Proctor : April 2018
22 PROCTOR | April 2018 Are clones people too? Technology raises unprecedented legal questions 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 the late Stephen Hawking have suggested that humanity is on the cusp of creating technological sentience in artificially intelligent machines. As we come to an age where our technological creations possess the ability to think, feel and experience, we must consider how we can incorporate these sentient creations and replications into our legal system. What are clones? Reproductive cloning is the process of carbon-copying the DNA of a single individual, which can theoretically produce an indefinite number of copies from a single donor. The technique used to create these clones is not new, and other researchers have imitated this process in primates prior to this year. In 2013, researchers in America successfully cloned human skin cells to create early stage human embryos. 2 However, unlike the monkeys, these human embryos were destroyed after their stem cells were extracted as it would have been illegal to allow the embryos to develop. The law in Queensland mirrors this approach, permitting cloning for all purposes other than that of creating a new human individual.3 As the recent research out of China marks the first time that primates have ever been reproductively cloned, there is not much standing in the way of researchers doing the same with human embryos, provided the law progresses to permit it. This begs the question, how will clones and other sentient technology engage with our legal system? Rethinking what is capable of possessing a ‘legal personality’ The entire premise of legal personality rests on whether the entity in question has ‘capacity’. 4 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. According sentient ‘things’ legal personality on the basis of capacity raises both ontological and epistemological arguments. 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’. 5 Therefore, giving AI and clones legal personality humanises them, and makes them the same as natural persons afforded this right. These philosophical standpoints can be countered with the argument that companies are recognised to have legal personhood.6 While companies can enter contracts and be sued, they only have the rights which allow them to contribute to society to the extent to which they are practically applicable. Although a company has ‘capacity’, it doesn’t have the right to freedom against torture, for example – a right only granted to human beings with human dignity. Unnatural lifeforms with human dignity A natural human is described as existing in or deriving from nature as opposed to being caused by humankind. 7 The rights afforded to us are a development of the concept of human dignity and humans as having the capacity to reason, differentiating us from all other living creatures.8 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”,9 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. So where does AI fit into the concept of dignity? Immanuel Kant first asserted the idea that to have dignity means to be autonomous;10 that is, autonomous individuals have their own independent will. Machine learning makes it possible for AI to be autonomous from their producer. 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 autonomy and capabilities of AI will make it increasingly difficult to logically attribute their actions to a recognised legal personality.11 This issue is arguably more relevant for a cloned individual. Clones are not going to be lifeless zombies, nor do they need to be programmed to operate autonomously as is required of AI. The monkeys cloned in China were not programmed to think, feel and perceive. Rather, they are a product of their own condition. They resemble that of a natural born monkey, as will human clones – 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?