On Neurorights

Neurorights in the Constitution: from neurotechnology to ethics and politics

Neuroimaging technologies such as brain-computer interfaces and neurofeedback have evolved rapidly as new tools for cognitive neuroscience and as potential clinical interventions. However, along with these developments, concern has grown based on the fear of the potential misuse of neurotechnology. In October 2021, Chile became the first country to include neurorights in its Constitution. The present article is divided into two parts. In the first section, we describe the path followed by neurorights that led to its inclusion in the Chilean Constitution, and the neurotechnologies usually involved in neurorights discussions. In the second part, we discuss two potential problems of neurorights. We begin by pointing out some epistemological concerns regarding neurorights, mainly referring to the ambiguity of the concepts used in neurolegislations, the difficult relationship between neuroscience and politics and the weak reasons for urgency in legislating. We then describe the dangers of overprotective laws in medical research, based on the detrimental effect of recent legislation in Chile and the potential risk posed by neurorights to the benefits of neuroscience development. This article aims to engage with the scientific community interested in neurotechnology and neurorights in an interdisciplinary reflection of the potential consequences of neurorights.This article is part of the theme issue 'Neurofeedback: new territories and neurocognitive mechanisms of endogenous neuromodulation'.

Ethical Issues in Memory Modification Technology: A Scoping Review

Memory modification technology (MMT) refers to the use of neurotechnologies to intervene in memories. Many scholars have reflected on the ethical issues in MMT, but a comprehensive review of this topic has not been seen. This article presents the first scoping review study of ethical issues in MMT using a bibliometric and systematic approach. After thorough examination, 133 records of key literature are included in this scoping review. Six core ethical themes are extracted: (1) self, identity, and authenticity; (2) autonomy and informed consent; (3) welfare and happiness; (4) safety and risks; (5) responsibility and obligation; (6) social and legal justice. More detailed analyses are conducted on the moral stances and reasons held by different scholars concerning these ethical themes. As can be seen, current debates exhibit certain shortcomings, including ambiguous ethical concepts and a restricted scope of analysis. Therefore, we call for deeper reflections on the philosophical foundations, more precise definitions of ethical terms, and more comprehensive examinations of neurotechnological applications, in order to better address the ethical challenges in the future.

Neurorights in question: rethinking the concept of mental integrity

The idea of a 'right to mental integrity', sometimes referred to as a 'right against mental interference,' is a relatively new concept in bioethics, making its way into debates about neurotechnological advances and the establishment of 'neurorights.' In this paper, we interrogate the idea of a right to mental integrity. First, we argue that some experts define the right to mental integrity so broadly that rights violations become ubiquitous, thereby trivialising some of the very harms the concept is meant to address. Second, rights-based framing results in an overemphasis on the normative importance of consent, implying that neurointerventions are permissible in cases where people consent to have their mental states influenced or read off, a confidence in consent that we argue is misguided. Third, the concept often collapses the ethics of brain inputs and brain outputs, potentially resulting in a loss of important conceptual nuance. Finally, we argue that the concept of a right to mental integrity is superfluous-what is wrong with most violations of mental integrity can be explained by existing concepts such as autonomy, manipulation, privacy, bodily rights, surveillance, harm and exploitation of vulnerabilities. We conclude that bioethicists and policy-makers ought to either make use of these concepts rather than arguing for the existence of a new right, or they need to avoid making rights violations ubiquitous by settling on a narrower and more rigorous definition of the right.

Electrical and Magnetic Neuromodulation Technologies and Brain-Computer Interfaces: Ethical Considerations for Enhancement of Brain Function in Healthy People - A Systematic Scoping Review

INTRODUCTION

This scoping review aimed to synthesize the fragmented evidence on ethical concerns related to the use of electrical and magnetic neuromodulation technologies, as well as brain-computer interfaces for enhancing brain function in healthy individuals, addressing the gaps in understanding spurred by rapid technological advancements and ongoing ethical debates.

METHODS

The following databases and interfaces were queried: MEDLINE (via PubMed), Web of Science, PhilPapers, and Google Scholar. Additional references were identified via bibliographies of included citations. References included experimental studies, reviews, opinion papers, and letters to editors published in peer-reviewed journals that explored the ethical implications of electrical and magnetic neuromodulation technologies and brain-computer interfaces for enhancement of brain function in healthy adult or pediatric populations.

