Transvision is like nothing else. As a member of the World Transhumanist Association, I've attended our last two annual conferences, where far-sighted researchers armed with animated PowerPoint presentations boldly discuss their insights into the future of technology. It's a three-day tour of nanotechnology, genetics, biogerontology, AI and other concepts that make less-than-ideal conversation at cocktail parties.

Yet I noticed that something was lacking-other than women. Transvision
'03 featured a panel of three speakers who discussed issues in the law relating to future technology, including personhood, brain death and autonomy. At TV04, no such panel was to be found. Several speakers touched on the present law, and articulately refuted the arguments set forth by the US President's Council on Bioethics. The attention given to legal issues at these conferences was far outweighed by our visions of sugarplums, gumdrops and Jupiter Brains. Are we overlooking some of the obstacles along the way?

To advocate scientific research and technology development means to understand the benefits and concerns of continued progress, and desire to bring about those benefits in an ideal way. Our perception of the destination is widely shared: maximum health, wealth and fun for all. We often disagree, however, on the journey. Some hope for a social democracy to encourage development and equal access, while others desire a laissez faire approach to maximize autonomy.

Regardless of how we envision society's role in the future, the governments of today are not likely to accommodate those visions anytime soon. Notwithstanding some remote possibilities, the governments of the few most powerful nations will largely determine how technology is developed over the next few decades-and if it is developed at all.

The limits of advocacy

The idea that scientific progress is a sort of meme-juggernaut that cannot be bound by the law is fallacious, as demonstrated by President Bush's executive order of August 9, 2001.

This order, on which Bush ruminated for some time, limited federal funding of embryonic stem cell research to the lines of stem cells that were already cultivated. With pharmaceutical companies reluctant to pursue this research, the field stagnated by the end of 2002. As a result of subsequent private and state funding of research-particularly California's $3 billion ballot initiative (all figures US)-the effect of Bush's order have been lessened. Nevertheless, it is important to note that all this difficulty resulted from a mere executive order. While a US president has no substantive domestic law-making power, he can issue an order binding on federal agencies between a pancake breakfast and a round of golf. Congress can do much more.

The Unborn Victims of Violence Act of 2004, ironically signed on April 1, illustrates how a rushed attempt to appease voters may have surprising-and destructive-consequences. On its face, the act makes the injury of a fetus a crime separate from harm to its mother. Moreover, s.
1841(C) actually gives fetuses the protections "as a human being" from actual and attempted murder and manslaughter. Tort law already protects unborn children by allowing the mother to recover for any harm that comes to the fetus. Because a mother has the right to abort a pregnancy, it simply does not make sense for the government to give a fetus special protection. Essentially, the law is giving human rights that can be taken away at the whim of someone else; it is a subordination of rights reminiscent of slavery. Worse still, the act defines "unborn child" so broadly that it could conceivably apply to embryos, making murderers out of the geneticists who use them. By giving fetuses nearly the same right to life as adults, Congress has stretched personhood rights to irrational bounds. Wherever its political roots lie, this act serves as a stepping stone, both for encroachments on women's right to control their bodies and to impinge on embryonic research.

Legislative Reality

Congress has the power not only to affect funding for scientific research, but to halt research altogether. Article I, Section 8 of the Constitution gives Congress broad power to regulate interstate commerce, including nearly all revenue-generating activity. By the Supremacy Clause (Article VI, Clause 2), federal law supersedes any conflicting state law. Thus in theory, the federal government has the power to ban nearly any form of research, as well as the distribution and sale of any technologies they may produce.

But it's more than a theory. Following in the steps of state prohibitions, legislation to ban human cloning has been bouncing between the House and Senate for years. In response to the news of Dolly's birth, the Clinton Administration proposed the Cloning Prohibition Act of 1997. The bill wisely balanced alarm and scientific optimism by calling for a temporary ban on reproductive cloning, and continuing to allow somatic cell nuclear transfer ("therapeutic cloning") for its valuable research. Since that time several bills have been debated, including bans on all forms of cloning that were approved three times by the House of Representatives. Currently Senator Sam Brownback (R-Kan.) is pushing a broad ban, while proponents of stem cell research may have lost three supporters in the Senate. Facing a second term under Bush and a conservative majority, it seems likely for such a bill to pass.

