Abstract
Current scientific and technological advances have become the main focus of concern at the European institutional level. Indeed, politicians and institutions have become aware of the fact that scientific and technological innovation needs a guide as it does not float in an open space, but in a space that contains structures and borders: fundamental rights are the main borders that confine these developments. As a matter of fact, fundamental rights risk being violated in at least two main simple ways by ungoverned technological innovation: on the one hand, interest groups of a different kind may try to use the technological power to benefit some individuals to the detriment of others and even for unethical purposes like creating a surveillance society and so forth; on the other hand, individuals may be disadvantaged as regards their possibility of accessing new scientific advances due, for instance, to excessive costs or lack of availability of devices or treatments in a given context, and this in violation of equality and self-determination principles.
In this chapter, I will first analyse the relationship between the ‘age of rights’ and the ‘age of science and technology’ in order to put the discussion in context and to highlight the novelty of their interaction in the current European scenario. Secondly, I will deal with human enhancement focusing specifically on the ‘project of ‘moral’ bioenhancement’ (MB) as a case study. I will try to clarify what fundamental rights are at stake, and what possible direction this phenomenon could follow in legal terms in the European context.
The legal-philosophical approach that will guide the following considerations is one that accomplishes the task of map** and finding its bearings in different dimensions of human experience without getting lost in the secret rooms of specialty. The idea is to provide a roadmap for directing the legal discussion on these bioethical frontier issues.
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Notes
- 1.
Jonas (1984).
- 2.
Ibidem, p. 23.
- 3.
Rose (2007), p. 83.
- 4.
Calderoni (1924), p. 34.
- 5.
This expression is the title of Norberto Bobbio’s book L’età dei diritti. Bobbio (1990).
- 6.
Scarpelli (1986). Translation in English by the author of this chapter.
- 7.
On this topic, with special regard to human enhancement, see the EPOCH Report summary of a FP7-SIS funded project available at http://cordis.europa.eu/project/rcn/96892_en.html, under the Project ID 266660, United Kingdom.
- 8.
Borsellino (2018).
- 9.
Consider, for instance, regulations about informed consent, advance directives, euthanasia, and assisted medical procreation that despite the national differences have been widely legally regulated in the European context.
- 10.
The notion refers to issues concerning AI, robotics, human enhancement and so forth.
- 11.
See the RoboLaw project http://www.robolaw.eu/.
- 12.
Jasanoff et al. (2015), p. 26.
- 13.
Sparrow (2014).
- 14.
Allen Buchanan defines HE as “a deliberate intervention, applying biomedical science, which aims to improve an existing capacity that most or all normal human beings typically have, or to create a new capacity, by acting directly on the body or brain”, see Buchanan (2011), p. 11.
- 15.
Available at http://www.europarl.europa.eu/stoa/cms/home/studies?page=8, last accessed January 21, 2018.
- 16.
- 17.
For a criticism of possible reasons hiding behind the pursuit of perfection see Sandel (2009).
- 18.
MB may be achieved not only by means of pharmaceutical tools such as amphetamine, methylphenidate, antidepressants, beta-blockers and the like, but also by means of non-pharmaceutical enhancers like brain stimulation (deep brain stimulation DBS and transcranial magnetic stimulation TMS), implantable brain chips (quite visionary option), and gene therapy.
- 19.
See for details the articles collected in The American Journal of Bioethics, 2014, 14, dedicated to the ‘project of MB’.
- 20.
This notion was introduced by Herbert Hart in his analysis of criminal responsibility. To transpose the notion in the biolegal reflection may be useful to identify the model of law inspiring the human rights approach and also contributes to overcoming the dichotomic approach to the role of law in bioethical questions: bioconservatives v. transhumanists. According to Hart “we must cease […] to regard the law simply as a system of stimuli goading the individual by its threats into conformity. […] Consider the law […] as what might be termed a choosing system, in which individuals can find out, in general terms at least, the costs they have to pay if they act in certain ways.” See Hart (1968), p. 45. Hart’s conception is useful to support the model of the law that in bioethical matters plays the following roles: first, it prohibits abuses, not as an absolute mandate, but based on the precaution principle; secondly, it provides areas of freedom for the coexistence of different visions of life according to the principles of equality and autonomy; and thirdly, it provides specific tools for implementing the exercise of such freedom like for instance correct and non-ideologically connoted information to the public.
- 21.
Sparrow (2014).
- 22.
On this point see the theory elaborated by Ferrajoli (2007).
- 23.
