Abstract
In recent decades, neurotechnological cognitive enhancers (NCEs), including neurofeedback systems and neurostimulation devices, have attracted increasing attention due to their potential to enhance human cognition. Developments in this field of technology raise significant ethical challenges that warrant careful reflection from a human rights perspective. Currently, human rights experts and international institutions are actively examining how neurotechnological interventions affecting mental states, capacities, and processes impact human rights and fundamental freedoms. Within these efforts, however, greater attention must be paid to the positive dimension of human rights, examining whether and to what extent human rights frameworks support individuals' freedom to use neurotechnologies to enhance their mental capacities. This article addresses that question by first outlining the concept of cognitive enhancement and assessing the current and anticipated development of NCEs. It then explores the tension between empowerment and constraint, analysing how human rights both support the use of NCEs and potentially justify limitations on that freedom. In doing so, it examines the existence and scope of a right to mental self-determination, the role of human dignity, and the conditions under which restrictions on NCE may be justified.
Keywords: neurotechnology, cognitive enhancement, mental self-determination, right to privacy, human dignity
I. INTRODUCTION
The advent of technologies that enhance psychological states and abilities has spurred extensive ethical exploration in recent decades. Since the start of this millennium, neurotechnological cognitive enhancers (NCEs), such as neurofeedback monitors and neurostimulation devices, have garnered attention for their capacity to modify cognitive capacities. Human rights experts and international human rights institutions are scrutinizing how neurotechnological interferences with mental states, capacities, and processes could affect human rights and fundamental freedoms. This discussion often focuses on the ‘negative’ dimension of human rights, protecting individuals from unwanted interference, discrimination, or other forms of harm induced by neurotechnologies (NTs). However, with increasing interest among neurotech companies to market novel NCEs, there is a need to proactively address the ‘positive’ dimension—the question as to whether and to what extent human rights frameworks support individuals’ freedom to alter their mental capacities through NCEs. This article explores this question. It begins by delineating cognitive enhancement and examining the current state and future prospects of NCEs. It then investigates the dynamic interplay between empowerment and constraint, highlighting how various human rights both shape individuals’ freedom to use NCEs and allow States and regulatory bodies to impose restrictions on that freedom. This exploration includes an examination of the existence and scope of a right to mental self-determination and considers potential justifications for limiting this right. The discussion also addresses the role of human dignity in this context. Ultimately, the article concludes that the human rights framework, through a right to mental self-determination, not only supports individuals’ freedom to use NCEs but also provides grounds for proportionate limitations of that freedom.
II. NEUROTECHNOLOGICAL COGNITIVE ENHANCEMENT
II.A. Conceptual Delineation
Cognitive enhancement is a subset of the broader concept of human enhancement (HE). HE can broadly be defined as any effort, using artificial or natural means, to surpass the mental and physical limitations of the human condition in order to improve performance or well-being.1 Raisama et al. identify three key areas of enhancement (or augmentation): augmented senses, augmented action, and augmented cognition.2,3 This article focuses on the latter: augmented cognition or cognitive enhancement (CE).4 CE are interventions that positively affect human mental attributes, abilities, or traits, including attention, memory, language production, learning, decision-making, or focus.5,6 CE interventions can be divided into three groups: behavioral methods (eg sleep, meditation, physical exercise, education), biochemical interventions (eg neuropharmaceuticals, caffeine, recreational drugs), and physical interventions (eg brain stimulation, implants, brain–computer interfaces).7
The definition of enhancement is the subject of ongoing debate.8 The broad definition suggests that CE strategies are used across disciplines to enhance cognitive performance in both healthy individuals and those with neurological disorders, injuries, or disabilities.9 However, narrower definitions have been proposed that see CE as ‘Botox for the brain’,10 strictly referring to healthy individuals using drugs, technological devices, behavioral training, or other methods to boost, surpass, or extend their mental capacities beyond biological limits to create competitive advantages or enhance well-being.11 Interventions that serve preventive, curative, rehabilitative, or compensatory functions to meet health needs are excluded from this definition.12
While a detailed conceptual discussion on CE falls beyond the scope of this article, it is essential to clarify which concept of CE underpins this analysis. Defining CE narrowly presents several challenges, such as accurately distinguishing between medical interventions that ‘merely restore human capacities’ to the ‘normal’ or ‘natural’ level of healthy individuals, and enhancement that ‘augment human capacities’ beyond such a benchmark,13 and avoiding normative judgments being entrenched in such a distinction.14 Despite these challenges, this narrow conception continues to be used in discussions on how to regulate enhancement technologies.15 From a pragmatic perspective, such an approach has merits.16 This paper will focus primarily on the human rights principles governing the use of NCEs for non-medical purposes—while acknowledging the blurred boundary between medical and non-medical applications.17 This approach is justified by the fact that non-medical use of NCEs is far more ethically contentious and significantly less regulated.18 At the level of human rights, safeguards are in place that ensure safe access for patients to medical NCEs. However, with the shift from ‘patient’ to ‘client’ in non-medical contexts, health law frameworks —centered on the right to health, the right to integrity, and with informed consent as a central component—are no longer applicable in the same way.19 This highlights the critical need to define human rights principles for governing NCE use outside medical contexts that account for its unique societal and ethical challenges, and can inform future legislation in this field.
II.B. The Case of Neurotechnological Cognitive Enhancement
The societal and moral debate on CE has long focused on pharmacological CE tools, sometimes labeled ‘brain doping’ or ‘smart drugs’.20,21 Therapeutic pharmaceuticals such as amphetamine, methylphenidate, and modafinil, while primarily used by people with medical conditions related to attention and wakefulness (such as Attention Deficit Hyperactivity Disorder or narcolepsy), have consistently been repurposed by healthy individuals to improve memory, focus, problem-solving, verbal learning, inhibitory control, and wakefulness,22,23 especially among certain groups, such as researchers,24 students,25 military pilots,26 and surgeons.27 They are popular due to their affordability, technological simplicity, ease of access, and perceived low-risk character.28 However, scientific support for their effectiveness in healthy individuals is limited,29 and long-term side effects of pharmacological CE mis(use)30 require further investigation.
Recently, the societal debate on CE is shifting its focus towards highly technological interventions that interact with individuals’ biological and physical features.31 The rapid advancements in cognitive neuroscience and the parallel developments of advanced NTs that enable interaction with the neurobiological dimension of cognition, opened a whole new frontier for the enhancement of cognitive functions, including memory, attention, learning, and deliberation. A wide range of NTs is actively explored, and increasingly deployed and marketed for CE purposes. These technologies operate either by capturing and interpreting brain activity to provide insights into an individual’s mental functions or by directly altering these functions through targeted stimulation of specific brain areas. The development of these techniques was initiated by their therapeutic application. More specifically, neurotechnological treatment options have emerged as valuable alternatives to pharmaceutical approaches for treating certain neurological and neuropsychiatric diseases, in some cases even successfully treating disorders for which no effective treatment existed. Yet, many applications have extended beyond the medical field, finding their way into the consumer market for healthy individuals. Although not yet a fixed part of most people’s daily lives, consumer neurotechnologies are widely anticipated to shift from niche innovation toward pervasive integration into everyday digital ecosystems,32 warranting precautionary ethico-legal analysis.
Arguably the most prominent example of NCEs is neurostimulation devices, i.e. technological applications designed to modulate brain activity through electrical or magnetic stimulation of targeted brain areas.33 In the context of non-medical NCEs, the development of non-invasive, transcranial stimulation devices, such as transcranial Direct Current Stimulation (tDCS) or Transcranial Magnetic Stimulation (TMS) and Focused Ultrasound, stand out.34 The non-invasive character of these applications facilitates their promotion as ‘cosmetic neurology’35 tools for healthy individuals. TMS has demonstrated potential for improving cognitive functions such as memory, verbal fluency, analogic reasoning, and mental rotation.36 However, its limited scientific backing, high costs, lack of portability,37 and requirement for specialized expertise have redirected focus toward more practical non-invasive stimulation techniques.38 tDCS has garnered significant enthusiasm as a tool for NCE, offering potential benefits such as improved attentional focus, mood, working memory, language learning, mathematical skills, and planning ability.39 The excitement for tDCS as NCE stems largely from its affordability and portability, fueling the emergence of a wide variety of tDCS devices marketed directly to consumers.40 For example, the Foc.us V3, marketed by FOC.US, claims to enhance users’ focus, memory, endurance, and learning,41 while TheBrainDriver v2.1 offers similar functionalities at a more accessible price.42 Additionally, a Do-It-Yourself movement has emerged, with tech companies providing individuals with the necessary equipment to create their own non-invasive neurostimulation devices for cognitive enhancement.43 Another prominent category of NCEs is Brain-Computer Interface (BCI) neurofeedback tools. These tools enable self-training of mental abilities by using neuroimaging interfaces. For example, there is growing interest in developing electroencephalograpy (EEG)-based devices that provide visual or auditory feedback on brainwave patterns, enabling self-monitoring and subsequent training of mental processes such as attention or relaxation.44 These enhancement tools show potential to improve memory,45 mood46 and emotion regulation,47 learning abilities,48 and even creativity.49 Such devices are increasingly available in the (online) consumer market. The EEG-based Muse 2 headband, for instance, is marketed as a tool to support meditation, mindfulness, and stress management.50
Economic projections suggest substantial growth in and maturing of the NT market, fueled by increasing public and private investments, along with a rise in startups and patents.51 While much of this growth is still focused on medical applications, the segment of the industry dedicated to the development of BCIs and neurostimulation devices for general consumer use has outpaced the growth in the medical domain.52 As accessibility improves, these technologies hold potential for broad applicability across various sectors of society.53 Nonetheless, previous experience with pharmacological CE urges caution to avoid getting swept up in the ‘myth of cognitive enhancement’—the assumption that (N)CE is both effective and widespread.54 The prediction of future abilities of NCEs is challenging.55 Scientific evidence supporting product claims of currently available consumer devices remains insufficiently documented. More large-scale trials are needed to establish the effectiveness and accuracy of both non-invasive neurostimulators56 and neurofeedback devices57 as consumer-grade NCEs. Ultimately, the success of NCEs depends on whether their quality, effectiveness, and reliability can match that of invasive counterparts while preserving their non-invasive, wearable, and affordable nature.58 Both scientific and engineering constraints may hinder the uptake of these technologies. Limited understanding of brain functioning, together with the technical challenges of developing methods capable of monitoring large populations of neurons and accessing the neural circuits involved in cognitive processes, poses significant hurdles. Understanding ‘how, where and when to intervene in, and record from, specific neuronal populations in order to enhance existing cognitive capabilities’ remains a difficult task ahead.59 Nevertheless, ongoing innovation in neurotechnology fosters optimism about overcoming current limitations in effectiveness and reliability. Extensive research is conducted to improve the effectiveness and reliability of tDCS and TMS devices,60 while Focused Ultrasound Stimulation is anticipated to outperform many tDCS devices (although more research is required before they can be introduced to commercial markets).61 Similarly, there is an upward trend in the reliability and accuracy of consumer-grade neurofeedback devices incorporating EEG and Functional Near-Infrared Spectroscopy (fNRIS) technologies.62 However, when predicting the future trajectory of NCEs, it is important to note that scientific feasibility and commercial availability do not necessarily ensure widespread adoption.63 While increasing self-control and self-improvement serves as a strong motivator for engagement with NCEs in a competitive market economy, the actual use of enhancement tools—such as pharmacological cognitive enhancers—is less widespread than commonly assumed. Public attitudes toward CE, while not necessarily disapproving, often reflect a critical and cautious stance.64 In the case of NCEs, the invasiveness, purpose, and personal needs and values are suggested to be determinants for the willingness of individuals to use NCEs.65 The human rights analysis presented in this article thus stands as a precautionary reflection, anticipating future developments in which technological barriers are overcome and the predicted consumer uptake materializes in practice.
