
The Boston Globe
September 8 2015
https://www.bostonglobe.com/opinion/2015/09/07/ban-lethal-autonomous-weapons/2yI2wF0wWRjHLmNQkPiCpI/story.html
▷ Who’s the legally responsible agent?
▷ Where is the legally responsible agent?
Annie Jacobsen
Engineering Humans for War
Financial Times
September 23, 2105
http://www.theatlantic.com/international/archive/2015/09/military-technology-pentagon-robots/406786/
“Soldiers having no physical, physiological, or cognitive limitation will be key to survival and operational dominance in the future.”
“The objective of this effort,” … “is to use remote teleoperation via direct interconnections with the brain.” The bigger objective was to allow future “soldiers [to] communicate by thought alone … .”
▷ What’s at Stake?
☐ In the novel Amped, [Daniel H. Wilson, Amped (2012) ] children implanted with neural prostheses to control epileptic seizures find that their intelligence is enhanced, and are denied legal characterization as a protected class, entitled to anti-discrimination provisions of the XIVth amendment. The article appearing in the New York Times on July 9, 2014 [Benedict Carey, Probing Brain’s Depth, Trying to Aid Memory. New York Times, July 9, 2014] eerily foreshadows this plot element of Amped.
☐ What’s at stake is a new human divide between the enhanced and the un-enhanced.
☐ What’s at stake is an employment divide between people with intelligence and the artificial intelligence.
Stephanie K. Baer
Birth control for mosquitoes?
It’s happening in the San Gabriel Valley
The San Gabriel Valley Tribune
October 11, 2015
http://www.sgvtribune.com/general-news/20151011/birth-control-for-mosquitoes-its-happening-in-the-san-gabriel-valley
A gene drive is a technology for perpetuating a genetically engineered trait into an endless succession of generation of a living species.
Vivek Wadhwa
Why there’s an urgent need for a moratorium on [CRSPRcas-9] gene editing
The Boston Globe
September 8, 2015
https://www.washingtonpost.com/news/innovations/wp/2015/09/08/why-theres-an-urgent-need-for-a-moratorium-on-gene-editing/
▷ CRISPR stands for:
☐ Clustered
☐ Regularly
☐ Interspaced
☐ Short
☐ Palindromic
☐ Repeats,
which describes a process in nature that scientists have harnessed to precisely edit DNA
▷ People are concerned about potential abuses of CRISPR
☐ Hence the call for a moratorium
☐ The limitation of national laws to:
◇ sovereign geographic boundaries
in the setting of
◇ globalization
presents formidable problems of
◇ regulatory compliance and
◇ law enforcement.
▷ The approach taken by the U.S to assess and manage the risks associated with the use of genetic engineering and the release of GMOs into the environment is ☐ The Coordinated Framework for Regulation of Biotechnology.
▷ For a GMO to be approved for release in the U.S., it must be assessed under the
☐ Plant Protection Act
by the
☐ Animal and Plant Health Inspection Service (APHIS)
of the ☐ USDA and may also be assessed by the ☐ FDA and the ☐ EPA.
The problem is the use of 19th century distinctions in biology and ecology that have little or no relevance to the nature and potential impacts of a GMOs in the 21st century.
Olga Khazan
Smart' drugs are getting a lot smarter, Business Insider September 6, 2015
http://www.businessinsider.com/smart-drugs-are-getting-a-lot-smarter-2015-9
In “Probing Brain’s Depth, Trying to Aid Memory,” NYT (July 9, 2014), the Department of Defense announced a $40 million investment indirect brain recording.
UPenn and UCLA won contracts to develop brain implants for memory deficits.
While the aim is to develop new treatments for traumatic brain injury, whose most devastating symptom is the blunting of memory and reasoning, researchers see the potential of this technology for enhancement of memory and cognition.
http://nyti.ms/VHV3xV
This is an appropriate time to bring up the subject of Neurosecurity, which we’ll talk more about.
▷Cognitive liberty is becoming more important as technological advances in neuroscience allow for an ever-expanding ability to directly interrogate and influence the mind.
▷Neural implants and drugs that enhance cognition and memory will be relevant in deciding legal capacity, competence, and intent.
▷If the neural correlates of thinking and deciding are reduced to a neuro-genetic program, the legal presumption of free will and the legal attribution of responsibility are likely to come under challenge.
▷In October of 2014, the FDA published a nonbinding guidance to medical device manufacturers to prevent medical cybersecurity breaches:
☐ 2010: Anti-virus software stops treatment of ER patients
☐ 2011: wireless insulin pump models vulnerable to attack
☐ 2013: hard-coded passwords make access easy to ventilators, surgical & anesthesia equipment
☐ 2006 - 2011: 5,000 recalls & 1 million adverse medical device reports to FDA
☐ 2014: Still no mandatory national reporting system for security incidents on medical devices
▷The meninges, is a three-ply membrane which envelopes the brain.
☐ It may well be our last barrier of privacy - the metaphorical ‘Alamo’ of the central nervous system.
▷Denning, T., Matsuoka, Y., and Kohno, T., 2009. Neurosecurity: security and privacy for neural devices. Neurosurg Focus 27(1): E7, defined the term “[medical] neurosecurity” and called for the design of implantable neural devices that are secure in the face of adversarial attempts to co-opt their clinical functions to perform intrusive actions, possibly associated with increased patient morbidity and mortality.
☐ It remains uncertain whether neurosecurity is being adequately addressed
◇ in the design and programming of implantable neural devices,
◇ in the design and programming of neurodiagnostic equipment, and
◇ in the collection and storage of neurodata,"
defined in Hallinan, D., Schütz, P., Friedewald, M., and de Hert, P., 2014 Neurodata and Neuroprivacy: Data Protection Outdated? Surveillance and Society (12)1.
Amy Harmon
A Dying Young Woman’s Hope in Cryonics and a Future
New York Times September 12, 2015
http://www.nytimes.com/2015/09/13/us/cancer-immortality-cryogenics.html?_r=0
“Cancer claimed Kim Suozzi at age 23, but she chose to have her brain preserved with the dream that neuroscience might one day revive her mind.”
▷Exemplary Legal Issues Presented by Life Extension and Cryogenic Preservation
▷ Longer life spans will impact relationships and family structures, raising issues of
☐ family law,
☐ elder law,
☐ health care law, and the
☐ law of trusts and estates.
▷Right to Bodily Integrity
☐ Autonomy in Support of Property
☐ Autonomy in Support of Privacy
☐ Dignity, Personhood, Sanctity
▷The right to “bodily integrity” rests on an inconsistent and internally contradictory theoretical foundation.
☐ For example, harmful uses of the body, as in mining, are routinely bought and sold but sale of parts of the body, is generally illegal on the grounds that it is harmful.
Gowru Ramachandran, Against the Right to Bodily Integrity: Of Cyborgs and Human Rights 2 DENVER UNIVERSITY LAW REVIEW Vol. 87 11/4/09 available at: http://ssrn.com/abstract=1434712
▷The overarching legal issues of
☐ personhood,
☐ competence and capacity in relation to intention and responsibility,
☐ locus of liability
will soon give rise to issues relevant to all specialized areas of legal practice.
▷There are also fundamental questions to consider, such as:
☐ What is the relationship of law human enhancement?
☐ What is the source of law for human enhancement?
☐ What kind of legal paradigm will be effective in regulating human enhancement?
☐ What values, concepts, and rights of our legal system are essential to a society in which HEET is deployed?
☐ What rules of distributive justice will assure that the deployment of HEET is beneficial and robust?
☐ How can the competing values of personal neurosecurity, national security and global security be reconciled within a legal framework?
