Archive for the ‘legal issues’ Category

Prosthetic Technology and Human Enhancement: Benefits, Concerns and Regulatory Schemes (Part One)

May 2, 2013 5 comments

This IEET exclusive explores the history, current use, and future potential of prosthetic devices and implants. It also addresses benefits and concerns that run directly to the individual. This is Part One of what will be a three-part series.

Just a short note on publishing timeframes – I’m in the process of moving and will soon be studying for the bar, so it might be a bit sporadic. I’ll do my best to make the transition as painless as possible, however.

GMOs: The Future Of Food

January 6, 2013 4 comments

pharmcornFor several months now, I’ve wanted to put together a post talking about Genetically Modified Organisms (GMOs), and particularly in the context of food. I’ve had several debates with my friends – I tend toward the pro-GMO camp and several of my friends are anti-GMO. I maintained that if they simply looked at the science, reviewed the research, and avoided sources with an agenda that often post incorrect information that they would come around to my way of thinking.

It turns out, someone else just did that job for me.

Big-time environmental advocate Mark Lynas has fought GMOs for nearly two decades. He helped to coin the “Franken-whatever” phrase, and has generally contributed to public hysteria and governmental regulation of GMOs, particularly across Europe. On Thursday, at the Oxford Farmer’s Conference, Lynas recanted. Anyone interested in GMOs should watch the entirety of his speech, but I’ll highlight a few important bits after the video.

“[W]hat happened between 1995 and now that made me not only change my mind but come here and admit it? Well, the answer is fairly simple: I discovered science, and in the process I hope I became a better environmentalist.”

This follows my general argument that when people look at the hard data, they understand that most fears about GMOs are unfounded. That someone so ardently opposed to GMOs could revise his opinion, publically no less, is extremely rare and worthy of praise.

“When I first heard about Monsanto’s GM soya I knew exactly what I thought. Here was a big American corporation with a nasty track record, putting something new and experimental into our food without telling us. Mixing genes between species seemed to be about as unnatural as you can get – here was humankind acquiring too much technological power; something was bound to go horribly wrong. These genes would spread like some kind of living pollution. It was the stuff of nightmares.”

Often, when I ask why people dislike GMOs, their reaction comes down to a dislike of Monsanto. I’ll be the first to admit that I’m not a huge fan of Monsanto either, though I find they’re sometimes demonized more than they ought to be. The Supreme Court is expected to hear a case about some of their practices during the upcoming term.

But creating hysteria about GMOs because one of the major companies that makes them is distasteful is like creating a hysteria about computers because one doesn’t like Microsoft. The technology is separate from the people that implement it. If someone wants to argue that the business model of Monsanto is unethical or harmful that’s an argument I can get behind (or at least entertain.) But to suggest that the technology itself is bad, even if Monsanto is a sort of corporate demon, is ludicrous.

How Some View Monsanto

How Some View Monsanto

“So I did some reading. And I discovered that one by one my cherished beliefs about GM turned out to be little more than green urban myths. I’d assumed that it would increase the use of chemicals. It turned out that pest-resistant cotton and maize needed less insecticide. I’d assumed that GM benefited only the big companies. It turned out that billions of dollars of benefits were accruing to farmers needing fewer inputs. I’d assumed that Terminator Technology was robbing farmers of the right to save seed. It turned out that hybrids did that long ago, and that Terminator never happened. I’d assumed that no-one wanted GM. Actually what happened was that Bt cotton was pirated into India and roundup ready soya into Brazil because farmers were so eager to use them. I’d assumed that GM was dangerous. It turned out that it was safer and more precise than conventional breeding using mutagenesis for example; GM just moves a couple of genes, whereas conventional breeding mucks about with the entire genome in a trial and error way. But what about mixing genes between unrelated species? The fish and the tomato? Turns out viruses do that all the time, as do plants and insects and even us – it’s called gene flow.”

Yes, yes, yes, yes, yes, and yes. Lynas moved away from the propaganda, did some research, and came to conclusions backed by evidence instead of fear.

Lynas goes on at some length about how GMOs can help mitigate climate change, help feed billions of people, and generally make life a little better for all of us (and a lot better for some of us.)

“There is a depressing irony here that the anti-biotech campaigners complain about GM crops only being marketed by big corporations when this is a situation they have done more than anyone to help bring about.”