III. A HUMAN RIGHTS PERSPECTIVE ON NEUROTECHNOLOGICAL COGNITIVE ENHANCEMENT
Rapid advancements in NCEs could offer substantial benefits but also present significant ethical and societal challenges, warranting thorough precautionary reflection. Ethical perspectives on CE vary widely, from transhumanist views employing utilitarian principles to argue that an optimal use of CE throughout society is a moral duty,66 to bioconservative positions, grounded in deontological frameworks, viewing CE as morally unacceptable.67 While the ethical implications of NCEs have been extensively examined, legal analysis remains underdeveloped. Regulatory frameworks addressing NCEs are scarce.68 Most notably, a comprehensive human rights–based approach that accounts for the unique societal and ethical implications of non-medical NCEs is missing. While human rights law provides clearer answers for medical NCEs, outlining basic conditions for safe and responsible access to medical NCEs to attain the highest possible health status, the legal status of non-medical NCEs remains elusive. Proactively defining this status is essential to ensure that existing and future regulation of NCE aligns with human dignity and human rights, a goal strongly endorsed by international human rights organizations.69 This includes determining whether individuals have a fundamental right to use cognitive enhancers freely in order to shape their mental abilities and if regulatory constraints are justified or even warranted. As noted by Bublitz, ‘given that the use of neurotechnologies can be curbed for a variety of reasons, one may wonder whether human rights instruments adequately capture the liberty to use them’.70 This article will examine the scope and potential limits of this liberty within the human rights framework.
III.A. Human Rights as Empowerment versus Constraint
Beyleveld and Brownsword, two prominent scholars in the field of biolaw and bioethics, provide a comprehensive analysis of human dignity as it gained prominence during the bioscientific revolution starting in the 1970s. They outlined the form and substance of this ambiguous concept and its complicated interplay with human rights. Despite its significance in human rights and bioethics, the concept remains elusive, with no clear definition provided in international human rights instruments, national constitutions, jurisprudence, or scholarly analyses.71 Within Western human rights discourse, the Kantian notion of human dignity dominates, emphasizing the need for respect for the inherent value of every person based on their unique human nature.72 This legal understanding requires treating individuals as equals, recognizing them as autonomous beings capable of making independent choices to self-realize and flourish in their environment.73 Human dignity encompasses both a negative claim to be free from actions that undermine human flourishing and a positive claim to receive support in creating and maintaining the conditions necessary for that flourishing.74 Scholars like Bublitz break down this general principle into more specific components, identifying four interrelated dimensions of human dignity that aim to protect constitutive elements of a person (the factual conditions of personhood, self-determination and autonomy, core aspects of personality, respect for subjectivity, and avoidance of objectification).75 However, the inherently open-ended nature of these principles means that interpretations of human dignity vary.76
This malleability has led Beyleveld and Brownsword to observe that human dignity takes on different roles within human rights law, depending on the context in which it is invoked. In some instances, it reinforces claims of self-determination, supporting and promoting the idea of individual freedom to make personal decisions. In other cases, human dignity is referred to as to limit individual freedom in favor of collective values or to prevent serious harm to others or oneself. This latter, constraining interpretation is often invoked to justify the legal regulation of self-regarding actions, which are typically considered private matters beyond the scope of State interference.77 Traditional consequentialists, such as Mill, would oppose such interference in self-regarding actions unless restrictions are necessary to prevent direct or indirect harm to the freedom or well-being of others.78 In this vein, Article 27 of the Universal Declaration on Bioethics and Human Rights (UDBHR) acknowledges that individual rights may be restricted when necessary for the protection of public health and the rights and freedoms of others. For example, refusing vaccination, though a self-regarding decision, can indirectly harm others, thereby justifying proportional restrictions on the freedom to choose vaccination to protect the health and integrity of others and, ultimately, their dignity. Beyond the harm principle, perspectives on freedom like Dworkin’s recognize the legitimacy of constraints on self-regarding actions when such actions severely hinder the individual’s ability to make autonomous choices or lead a fulfilling life, particularly in cases involving cognitive limitations or lack of information.79 This paternalistic approach is closely tied to the constraint dimension of human dignity, which supports the proportionate restriction of fundamental rights to safeguard individuals’ integrity and equality. For instance, restrictions on surrogacy are often justified not only on the basis of collective interests, such as avoiding dehumanization, but also by referring to the need to protect surrogates from exploitation and discrimination.
Beyond its paternalistic focus on balancing individual autonomy and well-being, human dignity is also explicitly invoked within the human rights framework to safeguard the essence of what it means to be human. The most prominent example of regulation grounded in this constraining interpretation of human dignity is legislation addressing genetic manipulation. Legal frameworks limit or prohibit genetic manipulation to ensure that even self-regarding actions are conducted in ways that do not compromise human dignity, addressing concerns about dehumanization or objectification ‘whether located in the individual’s own person or in the community’s collective consciousness’.80 Dignity as a constraint appears especially prevalent in bioethical and biomedical contexts, such as in the UNESCO’s Universal Declaration on Bioethics and Human Rights and the Council of Europe’s Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine.81 In contrast, in general human rights instruments, human dignity is often only conceptualized as empowerment, supporting autonomy and self-determination.
The tension between human dignity as empowerment versus as constraint reflects a broader conflict between individual autonomy, well-being, and collective values—a tension that is particularly evident in the context of the voluntary use of biotechnologies.82 Emerging biotechnologies are simultaneously viewed as immense contributions to individual well-being and development, and potentially grave disruptors of individual flourishing and humanity as a whole. In this context, human dignity serves as a focal point within the law to address this tension, acting as a ‘double-edged sword’ that enables lawmakers, judges, and legal experts to advance arguments to either affirm individual freedom or restrict it for the greater good.83 Ideally, a balance is struck between both dimensions of human dignity, ensuring that any necessary constraints ultimately serve to strengthen the overall framework that supports and promotes individual human rights.84 The search for this delicate equilibrium is at the center of the normative debate on HE, which aims to find the right balance between the freedom to use (bio)technological means to support individual self-realization and the prevention of individual and collective harm.85
However, the normative value of human dignity remains undefined. Is it a stand-alone human right, a general overreaching principle from which human rights emanate,86 a foundational principle without any actual meaning that merely legitimizes the existence of human rights,87 or simply a rhetorical tool? While this article does not attempt to answer this question definitively, it aligns with Andorno’s view that appeals to human dignity reflect a genuine concern for the intrinsic worth of human beings and the integrity of the human species.88 As indicated in the preambles of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), human rights emanate from this intrinsic worth, expressing the notion of human dignity within the legal framework. Consequently, they reflect the inherent dynamic interplay between empowerment and constraint. Human rights function as a concrete articulation and operationalization of human dignity, facilitating its practical application by defining and addressing violations of fundamental interests.89
III.B. Empowerment or Constraint: The Case of NCE
The empowerment–constraint duality offers a compelling framework for a human rights analysis of NCE use, particularly as such use appears to constitute a self-regarding action aimed at authentic self-realization,90 and therefore seemingly beyond the scope of regulation. This human rights analysis will be conducted on two levels, reflecting the dual dimension of the central question: does the human rights framework recognize a freedom to engage CE through the use of NCEs (empowerment), and does it provide justification for imposing limitations on this freedom (constraint)? The first, and most fundamental, level examines the existence, scope, and meaning of a right to mental self-determination. Specifically, it investigates whether this right encompasses a right to CE and aims to establish whether individuals are entitled to freedom from government regulation in matters concerning the configuration of their mental states. At a second level, the analysis will explore whether national and international legislative bodies, within the framework of human rights, can justifiably impose restrictions on access to NCEs, such as implementing strict safety and effectivity standards within medical device legislation, organizing stringent monitoring of their use in specific contexts (eg education or workplace), or outright imposing a moratorium on their use. Ultimately, this analysis seeks to determine to what extent competing interests may legitimately constrain individuals’ exercise of a right to mental self-determination in the context of NCEs.
III.B.1. A Right to Mental Self-Determination
At the center of the debate among human rights experts regarding NCEs lies the right to autonomy or self-determination. Self-determination reflects the idea that individuals should be free to make autonomous decisions about all aspects of their lives according to their values and beliefs. A right to self-determination promotes and protects the free choices of individuals, whether it concerns decisions to join a book club, to get a tattoo, or to procreate. This right therefore creates an empowerment dynamic within human rights law. Yet, as apparent from case law and legal scholarship, the status of self-determination as a full-fledged, stand-alone right remains a subject of debate. Its ambiguous meaning and scope often undermine its recognition as an independent human right, instead supporting its characterization as a general principle rooted in human dignity and most clearly expressed through the application of other personality rights.
Self-determination is typically invoked in conjunction with other privacy and autonomy rights, such as the right to bodily integrity.91,92 This right encompasses a right to self-determine what happens to one’s own body, protecting bodily autonomy by guarding against undue interference (negative dimension) and by allowing individuals to modify their bodies as they choose (positive dimension).93 The emergence of NCEs has prompted exploration into whether such a right to self-determination extends to the mental domain – both protecting the forum internum from unsolicited interference and granting individuals the freedom to shape their mental life and, ultimately, the entirety of their experience. This adds a new, fundamental dimension to self-determination, as people’s ability to alter their mental states and capacities influences decision-making, behavior, and outward expression. Several human rights advocates have called for the establishment of a new right to cognitive liberty (or mental self-determination)94 to adequately capture this fundamental dimension,95 indicating that the existence of a right to mental self-determination is still a matter of debate. However, the merits of these proposals warrant careful scrutiny, as they often fail to comprehensively assess the protections already offered under existing human rights law.
Although no major human rights instrument or national constitution explicitly enshrines a right to mental self-determination,96 it can be argued that such a right is inherent in constitutional theory, implied by the principles of liberal democracy, and rooted in classical liberal ideas about the relationship between individuals and the State, which grant broad liberties in self-regarding matters.97 At its core, the traditional liberal concept of freedom upholds an inviolable right to autonomous thought, meaning ‘at a minimum, that each person is free to direct one’s own consciousness, underlying mental processes, beliefs, opinions, and worldview’.98 Since mental self-determination as a general principle underpinning liberal democracies remains somewhat elusive, the right to mental self-determination is often conceptualized as a natural cornerstone of the human rights framework. Without the right to mental self-determination, several human rights and fundamental freedoms would be meaningless, which logically elevates this right to a general principle of human rights law. At the same time, mental self-determination can be regarded as an inherent, though not fully articulated, aspect of a concrete set of human rights and fundamental freedoms that safeguard individuals’ sovereignty over their minds, enabling autonomous self-realization and the development of personality-defining characteristics.
Notably, the right to privacy (Article 17 ICCPR), while not explicitly articulating a right to self-determination, has consistently been interpreted as supporting personal autonomy and self-determination. Initially conceptualized as a right to informational privacy, it has evolved within constitutional theory and human rights frameworks to encompass broader dimensions of self-determination. General Comment 16 highlights that this right broadly protects individuals’ autonomy to make choices over their lives, free from manipulation and coercion.99 This view is consistently confirmed in human rights case law, which applies the right to privacy in contexts such as reproductive rights,100 LGBTQIA+ rights,101 and the recognition of identity102 in a way that promotes and protects individuals’ freedom to make decisions based on their values and beliefs while ensuring respect for those decisions by others (particularly governments). Since decision-making relies on the intricate interplay of cognitive and rational processes, the right to privacy should extend to protecting the ability to control and shape the mental faculties that underpin one’s personal values and beliefs. As self-determination requires the engagement of certain psychological capacities,103 it cannot be confined solely to bodily autonomy or external expressions. It must logically extend to the mental realm,104 thereby elevating the right to mental self-determination—both in a positive and negative sense—as an essential aspect of the right to privacy.