RESULTS

A total of 23 articles were included in the review, of which the majority explored expert opinions in the form of qualitative studies or surveys as well as reviews. Two studies explored the view of laypersons on the topic. The majority of evidence pointed to ethical concerns relating to a lack of sufficient efficacy and safety data for these new technologies, with the risks of invasive procedures potentially outweighing the benefits. Additionally, concerns about potential socioeconomic consequences were raised that could further exacerbate existing socioeconomic inequalities, as well as the risk of changes to person and environment.

CONCLUSION

This scoping review highlights a critical shortage of ethical research on electrical and magnetic neuromodulation technologies and brain-computer interfaces for enhancement of brain function in healthy individuals, with key concerns regarding the safety, efficacy, and socioeconomic impacts of neuromodulation technologies. It underscores the urgent need for integrating ethical considerations into neuroscientific research to address significant gaps and ensure equitable access and outcomes.

The ethical significance of user-control in AI-driven speech-BCIs: a narrative review

AI-driven brain-computed interfaces aimed at restoring speech for individuals living with locked-in-syndrome are paired with ethical implications for user's autonomy, privacy and responsibility. Embedding options for sufficient levels of user-control in speech-BCI design has been proposed to mitigate these ethical challenges. However, how user-control in speech-BCIs is conceptualized and how it relates to these ethical challenges is underdetermined. In this narrative literature review, we aim to clarify and explicate the notion of user-control in speech-BCIs, to better understand in what way user-control could operationalize user's autonomy, privacy and responsibility and explore how such suggestions for increasing user-control can be translated to recommendations for the design or use of speech-BCIs. First, we identified types of user control, including executory control that can protect voluntariness of speech, and guidance control that can contribute to semantic accuracy. Second, we identified potential causes for a loss of user-control, including contributions of predictive language models, a lack of ability for neural control, or signal interference and external control. Such a loss of user control may have implications for semantic accuracy and mental privacy. Third we explored ways to design for user-control. While embedding initiation signals for users may increase executory control, they may conflict with other aims such as speed and continuity of speech. Design mechanisms for guidance control remain largely conceptual, similar trade-offs in design may be expected. We argue that preceding these trade-offs, the overarching aim of speech-BCIs needs to be defined, requiring input from current and potential users. Additionally, conceptual clarification of user-control and other (ethical) concepts in this debate has practical relevance for BCI researchers. For instance, different concepts of inner speech may have distinct ethical implications. Increased clarity of such concepts can improve anticipation of ethical implications of speech-BCIs and may help to steer design decisions.

Developer perspectives on the ethics of AI-driven neural implants: a qualitative study

Convergence of neural implants with artificial intelligence (AI) presents opportunities for the development of novel neural implants and improvement of existing neurotechnologies. While such technological innovation carries great promise for the restoration of neurological functions, they also raise ethical challenges. Developers of AI-driven neural implants possess valuable knowledge on the possibilities, limitations and challenges raised by these innovations; yet their perspectives are underrepresented in academic literature. This study aims to explore perspectives of developers of neurotechnology to outline ethical implications of three AI-driven neural implants: a cochlear implant, a visual neural implant, and a motor intention decoding speech-brain-computer-interface. We conducted semi-structured focus groups with developers (n = 19) of AI-driven neural implants. Respondents shared ethically relevant considerations about AI-driven neural implants that we clustered into three themes: (1) design aspects; (2) challenges in clinical trials; (3) impact on users and society. Developers considered accuracy and reliability of AI-driven neural implants conditional for users' safety, authenticity, and mental privacy. These needs were magnified by the convergence with AI. Yet, the need for accuracy and reliability may also conflict with potential benefits of AI in terms of efficiency and complex data interpretation. We discuss strategies to mitigate these challenges.

Brain Data in Context: Are New Rights the Way to Mental and Brain Privacy?

The potential to collect brain data more directly, with higher resolution, and in greater amounts has heightened worries about mental and brain privacy. In order to manage the risks to individuals posed by these privacy challenges, some have suggested codifying new privacy rights, including a right to "mental privacy." In this paper, we consider these arguments and conclude that while neurotechnologies do raise significant privacy concerns, such concerns are-at least for now-no different from those raised by other well-understood data collection technologies, such as gene sequencing tools and online surveillance. To better understand the privacy stakes of brain data, we suggest the use of a conceptual framework from information ethics, Helen Nissenbaum's "contextual integrity" theory. To illustrate the importance of context, we examine neurotechnologies and the information flows they produce in three familiar contexts-healthcare and medical research, criminal justice, and consumer marketing. We argue that by emphasizing what is distinct about brain privacy issues, rather than what they share with other data privacy concerns, risks weakening broader efforts to enact more robust privacy law and policy.

