TRANSHUMANISM: MORALITY AND LAW AT THE FRONTIER OF THE HUMAN CONDITION.

• Author: Cummings, Chad D.

INTRODUCTION

"If you ask me today, is it possible to live to be 500? The answer is yes," opined Bill Maris, founder of Google Ventures. (1) Three years later, Aubrey de Grey, a prominent biomedical researcher, astonishingly claimed that "'people in middle age now have a fair chance' of never dying." (2) Maris and Grey are two advocates of a biological and technological movement captioned as transhumanism. (3) It is described as the "belief or theory that the human race can evolve beyond its current physical and mental limitations, especially by means of science and technology." (4)

Transhumanism, in its more extreme varieties, "advocates using science and technology for a reconstruction of the human condition sufficiently radical to call into question the appropriateness of calling it 'human' anymore." (5) Transhumanism has also been defined as "a way of thinking about the future that is based on the premise that the human species in its current form does not represent the end of our development but rather a comparatively early phase." (6) The word conjures the iconography of science fiction and Hollywood blockbusters, but its implications are both tangible and timely. (7) In the immediate future, the practical and commercial effects of transhumanism will likely be therapeutic--for example, ameliorating physical impairments. (8) Yet self-styled technocrats and Silicon Valley billionaires are already championing an extreme variant of transhumanism, termed "posthumanism," which contemptuously disdains man's corporeal form and his attendant qualities as antiquated baggage to be jettisoned at the earlier juncture. (9)

To illustrate, one example of posthumanism is the burgeoning xenofeminist movement. (10) Xenofeminism aims to eradicate sex--one of the most fundamental and indelible aspects of the human condition (11)--through technology; this is necessary to combat, its proponents aver, undesirable structural inequities between men and women. (12) Moderated transhumanism, especially in its therapeutic applications, does not seek to degrade the human body in this way; rather, its supporters merely seek to employ technology to manifest the highest standard of living possible without altering the fundamental attributes of the human body. (13)

In the interest of concision, the remainder of this Note tightens its focus to a limited form of transhumanism--as opposed to the extremities of posthumanism--by exploring the confluence of certain biomedical therapies as distinguished from so-called enhancements. Later in this Note, I further granulize this distinction: between those therapies which operate within the narrow range of existing human capability and those exotic enhancements which seek to aggrandize the range of natural human capability into a new realm. This dichotomy forms the basis of the moral argument posited in Part III. Legal scholars have already trumpeted warnings on this therapeuticenhancement continuum in myriad contexts of social justice, inequities in access to education and healthcare, and even employment opportunities. (14)

While the convergence of science, philosophy, and law is hardly new territory, there is a relative dearth of case law on the topic of transhumanism; it does not fit neatly into the confines of natural or positive law. (15) Yet the absence of law on the topic is not indicative of its impracticability or irrelevance; instead, it might be characterized as the calm before the deluge. (16) Few subjects will shape legal thinking and societal discourse in the twenty-first century to the extent of transhumanism. (17) Its development--technological, philosophical, and moral--will impact legal practitioners and laypersons alike. (18) Its consequences are both prosaic and profound. (19) The prosaic consequences are readily observed in the buzzing distractions created by now-ubiquitous wearable appliances like the Apple Watch, while its profound implications underpin the metaphysical and legal constructs of personhood, discussed at length in Part II below. (20)

The objective of this Note is not to embark upon a Homeric odyssey of every philosophical and legal facet of bioethics or to assemble a comprehensive directory of current and future transhumanist technology; such a catalog would form a voluminous tome spanning "artificial intelligence . . . molecular biology, nanotechnology, genetic [enhancement]" and several other scientific spheres. (21) Nor is it an attempt to forecast the conceivable impacts of transhumanism on every field of law. That undertaking would be cumbersome not only for its length but also for its inaccessibility to all but the most technically disposed. That endeavor would also suffer from obsolescence shortly after publication, given the logarithmic cadence of technological change. (22)