Importantly, the self-determination aspect of the right to privacy is inextricably linked to the right to personal identity, which aims to protect and promote the free development of one’s personality and identity. Lawrence points out that in addition to the right to privacy, Article 22 of the Universal Declaration of Human Rights (UDHR) similarly protects a right to personality, providing robust human rights safeguards for ‘the ability to fulfil one’s potential through acting in self-interest’. He observes that the right to self-realize and autonomously shape one’s personality is firmly embedded in international human rights law. Together, the rights to privacy and personal identity safeguard a private sphere free from external coercive and manipulative interferences where individuals can pursue self-realization and cultivate the traits that define their personal identity,105 including gender identity,106 sexual identity,107 and religious identity.108 On a theoretical level, this private sphere must encompass the realm of mental states and faculties underpinning such self-realization and personality development. A right to mental self-determination is therefore an inherent part of the right to personal identity, as it allows individuals to develop their mental faculties in ways that align with their personality and foster its further development.109 Nonetheless, it needs to be stressed that in jurisprudence, the right to personal identity has largely been interpreted in terms of public recognition of various forms of identity, often neglecting the forum internum (the internal dimension of thought, feeling, and conscience that underpins identity formation). This critical internal dimension of mental self-determination, while seemingly an integral part of the broader right to self-determination, remains underexplored and underdeveloped in human rights law.
Another dimension of protection of the forum internum is inherent to the right to mental (or psychological) integrity, recognized as part of the right to privacy (Article 17 ICCPR),110 the prohibition against inhuman treatment and torture (Article 7 ICCPR), and as an autonomous right in Article 17 CRPD. While its application in case law is limited and its interpretation remains a topic of debate in legal doctrine, this right promotes individuals’ free and informed consent in medical contexts and protects mental health by prohibiting the infliction of mental harm by third parties. Although connected to the forum internum, this right is not interpreted as encompassing mental self-determination in either a negative or positive dimension.111 Instead, its scope is largely limited to protecting individuals from external actions that harm their psychological well-being, without extending to the broader autonomy to shape or govern one’s own mental processes.
In addition, the freedom of thought is considered the most important safeguard for individuals’ control over their forum internum.112 Legal scholars have suggested that a right to mental self-determination (or cognitive liberty) could be seen as a natural ‘update’ of the freedom of thought in today’s technological age where emerging technologies allow individuals to interfere with their minds.113 Although legal doctrine attributes a positive dimension to the freedom of thought, this has not been reflected in case law or policy, where it is rather regarded as a negative right, protecting individuals from undue interference with their thoughts or expressions of thought, such as State coercion.114 Whether the freedom of thought extends to the right to modify one’s mental abilities and take control over the processes that generate thoughts remains unclear. Roberts presents a compelling argument, asserting that for freedom of thought to be meaningful, individuals must have the autonomy not only to select their thoughts, beliefs, and ideas but also to determine the cognitive strategies they use to engage with these thoughts.115 Genuine sovereignty over one’s thoughts, as a fundamental goal of the freedom of thought, is said to necessarily imply sovereignty over the psychological processes that generate those thoughts. Interestingly, Walsh, in her human rights analysis of psychedelics, explicitly connects sovereignty over cognitive processes to control over their electrochemical correlates in the brain, highlighting the relevance of the freedom of thought in the human rights assessment of brain interventions. She equates cognitive liberty with the freedom of thought, emphasizing that the former more explicitly reflects the idea that individuals ‘should have a right to autonomous self-determination over their own brain chemistry’.116 Similarly, González argues that the right to bodily autonomy, in combination with the freedom of choice, is an inherent part of cognitive liberty.117 In light of the ambiguous scope of the freedom of thought, the Special Rapporteur on the Freedom of Belief and Religion has also suggested developing this freedom in this direction.118 In this perspective, the freedom of thought appears to protect both the positive and negative dimensions of mental self-determination by protecting thoughts, thinking processes, and their bio-physical basis. However, given that the precise scope of the freedom of thought has yet to be clearly defined, it remains unclear to what extent it really encompasses a positive dimension of a right to mental self-determination, particularly in contexts involving biotechnological enhancement.
Whether a right to mental self-determination is derived from the right to privacy and personal identity or the freedom of thought is highly consequential. The latter option aligns radically with an empowerment dynamic, as the absolute nature of the (internal dimension of) the freedom of thought precludes any possibility for constraining approaches that limit individuals’ ability to shape their mental composition. Consequently, extending a right to self-determination to the mental dimension by anchoring it within the realm of the freedom of thought would effectively neutralize any justification for restrictive measures. There is no room for any constraint. This interpretation could have far-reaching consequences. For instance, it could challenge the human rights compliance of prohibitive drug policies, which are supported by United Nations frameworks.119 Restrictions on access to psychoactive drugs might not only be contested on therapeutic or religious grounds120 but could also, by their very nature, constitute human rights violations.
However, such an absolute right appears at odds with both the nature of absolute rights and the nature of existing autonomy and privacy rights. As Weber observes, absolute rights generally correspond to narrow, clearly defined, and exceptionless duties not to engage in specific acts.121 Seeking a positive dimension of the right to self-determination – encompassing a right to claim something—within the right to freedom of thought—runs counter to this inherent nature of an absolute right. Additionally, established autonomy and privacy rights traditionally permit States to impose limitations on individual freedoms to prevent harm to others (operationalizing the harm principle), to pursue collective goals (promoting common values determined by the legislators), or to protect individuals from themselves (engaging in a degree of paternalism).122 Notably, the ability of States to put restrictions on self-regarding actions is, to some extent, inherent in legal systems. Examples include laws legitimizing mandatory blood tests, restricting assisted suicide, or requiring motorcyclists to wear helmets.123 Individual freedoms that may collide with other individual and collective moral values and rights are rarely limitless. In essence, the question becomes whether the direct link to internal cognitive processes justifies a radical approach that eliminates the possibility of balancing competing interests. While limitations on self-regarding actions affecting the body would be acceptable under a more flexible right to self-determination, such as that embodied by the right to bodily integrity, restrictions on self-regarding actions affecting mental faculties would be entirely prohibited if mental self-determination were recognized as part of the absolute freedom of thought.124
In conclusion, the principle of self-determination, both physical and mental, is deeply embedded in the human rights framework as a foundational basis for privacy and autonomy rights. A right to mental self-determination is a necessary underpinning of the right to privacy (with personal identity as an integral component). This conceptualization of the right to mental self-determination as relative in nature aligns most coherently with the structure and spirit of autonomy within the human rights framework. It offers a framework within which States can present compelling justifications for infringing upon an individual’s right to mental self-determination. Governments are permitted to impose limitations on this right if such restrictions pursue a legitimate goal as defined under article 17 ICCPR (eg safeguarding national security, public order, public health or morals, or the rights and freedoms of others) and are necessary and proportionate.
III.B.2. A Right to Cognitive Enhancement
In light of the emerging recognition of a right to mental self-determination, the critical question arises whether the expression of this right entails a right to CE. The groundwork for a detailed legal exploration of a right to CE specifically has been laid by Boire and Sententia. They argue that a right to cognitive liberty inherently includes both a right to use and to abstain from using CE tools.125 Yet, the extent to which this argument aligns with the current human rights framework remains a subject of debate. Does a right to make autonomous decisions about the configuration of one’s mental faculties for the purposes of self-realization and identity development imply a right to use every means deemed suitable for achieving those goals (negative right to CE)? And does it extend further to create obligations requiring governments to facilitate access to CE tools (positive right to CE)?
At least the former, negative right to CE appears to be an inherent aspect of a right to mental self-determination.126 Scholars generally tend to agree that ‘it follows from the principle of personal autonomy that […] it has to be left to the individual to determine whether or not to make use of HET’.127 The rights to privacy and identity safeguard an individual’s freedom to decide whether to enhance or abstain from enhancement, free from government interference or any other form of external coercion.128 In the context of bodily enhancement, the right to bodily integrity therefore extends beyond the medical context and allows individuals to enhance their bodies as they see fit.129 Koops, for instance, suggests that ‘the right to determine what is done to one’s body […] suggests a right to enhancement – at least for the body’.130 On a mental plan,131 it is similarly argued that a right to CE is a prerequisite for a meaningful right to mental self-determination, as individuals would not be truly free to alter their minds if they do not have the right to use the appropriate tools for doing so.132 Mental self-determination as an integral part of the right to privacy suggests that there is a compelling case for recognizing a ‘strong prima facie right to use technologies altering bodies and minds for whichever purposes the right-holder desires […] provided that rights of others and public interests are not significantly affected’.133 Protecting a freedom holds little value if access to the tools necessary to fully realize that freedom is simultaneously restricted. A right to mental self-determination should therefore be considered to offer a broad liberty to use—or refrain from using—CE tools.134
The extension of the empowering dynamic of a right to mental self-determination to a right to CE, is reinforced by two key human rights: the right to science (Article 27 UDHR; Article 15 ICESCR) and the right to the highest attainable standard of health (Article 12 ICESCR; Article 22 CRPD). These rights are intrinsically linked in the context of enhancement.135 The right to health obligates States to ensure access to quality healthcare, including innovative tools that enhance physical and mental health.136 In the specific context of CE, the development and use of advanced technologies, including NCEs, that enhance cognitive functioning for patients with neurological disorders should be promoted, as these hold the prospect of significantly enhancing the well-being of these patients.137,138 Furthermore, a right to CE could be invoked to challenge the forced discontinuation of technology-based CEs, whether due to the conclusion of medical trials or the collapse of tech companies.139 The concept of the ‘highest attainable standard of health’, however, suggests a right to enhancement extending beyond restoring typical health to possibly enabling healthy individuals to achieve above-average capacities.140 This approach aligns with the WHO’s broad definition of ‘health’, which encompasses physical, mental, and social well-being, extending beyond the mere absence of disease.141 The construction of the right to health fundamentally challenges the treatment–enhancement distinction, acknowledging the ambiguous nature of, for instance, technologies aimed at improving focus or memory. Such technologies may fall under the right to the highest attainable standard of health, even if they are not explicitly marketed as medical devices. In addition, the UDBHR underscores the principle that advancements in science and technology should be utilized to improve living conditions.142 The right to benefit from scientific progress ensures that everyone, regardless of health status, can access the products of scientific advancements. ‘Benefit’ is interpreted as ‘a positive impact on the well-being of people and the realization of their human rights’.143 Consequently, where CEs are seen to improve well-being or support human rights, such as the rights health and mental self-determination, access to them should be promoted. Although States have discretion in resource allocation, and this obligation is mitigated by the progressive realization of these rights, the right to enjoy the benefits of scientific progress can nevertheless strengthen individuals’ claims to mental self-determination through CE.
While supporting autonomous choices to adopt biotechnologies to realize personal goals or the common good, the operationalization of the rights to mental self-determination, health, and benefits of science should not compromise the enjoyment of other human rights. For that reason, Salardi cautions that these rights collectively do not inherently extend to a right to bioenhancement.144 Biotechnological CE tools could potentially pose risks to the very human rights that ground a right to CE, including the rights to mental self-determination, privacy, and health, when appropriate safeguards are absent.145 To address these concerns, States have an obligation to monitor and regulate scientific and technological advancements. This nuanced approach to CE reflects an inherent paternalistic dimension within the human rights framework, aimed at protecting individuals and society from significant—direct or indirect—harm. Given the uncertainty surrounding the medical and wider societal effects of novel CE technologies for which expectations are high, but success is yet to be established, a precautionary approach is warranted. This approach necessitates a careful balancing of interests, as there is no absolute right to use whatever technology science produces.146 This principle is evident in the consistent global regulation of pharmacological CE, with UN conventions urging States to prohibit their use beyond research or medical purposes.147 Thus, while the rights to health, science, and mental self-determination collectively support a right to CE, this right is not to be recognized as an unrestricted, legally enforceable entitlement to CE through drugs or biotechnologies. Instead, a right to CE is necessarily relative in nature and subject to reasonable limitations necessary to protect public health and safety, public order, and rights of others—in line with the underlying right to mental self-determination.
