Cybernetic-Enhancement Technology and the Future of Disability Law

• Author: Collin R. Bockman
• Pages: 01

Collin R. Bockman. J.D. Candidate, The University of Iowa College of Law, 2010; Singularity University Graduate Studies Program, 2009. The author would like to thank the editorial boards of Volumes 94 and 95 for their cooperation and assistance, Dr. Ray Kurzweil for a great deal of inspiration, and technology pioneers everywhere for creating such an interesting and vibrant world to live in.

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I Introduction

The relentless forward march of technology has defined human history.¹ The discoveries of fire and simple tools led to the development of agriculture, which allowed primitive humans the free time necessary to develop written communication.² The Industrial Revolution laid the groundwork for the current Information Revolution.³ From the Internet to global-positioning satellites, recent advances in technology have dramatically changed the way we do business, raise families, and go about our daily lives.⁴

In the near future, advances in neuroscience and robotics will change the way our society views the human body by further reinforcing the concept of the body as a machine with interchangeable, replaceable, and upgradeable parts. This Note focuses on cybernetic technologies— mechanical, electronic devices that link directly with the human nervous system.⁵ As these cybernetic technologies become more advanced, they will approach and then surpass ordinary human function, raising the prospect of enhancing human capabilities well beyond the current baseline standard.⁶ This increase in the breadth and depth of the ability spectrum, spurred by the rising power and popularity of cybernetic-enhancement technologies, may lead society to view the healthy, yet unenhanced, human as “disabled.”⁷

The conflict at the intersection of cybernetic-enhancement technology and disability law is this: “In the future, the disabled may prove more abled; we may all want their prostheses.”⁸ This shift in viewpoint will necessitate aPage 1318 reevaluation of our legislative definition of disability. Even as amended, the Americans with Disabilities Act (“ADA”) does not define “impairment” or contemplate the possibility of ordinary human capacities as impairments. Due to the breadth of the field of disability law, this Note focuses on the employment-discrimination provisions of the ADA.

Scholars have argued that one of the defining debates of the early twenty-first century will be over whether and to what extent we should use technology to significantly enhance human capabilities.⁹ The human-enhancement debate covers many different fields, including genetic and pharmacological enhancement.¹⁰ This debate is already well established in the field of bioethics,¹¹ and a new field called “neuroethics” is advancing the debate in the context of neuroscience.¹²

Observers generally divide the debate over human enhancement into two camps: “bioconservativism” and “transhumanism.” On the antienhancement side, bioconservatives argue that the human body is good enough as it is and that using human-enhancement technologies to tamper with its mechanisms is unethical.¹³ They advance the argument that using human-enhancement technologies is cheating at life, similar to how steroid-Page 1319using athletes are cheating at the Olympics.¹⁴ Biconservatives typically oppose other biotechnologies, such as embryonic stem-cell research,¹⁵ and may advocate categorically banning enhancement technologies.¹⁶

Opposed to the bioconservatives is a movement labeling itself “transhumanism,” a term one author defines as “overcoming human limitations through reason, science, and technology.”¹⁷ Transhumanists view enhancement technology as essential to the further progress of humanity.¹⁸ Some transhumanists support the protection of each individual’s right to use—or refuse—enhancement technology.¹⁹ Transhumanist politics range from libertarian to socialist.²⁰ While some groups believe that society should entrust enhancement technologies to the free market, others believe distribution through social programs will be necessary to protect equality.²¹ Many transhumanist companies, non-profits, non-governmental organizations, and other organizations have recently established themselves.²² Along with bioconservatives, transhumanists will shape the ensuing public debate on human enhancement.

The human-enhancement technologies relevant to this Note begin with the human body and the ways in which our concepts of disability are embedded in that body. Part II.A analyzes the legal discourse of disability and reviews the ADA, relevant jurisprudence, and recent amendments.²³Page 1320 Part II.B reviews recent developments in replacement body parts and cybernetic technology, especially those that have the capacity for human enhancement.²⁴ Part II.C calls for action to amend the ADA sooner rather than later, noting the exponentially accelerating advancement of technology.²⁵ Parts III.A and III.B introduce the restoration–enhancement problem, arguing that widespread enhancement is both plausible and likely.²⁶ Part III.C examines several provisions of the ADA Amendments Act of 2008, concluding that the ADA is ill-equipped to function in a nation where cybernetic enhancement is common.²⁷ Part IV argues that Congress should examine the legal and ethical implications of cybernetic-enhancement technology and proposes changes to the ADA that would begin to address these problems.²⁸ It is important to bring the debate over cybernetic enhancement to the national stage quickly, since technology once seen only in science fiction is becoming common, everyday technology at an ever-increasing rate.²⁹

II Recent Developments in American Disability Law and Cybernetic-Enhancement Technologies

A History of Disability Legislation

1. The Americans with Disabilities Act of 1990

The Americans with Disabilities Act of 1990 protects the disabled against many forms of discrimination.³⁰ The ADA defines disability as “a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual; a record of such impairment; or being regarded as having such an impairment.”³¹ Selected areas of ADA-prohibitedPage 1321 discrimination include employment, education, and public access.³² Covered under Title I, a typical ADA employment case involves a suit by an employee who claims her employer refused to provide her with an accommodation for her disability.³³ Much of the litigation under the ADA relates to employment discrimination.³⁴

One important question Congress left unresolved in the ADA is whether courts should take mitigating measures into account when determining whether an individual is disabled. The Supreme Court resolved this question in Sutton v. United Air Lines, Inc., where the Court held that courts must take mitigating measures such as medication or mechanical devices into account when determining if someone is disabled.³⁵ In Sutton, the defendant airline refused to hire the plaintiff twins due to their extreme nearsightedness.³⁶ The Court concluded that the plaintiffs were not disabled within the meaning of the ADA because with the aid of corrective lenses, they were not substantially limited in a major life activity.³⁷ The Sutton Court reasoned that, under the ADA, “[a] disability exists only when an impairment ‘substantially limits’ a major life activity, not where it ‘might,’ ‘could,’ or ‘would’ be substantially limiting if mitigating measures were not taken.”³⁸ Lower courts have generally followed this reasoning,³⁹ and subsequent Supreme Court jurisprudence has upheld it.⁴⁰ Scholars and disability advocates have widely criticized the Sutton ruling as over-limiting the ADA’s coverage; claimants who were obviously “disabled” were denied coverage because of the “mitigating measures” they employed.⁴¹

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2. The 2008 Amendments to the ADA

In response to these criticisms, Congress passed the Americans with Disabilities Act Amendments Act (“ADAAA”) in 2008.⁴² In the ADAAA, Congress emphasized that it meant for the original ADA to extend broad coverage to people with disabilities.⁴³ The Amendments explicitly reject the Supreme Court’s holding in Sutton that courts determining whether an individual is disabled must take into account mitigating factors actually employed by the plaintiff.⁴⁴ The applicable language of the ADAAA reads as follows:

(E)(i) The determination of whether an impairment substantially limits a major life activity shall be made...