The Council of Europe's AI Convention (2023-2024): Promises and pitfalls for health protection

The Council of Europe, Europe's most important human rights organization, is developing a legally binding instrument for the development, design, and application of AI systems. This "Convention on Artificial Intelligence, Human Rights, Democracy and the Rule of Law" (AI Convention) aims to protect human rights against the harms of AI. The AI Convention may become the first legally-binding international treaty on AI. In this article, we highlight the implications of the proposed AI Convention for the health and human rights protection of patients. We praise the following characteristics [1]. Global regulation for technology that easily crosses jurisdictions [2]. The human rights-based approach with human rights assessment [3]. The actor-neutral, full-lifecycle approach [4]. The creation of enforceable rights through the European Human Rights Court. We signal the following challenges [1]. The sector-neutral approach [2]. The lack of reflection on new human rights [3]. Definitional issues, and [4] The process of global negotiations. We conclude that it is important for the Council of Europe not to compromise on the wide scope of application and the rights-based character of the proposed AI Convention.

Towards an understanding of global brain data governance: ethical positions that underpin global brain data governance discourse

Introduction

The study of the brain continues to generate substantial volumes of data, commonly referred to as "big brain data," which serves various purposes such as the treatment of brain-related diseases, the development of neurotechnological devices, and the training of algorithms. This big brain data, generated in different jurisdictions, is subject to distinct ethical and legal principles, giving rise to various ethical and legal concerns during collaborative efforts. Understanding these ethical and legal principles and concerns is crucial, as it catalyzes the development of a global governance framework, currently lacking in this field. While prior research has advocated for a contextual examination of brain data governance, such studies have been limited. Additionally, numerous challenges, issues, and concerns surround the development of a contextually informed brain data governance framework. Therefore, this study aims to bridge these gaps by exploring the ethical foundations that underlie contextual stakeholder discussions on brain data governance.

Method

In this study we conducted a secondary analysis of interviews with 21 neuroscientists drafted from the International Brain Initiative (IBI), LATBrain Initiative and the Society of Neuroscientists of Africa (SONA) who are involved in various brain projects globally and employing ethical theories. Ethical theories provide the philosophical frameworks and principles that inform the development and implementation of data governance policies and practices.

Results

The results of the study revealed various contextual ethical positions that underscore the ethical perspectives of neuroscientists engaged in brain data research globally.

Discussion

This research highlights the multitude of challenges and deliberations inherent in the pursuit of a globally informed framework for governing brain data. Furthermore, it sheds light on several critical considerations that require thorough examination in advancing global brain data governance.

A comparative review on neuroethical issues in neuroscientific and neuroethical journals

This study is a pilot literature review that compares the interest of neuroethicists and neuroscientists. It aims to determine whether there is a significant gap between the neuroethical issues addressed in philosophical neuroethics journals and neuroscience journals. We retrieved 614 articles from two specialist neuroethics journals (Neuroethics and AJOB Neuroscience) and 82 neuroethics-focused articles from three specialist neuroscience journals (Neuron, Nature Neuroscience, and Nature Reviews Neuroscience). We classified these articles in light of the neuroethical issue in question before we compared the neuroethical issues addressed in philosophical neuroethics with those addressed by neuroscientists. A notable result is a parallelism between them as a general tendency. Neuroscientific articles cover most neuroethical issues discussed by philosophical ethicists and vice versa. Subsequently, there are notable discrepancies between the two bodies of neuroethics literature. For instance, theoretical questions, such as the ethics of moral enhancement and the philosophical implications of neuroscientific findings on our conception of personhood, are more intensely discussed in philosophical-neuroethical articles. Conversely, neuroscientific articles tend to emphasize practical questions, such as how to successfully integrate ethical perspectives into scientific research projects and justifiable practices of animal-involving neuroscientific research. These observations will help us settle the common starting point of the attempt at "ethics integration" in emerging neuroscience, contributing to better governance design and neuroethical practice.