III.B.3. A Right to Cognitive Enhancement and NCE
Within this view, Bublitz suggests that emerging policies on NTs should affirm the freedom to alter one’s mind using NTs while also specifying grounds for potential limitations.148 This indicates that the right to CE applies to NCEs but that certain NCEs may necessitate carefully considered restrictions to this right. While non-controversial CE methods, such as education and meditation, may not justify limitations, limitations on access to NCE tools may be very well justified both for paternalistic reasons (eg protecting individual integrity and autonomy) and for public interests (eg protection of the rights of others or of public order and morals).149 Human rights law would strongly support NCE in medical contexts where it is essential to an individual’s health and dignity, where denying or withdrawing NCE would result in bodily or mental harm. Outside the medical sphere, however, where safeguards like informed consent, professional monitoring, and the duty of care—all incorporated in a deontological framework—are significantly weaker or absent, a fundamentally different reality emerges. In such settings, individuals exercising their right to mental self-determination through CE are far more vulnerable to various forms of harm, and proliferation throughout society may pose indirect harm to the rights and freedoms of others.
The context of NCE thus calls for safeguards to ensure that exercising the right to CE does not infringe upon other human rights. Its relative nature allows for constraint; for restrictive approaches to emerging NCEs, depending on factors such as their effects on the body and mind, the context of usage, and their intended users. This parallels the debate surrounding psychoactive drugs, where regulation typically adopts a highly prohibitive approach even when the right to CE principally provides ground for objections against such constraint.150,151 The right to freely decide how one pursues self-realization requires protections that account for both individual vulnerabilities, particularly in contexts where social or economic pressures might compromise autonomy and broader collective interests endangered by certain modes of individual self-realization. This requires a delicate balance between empowerment and constraint. Central to this balancing act is the question of what grounds justify overriding an individual’s choice to use NCEs, even when they willingly assume potential risks to their integrity, and what the limits of such a restrictive approach should be. For example, on what grounds can States intervene if an individual chooses to use a neurofeedback device to gain a professional advantage, despite potential long-term health risks, adverse effects on authentic personality formation, or pernicious societal effects?
III.B.3.a. Integrity and health concerns
The uncertain and potentially severely harmful effects of NCEs on the human body and psyche are key factors driving a constraining dynamic within the right to CE. While the right to mental self-determination upholds the freedom to engage in risky or harmful behavior, including actions that affect one’s health and integrity, this freedom is inherently limited by safeguards to prevent severe harm and ensure informed decision-making. For instance, the right to health obliges States to take adequate measures to prevent and address (public) health risks, including those arising from unproven emerging biotechnologies that may cause significant harm. Moreover, the right to integrity, inherently intertwined with a right to mental self-determination and thus CE, does not grant an unrestricted license to modify one’s mental or physical functions in any manner one chooses. When the potential harm is overly great, restrictions may be justified. Apart from the potential severity, the uncertain nature of the harmful effects associated with (long-term) NCE use may justify restrictive approaches. The rights constituting the basis for a right to CE necessitate ensuring that individuals’ choices are grounded in a thorough, science-based understanding of projected risks and benefits. While NCEs promise significant benefits, such as improved productivity and overall well-being, users must be provided with accurate information regarding both the extent of these benefits and the associated health and safety risks, enabling them to conduct an informed risk–benefit assessment. The context in which such balancing occurs is important, as the evaluation of risks and benefits differs significantly between medical and non-medical contexts. For example, CE interventions that improve cognitive functioning in patients with dementia, even with serious side effects, might be deemed acceptable in a medical setting but would likely be inappropriate for healthy individuals seeking enhancement.152
In this regard, it is crucial that experts and providers supply adequate information to enable a thorough evaluation of the risk–benefit ratio.153 This, however, is where the main issue arises with today’s commercially available NCEs. Current research on NCEs does not allow for a reliable risk–benefit analysis due to significant gaps in data on both sides of the balance. Many risks associated with NCEs remain underexplored. For instance, repeated magnetic stimulation may lead to seizures or hearing impairments,154 while non-invasive brain stimulation could pose risks to the developing brains of children.155 Moreover, improper use of brain simulators—such as incorrect electrode positioning, reversed polarity, or faulty stimulation calibration—can result in unreliable outcomes or even impaired neuronal function, with effects that may be long-lasting or even irreversible.156 Although neurofeedback devices carry significantly lower risks, mild side effects such as fatigue, anxiety, headaches, sleep disturbances, and mental fogginess have been reported in some users.157 Without physicians to provide adequate information, oversee usage, and monitor side effects, the use of novel NCEs may jeopardize individuals’ bodily integrity. Additionally, the cognitive and emotional impacts of NCE use, including potential mental health risks, remain poorly understood, as there is a notable lack of long-term studies in this area. Cognitive gains achieved through NCEs may come at a cost. For instance, the principle of ‘neural competition’ highlights that enhancing one cognitive capacity may impair another.158 Such trade-offs, often overlooked in clinical trials, are essential for assessing the true impact of CE technologies.159 NCE that improves focus but significantly impairs memory, for example, must be assessed holistically to determine its overall utility. Overtraining or the use of non-individualized training methods can similarly diminish cognitive capacities.160 Moreover, brain-activity interventions, like certain pharmaceuticals, have the potential to cause unintended personality changes, which may ultimately jeopardize authentic self-realization.161 The unexplored and unpredictable mental effects of long-term NCE use could undermine an individual’s mental integrity and even affect their ability to exercise mental self-determination itself.
Importantly, many commercial and DIY NCEs lack sufficient scientific evidence to guarantee the CE effects they claim.162 Moreover, a thorough evaluation of benefits requires more than merely assessing the effectiveness of an NCE in delivering its promised cognitive effects as it should also consider the broader psycho-social and real-world impacts.163 For instance, Gilbert and Tubig illustrate that while brain implants may enhance an individual’s cognitive abilities, they may fail to improve overall well-being, as users grapple with an altered perception of ‘normality’.164 Similarly, the enhancement of memory may generally be considered as a valuable improvement but could also undermine authenticity, sense of agency, and self-confidence, ultimately negatively affecting fundamental aspects of an individual’s character.165 This demonstrates that positive gains in cognitive performance do not necessarily equate to improvements in well-being. Furthermore, even the concept of ‘positive gains’ should be approached with caution, as there is no universally accepted framework for valuing mental states.166 The valorization of mental states such as emotional stability, focus, or learning ability may differ significantly across individuals, cultures, and moral paradigms. This highlights the inherent challenges in appreciating and valuing the benefits of CE in healthy individuals, suggesting that such assessments should, to the largest extent possible, be left to the subjective judgment of the users themselves—unlike in therapeutic contexts, where the appreciation of medical benefits resulting from CE use tends to be more objective.167 Research into the lived experiences of individuals who are consistently exposed to NCEs in real-life settings is essential to provide valuable insights into the general projection of benefits. Whether certain enhanced states, such as improved focus or productivity, in globo contribute to an individual’s well-being and quality of life will largely be determined by the values, experiences, and preferences of the users themselves. As Richards somewhat dramatically observes, ‘what for one is a reasonable, self-imposed ideal of self-control and social service may be for another a self-defeating impoverishment of human experience and imagination, a rigid and inflexible wilfulness without intelligent freedom or reasonable spontaneity, a masochistic denial of self and subjectivity in the service of uncritical and dubiously manipulative moral aims’.168
The lack of a clear risk–benefit profile fundamentally limits individuals’ ability to meaningfully exercise a right to mental self-determination and to authentically construct their identity.169 In addition, individuals must not be forced to enhance their mental abilities through the use of NCEs. Even in the absence of explicit coercion, the widespread and unrestricted availability of NCE risks introducing coercive pressures, especially in highly competitive environments such as workplaces.170 Ultimately, such quasi-coercive NCE use may negatively affect individual autonomy and authentic self-realization. In a productivity-driven, capitalist system, it is easy to envision how declining to use NCEs could, over time, lead to stigmatization, with individuals feeling compelled to conform to emerging societal norms of enhancement in order to secure a stable and competitive position on the socio-economic ladder. This concern is explicitly articulated in Principle 6 of the Declaration on Neuroscience, Neurotechnologies and Human Rights of the Inter-American Juridical Committee.171 When NCEs become a societal expectation, rather than a personal choice, they risk pressuring individuals into conformity and homogenization, undermining the ideals of mental self-determination and free, diverse, and authentic self-realization.
In sum, while fundamental rights—such as bodily and mental integrity, health, and the rights to mental self-determination and cognitive enhancement—offer an empowering framework, they also urge caution with emerging biotechnologies like NCEs. Without accurate risk–benefit analyses due to limited empirical evidence, particularly in unregulated commercial markets without physician oversight, individuals’ due exercise of a right to mental self-determination and CE cannot be guaranteed. Free market dynamics often create an illusion of optimal consumer autonomy, while, in reality, the absence of support to ensure informed and independent decision-making risks undermining autonomy.172 This legitimizes a cautious regulatory approach by States. Restrictions on NCE use may be necessary to protect individuals from severe harm in the pursuit of mental self-determination in a commercial market setting where adequate safeguards are absent.173 Although NCEs hold great promise for treating neurological disorders and supporting the right to health, public health concerns and the need to protect individual integrity justify regulating their commercialization. Such regulation should be proportionate to the goals of protecting bodily and mental integrity and ensuring public safety, neither imposing blanket bans nor supporting unchecked access (infra). It should be flexible enough to adapt to the safety and effectiveness of specific NCEs. Such a balanced regulatory framework is essential to maximize NCE’s potential for benefiting mental self-determination while minimizing risks.