Ironic is exactly the right word to use here. The trouble with GMOs is that it can be a dangerous technology. Part of me hopes that so many of these regulations will be loosened and GMO technology can become essentially open source. So much of my distaste for Monsanto comes down to the patent system and approval process. But because there are strong dissenters to the technology who require stringent regulations the R&D and approval processes are very costly. That means that only large corporations can afford to research the technology. And that, in turn, means that Monsanto remains the biggest game in town because smaller, perhaps more ethical, businesses can’t afford to play.

“In the EU the system is at a standstill, and many GM crops have been waiting a decade or more for approval but are permanently held up by the twisted domestic politics of anti-biotech countries like France and Austria. Around the whole world the regulatory delay has increased to more than 5 and a half years now, from 3.7 years back in 2002. The bureaucratic burden is getting worse.”

Take, for example, a GMO salmon that, after 17 years in the approval process and millions upon millions of dollars spent to get it approved, has finally been approved after the FDA conceded that it “posed no major health or environmental risks” and that “ [the FDA] could not find any valid scientific reasons to ban the production of GM Atlantic salmon engineered with extra genes from two other fish species.”


Lynas says, “If you look at the situation without prejudice, much of the debate, both in terms of anti-biotech and organic, is simply based on the naturalistic fallacy – the belief that natural is good, and artificial is bad. This is a fallacy because there are plenty of entirely natural poisons and ways to die, as the relatives of those who died from E.-coli poisoning would tell you. For organic, the naturalistic fallacy is elevated into the central guiding principle for an entire movement. This is irrational and we owe it to the Earth and to our children to do better.”

Indeed we do.

Just a few examples of the potential benefits of GMO technology (in food alone – I will post a separate article about GMOs in other contexts another time):

Lab grown meat that could provide nutrition to millions of people, without the detrimental impact to the Earth caused by traditional cattle and chicken farms and without the ethical problems of killing animals for food.

Modified tomatoes that can help prevent heart disease.

Modified corn that could help treat a rare disease.

Lynas speaks about several other current uses of GMO food to help feed people or cure disease, and again, I cannot recommend strongly enough that you listen to the entire speech. GMO food, time and again, has proven safe, effective, and offers benefits far beyond what traditional farming techniques offer. The best part: We’re just getting started.

As an aside: There is a separate debate about whether GM food ought to be labeled. For the record, I think that it should. People certainly have a right to know what sort of food they’re purchasing and consuming. Perhaps equally importantly, people ought to be able to see how many of the foods they already eat are genetically modified. This, I think, will dissipate some of the fear about GM food. It would, as a side benefit, allow me to knowingly support foods that are genetically modified.

The Mailbag: First Contact

December 29, 2012 2 comments

mailbag-121209-heroI get to do something exciting today and answer a couple of questions that a reader sent me. I’d like to do this more in the future, so if you have a topic you’d like me to discuss, please let me know!

The first question asks how property law deals with unclaimed land, and in particular space. Two caveats before I get to that. First, I did OK in property but it was hardly my best subject and I don’t have any particular interest in it, so while I trust my sources I’m far from an expert. Second, as at all other times on boydfuturist, nothing I say here is to be construed as legal advice. So, if you’re planning on claiming an asteroid or something, consult a lawyer.

The fancy Latin term for unclaimed land is terra nullius. There are a few such places still here on Earth – Antarctica, parts of the international sea, and an area between Egypt and Sudan known as Bir Tawil. Essentially all of space remains unclaimed. Traditionally, land that is terra nullius may be claimed by occupation.


In 1967, several countries signed the Outer Space Treaty (or, more formally, Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 1967 U.S.T. Lexis 613, TIAS 6347.) This treaty bans countries from claiming celestial bodies for themselves. Specifically, Article II states: “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” As of 2011, 101 countries have signed and ratified this treaty, including every major country.

This leaves few legal possibilities for countries to claim celestial bodies. One of the countries that has not signed this treaty could theoretically claim such land, but none of them are currently in a position to attempt spaceflight. More likely, countries that have signed and ratified this treaty might choose to ignore it. This is a problem generally in international law, and stems in part from the inability of the United Nations to enforce their own laws. If a major signatory of this treaty, like the United States or China, decided to start claiming the moon or asteroids there is precious little that the U.N. could do about it.