National constitutions as well as the European Charter of Fundamental Rights have concretely established the condition of equality and non-discrimination. See for instance Art. 21 of the European Charter of Fundamental Rights, which states: “1. Any discrimination based on any ground such as sex, race, color, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited. 2. Within the scope of application of the Treaty establishing the European Community and of the Treaty on European Union, and without prejudice to the special provisions of those Treaties, any discrimination on grounds of nationality shall be prohibited.”
- 24.
Consider, for instance, the famous Chomsky-Foucault debate on human nature in the early part of the twentieth century. Unlike Chomsky, Foucault denies that the concept of human nature can have a scientific status. In Foucault’s view, concepts like human nature and life are not scientific. Rather, they have been used in history as epistemological indicators. Foucault writes: “In the history of knowledge, the notion of human nature seems to me mainly to have played the role of an epistemological indicator to designate certain types of discourse in relation to or in opposition to theology or biology or history”, see Chomsky and Foucault (2006), p. 6.
- 25.
““NATURE,” “natural,” and the group of words derived from them, or allied to them in etymology, have at all times filled a great place in the thoughts and taken a strong hold on the feelings of mankind […] The words have does become entangled in so many foreign associations, mostly of a very powerful and tenacious character that they have come to excite, and to be the symbols of, feelings with their original meaning will by no means justify, and which have made them one of the most copious sources of false taste, false philosophy, false morality, and even bad law”, wrote Mill in his Essay on Nature. See Mill (1885), p. 7.
- 26.
Kelsen (1957).
- 27.
Harris (2016), p. 14.
- 28.
See Farah (2015).
- 29.
The question whether preventative measures like vaccines are therapies or enhancements is still a very telling example. See on this point Harris (2010). But the question is also debated in relation to the distinction between ‘cosmetic’ and ‘therapeutic’ procedures, as the boundary again is fluid and uncertain.
- 30.
Sociologists and philosophers have dealt with this phenomenon. Some references: Broom and Woodward (1996), Conrad (2005), Ballard and Elston (2005). In general terms, medicalization has been defined as “a process whereby more and more of everyday life has come under medical dominion, influence and supervision”, see Zola (1983), p. 295.
- 31.
As testified by the Report of the Nuffield Council on Bioethics concerning Cosmetic procedures: ethical issues, released in 2017 we are faced with “neoliberal notions of the self”, by which it is meant: “the sense of a moral imperative for individuals to work upon themselves […] Commentators have identified the emergence of the ‘enterprising self’ who needs to be, and is exhorted to be, responsible not only for improving themselves […] but for continuous self-monitoring and self-evaluation”, at p. 15.
- 32.
These are the standard definitions of the terms ‘patient’ and ‘healthy’ to be found in the Oxford Advanced Learner’s Dictionary, 2010.
- 33.
In nonmedical terms this category is relevant in relation to cases of social and cultural discrimination.
- 34.
- 35.
See Salardi (2010).
- 36.
Losch (2015).
- 37.
The paradigmatic example is the ‘right not to know’ information deriving by genetic testing as enshrined in the Convention on Human Rights and Biomedicine and in other relevant regulations.
- 38.
On the conceptual distinction between these three moments of communication see Beauchamp and Childress (2013).
- 39.
Ibidem, p. 107.
- 40.
Ibidem, p. 121.
- 41.
Farah (2015), as the author underlines: “[t]he majority of the studies on enhancement effectiveness have been carried out on small samples, rarely more than 50 subjects, which limits their power” at p. 380.
- 42.
How easy new technologies can violate individual privacy is clarified by Farano (2014).
- 43.
The Stamina Case is a paradigmatic example. For more information see http://www.biodiritto.org/novita/news/item/330-dossier-staminali.
- 44.
This goal could also be achieved by revisiting the list of fundamental rights to include new rights able to protect individuals from possible negative effects of neuroscientific progress, on this point see the popular paper by Ienca and Andorno (2017). They suggest introducing the right to cognitive liberty, the right to mental privacy, the right to mental integrity, and the right to psychological continuity to effectively protect individuals in their private and intimate sphere.
- 45.
- 46.
As Stefano Rodotà writes: “Self-determination is […] identified with the life plan pursued by the person concerned […] for it is governed by the uninterrupted exercise of sovereignty, enabling that free construction of personality which we find enshrined at the outset of our own constitution as well as in others.” Rodotà (2012).
- 47.
Stirling (2015), p. 10.
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Salardi, S. (2020). When the ‘Age of Science and Technology’ Meets the ‘Age of Rights’. ‘Moral’ Bioenhancement as a Case Study. In: D’Aloia, A., Errigo, M.C. (eds) Neuroscience and Law. Springer, Cham. https://doi.org/10.1007/978-3-030-38840-9_12
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