III.B.3.b. Equality, equitable access, and distributive justice
Apart from health and safety risks, principles of equality, equitable access, and distributive justice embedded in the human rights framework may also provide grounds for restricting the (negative) right to cognitive enhancement through limitations on the use and commercialization of NCEs. These principles all stem from the duty of States to uphold equality and non-discrimination—a cornerstone of international human rights, as reflected in Article 1 UDHR, Article 26 ICCPR, Article 1 UN Charter, the Declaration on the Right to Development, and the Sustainable Development Goals (particularly SDG 10 and 3). The pursuit of equality in dignity and rights for all human beings is not merely a political or policy duty, but an essential goal of human rights protection. Although equality, non-discrimination, and equity are distinct concepts,174 they converge as unified goals within the human rights framework, with efforts to reduce inequality as a critical obligation in realizing ‘human rights for all’ and ensuring that ‘all human beings can fulfil their potential in equality’.175 Ensuring equality in the ability to exercise a right to mental self-determination constitutes an integral aspect of this goal. Ienca emphasizes that equitable access to NCEs is crucial for creating the socio-technical conditions necessary to support and facilitate mental self-determination for every individual.176 Mental self-determination presupposes a right to CE, which, for its equal realization in turn, depends on equity in both knowledge about and access to NCEs.177 This view is echoed by several human rights advocates within the neurorights debate, who propose the introduction of an explicit right to equal access to cognitive enhancement to guarantee inclusive access to NCEs for anyone who needs or wants to use them.178
The unchecked proliferation of NCEs may have complex implications in terms of equality and equitable access. On the one hand, in the spirit of Rawls’ theory of justice, CE tools provide opportunities to combat existing inequalities and improve equality of opportunity across various societal sectors.179 CE tools have the inherent potential to ‘level the playing field’ by remedying (natural) inequalities in terms of cognitive abilities. Social equality can be strengthened by empowering individuals to exercise their right to mental self-determination and acquire cognitive capabilities on a par with those of others within society.180
On the other hand, serious challenges emerge that may require institutional interventions to ensure that this ‘leveling’ effect actually materializes in a way that aligns with the goals of social justice. The injustices often linked to NCEs do not stem from the technologies themselves but from unequal access to their socially beneficial effects. Unregulated availability of NCE risks excluding certain groups from fully exercising their right to mental self-determination. This disparity has profound implications for social justice,181 exacerbating existing inequalities and creating new ones. It is feared that the widespread availability of NCEs could create an ‘enhancement divide’, categorizing individuals as either cognitively enhanced or unenhanced. Such an enhancement divides risks, establishing a hierarchical social structure that runs counter to the principles underlying human rights. A societal hierarchy may emerge between the ‘enhanced’ and the ‘non-enhanced’, resulting in unequal treatment across different sectors of society. For example, employers’ bias might favor job applicants who routinely use NCEs, thereby limiting opportunities for non-enhanced individuals in the job market and ultimately affecting their broader socio-economic position. Moreover, the widespread availability of NCEs could not only deepen this divide but also reshape social identities by defining what is considered ‘normal’ or ‘deviant’ in terms of enhancement. In such a scenario, individuals with below-average cognitive capacities who choose not to engage in enhancement may risk being stigmatized as deficient or even diseased.182 Moreover, the prospect of an increasing societal pressure on those able to afford it urge attention to the importance to ‘respect those who choose not to enhance without worsening inequalities in cognition, work, culture, society, or the economy’.183 In addition, this divide risks amplifying existing socio-economic inequalities, as cutting-edge biomedical technologies are often prohibitively expensive.184 In economies relying on free-market mechanisms for the distribution of goods, those with greater financial resources will likely have easier access to NCEs, ‘to the detriment of those who will not be able to do so because they don’t know about them (knowledge asymmetry) or because they don’t have the means to acquire them (access asymmetry)’.185 The prospect of performant cognitive enhancers being accessible only to an elite is looming. Even as non-invasive NCEs become more affordable over time, they will likely continue to disproportionately benefit the privileged who can afford them, reinforcing disparities in health, well-being, productivity, competitiveness, and overall quality of life.186
On a human rights policy level, the principle of equality, alongside the promotion of mental self-determination, suggests two primary approaches to addressing the issue of equitable access to NCEs: either by limiting a negative right to cognitive enhancement through restrictions on access to NCEs or by recognizing and implementing a positive right to cognitive enhancement. The latter would obligate States to subsidize access to NCEs, particularly for those in need. This urges a shift of perspective to distributive justice, by requiring resources to be directed toward supporting disadvantaged individuals to ensure their access to basic rights and freedoms.187 In such a scenario, to promote justice and equitable access, institutional interventions should focus on distributing NCEs to all those who would benefit, removing financial and other barriers to make these technologies accessible to underserved communities. In this way, the responsible application of NCE tools would genuinely promote equality, particularly by advancing the enjoyment of mental self-determination for all individuals.188
Giubilini and Minerva adopt a more pronounced stance in this regard. They argue that ‘people from disadvantaged socio-economic backgrounds should be given access to bioenhancements, while people from privileged socio-economic backgrounds should be prohibited from using them’.189 In their view, social equality would be advanced by granting access to enhancement technologies for disadvantaged groups while restricting them for privileged groups, thereby mitigating inequality concerns linked to such technologies. Translated to the NCE debate, this reasoning would imply invoking societal equality to promote and support the right to mental self-determination for disadvantaged individuals while limiting that same right for others. In the pursuit of the equal human rights enjoyment for all, this position is untenable.
However, recognizing a positive right to CE, also when it would prioritize some groups on justifiable grounds, meets some serious objections. The question arises whether allocating limited (public) resources to expensive technologies like NCEs is justifiable, especially as they may not be directly related to public health.190 Dubljević argues that, given the scarcity of resources even for essential health needs, prioritizing enhancement purposes beyond medical applications would violate the principle of distributive justice.191 This indicates that while distributive justice is consistently endorsed in human rights instruments focused on healthcare and biomedicine, such as the Council of Europe’s Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine and UNESCO’s Declaration on Bioethics and Human Rights, its application outside the medical context is significantly more challenging.
The proposal to recognize a right to equal or equitable access to NCEs—thereby implementing a positive right to cognitive enhancement in the context of NT —has faced considerable criticism from human rights experts. They argue that both the coherent conceptualization of such a right and its practical implementation would present significant challenges, not only in terms of financial and governance feasibility but also on societal and ethical grounds, as it could create pressure to enhance, exacerbate global disparities, and clash with religious and cultural beliefs.192 Moreover, critics argue that recognizing such a positive right could directly contradict other human rights, including the right to mental integrity and even the right to mental self-determination itself.193 Given these complexities, considerations of equality and equitable access might be more realistically addressed by limiting a negative right to cognitive enhancement. While principles of distributive justice and equitable access provide grounds for adopting a constraining approach to restrict access to NCEs, any restrictions should be proportionate, carefully balancing the disruptive societal effects they aim to mitigate against the extent to which they infringe upon the right to mental self-determination.
III.B.3.c. Proportionality
When considering limitations to the right to mental self-determination and adopting a constraining approach toward NCEs through, for instance, subjecting them to stringent requirements for market introduction, States must ensure compliance with the conditions governing limitations on a relative right. While legitimate aims can be identified—including the protection of public health and safety or public order and morals (which can be considered to entail respect for equality)—any restrictions on the right to CE should be proportionate and thus justifiable in light of both the goals pursued and the risks posed. Limiting mental self-determination should thus not be undertaken lightly, especially since improving mental abilities is often considered to have intrinsic value that exceeds that of physical enhancements, given its potential to contribute significantly to both collective and individual human flourishing.194 The absence of regulations limiting cognitive capacities can be seen as reflecting a broader social commitment to fostering strong cognition.195
The burden of proving that the threats to societal interests outweigh the benefits of NCEs falls upon the State or other regulatory bodies. In this balancing exercise, the benefits of NCEs should not be overlooked—as often occurs in policy and legal discussions, such as those surrounding psychedelics.196 Productivity, enjoyment, and pleasure should not be dismissed as trivial motivations for using NCEs when compared to ‘higher motivations’ such as pursuing health. Instead, the overall well-being of individuals should be considered, with particular attention to their subjective experiences and personal aspirations. This complicates a clear proportionality assessment, as prevailing moralistic views may dismiss the pursuit of enhanced emotional control or improved relaxation as frivolous and not fundamentally contributing to quality of life, while simultaneously endorsing the importance of, for instance, boosting productivity. Human rights law should therefore be cautious when establishing a hierarchy of mental states when weighing the objectives of NCE use against potential risks. Moreover, it is essential to recognize that individual benefits can also constitute societal benefits when appreciated within a broader context.197 For instance, incidental health and well-being effects may arise from the off-label, non-medical use of NCEs, ultimately advancing treatments for individuals with neurological and psychiatric disorders. The rigid dichotomy between public and individual benefits may therefore need to be reconsidered in the balancing of rights, and the intricate interplay between non-medical and medical biotechnologies198 should also be taken into account when evaluating the acceptability of NCEs. Furthermore, it should be acknowledged that restricting NCEs for non-medical purposes could diminish incentives for developers to invest in research and development, ultimately hindering progress in the medical field as well.
Lastly, when assessing proportionality, any restrictions on CE tools, such as NCEs, must comply with the principle of non-discrimination. Human rights principles governing access to CE should be applied uniformly across all CE tools to prevent the development of arbitrary or inconsistent regulatory approaches for different CE tools. For example, means that enable CE through the direct alteration of electrochemical processes in the brain should be evaluated on the basis of a similar human rights paradigm. There must be scientifically substantiated reasons to justify restrictions on access to NCEs, particularly if other CEs with similar effects and concerns, such as certain soft drugs or meditation apps, are left unregulated or if strict regulations are applied to CE pharmaceuticals while commercialization of NCEs remains unregulated.199 A coherent and evidence-based regulatory approach is therefore essential to uphold the principles of equality and non-discrimination.
III.B.4. Human Dignity as Ultimate yet Elusive Standard
The analysis above indicates that, from the perspective of subjective human rights, there are valid justifications for adopting a cautious and constraining approach to NCEs. However, in a future where NCEs would be demonstrated to be safe—both physically and psychologically—and issues of equitable access and distributive justice are effectively addressed through policy measures, there would be no apparent barriers to allowing unrestricted individual empowerment. In such a hypothetical scenario, access to NCEs should face no limitations.
Nonetheless, this perspective seems to overlook a critical dimension of human dignity. As indicated, human dignity is frequently invoked as a foundational criterion for evaluating biotechnological developments, serving as a central reference point in legal and bioethical debates despite its conceptual ambiguity. Some argue that this conceptual elusiveness reflects its conceptual richness.200 This is evident in its role within both transhumanist and bioconservative arguments regarding CE. Transhumanists view CE as a means to enhance human dignity by promoting health and unlocking unprecedented intellectual and emotional capacities, while bioconservatives warn that CE risks undermining human dignity by fostering dehumanization and eroding human nature.201 Even within a coherent conceptualization of human dignity, such as Kantian ethics, human dignity offers both empowering and constraining interpretations of CE. On the one hand, Kantian thought may imply an imperfect duty to advance—in a critical, self-reflective way—one’s nature and personality through the development of cognitive capacities.202 On the other hand, it could argue against CE if it threatens self-preservation, compromises the rational autonomy necessary for personal goal-setting, or involves treating oneself as a mere means, thereby undermining one’s humanity.203 While human dignity clearly is the foundation upon which a right to self-determination is rooted,204 its substantive framework does not decisively resolve the tensions between self-realization and (individual and collective) self-preservation.
Nevertheless, disregarding human dignity as a legal concept in favor of more specific human rights is unwarranted. While human dignity may appear overly abstract, it remains central to discussions surrounding HE and, by extension, NCEs. Human dignity serves as a focal point for reflecting on fundamental questions about what it means to be human, challenging the human rights framework in the context of human–technology hybridization. Although analysing NCEs through the lens of individual subjective rights—as previously discussed—reveals an inherent empowerment–constraint dynamic and captures considerations of constraint emanating from the harm principle and paternalism, this perspective alone cannot address the deeper need for constraints rooted in preserving the essence of what it means to be ‘human’, the very foundation of human rights. When biotechnologies interfere with essential aspects of human nature, subjective human rights alone fall short, necessitating a critical reflection on their foundational principles. How does human rights law adapt when human nature is fundamentally altered, and the human condition as we know it is transformed into something entirely different through technological integration? This question profoundly affects virtually all human rights and freedoms, challenging their scope and requiring a redefinition of their meaning in response to emerging hybrid realities.205 For instance, how does a right to bodily integrity apply to the brain-stimulating device that an individual has integrated into their body image and sense of self? To what extent is a neurofeedback device itself protected under the freedom of thought of a person who fully depends on it for autonomous thinking? And what does the right to identity protect when identity formation is facilitated through human–machine symbiosis?
Failing to reflect on what it means to be human in our society risks undermining the very foundation of human rights. Technological advancements must not overshadow the essence of ‘humanness’ or jeopardize essential human traits such as rationality and subjectivity—imperatives in the interest of current and future generations. Human dignity offers a crucial framework for examining what defines a ‘human being’ and how human beings should be approached in interpersonal and societal interactions. This consideration is crucial when shaping the regulation of invasive biotechnologies.206 Admittedly, the concept of the ‘human as a malleable entity’ aligns naturally with the framework of individual human rights, such as the rights to privacy and integrity, which empower individuals to embrace biotechnologies like NCEs. However, human dignity serves as a broader anchor, providing space both in legal theory and in the regulation of emerging technologies, for reflecting on the safeguards required to protect ‘what is ultimately at stake in the era of human enhancement technologies: our embodied, human nature’.207
This requires revisiting the fundamentals of individual human rights to reintegrate the collective dimension of human dignity into regulatory and ethical considerations. A constraining approach to NCEs may be necessary not only to address issues of safety and equality, but also to protect individuals from having their embodied subjectivity reduced to neural patterns—transparent and ready to be manipulated. Such a reduction risks transforming human beings from entities ‘endowed with reason and conscience’ into mere data sources, stripping them of their inherent human core and rendering them vulnerable to alteration and external control.208 Malleability is inextricably linked to the risk of instrumentalization, underscoring the need for a critical reflection on the implications of this malleable nature within the context of ‘human’ in ‘human rights’. This reflection must inform both the theory and practice of regulating NCE technologies to ensure that they do not undermine the very dignity they aim to enhance.