Perhaps more likely, the treaty might also be repealed as spaceflight becomes more capable. The U.N. (or a body acting similarly in the future) might decide that the solar system is not claimable, and perhaps other habitable planets are not claimable by a particular country, but asteroids and other planets, being so abundant, might well claimable through occupation, adverse possession, use, or some other traditional mechanism. After all, if there are hundreds or thousands of asteroids, does it really matter if some percentage of them are claimed? Mightn’t the ability to claim celestial bodies drive space exploration and mining?

Another possibility is that by the time claiming celestial bodies becomes practical the countries of the Earth will meld into a single government. Presumably a single body claiming a celestial body for all of Earth comports with the intent and words of the treaty. Of course, many other changes would come with such a unification so any commentary about the effects of a single government on a multi-country treaty is speculative at best.

The second question asks about a hypothetical first contact. Who should extraterrestrials speak to? Alternately, if Earthlings were space bound and found a pre-spaceflight civilization, who should talk to them?

Not this guy!

Not this guy!

To my knowledge, no specific first-contact plan exists. If the contact were to occur in outer space, then Article V of the treaty might guide the interaction. According to Article V, astronauts are considered envoys of mankind, and so presumably have the authority to at least arrange a meeting. The astronauts are directed to report to the Secretary General of the United Nations or any other state party to the treaty of “any phenomena they discover in outer space, including the moon and other celestial bodies, which could constitute a danger to the life or health of astronauts.” Presumably this could include aliens.

If aliens arrive on Earth, then first contact is likely to be determined by the aliens themselves. Presumably, whatever human happens to be around will become the first spoken to. However, ideally shortly after that some high ranking official (President, King, Secretary General, etc.) will initiate contact and purport to speak at least for their own country or organization.


If contact comes from a signal, at least one draft argues for a defined set of protocol.  The Declaration of Principles for Activities Following the Detection of Extraterrestrial Intelligence has been indorsed by various international agencies, and operates are a guideline. ( To my knowledge, this is not been formalized into an actual treaty. Presumably an outpost that discovers an extraterrestrial signal will forward news of that contact to various superiors or peers to check for authenticity, and then calls will be made to those same high ranking officials.

The Committee on Space Research (COSPAR) has issued the leading guidelines intended to prevent contamination of other life forms by Earthlings. COSPAR tailors its specific recommendations to the types of missions being undertaken. The list is as follows:

  • Category I: Any mission to the SunMercury, other locations not of interest for studying prebiotic chemistry or the origin and evolution of life.
  • Category II: Any mission to the Earth’s MoonVenuscometsJupiterPluto/CharonKuiper Belt Objects, other locations of interest for studying prebiotic chemistry and the origin of life but for which there is an insignificant probability of contamination with Earth life.
  • Category III: Flyby and orbiter missions to locations with the potential to host life and for which there is a possibility of contamination by Earth life; e.g., MarsEuropaTitan or Enceladus.
  • Category IV: Lander or probe missions to locations with the potential to host life and for which there is a possibility of contamination by Earth life; e.g., MarsEuropaTitan or Enceladus.
  • Category V: Any earth return mission. Missions returning samples from locations with the potential to support life are considered ‘Restricted Earth Return’ and returned samples must be contained at levels more stringent than Biosafety level 4. Samples from locations judged unlikely to support life are considered ‘Unrestricted Earth Return’ and merit no constraints for planetary protection purposes. 

Presumably, the sort of mission that would find a pre-spaceflight organization would fall into a Category III or IV classification. The specifics of these requirements are not readily available, but include at least documentation and some suggested protocol. ( Further, this Planetary Protection policy is focused on accidental contamination, not with initiating intentional contact.

For my part, I think that if intentional contact is to be made with a pre-spaceflight civilization at all (and the Star Trek Prime Directive, allowing for natural progression into spaceflight capability might be wisest) then it ought to be made by the Secretary General of the United Nations as an ambassador of all of Earth (or an ambassador assigned by the Secretary General) or whatever the equivalent title is if the political landscape undergoes substantial changes by then.


Categories: legal issues, mailbag, space

Boydfuturist Wednesday: Improving Biology

February 22, 2012 Leave a comment

Stem cells aside, it’s been a little while since I’ve talked about genetic and otherwise biological technologies coming down the pike. Although I think that robotic and synthetic technology will largely overcome any progress biological technologies can offer, we are further along in the biological sciences and so will likely see those advances first. Some people, seeking to “stay human” or something similar will likely stop with biological enhancement whatever advancements synthetic technologies can provide. Here are some of the cooler new stories of the last few weeks broken down into three categories: currently available cures and treatments for diseases, speculative cures and treatments for diseases, and general upgrades to the human condition.

