The Legal Implications of Human Enhancement

Via the CrimProf Blog, I learned about a forthcoming article by Susan Brenner.  The title is, Humans and Humans+: Technological Enhancement and Criminal Responsibility, and the article will appear in Volume 19 of the Boston University Journal of Science and Technology Law.

Here is the abstract:

This article examines the implications our use of technological enhancements to improve our physical and/or cognitive abilities will necessarily have on the processes of imposing criminal responsibility on those who victimize others. It explains that while our use of such enhancements is still in its infancy, it is more than likely that their use will dramatically accelerate over the next century or less.

The articles examines how law has historically approached the concept of a “legal person,” with reference to “normal” humans, “abnormal” humans, animals, objects, supernatural beings and juristic persons. It also reviews how two other authors have analyzed the general legal issues our use of enhancements and other technological advancements are likely to raise.

The primary focus of the article, however, is on analyzing how criminal law will need to adapt once our world is populated by two classes of humans: Standard humans (basic Homo sapiens sapiens) and Enhanced humans (Homo sapiens sapiens whose native abilities have been augmented beyond the range of possibilities for their Standard brethren). I assume this very basic divergence between humans because it suffices for my analyses, and because I assume that creating a new species or subspecies of Homo sapiens sapiens is likely to be difficult and will therefore not eventuate in the near future. 

I use various scenarios, e.g., Standard perpetrator-Enhanced victim, Enhanced-perpetrator and Standard victim, to analyze how criminal law can, and should, adapt to a world in which all humans are not equal. I use statutory rape statutes as an example of law that is designed to protect a distinct and vulnerable class of humans, and speculate as to whether this approach could be extrapolated to Standard humans. I also explore the viability of extrapolating other, similar principles, such as vulnerable victims, into this context. And I briefly analyze the possibility that future law might address this situation by implementing a caste system to “protect” Standard humans from their superior counterparts. My goal is not to predict how future criminal law should deal with human enhancement but to note the likelihood that it will have to do so.

I've been interested in the legal implications of human enhancement since I ran across this BBC article on a joint report by the Academy of Medical Sciences, the British Academy, the Royal Academy of Engineering, and the Royal Society.  The report detailed medical and technological developments that would allow people to vastly improve their cognitive and physical capabilities in the future, and noted the need for discussion on the legal implications of these developments.  I am particularly interested in the concern that people who choose not to enhance themselves will be pressured to do so, or discriminated against in the employment context.

The report raises and addresses this concern:

Some commentators have pointed out that individuals who wish to enhance often do so primarily out of an intrinsic desire to enhance; any motivation to derive a positional advantage is secondary. However, Professor Brownsword noted that the nature of work means that any decision to enhance, whether by the employer or the employee, is made in an inherently competitive context; the competitive advantage gained is inescapable. Thus, work might be considered to be a unique or, at the least exceptional, context.  

This view gains further strength when we consider that employees are in a vulnerable position. . . . [T]here is a risk that enhancement technologies could be used as a substitute for improved working conditions to offset a very challenging working environment. Even if enhancement is not formally required, in particularly target-driven situations that look to maximise productivity, if an employer’s expectations are based on the performance of those using enhancers, then employee choice could be compromised. And if we extrapolate further, is it possible that those not using enhancers might eventually be considered ‘disabled’ in some way? There is an established view that a labour contract is different from other types of contract because of the relations of power and authority embedded in it.123 In addition, most employees are unlikely to be in a position where they can select a job and employer based on their rules about enhancement. It is likely that any such rules need to be accepted along with any other terms of employment. (p. 51).

This report and Brenner's article both highlight problems that can arise in very different areas of laws as a result of human enhancement.  I think that both areas are worth studying further, and I think that broader questions of equal protection in a world of human enhancements underlie both discussions, and raise some complicated legal concerns.