IV. CONCLUSIONS
While NCEs currently appear to be niche tools used by a relatively small number of individuals, it is nevertheless important to prepare for a future in which these technologies may permeate multiple domains of everyday life. In the context of ongoing international policy initiatives aiming at regulating the development and use of NTs, there is a need for a fundamental legal framework that enshrines and defines ‘the right or liberty to freely change one’s mind through neurotechnologies’ while also establishing clear and justifiable grounds for potential limitations.209 Human rights principles should serve as the cornerstone, defining the boundaries within which such limitations may be imposed.
Although States will retain significant discretion in making regulatory choices—due to the diverse moral perspectives on enhancement—the empowerment dynamic underlying the human rights framework must be the central guiding consideration. A right to mental self-determination should form the starting point for discussions on regulating access to NCEs. Individuals should, in principle, enjoy the freedom to explore their minds and potential for self-realization by altering their mental capacities. However, this right also permit States to impose restrictions on the availability and use of NCEs when necessary to protect public health and safety, public order, or the rights and freedoms of others. Technologies that interfere with individuals’ mental dimension could introduce profound and novel forms of harm, reinforcing the need for a cautious approach to this novel and highly innovative category of enhancement technologies. This caution justifies a thorough, proactive assessment of the threats NCEs may pose to individuals’ bodily and mental integrity, as well as the risk of disproportionately benefiting certain individuals and groups, thereby exacerbating societal inequalities. Yet, such a precautionary approach should thoroughly consider whether the mental dimension of NCEs—potentially implicating absolute human rights such as the freedom of thought or cognitive liberty—limits the regulatory flexibility available to States.
Importantly, a human rights approach to NCEs requires looking beyond the law’s harm-prevention and paternalistic functions to consider their impact on the foundations of the human rights framework. By reinforcing the perception of human beings as malleable entities, emerging NCEs compel careful reflection on the concept of the ‘human’ whose dignity human rights law seeks to protect. The role of NCEs in reshaping perceptions of what it means to be human further strengthens the case for a cautious and restrictive approach.
These considerations highlight the dynamic interplay between empowerment and constraint within the human rights framework, forming the foundation for addressing emerging biotechnologies legally. It should be emphasized that, in the spirit of individual empowerment and mental self-determination, a disproportionate, one-sided focus on public NCEs’ health and safety risks should be avoided. A constraining approach does not justify imposing a blanket ban on all forms of NCEs. While fully unregulated access to NCEs would not align with a well-founded right to mental self-determination, a cautious regulatory approach should not be equated with being ‘overly prohibitive’.210 Risks and benefits should be carefully evaluated on a case-by-case basis at every stage of development and implementation, taking into account the specific characteristics and potential impacts of different categories and applications of NCEs. Regulatory processes should be evidence-based, acknowledging current gaps in data regarding NCEs’ effects across various domains. To ensure that the human rights framework is adequately prepared for the increasing hybridization of humans and (neuro)technologies, it is essential to encourage unbiased, nuanced, and precautionary reflection on the potential benefits and challenges these technological developments may present for individuals and society. Such an approach should strike a balance that steers clear of unsupported dystopian fears while avoiding uncritical endorsement of posthuman utopias.
Footnotes
Silvia Salardi, Fundamental Rights and ‘Moral’ Technologies: The Legal Status of Moral Claims to ‘Moral Enhancement’ by Means of Cognitive Enhancement in the European Legal System, 11 Humanidades & Tecnologia Em Revista 19 (2017).
There are various ways to construct a typology of enhancement. For example, Savulescu, Sandberg, and Kahane distinguish between the enhancement of physical abilities, cognition, mood, and lifespan. Julian Savulescu, Anders Sandberg & Guy Kahane, Well-Being and Enhancement, in Enhancing Human Capacities 1–18 (Julian Savulescu, Anders Sandberg & Guy Kahane ed., 2011).
Roope Raisamo et al., Human Augmentation: Past, Present and Future, 131 Int. J. Hum-Comp. Stud. 131 (2019).
This is sometimes referred to as ‘neuroenhancement’, eg in Vincent P. Clark & Raja Parasuraman, Neuroenhancement: Enhancing Brain and Mind in Health and in Disease, 15(85) Neuroimage 889 (2014); or ‘cognitive augmentation’ in, eg Caterina Cinel et al., Neurotechnologies for Cognitive Augmentation: Current State of the Art and Future Prospects, 13 Front. Hum. Neurosci. (2019).
Kirsten Brukamp & Dominik Gross, Neuroenhancement: A Controversial Topic in Contemporary Medical Ethics, in Contemporary Issues in Bioethics 39–51 (Peter A. Clark ed., 2012); Marcello Ienca, Democratizing Cognitive Technology: A Proactive Approach, 21 Ethics Inf. Technol. 267 (2019); Asad Beck et al., ‘In the Spectrum of People Who Are Healthy’: Views of Individuals at Risk of Dementia on Using Neurotechnology for Cognitive Enhancement, 17 Neuroethics 17 (2024).
The scope of this article does not allow for a detailed discussion of CE within embodied and embedded views of cognition. From this perspective, physical and perceptual forms of enhancement would also fall under the notion of CE, as they can influence cognitive capacities. This fascinating debate, however, lies beyond the scope of the present article.
Nitish S. Jangwan et al., Brain Augmentation and Neuroscience Technologies: Current Applications, Challenges, Ethics and Future Prospects, 23(6) Front. Syst. Neurosci. (2022).
Nick Bostrom & Julian Savulescu, J. (2009). Human Enhancement Ethics: The State of the Debate, in Human Enhancement 1–22 (Julian Savulescu & Nick Bostrom eds., 2009); Erik Parens, Special Supplement: Is Better Always Good? The Enhancement Project, 29(1) Hastings Cent. Rep. S1 (1998); Eric T. Juengst, Can Enhancement Be Distinguished from Prevention in Genetic Medicine? 22 J. Med. Philos.125 (1997); Fritz Allhoff, Patrick, Lin & Jesse Steinberg, Ethics of Human Enhancement: An Executive Summary, 17(2) Sci. Eng. Ethics 201 (2011).
Silvia Salardi, When the ‘Age of Science and Technology’ Meets the ‘Age of Rights’. ‘Moral’ Bioenhancement as a Case Study, in Neuroscience and Law 249 (Antonio D’Aloia & Maria C. Errigo eds., 2020); Pete Moore, Enhancing Me: the Hope and the Hype of Human Enhancement (2008).
Eric Juengst, What Does Enhancement Mean? in Enhancing Human Traits: Ethical and Social Implications 22 (Erik Parens ed., 1998).
Reinoud de Jongh et al., Botox for the Brain: Enhancement of Cognition, Mood and Pro-social Behavior and Blunting of Unwanted Memories, 23(4) Neurosci. Biobehav. 760 (2008).
Veljko Dubjevic, Iris Coates McCall & Judy Illes, Neuroenhancement at Work: Addressing the Ethical, Legal and Social Implications, in Organizational Neuroethics 92 (Joé T. Martineau & Eric Racine eds., 2020).
A holistic interpretation of health—which incorporates human flourishing and the capacity for self-realization—further complicates this distinction. See Beatriz C. Labate & Clancy Cavnar, Prohibition, Religious Freedom and Human Rights: Regulating Traditional Drug Use (2014).
The social model of illness and disability—which is increasingly influential across health and legal fields (eg the Convention on the Rights of Persons with Disabilities) – raises valid objections to defining enhancement through narrow medical criteria that ultimately rely on labeling certain human states as ‘deviant’ or ‘abnormal’.
This is, however, also contested by many. See Erik Kamenjasevic, Defining Human Enhancement for Policymaking and Lawmaking Purposes, 13 Rev. Drt. Sante 26 (2022).
Maartje Schermer, The Dynamics of the Treatment-Enhancement Distinction, 79(1) Philosphica 25 (2007).
Where relevant from a human rights perspective, the ambiguity of this distinction will be explicitly addressed.
Recently, the EU legislator adopted a precautionary approach to the regulation of NTs within the framework of the Medical Device Regulation (MDR). This move largely removed the distinction between medical and non-medical applications of NTs, bringing both under the comprehensive safety oversight of the MDR’s protective framework; see Jan-Christoph Bublitz & Sjors Ligthart. The New Regulation of Non-medical Neurotechnologies in the European Union: Overview and Reflection, 11(2) Jlb 1 (2024).
Salardi, supra note 1; María Isabel Cornejo-Plaza & Chiara Saracini, On Pharmacological Neuroenhancement as Part of the New Neurorights’ Pioneering Legislation in Chile: A Perspective, 14 Front. Psychol. (2023).
This focus is a clear reflection of the ‘technoscientific’ focus of the CE debate, which appears to attribute a special (moral) status to science- and technology-based interventions for CE, disregarding other ‘natural enhancement’ methods such as exercise and nutrition. David R. Lawrence, To What Extent Is the Use of Human Enhancements Defended in International Human Rights Legislation? 13(4) Med. Law Intern. 254 (2013).
Maartje Schermer et al., The Future of Psychopharmacological Enhancements: Expectations and Policies. 2 Neuroethics 75 (2009).
Martin Dresler et al. Hacking the Brain: Dimensions of Cognitive Enhancement, 10(3) Acs. Chem. Neurosci. 1137 (2019).
Colzato et al. highlight the zero-sum account of cognitive enhancement, entailing that cognitive enhancement comes with cognitive impairments. The enhancement of certain cognitive functions will most likely be accompanied by negative effects on other aspects of cognition. For instance, they point out that the electrical stimulation of certain brain areas by tDCS may enhance numerical learning, while simultaneously impairing automaticity of the learned material. Lorenza S. Colzato, Bernhard Hommel & Christian Beste, The Downsides of Cognitive Enhancement, 27(4) The Neuroscientist 322 (2021).
Brendan Maher, Poll Results: Look Who’s Doping, 452 Nature 674 (2008).
Kimberly J. Schelle, A Survey of Substance Use for Cognitive Enhancement by University Students in the Netherlands, 9 Front. Syst. Neurosci. (2015).
Maxwell J. Mehlman, Captain America and Iron Man: Biological, Genetic, and Psychological Enhancement and the Warrior Ethos, in Routledge Handbook of Military Ethics 432–466 (George Lucas ed., 2015).
Andreas G. Franke et al., Use of Illicit and Prescription Drugs for Cognitive or Mood Enhancement Among Surgeons, 11 Bmc Med. 102 (2013).
Nathan Higgins et al., Anticipating the Future of Neurotechnological Enhancement, in The Routledge Handbook of the Ethics of Human Enhancement 237–250 (Fabrice Jotterland & Marcello Ienca eds., 2024).
Alexandra Kredlow et al. The Efficacy of Modafinil as a Cognitive Enhancer: A Systematic Review and Meta-Analysis, 39(5) J. Clin. Psychopharmacol. 455 (2019); Cornejo-Plaza & Saracini, supra note 19; Dresler et al., supra note 22; Eric Racine, Sebastian Sattler & Wren Boehlen, Cognitive Enhancement: Unanswered Questions About Human Psychology and Social Behavior, 27(19) Sci. Eng. Ethics (2021).
Including potential negative impacts on children’s brain development or psychiatric conditions such as memory impairment or impulsive behavior; Camilla L.-S. d’Angelo, George Savulich, & Barbara Sahakian, Lifestyle Use of Drugs by Healthy People for Enhancing Cognition, Creativity, Motivation and Pleasure, 174(19) Br. J. Pharmacol. 3257 (2017); Simona Zaami et al. Use of Methylphenidate Analogues as Cognitive Enhancers: The Prelude to Cosmetic Neurology and an Ethical Issue, 10 Front. Psych. (2020).
