At a time when some see transhumanism as a new age of humanity thanks to technosciences, the impression of a lack of control dominates. A few spectacular scientific experiments, bordering on the fact-diverse, reinforce this impression, as witnessed in the case of the genetically modified children in China. Does this mean that the way to increase the human being is totally free? Will we all soon be cyborgs? To answer positively from the outset would be to forget a little quickly that the law delimits the march of progress and prohibits certain practices. Censor of the contemporary techno-scientific hubris, it even criminalizes certain behaviours that are contrary to medical ethics.
Bioethics law and bio-law
The regulation of biomedical activities for human improvement is ensured by bioethics law sometimes referred to as bio- law. It is structured around two major legal principles, freedom and dignity, and is based in particular on the bioethics laws adopted in 1994 and on international texts such as the Universal Declaration on the Human Genome or the Oviedo Convention on human rights and biomedicine.
Several practices relating to human augmentation are therefore already subject to a legal framework, such as medical assistance for procreation, pre-implantation diagnosis, cloning, eugenics, transplants, etc. In other words, even if there is no general text on human augmentation or a global bioethical model, legal resources are already available to address some of the issues raised by human enhancement.
The augmented man, one of the litigants among others...
While bioethics law determines the cardinal principles to be respected in the improvement of human beings, other branches of law deal with more pragmatic aspects in this field. For example, the criminal code criminalizes those who exceed certain limits: for example, those who remove an organ from a non-consenting person and transplant it to another. Sports law deals with doping, a form of increase contrary to the sporting ideal. The law of persons, the law of property and the law of obligations also have a role to play in determining the status of prostheses and other devices for augmentation of the human body. Are these things like other things? How is the damage resulting from the loss of a prosthesis repaired? Jurisdictions have been faced with the question of how to treat the wearer of a prosthesis in sports competitions that could benefit him or her. In this regard, the Court of Arbitration for Sport has held that scientific analyses do not allow the conclusion that prostheses Flex Foot Cheetah of Oscar Pistorius gave him an advantage over an able-bodied athlete.
A right rather favourable to individual improvement
L’article 16-3 of the civil code allows the integrity of the human body to be damaged in cases of medical necessity for the person or in the therapeutic interest of others. This means that some individual increases are already legal. If we think primarily of restorative forms, which aim to restore a sick or injured individual to a state as close as possible to his or her initial state, we soon find that non-repairing forms are also permitted. The Public Health Code thus devotes specific provisions to cosmetic surgery, which is not intended to pursue a therapeutic aim but may be motivated by simple personal convenience. In a more general way, other procedures falling more within the scope of theanthropotechnics that traditional medicines are also legal. This is the case of contraceptive techniques that do not treat pathologies but make it possible to control reproduction.
Safeguards against the unreasonable desire for increases
Although there is no legal status of the enhanced human, lawyers are not powerless to control anthropotechnics. First of all, medical deontology seems to be incompatible with uncontrolled recourse to anthropotechnics. According to the second paragraph of thearticle R 4127-8 of the Public Health CodeAccording to the French Code of Ethics, the physician "must, without neglecting his duty to provide moral assistance, limit his prescriptions and actions to what is necessary for the quality, safety and effectiveness of care". Furthermore, according to theArticle R 4127-40 of the same code, "the physician shall refrain from placing the patient at undue risk in the investigations and interventions he performs and in the therapies he prescribes". The physician's obligation not to take risks and to limit his or her practices to care only, which obviously does not include augmentation practices, is emphasized here.
Fundamental rights and certain founding principles of bioethics law, including equality and dignity, then stand in the way of the reification of individuals to which the hybridization of the flesh with the machine could lead. Likewise, the primacy of the human person as stated by theArticle 16 of the Civil Codebut also the respect due to the body, its inviolability and its non-patrimoniality affirmed by thearticle 16-1s, seem to be opposed to overly radical attempts at individual self-improvement. Moreover, if certain forms of anthropotechnics were to be assimilated to care, which is already the case with medically assisted procreation and contraception, the principle of equal access to care and the principle of non-discrimination should make it possible to guarantee equal access to these techniques.
Finally, in a more prospective way, the extension of the precautionary principle could constitute a serious limit to dangerous augmentation techniques. As identified by Hans Jonas in his book entitled The principle of responsibility: an ethic for technological civilizationThe principle of expecting the worst is known to the law, but only the Environmental Code provides for it for the time being. Its application in health law would allow a reformulation of bioethics around the central idea of responsibility and would condemn dangerous practices.
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A rather hostile right to the betterment of the human species
Although it accepts certain anthropotechnical practices at the individual level, the law seems rather unfavourable to the improvement of the species as a whole. Various indications point to this position. A first sign is the legal consideration of the integrity of the human species. Article 16-4 of the Civil Code expressly prohibits attacks on the integrity of the human species, eugenics, cloning and the transformation of genetic traits for the purpose of modifying a person's descendants. The message is clear: the human species must not be modified. A second clue is the criminalisation of crimes against the human species, such as reproductive cloning and eugenics, which are punishable by 30 years' imprisonment and a fine of EUR 7 500 000. A third index is based on the emerging consideration of future generations for which current generations would have responsibilities. Although the normativity of this concept is still uncertain, it may be used to prevent the modification of the human species.
In the end, there is probably too much tendency to forget the role of law in social evolution. To all those who have the impression that our society has been overtaken by the biotechnological fact, we can recall that lawyers try to watch over the fundamental rights of individuals and the integrity of the human species, even if it means turning into ethicists.
Anne-Blandine CairoProfessor of Private Law and Criminal Sciences - School of Law - University of Auvergne, Clermont Auvergne University
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