Although neurosciences[1] open up vast therapeutic avenues, they are not entirely risk-free and international regulation is required.
The information contained in the human brain is becoming increasingly accessible with advances in neurosciences. Although they are currently at the forefront of cutting-edge research, it is easy to imagine that, one day, these advances could backfire. How could international law protect human rights then? This was the last question that Roberto Andorno, Associate Professor of Bioethics and Biomedical Law at Zurich University’s Faculty of Law, and former member of the UNESCO International Bioethics Committee, [2] attempted to answer during a seminar organised by the ECLJ in Strasbourg on 10 February 2018. As far as he is concerned,“we need new human rights in order to respond to the latest issues”.
Neurosciences’ onslaught of the brain
In fact, advances in science pose a challenge to humans and demand safeguards to ensure that human rights and the social good are duly protected. Values at stake include the intrinsic dignity of humans, human life, integrity, the human body, identity, family relationships, family ties and parentage, etc.
Our current understanding of the mechanics of the human brain is developing, and may give the impression that we try “to explain everything via the brain”. Neurosciences have introduced new therapeutic diagnostic tools with brain-computer interfaces in particular (see A brain-computer interface to diagnose levels of consciousness and the account by Doctor Owen, who communicates with patients in a vegetative state) or via functional cerebral imaging.
The direct neuronal interface involves connecting the brain to an external device to repair defective communication in patients. This is how some can move an arm and walk thanks to prostheses connected to their brain[3]. Experiments have also been carried out in patients with locked-in syndrome.
Medical engineering and freedom of thought
The second technology uses medical imaging and interprets moving images instead of simple fixed images. Imaging can provide a better diagnosis and therefore offers more appropriate treatments. However, it also leads to the option of indirectly “reading thoughts”. It does not read thoughts that are intangible but analyses the correlations of our thoughts from a neurological standpoint. This part of the brain is activated in this way, etc. This approach can be used to link a certain activity to a word, an activity or a memory, and to reconstitute the thoughts of an individual. The process is still very approximative but it is reliable as a lie can be detected in 90% of cases! Indeed, different parts of the brain are activated depending on whether a person is lying or telling the truth. The device can also establish whether a person recognises a place or an individual, etc. What about using it in a legal context?
A computer-guided procedure potentially exposes us to the handling of information or transmission of signals. The information contained in the brain could be used for non-therapeutic purposes, unbeknown to the individual: the entire process of thinking is under threat here. The brain is the last refuge of freedom for a human being. “In the past,” explains Roberto Andorno, “an individual could be imprisoned or tortured, but would continue to think his own thoughts”. This new technology is gradually paving the way to handling thoughts directly, to crossing the barrier of certain memories. “This is worrying and calls for us to reflect on the introduction of new rights in this area” – and therefore new ways of protecting individuals.
Extending the scope of human rights
Roberto Andorno is considering introducing a “right to private mental life” to safeguard mental confidentiality against unwelcome intrusion but also against the collection, circulation and use of mental data. The right to private life already exists. This protects our personal data circulated in the public domain, but “in this case, we are in the domain of thought – information that is intimately linked to our personality and what we are. It goes beyond the right to private life”.
On a broader note, the law questions its limitations. As the process of cerebral imaging is non-invasive and causes no damage, are there situations where it may be legitimate to read a person’s thoughts without his or her consent, with the authorisation of a judge? In criminal scenarios, for instance, or during terrorist attacks?
This then triggers a “right to mental integrity” to protect the confidential information retained in a person’s brain against potentially damaging intrusion, in order to preserve his/her identity. In Parkinson’s disease, for instance, brain stimulations are used in an attempt to treat the symptoms of the disease but they may have side effects and even alter an individual’s personality (see Handling the human genome: between Hippocrates and Bellerophon): an introvert may become an extrovert or even an exhibitionist. Families no longer recognise their loved ones. This law would be introduced in order to ensure continuity in the perception that we have of ourselves or of what we are – because, as fascinating as they may be, these discoveries must not pose a threat to the individual.
[1] Neurosciences is the umbrella term given to all scientific disciplines aimed at studying the nervous system and its disorders. The human nervous system comprises the spinal cord, brain, nerves, autonomous nerves system and the organs that control the senses.
[2] Author of Principles of international biolaw (Brussels, Bruylant, 2013).
[3] “A brain-machine interface (BMI) refers to a system directly linking the brain and a computer, enabling an individual to carry out tasks without using the peripheral nerves and muscles. This type of device can be used to control a computer, prosthesis or any other automated system via thought, without involving the arms, hands or legs. The concept dates back to 1973. Tests were initially carried out in humans during the mid-1990s”. Source: INSERM.