Silvia Salardi, Human Enhancement Technologies: Ethical and Legal Issues, in The Risks and Challenges of Neurotechnologies for Human Rights 32–35 (UNESCO, University of Milan-Bicocca, State University of New York (SUNY) Downstate, 2023).
Laura Bernáez Timón, Virginia Mahieu, Neurotech Consumer Market Atlas. Centre for Future Generations (2025).
Hannah Malsen et al., The Regulation pf Cognitive Enhancement Devices: Extending the Medical Model, 1(1) J. Law Biosci. 68 (2014).
Deep Brain Stimulation (DBS) holds promise for improving mental functions such as episodic memory and mood regulation, though further research is necessary to establish the efficacy of DBS in treating cognitive impairments. However, its invasive nature—marked by the high risk of physical complications (eg infection, intracerebral haemorrhage) and mental side effects (eg impulsivity, mania, behavioral addiction)—limits its suitability for non-medical applications; Christopher Coenen et al., Report on Human Enhancement by Panel for the Future of Science and Technology (2009); Clement Hamani et al., Memory Enhancement Induced by Hypothalamic/Fornix Deep Brain Stimulation, 62(1) Ann. Neurol. 119 (2008).
Anjan Chatterjee, Cosmetic Neurology and the Ethics of Enhancement, The Routledge Handbook of Neuroethics 121–133 (Syd M. Johnson & Karen Rommelfanger eds., 2017).
Bruce Luber & Sarah H. Lisanby, Enhancement of Human Cognitive Performance Using Transcranial Magnetic Stimulation (TMS). 85 Neuroimage 961 (2014).
Ie the ability of an application to be conveniently carried around or used.
Nathan Higgins et al., supra note 28.
Colleen A Dockery et al., Enhancement of Planning Ability by Transcranial Direct Current Stimulation, 29(2) J. Neurosci. 7271 (2009); Filipe Fregni et al. Anodal Transcranial Direct Current Stimulation of Prefrontal Cortex Enhances Working Memory, 166(1) Exp. Brain Res. 23 (2005); Marcus Meinzer et al. Transcranial Direct Current Stimulation over Multiple Days Improves Learning and Maintenance of a Novel Vocabulary, 52 Cortex 137 (2014).
Yet, despite the exponential growth in neurotech companies offering these devices to consumers, it ought to be stressed that the proliferation of tDCS devices in absolute numbers remains quite low, warranting caution as to not get caught up in a ‘neuroenhancement bubble’. Anna Wexler, Separating Neuroethics from Neurohype, 37(9) Nat. Biotechnol. 988 (2019).
See https://foc.us/v3/.
Anna Wexler, The Social Context of ‘Do-It-Yourself’ Brain Stimulation: Neurohackers, Biohackers, and Lifehackers, 11 Front. Neurosci. 224 (2017).
Corydon Hammond, What Is Neurofeedback: An Update,15 J. Neurotherapy 305 (2011).
Carlos Escolano, A Controlled Study on the Cognitive Effect of Alpha Neurofeedback Training in Patients with Major Depressive Disorder, 8 Front. Behav. Neurosci 296 (2014).
Marvam M. Shanechi, Brain-Machine Interfaces from Motor to Mood, 22 Nature Neurosci 2019.
Vadim Zotev et al. Self-Regulation of Human Brain Activity Using Simultaneous Real-Time fMRI and EEG Neurofeedback, 85 Neuroimage 985 (2014).
Sheena Waters-Metenier et al. Bihemispheric Transcranial Direct Current Stimulation Enhances Effector-Independent Representations of Motor Synergy and Sequence Learning, 34(3) J. Neurosci. 1037 (2014); Nataliya Kosmyna & Pattie Maes, AttentivU: An EEG-Based Closed-Loop Biofeedback System for Real-Time Monitoring and Improvement of Engagement for Personalized Learning, 19(23) Sensors (2019).
John H. Gruzelier, EEG-Neurofeedback for Optimising Performance. II: Creativity, the Performing Arts and Ecological Validity, 44 Neurosci. Behav. Rev. 142 (2014).
UNESCO, Unveiling the Neurotechnology Landscape Scientific Advancements Innovations and Major Trends (2023).
Silvia Salardi, Neurotechnologies and Privacy in the Medical and Non-medical Field: Ethical-Legal Concerns, 39(15) Notizie Di Politeia 75 (2023); Laura Bernáez Timón & Virginia Mahieu, supra note 32.
Wessel Teunisse, Sandra Youssef & Markus Schmidt, Human Enhancement Through the Lens of Experimental and Speculative Neurotechnologies, 1 Hum. Behav. & Emerg. Techn. 361 (2019).
Hazem Zohny, The Myth of Cognitive Enhancement, 8 Neuroethics 257 (2015).
Nathan Higgins et al., supra note 28.
Laura Steenbergen et al., ‘Unfocus’ on foc.us: Commercial tDCS Headset Impairs Working Memory, 234 Exper. Brain R. 637 (2016).
Anna Wexler & Robert Thibault, Mind-Reading or Misleading? Assessing Direct-to-Consumer Electroencephalography (EEG) Devices Marketed for Wellness and Their Ethical and Regulatory Implications, 3 J. Cog. Enhancement 131 (2019).
Invasive neuroimaging provides more detailed and reliable information, while invasive neuromodulation offers more precise and effective stimulation. Yet, these applications are likely to remain confined to the medical sphere for the foreseeable future. It remains to be seen whether, at some point in the future, surgically implantable devices would find their way into healthy populations, and the more powerful and precise effects of DBS, for instance, will ever outweigh the risks associated with brain surgery.
Emma C. Gordon & Anil K. Seth, Ethical Considerations for the Use of Brain-Computer Interfaces for Cognitive Enhancement, 22 Plos Biol. 102,024.
Ruijuan Chen et al., Advances in Non-Invasive Neuromodulation Techniques for Improving Cognitive Function: A Review, 14(4) Brain Sci. 354 (2024).
Jangwan et al., supra note 7.
Kira Flanagan & Manob Jyoti Saika, Consumer-Grade Electroencephalogram and Functional Near-Infrared Spectroscopy Neurofeedback Technology for Mental Health and Wellbeing, 23 Sensors 12,023.
Jangwan et al., supra note 7.
Cyntha Florini & Wayne Hall, The Is and Ought of the Ethics of Neuroenhancement: Mind the Gap, 6 Front. Psychol. (2016).
Sebastian Sattler & Dana Pietralla, Public Attitudes Towards Neurotechnology: Findings from Two Experiments Concerning Brain Stimulation Devices (BSD) and Brain-Computer-Interfaces (BCIs), 17(11) Plos One 2022.
James Hughes, Citizen Cyborg: Why Democratic Societies Must Respond to the Redesigned Human of the Future (2004).
Leon R. Kass, Life, Liberty and the Defense of Dignity (2003).
Yet, existing legal frameworks such as those regarding privacy and data protection laws, product safety laws, labor laws, or laws on medical devices will apply depending on the context of the specific use case.
UN Human Rights Council, Resolution 41/11 on New and Emerging Digital Technologies and Human Rights, UN DOC. A/HRC/RES/41/11 (2019).
Jan-Christoph Bublitz, Neurotechnologies and Human Rights: Restating and Reaffirming the Multi-Layered Protection of the Person, 28(5) IJHR 782 (2024).
Christopher McCrudden, Human Dignity and Judicial Interpretation of Human Rights, 19(4) EJIL 655 (2008).
The constitutive elements of human nature that make it distinct and anchor the inherent value of human beings remain debated.
Andrew Clapham, Human Rights in the Private Sphere (1993).
Deryck Beyleveld & Roger Brownsword, Human Dignity in Bioethics and Biolaw (2001).
Bublitz, supra note 70.
McCrudden, supra note 71.
Salardi, supra note 31.
John Stuart Mill, On Liberty (1859).
Gerald Dworkin, Paternalism, 56(1) The Monist 64 (1972).
Déirdre Dwyer, Review: Beyond Autonomy: The Role of Dignity in Biolaw, 23(2) Oxford J. Leg. Stud. 319 (2003).
Roberto Andorno, Human Dignity and Human Rights as a Common Ground for a Global Bioethics, 34(3) J. Med. Philos. 223 (2009).
This tension is also sometimes referred to as the individual versus collective, or rights-claiming versus rights-constraining dimension of human dignity; see Id.; McCrudden, supra note 71.
The identification of ‘the greater good’ or ‘collective, societal values’ is subject to the judgment of the legislative bodies.
Britta van Beers, Menselijke maakbaarheid, menselijke waardigheid en de mensenrechten. Over de maakbare mens en conflicterende interpretaties van de menselijke waardigheid, 35(8) NTM/NJCM-Bulletin 997 (2010).
Merel M. Spaander, The European Court of Human Rights and the Emergence of Human Germline Genome Editing, 29(3–5) Eur. J. Health. Law 458 (2022).
Roberto Andorno, Human Dignity and Human Rights, in The Unesco Universal Declaration on Bioethics and Human Rights: Background, Principles and Application (Henk AMJ ten Have & Michèle Jean eds., 2009).
Adeno Addis, Dignity, Integrity, and the Concept of a Person, 13 ICL J. 323 (2019).
Andorno, supra note 81.
Paolo Carozza, Human Dignity and Judicial Interpretation of Human Rights: A Reply, 19 Eur. J. Int. L. 931 (2008); Roberto Andorno, Human Dignity and Human Rights as a Common Ground for a Global Bioethics, 34(3) J. Med. Philos. 223 (2009).
Authenticity is a multifaceted concept that has been extensively debated, particularly in relation to enhancement technologies. From an autonomy-based perspective, enhancement technologies may be seen as facilitating authentic self-realization when individuals autonomously choose to integrate them into their personal development. On this view, every autonomous act of self-realization is, by definition, authentic [David Degrazia, Human Identity and Bioethics (2005)]. Other approaches, grounded in ‘thicker’ and more socially embedded conceptions of authenticity, identity formation and authentic self-realization, suggest that societal and relational contexts may, in fact, turn enhancement technologies into a threat to authenticity and the integrity of identity [Inneke L.L.E. Bolt, True to Oneself? Broad and Narrow Ideas on Authenticity in the Enhancement Debate, 28 Theor. Med. Bioeth. 285 (2007)]. A nuanced discussion of this rich and complex debate lies beyond the scope of the present article. Nonetheless, the conceptually and morally contested nature of authenticity and identity formation will resonate throughout the analysis.
L.M.R. v. Argentina, UN Doc. CCPR/C/101/D/1608/2007 (2011); Alyne da Silva Pimentel v. Brazil, UN Doc. CEDAW/C/49/D/17/2008 (2011).
Yet, the right to self-determination has been invoked to reinforce claims under various rights and freedoms, including the freedom of expression, the freedom of association, and the right to liberty and security. Nick Bostrom & Rebecca Roache, Smart Policy: Cognitive Enhancement and the Public Interest, in Enhancing Human Capabilities 139–149 (Julian Savulescu, Ruud ter Meulen, & Guy Kahane eds., 2009).
However, whether this positive dimension extends to a right to enhance remains unresolved (Nick Bostrom & Rebecca Roache, Smart Policy: Cognitive Enhancement and the Public Interest, in Enhancing Human Capabilities 139–149 (Julian Savulescu, Ruud ter Meulen, & Guy Kahane eds., 2009). This uncertainty has significant implications for the freedom to use NCEs, as some of these devices may be seen as interfering with bodily integrity by altering brain activity—a key physiological process. Timo Istace, Human Rights Law: An Incomplete but Flexible Framework to Protect the Human Mind Against Neurotechnological Intrusions, 16(1) Law Innov. Technol. 309 (2024).
In legal scholarship, the terms ‘mental self-determination’, ‘mental autonomy’, and ‘cognitive liberty’ are often used interchangeably to denote the right to self-determination at a mental level. While different authors may highlight distinct nuances, these notions share a conceptual core within legal and ethical philosophy. This analysis will opt for the notion of self-determination, as this underlines the positive dimension of individual choice. Farrah Ahmed, The Autonomy Rationale for Religious Freedom, 80(2) Mod. Law Rev. 238 (2017).