What’s Currently Available:

First, victims of heart attacks involved in a clinical trial at the Cedars-Sinai Heart Institute were given  an “infusion of their own heart-derived cells”, which helped “their damaged hearts regrow healthy muscle”. In short, by using a stem cell treatment, their hearts “demonstrated a significant reduction in the size of the scar left on the heart muscle by a heart attack” by 50% one year later. Importantly, this reduction in the size of scar tissue was not the result of a more efficient procedure, but instead a result of a procedure that can be applied after traditional surgeries for heart attack patients. This means that doctors ought to begin performing the treatment, if it passes further trials, right away.

A lot of people like to accuse scientists who use or invent high technology of “playing God”. In this case, maybe they’re right. Jean Bennett and her colleagues at the University of Pennsylvania recently published an article in the February issue of Science Translational Medicine documenting their procedure that restored sight to the blind in one eye in 6 of 12 cases! A follow-up treatment produced improvement in as little as two weeks in the other eye for three out of three women from the initial group of 6 that showed improvement. The second treatment also seemed to make the first more effective.  Not too shabby for sub-deities.

Finally, last month doctors in Turkey performed the world’s first triple limb transplant (and the donor’s face is going to a different person.)  Although triple-limb transplants are rare now, it seems to confirm both that we have the knowledge and technology available to perform such an invasive surgery and that the human body itself can withstand the surgery. This is promising, and suggests that people who later choose to get a limb, or two, or three replaced with biological replacement (or cybernetic prostheses) in the future will be able to withstand the surgery, even in the unlikely event that surgical procedures and technologies don’t improve significantly in the coming years.

Speculative Cures And Treatments:

Scientists from the University of Texas, Austin recently published the results of their experiment to reattach severed nerves in the Journal of Neuroscience Research. The new procedure allows doctors to repair severed nerves “within minutes.” Once the severed nerves are repaired, the behavior they control can be partially restored within days, and fully restored within weeks. According to Professor George Bittner, current procedures “imperfectly restore lost function within months at best.” Although this procedure still needs to undergo clinical trials, if successful it suggests that patients replacing limbs in the future might be able to recover from the surgery much, much more quickly.

Scientists are also making headway in the fight against cancer by reevaluating the medicinal properties of a plant; thapsia garganica. Although the plant has been used before to treat rheumatism (a group of medical problems affecting joints and connective tissues) the side effects were apparently quite bad. However, by breaking the toxic plant down to the molecular level, biotech firm Genspera has been able to direct the plant to cancer cells. Once the plant meets the cancer cells, it seems to be very effective at killing the tumor and, crucially, nothing else. One of the major problems with current cancer treatments is that they poison the entire body, killing good and bad cells alike. This could be one of the first of new, targeted medications that kill just those cells causing problems and leaving the rest of the body unaffected. The new drug is working its way through clinical trials now, and the company hopes to modify it to destroy other types of cancer as well.

In some of the biggest news of the day, however, scientists in both the UK and Australia hope to use genetic engineering techniques to combat a rare (roughly 1 in 5,000), but serious, neurodegenerative disease and muscular dystrophy in children. The diseases are caused when the mitochondria in cells are faulty. By introducing mitochondria from a third party into a fertilized egg the faulty mitochondrial DNA is replaced with healthy mitochondrial DNA and the disease is potentially cured. Along the way, however, something important happens: A human egg, which thus far has consisted of a mix of two sets of DNA (one from each parent), gains a third set of DNA (from the donor). Already scientists have performed this procedure with monkeys, but to research this potential cure in the UK, the legislature is going to have to reconsider its laws banning genetic therapy on fertilized human eggs. This, of course, has profound implications for other sorts of genetic engineering in humans, both born and unborn.

Finally, researchers at UC-Davis are working on a new stem cell treatment to help reinvigorate bones in people suffering from osteoporosis. Although the study doesn’t suggest that this process can be used to increase bone strength to superhuman levels, the research doesn’t seem to be limited to osteoporosis; the researchers hope to expand this to bone fractures, bone infections, and cancer treatments.

General Upgrades To The Human Condition:

Some more highly experimental technology is on the way. Scientists have been experimenting with mixing human skin and spider silk (which, itself, was engineered into goat’s milk.) Why mix spider silk and human skin? Spider silk is much stronger than Kevlar, which is used to make bulletproof vests. This means that by replacing some proteins in human skin, humans could have essentially bulletproof skin (which would be resistant to other impacts as well, of course.)