Perhaps a nationwide ban on cloning is precisely what the US public needs to realize how absurd the bio-Luddite philosophy truly is. The country's chief export, after all, is information, and it's a market they're gradually losing due to declining education standards and the exportation of high-tech jobs. On March 9, the U.N. passed a nonbinding statement to ban all human cloning. Several influential states-including Canada, China, India and the United Kingdom-voted against the statement, and have been continually conducting embryonic stem cell research. If such a prohibition were enacted in the US, the research would continue in much of the world. In February, Professor Ian Wilmut, who created "Dolly" the sheep, has been authorized to clone human embryos for research. As Bush vowed to veto any compromise on stem cell research, scientists in South Korea achieved a breakthrough in this emerging field. The results thus far have been promising, and once the work turns into breakthrough treatments, the US could be made the fool that turned a blind eye to the future of medicine.

Intellectual property law has long been a driving force of innovation.
With countless resources spent on R&D, companies rely on patents to protect their investments. US law is relatively broad in its range of patentable subject matter. Courts have awarded patents for living organisms and human genomes, which have promoted research in biotechnology. Practices on the horizon-such as germline engineering-are sure to challenge how the courts interpret patent law. Jeremy Rifkin and Stuart Newman have already forced a debate, by filing applications for "chimeras"-part human, part animal hybrids. Congress followed suit last December. The "Consolidated Appropriations Act, 2005" (H.R. 4818) included a rider (s. 626) that effectively prohibits all patents "directed to... a human organism." Time will tell how the courts will interpret such a vague provision. Nonetheless, to preserve a rapidly-growing biotech industry, it's essential to promote patent laws that encourage research. A balance must be found, and we must ensure that Leon Kass and Francis Fukuyama aren't the only ones at the negotiating table.

Questions never answered

Much of the mess I've described stems from the fact that the law lacks a clear concept of what a person is; particularly, where personhood begins and ends. It seems paradoxical that the law guarantees a plethora of rights for all people, but fails to say exactly who receives those rights. Granted, there's strong debate over how to define personhood, and we don't know nearly enough about the mind to draw strict criteria for it. Even so, a law that defines personhood based on the mind-rather than the species-could solve legal debates ranging from abortion to brain death. Moreover, it could eliminate all of the legal obstacles in many fields of research. Geneticists could freely conduct embryonic stem cell research, because the law would only protect embryos as property.
They would have equal opportunity to public funding, because restricting funds on the premise of protecting non-sentient life would be unfounded.
And while many avenues would be open, we would also ensure public safety by protecting people rather than cellular masses. In other words, a law of human rights based on the mind would better protect civil rights for all people, while also ensuring freedom for valuable scientific work.

Yet we can't expect Congress to legislate a more progressive view of personhood without compelling evidence to support it. Strong AI is one development that could make the case for giving human rights to other intelligent beings. Imagine, for example, a Max Headroom look-alike arguing in court that his programmers shouldn't be allowed to turn him off. Yet because this scenario lies with future technology, the very evidence we require may depend on progress that is hindered by the current laws.

The US lawmakers represent the people (or so they tell us), and tend to follow public opinion. Perhaps an appeal to the public is best to promote progressive laws. Yet how can we convince the public that a clone is nothing more than an identical twin, if the laws don't allow geneticists to demonstrate this simple fact? Of course, those familiar with genetics and reproduction can weigh the evidence and conclude that there's nothing horrifying about cloning; nor would they fear that we would use clones for "spare parts." Yet the scientifically-illiterate public has not accepted this view, and requires stronger evidence.
Considering that-despite the overwhelming evidence behind it-only about half the US population believes in evolution, nothing short of a walking, talking, country-music-singing clone will convince a majority that human cloning is morally trivial.

Although public opinion is important, it is not definitive, and the courts and legislature have sometimes made unpopular decisions that eventually bring about social change. Progress comes in many forms, from landmark court opinions, charismatic public servants, social revolutions, sweeping legislation, to grassroots campaigns. Thus to those of us who advocate a cautious, but rational and optimistic view of technology, many avenues are open. We can, as Carl Sagan said, promote science to bring about a sense of wonder about the natural world, uninhibited by superstition. We can work to realize amazing new medicines, develop lighting-fast computers, or build molecule-sized machines. We can write on the internet, and hope to draw sparks across the globe.

While we surf waves of change, we must look to more than the shores we wish to reach. There are precarious waters ahead. How should we expand civil rights and liberties? Where do we draw the lines for ethical experimentation? Should we have property rights in our own bodies? How can we ensure that nanotechnology is safe? To whom should we award patents? And how can we convince lawmakers to make responsible, ethical decisions? Such questions will affect us all, so we must pay more attention to who's answering them-and how.

Ben Sparrow is a law student in Boston, studying intellectual property law. He is a contributor to the WTA Law Network and an intern at the IEET.