On pharmacological neuroenhancement as part of the new neurorights' pioneering legislation in Chile: a perspective

The so-called neurorights are emerging human rights, or rather reconfigurations of already existing human rights, seeking to address the impact of the possible misuse of neurotechnologies, which have the potential to become more invasive and harmful in the future if not regulated. The aim of specifying neurorights is to protect the dignity and autonomy of the individual in the face of neurotechnological advances. Recently, Chile proposed a Constitutional reform inspired by the neurorights, opening a debate. One of the proposed neurorights is fair and equitable access to cognitive enhancement, which will be the specific object of this perspective article. Starting from the legal proposal, we analyse and discuss some perspectives on cognitive enhancement, or "neuroenhancement", which could be considered as part of enhancement neurotechnologies, pointing out that pharmacological enhancers, or "smart drugs", might be considered as part of these enhancers. We present a classification of the different types of cognitive enhancements as it has been proposed in the literature, into which pharmacological cognitive enhancement can be included, concluding that there is currently no agreement amongst scholars and lawyers about the ethical consideration of pharmacological cognitive enhancement. We therefore argue that it is necessary for the legislator to explicitly address the issue in the proposed regulations, in order to take a clear position on the topic, as it has been done in the United Kingdom, where the pharmacological neuroenhancers have been explicitly excluded from the regulation. If pharmacological neuroenhancers are going to be considered neurotechnologies, then new law proposals should seek harmonization with the already existing legislation regulating pharmacological health and consumer rights (both globally, taking into account international drug laws, and locally, according to each country's internal regulations) and of course, with the whole system of fundamental rights. Finally, we briefly discuss the ethical problem of equitable access to this new type of neurotechnologies (as part of the neurorights) and leave the debate open for new insights from the scientific community on the possible consequences of including (or not) pharmacological neuroenhancers as neurotechnologies for cognitive enhancement in the framework of the ethical and legal debate.

How I became myself after merging with a computer: Does human-machine symbiosis raise human rights issues?

Novel usages of brain stimulation combined with artificially intelligent (AI) systems promise to address a large range of diseases. These new conjoined technologies, such as brain-computer interfaces (BCI), are increasingly used in experimental and clinical settings to predict and alleviate symptoms of various neurological and psychiatric disorders. Due to their reliance on AI algorithms for feature extraction and classification, these BCI systems enable a novel, unprecedented, and direct connection between human cognition and artificial information processing. In this paper, we present the results of a study that investigates the phenomenology of human-machine symbiosis during a first-in-human experimental BCI trial designed to predict epileptic seizures. We employed qualitative semi-structured interviews to collect user experience data from a participant over a six-years period. We report on a clinical case where a specific embodied phenomenology emerged: namely, after BCI implantation, the patient reported experiences of increased agential capacity and continuity; and after device explantation, the patient reported persistent traumatic harms linked to agential discontinuity. To our knowledge, this is the first reported clinical case of a patient experiencing persistent agential discontinuity due to BCI explantation and potential evidence of an infringement on patient right, where the implanted person was robbed of her de novo agential capacities when the device was removed.

Philosophical foundation of the right to mental integrity in the age of neurotechnologies

Neurotechnologies broadly understood are tools that have the capability to read, record and modify our mental activity by acting on its brain correlates. The emergence of increasingly powerful and sophisticated techniques has given rise to the proposal to introduce new rights specifically directed to protect mental privacy, freedom of thought, and mental integrity. These rights, also proposed as basic human rights, are conceived in direct relation to tools that threaten mental privacy, freedom of thought, mental integrity, and personal identity. In this paper, our goal is to give a philosophical foundation to a specific right that we will call right to mental integrity. It encapsulates both the classical concepts of privacy and non-interference in our mind/brain. Such a philosophical foundation refers to certain features of the mind that hitherto could not be reached directly from the outside: intentionality, first-person perspective, personal autonomy in moral choices and in the construction of one's narrative, and relational identity. A variety of neurotechnologies or other tools, including artificial intelligence, alone or in combination can, by their very availability, threaten our mental integrity. Therefore, it is necessary to posit a specific right and provide it with a theoretical foundation and justification. It will be up to a subsequent treatment to define the moral and legal boundaries of such a right and its application.

Neurorights – Do we Need New Human Rights? A Reconsideration of the Right to Freedom of Thought

Progress in neurotechnology and Artificial Intelligence (AI) provides unprecedented insights into the human brain. There are increasing possibilities to influence and measure brain activity. These developments raise multifaceted ethical and legal questions. The proponents of neurorights argue in favour of introducing new human rights to protect mental processes and brain data. This article discusses the necessity and advantages of introducing new human rights focusing on the proposed new human right to mental self-determination and the right to freedom of thought as enshrined in Art.18 International Covenant on Civil and Political Rights (ICCPR) and Art. 9 European Convention on Human Rights (ECHR). I argue that the right to freedom of thought can be coherently interpreted as providing comprehensive protection of mental processes and brain data, thus offering a normative basis regarding the use of neurotechnologies. Besides, I claim that an evolving interpretation of the right to freedom of thought is more convincing than introducing a new human right to mental self-determination.

