Neurotechnologies are emerging technologies that establish a connection pathway to the human brain through which human neuronal activity can be recorded and/or altered. These technologies open novel opportunities for exploring, influencing, or intercommunicating with the human brain. Medical neurotechnologies offer the potential to help people with neurological or psychiatric conditions such as Parkinson’s disease, dementia, stroke, and major depressive disorder. Non-medical neurotechnology systems provide new tools and methods to monitor and modulate brain activity in healthy subjects and to interact with digital devices. Intervening effectively and safely in the human brain through neurotechnology is a scientific frontier that must be reached for the good of humanity. At the same time, however, it raises major ethical and legal challenges. Neuroethics and neurolaw are the two main areas of scholarship that address, respectively, the ethical and legal issues raised by our ever-improving ability to intervene in the brain through neurotechnology.
In the past decade, philosophical-legal studies in the fields of neuroethics and neurolaw have given increasing prominence to a normative analysis of the ethical- legal challenges in the mind and brain sciences in terms of rights, freedoms, entitlements, and associated obligations. This way of analyzing the ethical and legal implications of neuroscience has come to be known as “neurorights”. Neurorights can be defined as the ethical, legal, social, or natural principles of freedom or entitlement related to a person’s cerebral and mental domain; that is, the fundamental normative rules for the protection and preservation of the human brain and mind. In their most popular version, neurorights have been defined as an emerging category of human rights designed to protect the brain-mind sphere of the person.
Reflections on neurorights have received ample coverage in the mainstream media and have become a mainstream topic in the public neuroethics discourse. Further, they are rapidly becoming an emerging regulatory tool of international politics. Yet, several meta-ethical, normative-ethical, legal-philosophical and practical challenges need to be solved to ensure that neurorights can be used as effective instruments of global neurotechnology governance and be adequately imported into international human rights law. To overcome these challenges, this report attempts to provide a comprehensive normative-ethical, historical and conceptual analysis of neurorights. In particular, the objective of this report is fivefold as it attempts to (i) provide an overview of current and likely future biomedical neurotechnologies; (ii) reconstruct a history of neurorights and situate these rights in the broader history of ideas; (iii) summarize ongoing policy initiatives related to neurorights in the present international policy landscape; (iv) proactively address some unresolved ethical-legal challenges; and (v) identify priority areas for further academic reflection and policy work in this domain.
The findings of this report suggest that neurorights reflect fundamental human interests that are deeply rooted in the history of ideas. These rights introduce normative specifications related to the protection of the person’s cerebral and mental domain that are not merely repetitive of existing human rights frameworks, but add a new, fundamental level of normative protection. This corroborates the view that human beings generally enjoy a set of rights against certain kinds of interferences in their brains and minds, including those interferences involved in the misuse of neurotechnologies. In addition to protecting against the misuse of neurotechnology, the neurorights spectrum also contains moral and legal provisions aimed at ensuring that neuroscientific and neurotechnological progress is used to empower people and improve human well-being (positive rights). To a large extent, the findings of this report also corroborate the normatively stronger thesis that the fundamental rights and freedoms relating to the human brain and mind should be seen as the fundamental substrate of all other rights and freedoms.
This overview indicates that there is not yet complete consensus regarding the conceptual-normative boundaries and terminology of neurorights. Divergences exist in relation to how these rights are interpreted, named, and conceptually articulated. Nonetheless, some degree of convergence is emerging around three main families of neurorights. First and foremost, the need for specific provisions on the protection of private brain-related information seems to share a high degree of acceptance and recognition. The right to mental privacy appears to be the candidate best equipped conceptually to take on this role. Second, the right to mental integrity appears to have the highest degree of legal entrenchment. While there are some variations in the interpretation of this right, there is full theoretical consensus about the need to protect the person from psychological harm and mental interference. Third, a variety of neurorights candidates have been proposed to preserve and promote the freedom of the human mind and thereby prevent external manipulation. These include evolutionary interpretations of the right to freedom of thought, the right to cognitive liberty, and the right to personal identity.
On the other side of the coin, positive rights such as promoting justice and equality— e.g., through ensuring egalitarian access to neurotechnology for biomedical use and promoting patient welfare on the basis of the ethical principle of beneficence—have so far occupied a secondary role in the neurorights debate.
Introducing neurorights into the human rights framework may require adding new protocols to existing instruments or even stipulating new entirely devoted to neuroethics and neurolaw. In either case, some fundamental problems such as rights inflation and to provide an adequate normative justification for multilateral instruments ethical, meta-ethical, and legal issues must be addressed in order to overcome neurorights. These include introducing justificatory tests for the introduction of neurorights, clarifying the relationship between moral and legal neurorights and harmonizing neurorights with existing normative instruments.
The Council of Europe’s Convention for the Protection of Human Rights and Dignity
of the Human Being with regard to the Application of Biology and Medicine (Oviedo
Convention) offers an ideal platform and normative substrate for the protection and
promotion of neurorights. Given its focus on prohibiting the misuse of innovations in
biomedicine, protecting the dignity and identity of all human beings, and guaranteeing
respect for their integrity and fundamental freedoms, the Convention is well placed for
either enshrining neurorights through ad hoc protocols or for serving as a basis for
Understanding, treating, and augmenting the human brain and mind is one of the great
scientific challenges of our age. Achieving these goals in a way that preserves justice,
safeguards fundamental rights and human dignity is the corresponding task of ethics
and law. Neurorights will likely be a useful tool to accomplish this task.