Neurorights: Between ethics and law

The rapid development of neurotechnologies has given rise to the question of whether new human rights—neurorights—should be introduced to address the challenges posed by these emerging technologies. This debate has centered on moral and legal human rights; however, reflections on the relationship between ethics and law are missing. Although ethical standards regarding the use of neurotechnologies do not necessarily correspond to legal human rights standards, the legal and ethical discourse on neurorights should not be strictly separated. The ethical discourse can, in particular, help to add substance to concepts of human rights law and inform policy initiatives.


Neurotechnological progress and human rights

Today, we are witnessing significant progress in neuroscience and in the development of neurotechnologies—technologies that measure or stimulate brain activity are being developed not only for medical purposes but also for everyday applications. For example, EEG headsets that measure brain activity can be purchased as part of a meditation app, brain–computer interfaces are being used for gaming, and tech companies like Neuralink are working on the possibility of controlling smartphones with “thoughts.” These developments raise multifaceted ethical and legal questions regarding, for example, mental privacy, neuro-enhancement, and manipulation. 

Some scholars argue that the existing human rights do not adequately protect against the threats posed by these developments, and therefore, the introduction of new human rights, often called neurorights, is necessary. Some countries, such as Chile and Spain, have already adopted neurospecific rights.

The debate on neurorights is interdisciplinary, and different rights and scope of protections are proposed not only by legal scholars but also by neurologists, psychologists, philosophers, and (neuro-)ethicists. Marcello Ienca and Roberto Andorno, for example, argue that four new human rights should be introduced: (1) the right to mental privacy to protect private or sensitive information in a person’s mind from unauthorized collection, storage, use, or deletion; (2) the right to mental integrity to protect against all unauthorized intrusions; (3) the right to psychological continuity to protect the mental basis of “personal identity from unconscious and unconsented alteration by third parties through the use of invasive or non-invasive neurotechnology;” (4) the right to cognitive liberty to protect individuals from coercive and involuntary use of neurotechnology. Other proposals for neurospecific rights often focus on one broad new human right, for instance, the right to mental self-determination, cognitive liberty, or mental integrity, rather than proposing the introduction of several new human rights. 

Regardless of whether one broad or several specific new human rights are proposed, these neurospecific rights focus on privacy, integrity, identity, autonomy, and freedom of mental processes. These aspects are protected by existing legal human rights enshrined in the International Covenant on Civil and Political Rights, for example, the right to freedom of thought, the right to freedom of opinion, or the right to private life, which protects mental integrity, identity, autonomy, and privacy. Therefore, each existing legal human right requires careful examination to determine whether or not it provides adequate protection regarding the use of neurotechnologies. 

Yet, discussions on neurorights do not only concern the interpretation of legal human rights but also—maybe even more often—the conceptualization and recognition of moral human rights. This connection between ethical and legal human rights discourses regarding neurotechnologies and neurorights has been neglected until now and deserves closer attention. 


Ethical standards and human rights

To direct the neurorights discourse toward the relationship between ethics and law, I offer three initial reflections.

First, human rights and ethics are closely interrelated, as human rights are the legal codification of certain ethical standards. Nevertheless, legal human rights and ethical standards are not the same. Following this positivistic understanding of law, for an ethical standard to be legally relevant, it must be transformed into law. Thus, human rights are legally recognized in the sources of international law (e.g., international treaties), categorizing them as not only ethical but also legal standards.

This separation between ethics and legal human rights can be illustrated in the Declaration on Bioethics and Human Rights, which mentions bioethics in addition to human rights, implying that ethical standards may diverge from human rights standards. Moreover, human rights allow for a certain plurality of ethical standards among states. The European Court of Human Rights, for example, leaves a larger margin of appreciation regarding the protection of human rights if an ethical issue is at stake and there is no consensus among member states. Human rights, then, do not always provide clear ethical guidelines. 

In the neurorights debate, it sometimes seems that ethical and legal human rights arguments are confused and that advocates seek to implement ethical considerations through human rights law, which would raise some legal difficulties. Therefore, it is important to have not only an ethical but also a legal debate on neurotechnologies and the interpretation of existing legal human rights.

However, the two discourses should not be strictly separated; in fact, the opposite is true, which leads to my second reflection: the ethical discourse can add substance to concepts of human rights law and enrich legal reflections and argumentation. Legal concepts are often unclear and vague—for example, the notion of thought in the context of the human right to freedom of thought or the notion of mental integrity protected in the framework of the right to private life. Generally, definitions do not appear in legal texts and only rarely are elaborated in case law. Consequently, philosophical reflections on these concepts and on moral rights can serve as an important source of inspiration to advance the interpretation of existing legal human rights by international institutions, judicial bodies, and scholars. 

Finally, ethical standards can be transformed into law or given legal significance, for example, by integrating them into a soft law declaration. The International Bioethics Committee, for example, has issued several soft law declarations regarding human rights and biotechnology, such as the Universal Declaration on the Human Genome and Human Rights. With regard to the ethical and human rights challenges raised by neurotechnologies, a soft law Declaration on Ethics, Human Rights, and Neurotechnologies could be adopted. Thus, the ethical discourse on neurorights can inform policy initiatives. 

Further reflections on the relationship between ethics and law, in particular the inclusion of ethical standards in the interpretation of established legal human rights and policy initiatives, can help to advance the debate on neurorights to ensure coherent and effective human rights protections regarding the use of neurotechnologies.