Also, George Dvorsky recently blogged about a Chinese boy who apparently has mutated eyes that have granted him night vision and glowing eyes like a cat. Assuming the story is true, this is apparently a natural mutation. If a mutation can occur naturally, it can also be induced. If it can be induced, that means with just a little genetic engineering, we all can have night vision eyes. And that, I have to say, is pretty cool.

Why Bad Arguments Suck

February 8, 2012 2 comments

Nothing puts the rapid pace of technological change in perspective like seeing the ridiculous pile of links that I want to talk about stored in my draft email. No matter how much I write, it seems, there is always so much more to say. Often, I want to write about things that will help me share as many links as possible in a post, but writing that way either forces me to take a pass on weighty topics that require saying a little more, create a post that covers a hodgepodge of topics, or simply resign myself to sharing just a link or two so that I can say everything that needs to be said. Today is going to be one of those latter types of posts because I want to talk about intellectual honesty for a minute.

Let’s start with an article from Rebecca Taylor at Lifenews seems to focus on pro-life issues which, given my views about technology, probably doesn’t seem like the first blog I’d read. But I do like to see what the people who think differently than I do are saying, and so whenever lifenews pops up on my ‘transhumanism’ Google feed I head over to see what’s going on. In this case, Dr. Taylor is arguing that transhumanism, coupled with Roe v. Wade, is leading to a dystopia of eugenics and genetic engineering. In this, I think, Dr. Taylor is potentially half right. Unfortunately, Dr. Taylor either doesn’t understand the law she cites, or else is deliberately misrepresenting it to make a rhetorical point. For instance, she briefly mentions Roe v. Wade and then asserts that the case lead to the unborn having “no legal protection.” Because the unborn have no legal protection, she argues, immoral scientists can do what they want with them.

The first problem with Dr. Taylor’s argument is that it’s just wrong legally. First, Roe v. Wade hardly stripped all legal protection for the unborn; fetuses continued to be protected after the first trimester, and abortion could still be outlawed in the third trimester. Assuming Roe had stripped those protections, however, they would have been replaced in Casey v. Planned Parenthood, the more recent abortion case that doesn’t pack the same rhetorical appeal. There, the Supreme Court decided that states could ban abortion past the point of viability, and institute processes that women must go through to undergo an abortion even prior to viability so long as the processes are not “unduly burdensome.” Outside of the abortion context, the unborn continue to enjoy widespread protection in criminal and tort contexts.

Dr. Taylor goes on argue that Roe lead to an “unregulated” market for fertility treatments; a term she equates with cloning and genetic enhancement. But a quick glance at US law shows that this simply isn’t so. Aside from state laws that regulate cloning, the FDA and other administrative agencies regulate many of the processes involved with human cloning and the FDA has publically stated that they will not allow research projects involving human cloning.

Putting aside the legal problems with Dr. Taylor’s argument, she goes on to list a parade of horribles stemming from this supposed lack of legal protection. But that argument, too, is based on a lot of outdated science. Mainly she seems concerned that researchers are using fetal stem cells, though she strongly implies that fetuses are aborted to supply these cells, instead of recognizing that stem cells from fetuses already aborted for other reasons are then used for medical research. Dr. Taylor seems to overlook the fact that we often use cadavers for medical research, or else distinguishes using parts of aborted fetuses from using parts of cadavers without explanation. Either way, using parts of our dead to help the living is a well-established and generally uncontroversial matter; our entire organ transplant system is based around just that idea.

Finally, Dr. Taylor spins into a diatribe about transhumanists, though she doesn’t really say much about why transhumanism is bad except that people might (gasp!) lop off their own limb to replace it with something better and that the divide between the haves and the have nots might widen (an issues, it’s worth mentioning, that transhumanists themselves are concerned about.)

It’s easy to argue against transhumanism when you’re misquoting law, using outdated science, and not bothering to connect ideas with logic. Indeed, many of the experts Dr. Taylor cites to say that the policies she’s decrying are the natural extension of current scientific and ethical policies.

