Can “Synths” and “Posthumans” have Human Rights?

In the recently-finished third season of the intelligent drama Humans [spoiler alert…], the government has set up a Commission under the chairmanship of Lord Dryden to consider the legal status of synthetic robots (Synths). These creatures had become conscious at the end of the previous series (if you want to know more, I do recommend that you watch the box set).

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Mia (Gemma Chan) is a central character in the first three seasons of Humans

Against that backdrop, I was especially interested to read a new paper in the Medical Law Review by David Lawrence and Margaret Brazier. Legally Human? ‘Novel Beings’ and English Law considers ways in which the European Convention on Human Rights and English case law might be brought to bear on the legal status of human-like creatures. The authors favour the description of such beings as “sapient” rather than the more common “sentient”, not least as sentience was famously used by philosopher Jeremy Bentham as justification for broadening protection from suffering to non-human animals.

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Lawrence and Brazier examine three types of entity whose production is scientifically-plausible using existing technologies (whilst acknowledging that other methods might emerge in the future). These creatures are:

Posthumans – i.e. individuals with human ancestry who become enhanced via “a range of technologies and techniques which aim radically to increase, or improve, or grant new capacities to the existing human body including the brain” (p313). Genetic manipulation, ingestion of nootropic drugs and/or the use of prosthetics might contribute to this development.

Artificial Genetic Intelligences (AGI) – i.e. computer-derived sapients, exhibiting human-like cognitive functions. In the jargon, these would be “strong AI” as opposed to “weak AI” aka “applied AI”. The latter category are not capable of true though, only the ability to faithfully adhere to a series of logical rules, albeit with an element of refinement via machine learning. According to Lawrence and Brazier, a truly conscious AGI would need “to be able to perceive and understand information; to learn; to process language; to plan ahead and anticipate (and so visualise itself in time, an important element of most philosophical conceptions of personhood); to possess ‘knowledge representation’ or the ability to retain, parse, and apply the extreme number of discrete facts, truths, and logical paths that we take for granted, and to be able to use this information to reason; to possess subjectivity; and much more” (p314-315). This is the kind of entity central to the story of the Humans series mentioned in the opening, and of a broader range of Science Fiction scenarios including Ex_Machina and, from a previous generation, Bicentennial Man.

Synthetic Biological Constructs – the authors combine definitions of synthetic biology from Nakanodesigning and constructing biological modules, biological systems, and biological machines for useful purposes” with another from Benner and Sismourseek[ing] to assemble components that are not natural (therefore synthetic) to generate chemical systems that support Darwinian evolution (therefore biological)” (p534 in original). This route has to be considered plausible following the achievement of Craig Venter and colleagues in (re)creating organisms with entire genomes produced via chemical synthesis.

The much-touted manufacture of Mycoplasma laboritorium (nicknamed “Synthia”) in 2010 involved reconstruction of a barely-changed genome from M. mycoides transplanted into a M. capricolum cell as a chassis. Their more recent work, which received less press coverage, despite being of greater scientific significance, involved them taking their original synthetic genome and halving the total amount of DNA present. Fuller discussion of these elegant experiments is beyond the scope of this current review (Lawrence and Brazier do not go into the details) but I hope to post a summary of Venter’s 2016 paper at a later stage. For the moment, the key point is to note that understanding of chemical construction of genomes is advancing rapidly. It is not trivial, but the lessons learned in reducing the M. mycoides genome to a mere 438 protein-coding genes plus 35 RNAs are developing understanding that might on day facilitate the more complex task of streamlining the estimated 21,000 genes of the complete human genome.

How an artificially constructed “person” would be gestated is a significant point (with legal implications, as we shall see below). Implantation into a human mother is feasible (albeit illegal in the UK). However, recent experiments using an artificial womb for part of the gestation of a lamb moves us closer to the potential for ectogenesis, the external culturing of synthetic biology constructs (or, indeed, babies produced via existing IVF techniques).

Before moving on to discuss aspects of law, the authors briefly consider ethical questions concerning Sapient production. They outline the views of “bioconservative” commentators, picking out Nick Agar and Francis Fukuyama as examples. Grounds for objections to creation of Sapients are summarised as “freakish”, “unnatural”, and “flying in the face of God”. Such a route would be a “slippery slope” jeopardising human dignity. A “genetic divide” (with unspoken echoes of the “valids” v “in-valids” of the film GATTACA) is also invoked.

European Convention on Human Rights: Having laid out the categorisation of the three potential types of human-like being, the review then shifts to the central question, can any of them be considered “persons” under existing law? Recognising that consideration of their legal status against all aspects of the European Convention on Human Rights would be a mammoth task, the authors restrict discussion to the three most pertinent Articles: the right to life (Article 2), the right not to experience torture, inhumane or degrading treatments (Article 3); and the right to liberty (Article 5). These rights, the ECHR notes, should be enjoyed by “everyone”. It is made explicit in formal EU documents that “everyone” does not stretch to include animals, but they are silent on the definition of “human”. This is an excusable oversight since, at the time the Convention was drafted in the 1950s, it was a pretty fair assumption that the only creatures interested in probing the meaning of the term were de facto human. This is not necessarily going to continue to be the case.

