The law and technology are the yin and yang of our everyday lives. Together, they weave our society’s tapestry in a myriad of ways, though the two have very different focuses and emphases. Technology usually gallops ahead, trying to leave past hardships behind and look to tomorrow and beyond. But the law middles, with one eye on the past and one on the present. It is indifferent to the unknown, unseen future. Titans of technology tend to ridicule the law as obsolete and rotten. That may be superficially true and sound right, but the seemingly rickety nature of the U.S. Constitution hides a secretly robust foundation. The U.S. Constitution is almost 250 years old. The principles underpinning the Constitution emanate from the English Common Law and are a thousand years old. Yet all the technological marvels of today and the magic of tomorrow grow and muscle up from the strong skeleton that is the legal system.
It is a well-worn cliché to complain about how radical new technologies are developing and mutating faster than Covid-19 did. ChatGPT, Bitcoin, autonomous driving, data protection, 3-D printed objects, drone-driven warfare… the list goes on. Banal questions like: “How could George Washington have known about IVF?” or “Do you really think Benjamin Franklin imagined an AR-15 in every house when the Founding Fathers amended the Constitution for the second time?” are rarely useful. They are fun in a high-school debate competition, but they miss the forest for the trees. We have progressed so much since the start of this country that the law itself is a kind of social and ethical technology, and it can unquestionably “keep up” and even stay ahead.
But “keeping up” can sometimes be challenging, especially in the marathon that is societal progress and human development. Without endurance, forward-thinking, and flexibility, even the best runner is likely to be left gasping. Of all the fields where technology is barreling ahead, the one that gives me the most pause is bioethics.
There are several interrelated aspects of this legally murky but burgeoning field of bioethics. In this essay, I will scratch just the surface and highlight one aspect: genetic engineering.
Oftentimes, every great idea was usually an anathema when it was first thought of. Dr. Christian Barnard — who performed the world’s first heart transplant in South Africa (1967) — was vilified as a monster who desecrated God. A decade later, when Louise Brown became the world’s first “test-tube baby,” a gaggle of politicians, religious leaders, “ethicists,” and commentators worried about the morality of her existence. But millions of people have benefited from these developments worldwide. The IVF baby, Louise Brown, went on to have a natural baby of her own! Assisted reproductive technologies can help infertile couples, same-gender partners, and so many others experience the joys of family.
Today, genetic editing technologies can alter, delete, or otherwise modify that very same “immutable” DNA. “Genetic engineering” is being positioned as a tool to help people overcome their inherent limitations, escape the clutches of fate and circumstance, and live their dreams. Yes, this emerging technology can solve major healthcare problems and make humanity more resilient to diseases. Chronic genetic conditions like allergies, Parkinson’s, Alzheimer’s, and multiple sclerosis can be eradicated using the power of computers and nanotechnology. However, in under a decade, genetic engineering has advanced so rapidly that there is a real probability of people becoming lab-created chimeras. With this kind of individual freedom, there is nothing stopping a Mengele-like mad scientist from creating a race of super-soldiers that could easily lead to world domination and possibly another world war. On a smaller but just as important scale, this technology makes it quite easy to design a person’s physical appearance. This has a high chance of leading to less diversity among the world population and regard for certain aspects of a person’s appearance just because it is not the fashion of the decade to have permanent brownish hair with blue accents and blue-green eyes.
We are not far away from “lab-created” humans either. In 2018, Chinese scientist He Jiankui conceived genetically modified twin girls, Nana and Lulu, in a lab. Though their genetic structure was not perfect, Dr. Jiankui created them without either a mother or a father. Unfortunately, the twins did not survive beyond a few weeks. These twins were “born” in a petri-dish with Clustered Regularly Interspaced Short Palindromic Repeats (CRISPR) technology, an innovation created by Dr. Jennifer Doudna and her team at the University of California at Berkeley. The next time, the process will obviously be better, and the babies will likely not have genetic mistakes and will live longer. What will we do when we have a class of babies, all made without parents, all without families, and all without support systems? What will stop unethical doctors from creating designer babies with certain genes who look a normative way? Athletic genes, academic smartness, beauty, hair, and more can all be cherry-picked. What happened to letting nature take its course? Over time, with progression, is such a baby even human anymore? Or is it now a cyborg? Are we creating a separate class of people – like “organic” vs. “non-organic” food? Is the movie “Blade Runner” a prologue of our history?
The result of all of these questions will most likely end up creating a divide in the world between “natural born” and “lab-created.” Creating lab-created humans in large amounts could result in the objectification of those individuals, leading to the devaluation of the rights of “natural-born” humans, since they are by no means perfect. Overall, there will be no value for human rights, perspective, ethics, emotions, and everything that makes humans the great and loving creations that we are.
It all sounds academic, but the dangers are very real and pressing. The technology exists right here, right now. To use the timeworn cliché, “there oughta be a law” against such destructive, crazy ideas. Dr. Jiankui was sentenced to three years in prison for his “crime.” The real question is: how can we develop a legal framework to prevent either Dr. Jiankui himself or other scientists from trying similar experiments again?
It is easy to believe that the long-term goal of a society is the individual pursuit of happiness. The overall health, success, and stability of a civilization facilitate that pursuit. And that health is largely dependent on a societal pursuit of justice, fairness, humanity, and moderation. Those are not empty words. They are the credo of a functioning society. And the one indispensable tool for that justice is the law.
It is not just that science has laws. It is that the law can be — and is — scientific, too. To paraphrase Dr. King, the universe’s scientific arc is long, but it bends toward justice. It must. And the law will, should, and must facilitate that process.