I want to be clear about why I’m calling out this article. It’s not that I dislike Dr. Taylor, or disagree with everything she says even, but I abhor bad arguments. I don’t expect blog posts to look like academic articles (I’d be in trouble if that was the case) but I don’t think accurate is too high a bar to expect. It’s not just that articles like Dr. Taylor’s are wrong, it’s that they’re wrong and likely to influence public opinion with bad facts. And that, at the heart of it, is the problem. It’s also why, should I misrepresent something, I want people to correct me. We can have debates about human cloning, genetic engineering, and the divide between the haves and the have nots without resorting to bad law and bad facts. The ethical issues surrounding transhumanism are difficult enough to debate without also having to defuse straw man arguments. To make real progress in these ethical debates we have to remain intellectually honest.

An excellent example of a well written article exploring a transhumanist ethical problem is this article by Carolyn Abraham at The Globe and Mail. While I highly recommend reading the whole article for a serious debate about the merits of human cloning and genetic engineering, what I want to point out here is that the article is accurate, balanced, and presents both sides of the argument. I really look forward to well-reasoned arguments from people not as optimistic about technology as I am because I realize the world isn’t so black and white that this technology is obviously great or terrible. Reasonable minds could disagree with the conclusion (not made by the article) that the technology is good or bad, but they would be disagreeing based on accurate information. That’s the sort of debate we need, and the only thing that will help us come to any sort of conclusion about how to proceed in the future.

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Stem Cell Advances

January 28, 2012 3 comments

Let’s talk about stem cells for a bit.

Few technologies are as contested as stem cell treatments; particularly embryonic stem cells, harvested from embryos specifically for research purposes. The National Institute of Health has a helpful FAQ here that explains more about stem cells generally, including the embryonic variety and the newer induced pluripotent form (where adult stem cells are regressed into an embryonic-stem-cell-like state). Despite the controversy around embryonic stem cells, stem cells generally (including, but not limited to, the embryonic kind) offer enormous potential for radical treatments.

Still, many of these treatments are in the research phase, and the Food and Drug Administration (FDA) recently issued some warnings about stem cells. Essentially, the FDA warns that stem cell treatments are still being approved, and consumers ought to be wary when approached with information about radical stem cell cures; these pitches are often just scams designed to bilk desperate patients and their families out of money. On the other hand, some tech companies prefer to operate overseas because of the regulatory morass imposed by the FDA here in the United States; while the regulations are well intentioned to ensure patient safety (to give the FDA the benefit of the doubt) they frustrate companies that want to get cures to patients as quickly as possible. I’ll outline some of the proposed treatments below:

Researchers in London are conducting clinical trials where stem cells are introduced into the retina of patients that suffer from blindness-causing diseases.  Concurrently, researchers at UCLA are reporting early success with the procedure. Through the first four months, the treatment appears successful and safe. However, “many more years” of trials are needed to further confirm the initial results. Additionally, the trial offered only slight improvement to vision, though curing the disease doesn’t seem to have been the point of the trial.

An article from NPR offers more information about the same experiment, including that the experiment was the first time that humans were helped by stem cells. This article also describes in more detail the improvement made by the test subjects; the improvement seems to be substantial. Scientists in both articles are very careful to reiterate that this should not be touted as a cure for blindness, but only encouraging initial results. Thus far, however, the results seem very impressive indeed.

I’m a little confused by the implication that the previous article makes that the research was the first time that stem cells were used to help humans because this video claims that scientists have used stem cells to grow a new trachea (wind pipe) for patients. The video is a little dry, but I include it below in its entirety for you to judge:

In other experiments, scientists are researching ways to cure Alzheimer’s Disease and regenerating muscle tissue that forms vascular walls. The first set of research ought to eventually allow doctors to introduce healthy neurons into the brains of people afflicted with Alzheimer’s Disease, essentially curing the disease (especially if they can also remove the defective or dead cells; another project Aubrey DeGray and crew are making headway on.) Stem cells have also been introduced into mice and seems to help them live longer, healthier lives. Aubrey DeGray generally predicts that 10-15 years after scientists are able to double the lifespan of mice, they ought to be able to do the same for humans. This research suggests that the mouse-lifespan threshold may soon be met.

In sum, the FDA is right that currently much of the work being done with stem cells is research based or otherwise preliminary, and patients should be wary of supposed stem cell treatments for almost any condition. However, just because the treatments aren’t here yet doesn’t mean that they won’t be soon, and current research suggests that within the next several years stem cell treatments will move from hoax to fact.

Artificially intelligent cars have received a lot of press lately, so look out for my article about them in the next few days.