Of the three potential beings, it is the posthuman that most overtly qualifies for human rights. If they are enhanced humans, sharing our genetic heritage, it is tricky to see how they could have lost status that they had possessed in their simpler (natural) form. Despite the possession of consciousness, intelligent AI are the least likely to qualify due to their mechanical origins. Their experience of harm or suffering would be fundamentally different to ours, making it difficult to interpret notions of torture or degrading treatment. Similarly rights to reproduce, to vote or to health would be problematic.

Synthetic biology constructs are more marginal since they do possess human DNA, but it would perhaps depend on how much the genome has been altered to see if they qualify. The authors see it as unlikely they would fit with a straightforward reading of the ECHR. There is also a grey area when it comes to replacement of body parts, either with autologous or allogeneic organs grown for the purpose, or with artificial components. I was reminded here of the Only Fools and Horses’ sketch about Trigger’s broom – how much can you alter before something is no longer the original? (In the sketch Trigger claims to still be using his original broom, despite changing both the handle and the brush head on several occasions).

English Common Law: Lawrence and Brazier pick up on several aspects of common law, which have already been applied in related contexts. One, with only minor changes since being first postulated by Sir Edward Coke in 1628, is the notion of human as “a reasonable creature in being”. This was originally considered with regard to definitions of murder, but has subsequently been invoked in discussion of both abortion and the separation of conjoined twins. Waller (1987) notes that “traditionally ‘reasonable’ has meant human – no more and no less”. Might this be stretched to fit with newer beings? As previously, it is the posthuman who would be closest, with the products of synthetic biology and AGIs trailing in behind.

Associated with the concept of “a reasonable creature in being” is the rival notion of the “monster”. Historically (and in less enlightened times), a monster has been considered a creature with (1) radical physical impairment; (2) absence of cognitive function; and/or (3) the product of some mythical liaison, such that there was some non-human parentage.

The legal interest in the “monstrous” is not, however, confined to history. Within the 21st Century, the case of conjoined twins Jodie and Mary included consideration of whether the weaker child Mary would constitute a monstrous birth.   Although it was determined that Mary was not a “monster”, the judgement of Brooke LJ did not rule out the possibility that a creature born of human parents might still be monstrous.

Once again it is the AGIs that are most likely to be considered monstrous, with synthetic biological constructs being nearer to acceptability (depending, in part, on their physical form).

On a further measure, that of being “born alive”, it would appear once more that both the AGI and the synthetic construct would fall foul. Currently, a human does not become a legal person until birth. If an artificial being or a synthetic construct were never born in the natural meaning of this phrase, then they would de facto fail this criteria. As hinted above, the waters in this regard are being muddied by developments in ectogenesis, which might allow for the development of genuine humans outside of the uterus.

Elsewhere, the traditional connection of personhood exclusively to humans has already been challenged. The authors cite two failed cases in the USA where plaintiffs sought to afford non-human rights to chimpanzees. In at least one of the judgements, the grounds for dismissal centred on the inability of a chimpanzee to fulfil the responsibilities which are the flip side of possessing rights. Notwithstanding the decision not to allow the chimpanzees to be designated “persons” in the second case, it was overtly noted that the connection between personhood and being human was not necessarily inevitable ad infinitum. This is borne out by a third case, from Argentina, in which an orangutan Sandra was declared a non-human person. Even more radically, outside the remit of this paper, A New Zealand river has been granted rights and similar campaigns to protect the environment by considering them persons are underway.

Against this backdrop, it seems that arguments based around personhood may offer the best opportunity to all three types of Sapient to achieve equivalent rights. As the authors note (p.324), the key question is “whether it might be possible to conclude that a being with the same capacity for reason as humans, even if not human, should count as a reasonable creature in being; and whether a being that meets the criteria for moral personhood has a claim to legal personhood.” It may be, they continue, that Sapients might actually possess superior capacity for reason, self-awareness, agency or identity.

A final worry, that such creatures might turn on Homo sapiens, is noted but dismissed on two grounds. Firstly, that we humans are the guardians of the developments; if we were worried we could pull the plug on the programme. Secondly, were something to go wrong at a later stage, we retain the right to use reasonable force to protect ourselves.

I did find these caveats a little weak, and partly on the grounds which the authors almost immediately invoke regarding geographically constrained legislation. We are already aware of multiple examples in which restrictions in jurisdiction are subverted by moving the relevant work elsewhere. For example, we know that people travel to exploit national differences in rules regarding PGD, surrogacy and other fertility interventions. Similarly, a ban on certain types of research in Western countries has not stopped continuation of such studies in other places. So it might be that we, in the UK and/or Europe, take a principled stance against some development of non-human beings (e.g. on grounds of safety) only to find out that another nation has continued with the work unabated.

As the authors note, there is a crucial tension in the debate – whether the capacity of the novel being, or its appearance and/or method of creation in the more important. Given their careful consideration of the failure of AGIs and synthetic beings to meet several legal criteria (which posthumans would likely pass), I was a little surprised that they conclude that “there is a strong case to recognize [all three types of] such beings as entitled to the same fundamental rights to life, freedom from inhumane treatment, and liberty as we are” (p327).

Nevertheless I found this a fascinating and timely read. All three avenues of development are now plausible, albeit not imminent, and it is therefore crucial that we give thought to both the moral and legal status of Sapient beings. This paper is a valuable primer on some of the necessary considerations.

 

 

 

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1 Comment

  1. […] I cross-post articles that first appeared on one of my other blogs. This link goes to a piece I wrote over at the Journal of the Left-Handed Biochemist summarising a paper that […]


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