by Josephine Bird, The Legal Forecast

Humans are now creating, or at least replicating, sentient creatures. On 24 January 2018, Chinese researchers published a paper in which it was revealed they had successfully cloned two monkeys.[1] Scientists such as Stephen Hawking, believe that humanity is on the cusp of creating technological sentience in artificially intelligent machines. This begs the question, how will clones and other sentient technology engage with our legal system, and do we need to re-think what is capable of possessing a ‘legal personality’?

 

Rethinking what is capable of possessing a ‘legal personality’

The entire premise of legal personality rests on whether the entity in question has ‘capacity’.[1] It is arguable that clones and artificial intelligence (AI) will have the capacity to acquire autonomy; the capacity to learn through interaction and experience; and capacity to adapt their behaviors and actions to their surrounding environment.

One may argue that legal personality can only be attributed to humans, as only humans have an innate sensitivity to the meaning of their rights and obligations. From an ontological perspective, it can be said that the rights and obligations afforded to humans are an expression of the ‘human condition’[1] and the development of the concept of human dignity and capacity to reason – differentiating us from all other living creatures.[2]

However, clones and AI represent a new age of human tech whereby we can build our potentially intellectual and emotional peers. The same dignity would arguably be possessed by a clone. If “all human beings are born free and equal in dignity”,[3] in themselves, clones would not be an affront to human dignity. While this is speculative, it raises the issue of whether a clone as an unnatural-born human would be considered to have ‘human dignity’ as has shaped our laws based around capacity and legal personhood.

The issue is complicated because the autonomous nature of humans gives rise to liability for our actions. Take for example, an autonomous self-driving vehicle that causes an accident. Should the car be held liable for its negligence as opposed to its driver? If this is the case, we may also conclude that the vehicle should be granted the right to vote, acquire property, enter contracts, or even sue one of us.

The monkeys cloned in China were not programmed to think, feel and perceive. Rather, they are living entities with their own distinct will and independent existence. Therefore, if clones were not given legal personhood, who would be liable for their actions?

 

Moving forward

There is real difficulty in applying existing law to unprecedented technology. It is unlikely that legislators will rush to develop statutes that grant clones legal personhood any time soon. However, the complexity of the questions raised by our use of AI and cloning touch on every legal and social construct. The resolution of such value-laden questions will require continued debate, an attempt to reach consensus, and a little societal soul searching.

 

Notes

[1]              Lui et al, ‘Cloning of Macaque Monkeys by Somatic Cell Nuclear Transfer’ (2018), Cell.
[2]              Roberto Andorno, ‘Human Dignity and Human Rights as a Common Ground for a Global Bioethics’ (2009) 34 Journal of Medicine and Philosophy 223, 227.
[3]              Universal Declaration of Human Rights (UDHR), art. 7.

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