Categories: legal issues Tags: , , ,

Secured Transactions In Bionic or Genetic Organ Replacement

October 13, 2011 Leave a comment

Because I’m in law school, I’m exposed to lots of general legal theories and policies. Because I’m interested in technology, I enjoy thinking about the implications of those legal theories in relation to transhumanist technology. I hope, one day, to merge the two interests and help shape the law as it relates to transhumanist technology. I gave a talk at my law school recently about the future of healthcare technology and began to scratch the surface of merging the law and technology, and today I want to flesh out one of the topics I brought up: Contract law as it relates to human augmentation. In the US, contract law is governed by (among other laws) the Uniform Commercial Code (UCC). The UCC is a model code, which means that the drafters craft what they view as an ideal piece of legislation, and that legislation is then offered to the states for adoption (or not.) The UCC, for instance, has been adopted by every state in some form, although every state has also modified the UCC in accordance with the policy preferences of each individual state.

Article 9 of the UCC governs secured transactions for goods. Because mechanical or biological organs are tangible, moveable, and identifiable at the time of sale, they qualify as goods under the UCC. The basis of secured transactions rests in the policy that a creditor who extends money or goods on credit ought to be protected from a debtor that defaults on their payments by judicially enforced remedies. This is a common enough; anyone who has bought a car with a loan certainly signed a security agreement as part of accepting the loan that said something to the effect that the creditor has the right to repossess the car if the buyer defaults on their loan. The process of gaining a security interest in goods is relatively simple. First, the creditor must extend some value to the debtor; in the previous example the car dealer trades a vehicle for the debtor’s promise to pay in (generally) monthly installments over a period of time. The debtor must authenticate (generally: sign) this security agreement. The creditor must accurately describe the collateral secured (say, by listing the make, model, and VIN number of the car.) Most creditors of high-ticket items also file a financing statement with the appropriate state office, putting other creditors on notice that the original creditor has an existing interest in the property; essentially, the financing statement lets all other creditors know that the first creditor has dibs on the car if the buyer defaults on payments and/or declares bankruptcy.

Once secured, a creditor has the right to repossess the property if the buyer goes into default, subject to some restrictions. For instance, most states provide that a creditor cannot ‘breach the peace’ when repossessing the vehicle. If that isn’t possible, then the creditor has to go to court, get a judgment against the debtor, then get the sheriff to escort the creditor to the debtor’s property for repossession. Generally, repossessed vehicles are sold at auction. If the auction nets an amount sufficient to cover the debt, the debtor takes what is owed and transfers any excess to the buyer. If the auction nets an amount insufficient to cover the debt then the creditor can repossess any additional property used as collateral in the security agreement, or else file an unsecured lien on the debtor’s other property. All of this is fairly standard when we’re talking about repossessing a car, but how would the law handle repossession of a prosthetic limb, or even more difficult, a vital replacement organ?

The movie Repo Men offered the Hollywood take on this very situation. In the movie, contract law was rigidly enforced and there was no ‘breach of the peace’ limitation. Thus, a person who bought a (very expensive) prosthetic arm signed something like a security agreement, the prosthetic company filed a financing statement, and the buyer was obligated to make payments until the limb was paid off. If the buyer defaulted, the Repo Men were sent to collect the limb; often by tasing or otherwise incapacitating the debtor and forcibly removing the limb, leaving the debtor to fend for themselves when they woke up. In the movie, even artificial hearts were repossessed which, of course, meant the debtor never woke up. But a contract was a contract, so that was the debtor’s problem.

There are good reasons for allowing a creditor to take a security interest in an artificial limb or organ. The first relates to the general policy behind contracts mentioned above: People ought to honor their obligations, and if good will isn’t enough to compel a debtor to make timely payments then the creditor ought to have remedies to recover the property or otherwise recoup their losses. Prosthetic limbs and organs are likely to be very expensive; perhaps as much as a nice car for something like a prosthetic arm all the way up to the cost of a house (or more) for prosthetic hearts, lungs, or eyes. If a creditor has no remedies for a defaulting debtor, then no creditor in their right mind would sell a limb or organ before it was fully paid off; either in cash up front or through a layaway program where the purchaser makes all payments –before- receiving the limb or organ. If the buyer needs a prosthetic arm, this might make sense, although the buyer won’t be able to use the arm until they come up with the money or make all the layaway payments. If the buyer needs an artificial heart, this could be more problematic; most buyers probably won’t be able to come up with the money in time to save their lives. In short, without a judicially enforceable ability to recover their losses creditors will be hesitant to sell limbs or organs on credit and buyers will be inconvenienced while coming up with the money for the limb or organ or be outright unable to purchase a needed limb or organ. Prosthetics would be reserved for the wealthy (or patient) and less well-off people will not be able to take advantage of prosthetic technology.

