The progress isn’t over until the paperwork is done

Ian Kerr

"Allowing companies to license our bodies is extremely dangerous."

– Ian Kerr

Medicine was originally conceived as a means of keeping us healthy, but as we consider the medical potential to transcend the limits of our natural bodies, unsettling questions are emerging.

We expect health practitioners to do no harm; they swear the Hippocratic Oath as a promise to make the sick and wounded well. But technological innovation challenges the underlying assumptions of the Oath—promising now to do much more than make us well.

For example, today’s implantable and wearable medical devices could improve people’s health beyond current standards, in effect creating super-human capabilities. Bionic body parts can go beyond replacing the function of lost organs or limbs, making us “better, stronger and faster.”

Nevertheless, this exciting prospect is tempered by social, ethical, and even legal conundrums. Bureaucratic oversight of such devices could reduce our capabilities, and ultimately limit our personal autonomy, says Ian Kerr, who holds the Canada Research Chair in Ethics, Law and Technology in the Faculty of Law.

“Prosthetics and artificial organs are indeed heading in the direction envisioned by 1970s sci-fi such as the Six Million Dollar Man, as he was then valued,” says Kerr. But today’s price tag of Steve Austin’s bionic implants could include some serious ethical quandaries.

“Once you shift the lens of what counts as ability, once health and ability are no longer determined with reference to our species-typical biological norms will start defining normal with reference to our newly enhanced bodies,” Kerr explains. “Then, all of sudden, there’s a new class of disabled—what my colleague Gregor Wolbring and I call the ‘techno-poor disabled.’ ”

Kerr and Dr. Wolbring (University of Calgary) suggest that many of us could be left behind in a world where we reject or simply cannot afford a means of extending the limits of our performance. This issue sparked a high-profile legal controversy in 2008, when South African runner Oscar Pistorius was denied the opportunity to try out for his country’s Olympic team. His lower legs were amputated when he was an infant, and his sophisticated carbon- fibre bionic replacements were declared to be an unfair advantage over runners with biological legs.

Although the Court of Arbitration for Sport eventually reversed its decision, the case raised some challenging questions about the meanings of “disability” and “normal.” Kerr insists that these questions are not confined to Pistorius’ story, but will continue to bedevil the frontiers of health research. He and Dr. Wolbring have been exploring the subject with a three-year grant from the Social Sciences and Humanities Research Council. Their project is entitled “Building Better Humans? Health, Enhancements and Human Rights.”

Kerr’s research has revealed that even the supposedly straightforward paperwork associated with new medical devices can have unsettling implications. For instance, when individuals receive a cochlear implant to compensate for deafness, the manufacturer of the device requires them to sign an end-user licensing agreement—modelled on mass-market consumer goods like iPods and iPads. The agreement allows the manufacturer and its partners to withdraw support for the product if the user violates certain conditions, such as getting the equipment serviced by an unauthorized dealer.

“In the same way that Apple could nullify the warranty on your iPhone if you open it up and alter its components, the company whose equipment allows a deaf person to hear, or an amputee to walk, would no longer support those digital body parts if the patient plugged them into a peripheral device made by a competitor,” Kerr explains. “Only now we are talking about your ears or legs.” In this paradigm, our body parts—along with artificial replacements for those parts are legally viewed as commodities, no different than electronic toys purchased at a store.

“Allowing companies to license our bodies is extremely dangerous,” Kerr warns. “Although today’s end-user licenses may not survive serious legal scrutiny, I don’t want to wait a couple of decades until the Supreme Court finally decides whether such contracts are enforceable.” Kerr’s research seeks to develop legal and ethical principles that would resolve such problems before they ever arise. “I am developing guiding principles that could be used by the federal government for statutory reform in the regulation of medical devices, spirited not just by consumer protection and concepts but also human-rights law. Kind of like a legal cure for an industrial disease.”

 

by Tim Lougheed

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