Consequently, in the twin interests of brevity and approachability, this Note will further constrain its study to an examination of a handful of emerging technologies under the larger umbrella of transhumanism with the narrow purpose of acquainting the reader with what may be the most important and enduring legal dilemma: personhood. (23) In the interest of longevity, this Note will emphasize the theoretical and conceptual legal pillars upon which future developments in the arena are likely to rest by citing to the development of antecedent technologies in the twentieth century and some of their effects on the legal landscape. Finally, this Note will stake a claim on the morality vel non of transhumanism and impart an urgent call to action for legal practitioners: (1) to advocate for the development of moral, self-consistent jurisprudence; (2) to avoid future circuit splits; and (3) to avert the irreparable societal fractures created by abortion case law and other divisive subjects in decades past. (24)

As with any nascent technology, the most transformative applications and pressing legal conundrums have not yet been conceived and are exceedingly difficult to predict with any degree of specificity. (25) This difficulty is compounded by the fact that transhumanism is not a single technology, but instead a mesh of complementary, interrelated pursuits funded by competing interests in academia, government, and private enterprise vying for prestige, influence, and wealth. (26) To prepare a cogent survey of difficulties likely to arise in the legal context, it is necessary first to analogize to the developments of twentieth century technologies that are familiar to the reader, including advanced life support, organ transplantation, plastic surgery, and prosthetics.

To achieve that goal, Part I will present a brief but thorough account of three discrete, contemporary transhumanist technologies and their applications to date, including a succinct overview of their sources of funding and competing ideologies through the paradigm of therapy-versus-enhancement introduced above. This section will also acquaint the reader with foundational terminology essential to discuss the moral issues broached in the succeeding parts. Importantly, this part also distinguishes transhumanism from the repugnant historical practice of eugenics by differentiating their underlying ideologies and canon sources.

Part II will re-acquaint the reader with mainstream legal commentary and policy on the subject of personhood, supplementing the paucity of statutory and judge-made law on the topic of transhumanism with citations to relevant academic journals and model statutes to form a coherent, self-consistent diorama of legal principles and the accompanying moral minefield. This is vital because the development of the law of personhood in the twentieth century is likely to inform that of transhumanism in the twenty-first.

Finally, in Part III, building upon the foundational knowledge introduced in Part I and the legal dilemmas cited in Part II, this Note will attempt to persuade the reader of the moral urgency of this topic before suggesting a path forward in the form of a rudimentary, conceptual framework.

Intertwined in each of these parts, this Note propounds four assertions united by a common thread: First, acceleration in the development of transhumanist technologies is inevitable in a technologically advanced, globalized society. (27) Second, transhumanism is ineluctably complex because it embodies the meshing of technology and biology along a spectrum. (28) Third, conscientious legal practitioners have a moral obligation to actively participate in the development of case law and legislation in this field to avoid unfavorable, and indeed, catastrophically immoral outcomes. (29) Finally, and in summation, transhumanism is not only tolerable but can be moral; it is a discipline to be studied by theologians and moral thinkers as a qualified good--subject to conditions and constraints suggested in Part III--when applied in limited, therapeutic contexts.

1. A BRIEF SURVEY OF TRANSHUMANISM FROM THE 19TH CENTURY TO PRESENT: A CONFLUENCE OF SCIENCE, PHILOSOPHY, AND MORALITY

   To trace the moral contours of transhumanism, we must first understand the existing landscape of technological development, as well as the philosophical footings that will ground its future. The first subpart introduces specific transhumanist technologies that have either been commercialized or will be shortly. This is necessary to dispel the erroneous notion that transhumanism is some futuristic concept (as critical readers might perceive at this early stage) and thus only marginally important. In fact, it is here today, and, as we will see in later parts, the constituent technologies underpinning the theory of transhumanism are not particularly new. (30)

   The second subpart offers evidence to refute the contention that the modern transhumanist movement is a repackaging of the historical practice of eugenics. (31) Stated differently, if I am successful in the first subpart, I may have convinced the reader that transhumanism is here today...