Neurorights as Hohfeldian Privileges

This paper argues that calls for neurorights propose an overcomplicated approach. It does this through analysis of ‘rights’ using the influential framework provided by Wesley Hohfeld, whose analytic jurisprudence is still well regarded in its clarificatory approach to discussions of rights. Having disentangled some unclarities in talk about rights, the paper proposes the idea of ‘novel human rights’ is not appropriate for what is deemed worth protecting in terms of mental integrity and cognitive liberty. That is best thought of in terms of Hohfeld’s account of ‘right’ as privilege. It goes on to argue that as privileges, legal protections are not well suited to these cases. As such, they cannot be ‘novel human rights’. Instead, protections for mental integrity and cognitive liberty are best accounted for in terms of familiar and established rational and discursive norms. Mental integrity is best thought of as evaluable in terms of familiar rational norms, and cognitive freedom is constrained by appraisals of sense-making. Concerns about how neurotechnologies might pose particular challenges to mental integrity and cognitive liberty are best protected through careful use of existing legislation on data protection, not novel rights, as it is via data that risks to integrity and liberty are manifested.

Human brain organoid code of conduct

Human brain organoids are models derived from human embryonic or induced pluripotent stem cells that mimic basic cerebral microanatomy and demonstrate simple functional neuronal networks. Brain organoids have been a rapidly expanding avenue for biomedical research in general and specifically: neural development, regeneration, and central nervous system pathophysiology. However, technology replicating functional aspects of the human brain, including electrically active neural networks, requires a responsible code of conduct. In this review, we focus the discussion on intrinsic and extrinsic ethical factors associated with organoids: intrinsic considerations arise with the growing complexity of human brain organoids, including human-animal chimerism, consciousness development, and questions of where these human-like beings fall in a moral hierarchy. Extrinsic considerations explore ethics on obtainment, manufacturing, and production of sophisticated human products. In summary, a thoughtful code of conduct using human brain organoids towards the advancement of science and medicine is crucial. This article shall facilitate a structured thought process approaching the moral landscape of organoid technology.

Neurotechnology to reduce recidivism: Ethical and legal challenges

Crime comes with enormous costs, not only financial but also in terms of loss of mental and physical health and, in some cases, even loss of life. Recidivism is responsible for a considerable percentage of the crimes, and therefore, society deems reducing recidivism a priority. To reduce recidivism, several types of interventions can be used, such as education and employment-focused rehabilitation programs which are intended to improve psychological and social factors. Another way to prevent reoffending is to influence the offender's brain functions. For example, medication can be offered to treat delusions or to diminish sexual drive. In the near future, innovative neurotechnologies are expected to improve prediction and prevention of reoffending. Potential positive effects of such neurotechniques include a safer society and earlier release of prisoners who are no longer "at high risk" to relapse into criminal behavior. Meanwhile, employing these neurotechniques in the criminal justice system raises fundamental concerns, for example, about autonomy, privacy and mental integrity. This chapter aims to identify some of the ethical and legal challenges of using neurotechnologies to reduce recidivism.

Towards a Governance Framework for Brain Data

The increasing availability of brain data within and outside the biomedical field, combined with the application of artificial intelligence (AI) to brain data analysis, poses a challenge for ethics and governance. We identify distinctive ethical implications of brain data acquisition and processing, and outline a multi-level governance framework. This framework is aimed at maximizing the benefits of facilitated brain data collection and further processing for science and medicine whilst minimizing risks and preventing harmful use. The framework consists of four primary areas of regulatory intervention: binding regulation, ethics and soft law, responsible innovation, and human rights.

Neurorights in History: A Contemporary Review of José M. R. Delgado's "Physical Control of the Mind" (1969) and Elliot S. Valenstein's "Brain Control" (1973)

Scholars from various disciplines discuss the ethical, legal, and social implications of neurotechnology. Some have proposed four concrete “neurorights”. This review presents the research of two pioneers in brain stimulation from the 1950s to 1970s, José M. R. Delgado and Elliot S. Valenstein, who also reflected upon the ethical, legal, and social aspects of their and other scientists’ related research. Delgado even formulated the vision “toward a psychocivilized society” where brain stimulation is used to control, in particular, citizens’ aggressive and violent behavior. Valenstein, by contrast, believed that the brain is not organized in such a way to allow the control or even removal of only negative processes without at the same time diminishing desirable ones. The paper also describes how animal and human experimentation on brain stimulation was carried out in that time period. It concludes with a contemporary perspective on the relevance of neurotechnology for neuroethics, neurolaw, and neurorights, including two recent examples for brain-computer interfaces.