On the other hand, we certainly don’t want creditors knocking people out and repossessing their hearts in the middle of the street. Or even in the privacy of their own homes; people ought to honor their contracts, but not if failure to do so will ultimately kill the debtor. That bumps up against another contract principle that forbids unconscionable contracts. A court would almost certainly hold that a contract, the default of which would lead to the debtors death, is unconscionable, no matter how good for public policy it is that creditors extend credit to buyers. Even if a creditor could somehow repossess a limb or organ without breaching the peace (or had a sheriff with them to enforce a judgment) we probably don’t want to force a buyer to submit to whatever doctor (or not) the creditor employs to retrieve the organs. In the US, patients generally have the right to select their doctor and aren’t forced into operations they don’t want. Although this second provision might pass the unconscionability muster if the creditor is extremely clear with the debtor about what they are signing and offers the debtor as much time as necessary to seek advice about the contract, this sort of provision goes right up to the line of what a court might allow.

How might these two persuasive policies be reconciled? The most straightforward approach would be to select one or the other policy preference and craft the laws in such a way to enforce it; either we allow secured creditors to repossess organs, even if it kills the debtor, and we modify the unconscionability doctrine, or else we forbid repossession and deal with the social fallout of rich people getting organs while poor and middle class people die for lack of an ability to pay. Neither sounds particularly appealing, although I submit that the second option is preferable to the first for a couple of reasons. Over time, technology tends to ‘trickle down’ (a phrase I use hesitantly because Regan’s economic theory was such a colossal failure). Think about cell phones; even the free-with-contract phones today are several times better than the most expensive phone available 15 years ago. Rich people might have access to the –best- prosthetics (and certainly to the newest prosthetics that are just becoming available) while poorer people have to wait, but if there is a market for refurbished prosthetics as the rich upgrade their augmentations, it seems conceivable that less wealthy individuals could eventually get a bargain prosthetic (or a prosthetic a few versions out of date) within their budget. Whether prosthetics will ever be dirt cheap is up in the air, though they ought to become affordable to the vast majority of people eventually. I imagine a large part of prostheses becoming affordable quickly rests on the palatability of implanting refurbished organs into new patients; most people wouldn’t buy a ‘refurbished’ pair of underwear, so is there any reason to think people would accept ‘lightly-used-single-owner’ eyes? Of course, if the alternative is a lifetime of blindness … Plus, people already accept donated organs that seem significantly more used by another person than a sterile, refurbished prosthetic would be.

However, policy reconciliation could be more subtle. For instance, the laws could be crafted to require debtors to secure their organs with different collateral; a debtor who defaults might have their house or car repossessed to satisfy the debt, but not the organ that is keeping them alive. This would require minimal revision in the current laws, as we already deem it acceptable to foreclose on a debtor’s house or vehicle for non-payment of a debt. Although it is difficult (for me) to be OK making a debtor homeless or taking their car (which might, after all, be the only thing allowing a debtor to get to work, which would allow them to pay off the debt eventually) it is a more acceptable option than killing a debtor who cannot pay or denying portions of society life-saving technology for want of credit. Most debtors probably wouldn’t have enough personal property to require that other collateral aside from a house or car be used given the probable expense of prosthetic limbs and organs. Part of that additional collateral could be voluntary garnishment of wages, although how attractive that is to a potential creditor would depend on how much money the debtor makes, and is always subject to the risk that the debtor will lose their job after implantation.

I’m sure there are more than these few options for securing organs, though I can’t think of any at the moment. Additional thoughts are appreciated!

*As a legal matter, I have to say that none of this should be construed as legal advice or anything other than the musings of a technophile who happens to be in law school. If you have non-theoretical questions about the UCC or secured transactions, consult a licensed attorney. As a credit-where-it’s-due matter, thanks to my law school buddy Jeremy Duke and my Contracts & Secured Transactions professor Keith Rowley for letting me bounce ideas off them. Any misstatements of the law that remain are entirely my own.

Categories: ethics, legal issues