Yet, these proposals tend to emphasize the negative dimension of the right to mental self-determination.
Jan-Christoph Bublitz, What an International Declaration on Neurotechnologies and Human Rights Could Look Like: Ideas, Suggestions, Desiderata, 15(2) Ajob Neurosci. 96 (2024).
Jan-Christoph Bublitz, My Mind Is Mine!? Cognitive Liberty as a Legal Concept, in Cognitive Enhancement 233–264 (Elisabeth Hildt & Andreas G. Franke eds., 2013).
Richard G. Boire, On Cognitive Liberty (Part 1), 1 J. Cogn. Liberty 7 (1999).
General Comment No. 16 of the ICCPR on Article 17 (Right to Privacy) (1988); Linda J. Ehrlich, Freedom of Choice: Personal Autonomy and the Right to Privacy, 14(2) Idaho L. Rev. 447 (1978).
K.L. v. Peru, UN Doc. CCPR/C/85/D/1153/2003 (2005); Mellet v. Ireland, UN Doc. CCPR/C/116/D/2324/2013 (2016).
Toonen v. Australia, UN Doc. CCPR/C/50/D/488/1992 (1994).
Lubicon Lake Band v. Canada, UN Doc. CCPR/C/38/D/167/1984 (1987).
Ahmed, supra note 94.
Jan-Christoph Bublitz, Drugs, Enhancements and Rights: Ethical and Policy Implications in International Perspectives, in Cognitive Enhancement 309–328 (Fabrice Jotterland, Dubljevic Veljko, eds., 2016).
Lawrence, supra note 20.
G. v. Australia, UN Doc. CCPR/C/119/D/2172/2012 (2017).
Toonen v. Australia, supra note 101.
G.T. v. Australia, UN Doc. CCPR/C/61/D/706/1996 (1997).
Osiris González Romero, Cognitive Liberty and the Psychedelic Humanities, 14 Front. Psychol. (2023); Silvia Salardi, From Therapy to Enhancement: Ethical and Legal Issues About Neurotechnologies in the EU Framework of Human Rights, in The Discourse of Biorights 147–159 (José-Antonio Seoane ed., 2024).
Alyne da Silva Pimentel v. Brazil, UN Doc. CEDAW/C/49/D/17/2008 (2011); K.L. v. Peru, supra note 100; Mellet v. Ireland, supra note 100.
It may contribute to the protection of the negative dimension of a right to mental self-determination if the concept of ‘harm’ would be interpreted more broadly to include the loss of autonomy over one’s mental functioning and identity development. Istace, supra note 93.
To be precise, the freedom of thought is invoked here as a potential foundation for a right to mental self-determination in its internal dimension. This does not imply that choosing to use CE tools to interfere with the mind is a manifestation of one’s free thought. The interference itself by the CE tool with one’s cognitive processes is considered a choice that facilitates the exercise of the freedom of thought, rather than being an expression of thought itself.
Marc Jonathan Blitz, Cognitive Enhancement and American Constitutional Law, in Neuropsychoparmacotherapy 1039–1059 (Peter Riederer et al. eds., 2022).
Even this interpretation of the freedom of thought, as reflected in human rights case law, remains significantly underdeveloped, as it primarily focuses on the effects of thoughts and their impact on the forum internum, rather than addressing the forum internum itself. Moreover, coherent and consistent criteria for assessing undue interferences with the forum internum are largely absent. Istace, supra note 93.
Thomas Roberts, Academic and Religious Freedom in the Study of the Mind, in Entheogens and the Future of Religion (Robert Forte ed., 1997).
Charlotte Walsh, Psychedelics and Cognitive Liberty: Reimagining Drug Policy through the Prism of Human Rights, 80(7) Int. J. Drug Policy (2016).
Osiris González Romero, supra note 109.
UN Special Rapporteur on freedom of religion or belief, Interim Report on the Freedom of Thought, UN Doc. A/76/380 (2021).
UN Convention on Psychotropic Substances (1971); Outcome Document of the UN General Assembly Special Session on the World Drug Problem (2016).
Charlotte Walsh, Drugs and Human Rights: Private Palliatives, Sacramental Freedoms and Cognitive Liberty, 14(3) J. Hum. Rights 425 (2010).
Weber, G., Proportionality and Absolute Rights, in Jackson, V. & Tushnet, M. (eds.), Proportionality: New Frontiers, New Challenges, Cambridge: Cambridge University Press, 2017:75–101.
Bublitz, supra note 104.
Danny Scoccia, The Right to Autonomy and the Justification of Hard Paternalism, in Paternalism: Theory and Practice 74–92 (Christian Coons & Michael Weber eds., 2013).
Interestingly, an argument could also be made that even an absolute protection of the freedom of thought, through the positive obligations of States, might justify limitations to mental self-determination. When emerging enhancement tools, for instance, could negatively impact individuals’ autonomous mastery of their cognitive processes, governments may have a duty to intervene to protect the freedom of thought. However, this reasoning relies on the highly abstract duty of States to create an environment in which free thought can thrive and would permit only a narrowly defined scope for constraining measures based on threats to free thought itself, rather than broader concerns such as public safety or the rights of others.
Boire, supra note 98; Wyre Sententia, Cognitive Liberty and Converging Technologies for Improving Human Cognition, 1013 Ann. N.A. Acad. Sci. 221 (2004).
Bostrom & Roache, supra note 93.
European Parliament, Science and Technology Options Assessment, Directorate General for Internal Policies, Human Enhancement Study (2009).
This to underline that, while some consider enhancement to be a right, it can never be an obligation. Daniele Ruggiu, A Rights-Based Model of Governance: The Case of Human Enhancement and the Role of Ethics in Europe, in Shaping Emerging Technologies: Governance, Innovation, Discourse 103–115 (Kornelia Konrad et al. eds., 2013).
Lawrence, supra note 20.
Bert-Jaap Koops, Concerning ‘Humans’ and ‘Human’ Rights. Human Enhancement from the Perspective of Fundamental Rights, in Engineering the Human: Human Enhancement Between Fiction and Fascination 165–182 (Bert-Jaap Koops et al. eds., 2013).
Fully acknowledging that a strict distinction between body and mind is unconvincing.
Cornejo-Plaza & Saracini, supra note 19.
Bublitz, supra note 70.
Alan Weissenbacher, Defending Cognitive Liberty in an Age of Moral Engineering, 16 Theol. Sci. 288 (2018).
These two rights are hard to separate, as scientific progress in the field of enhancement technologies is tied to progress in medical research. Quoting Buchanan, Lawrence highlights that ‘at present, biomedical enhancements don’t come through the front door. They come through the back door, as spin-offs of efforts to treat diseases or disorders’. Restricting research and development in enhancement technologies would inevitably hamper the broader scientific advancements that underpin these innovations, thereby potentially depriving individuals with medical disorders and injuries of critical therapeutic breakthroughs. Consequently, the right to enjoy the benefits of scientific progress and the right to health are fundamentally and intrinsically interconnected. Lawrence, supra note 20.
Article 14–15 UNESCO Declaration on Bioethics and Human Rights.
This human rights claim is affirmed and reinforced by Article 12 Convention on the Rights of Persons with Disabilities (CRPD).
Barbara J. Sahakian et al., The Impact of Neuroscience on Society: Cognitive Enhancement in Neuropsychiatric Disorders and in Healthy People, 19 Phil. Trans. R. Soc. (2015); Bublitz, supra note 70.
See, for instance, Frederic Gilbert, Marcello Ienca & Mark Cook, How I Became Myself after Merging with a Computer: Does Human-Machine Symbiosis Raise Human Rights Issues? 16 Brain Stimul. 783 (2023).
Lawrence, supra note 20.
In a sense that this right aims to protect all socioeconomic factors that may impact a person’s quality of life. WHO, Constitution of the World Health Organisation (1946).
Article 14 UNESCO Convention on Bioethics and Human Rights.
Report of the Special Rapporteur in the field of cultural rights: The right to enjoy the benefits of scientific progress and its applications, section III.A.24 (2012).
Salardi, supra note 1.
Salardi, supra note 109.
Salardi, supra note 1.
UN, Single Convention on Narcotic Drugs, 1961, as amended by the 1972 Protocol Amending the Single Convention on Narcotic Drugs; UN, Convention on Psychotropic Substances, 1971.
Bublitz, supra note 96.
Bublitz, supra note 70.
Jennifer A. Chandler & Kai Vogeley, Cognitive Enhancement from a Legal Perspective, in The Routledge Handbook of the Ethics of Human Enhancement 359–371 (Fabrice Jotterland & Marcello Ienca eds., 2024).
Yet, importantly, considerations of mental self-determination are rarely prioritized in the establishment of these regulatory frameworks. For instance, regulation restricting the use of psychedelics has been criticized for potentially conflicting with the freedom of thought (or cognitive liberty), which would prohibit interference with an individual’s ability to explore the full capacities of their mind, logically implying a right to use chemical or technological means for doing so. Walsh, supra note 116.
Iris Coates McCall & Veljko Dubljevic, Human Flourishing or Injustice? Social, Political and Regulatory Implications of Cognitive Enhancement, in The Routledge Handbook of the Ethics of Human Enhancement 389–406 (Fabrice Jotterland & Marcello Ienca eds., 2024).
Malsen et al., supra note 33.
Viljko Dubljevic, Neurostimulation Devices for Cognitive Enhancement: Toward a Comprehensive Regulatory Framework, 8 Neuroethics 115–126 (2015).
Eric I Knudsen, Sensitive Periods in the Development of the Brain and Behavior, 16 J. Cogn. Neurosci. 16, 1412 (2004).
Malsen et al., supra note 33.
Id.
Colzato et al., supra note 23.
Roi Kadosh, Using Transcranial Electrical Stimulation to Enhance Cognitive Functions in the Typical and Atypical Brain, 4(1) Transl. Neurosci. 20 (2013).
Malsen et al., supra note 33.
Jonathan Iwry, David B. Yaden & Andrew B. Newberg, Noninvasive Brain Stimulation and Personal Identity: Ethical Considerations, 11 Front. Hum. Neurosci. (2017).
Anne Wexler, Do-It-Yourself and Direct-to-Consumer Neurostimulation, 3 Develop. Neuroethics Bioethics 127 (2020).
Racine et al., supra note 29.
Frederic Gilbert & Paul A. Tubig, Cognitive Enhancement with Brain Implants: The Burden of Abnormality, 2(4) J. Cog. Enhancement (2018).
Sebastian Sattler, Cognitive Enhancement in Children by Using Prescription Drugs, in Education in the Digital Age: Healthy and Happy Children (Tracey Burns & Francesca Gottschalk eds., 2020).
Bublitz, supra note 96.
Malsen et al., supra note 33.
David Richards, Sex, Drugs, Death and the Law: An Essay on Over-Criminalisation (1986).
Yasemin J. Erden & Philip Brey, Neurotechnology and Ethics Guidelines for Human Enhancement: The Case of the Hippocampal Cognitive Prosthesis, 47 Artif. Org. 1235 (2023).
In extreme cases of forced augmentation, this could even amount to inhuman or degrading treatment, as prohibited by Article 7 ICCPR.
Declaration on Neuroscience, Neurotechnologies and Human Rights of the Inter-American Juridical Committee. OEA/Ser. Q, CJL/DEC 01 (XCIX-O/21) (2021).
Salardi, supra note 109.
Ernest Braun & David Wield, Regulation as a Means for the Social Control of Technology, 6(3) Tech. Anal. Strateg. Manag. 259 (1994).
‘Equity can be understood as the fair treatment of all population groups in society and fairness in the distribution of costs, benefits and opportunities’. UN System chief Executives Board for Coordination, Leaving No One Behind: Equality and Non-Discrimination at the Heart of Sustainable Development (2017).
UN System chief Executives Board for Coordination, Leaving No One Behind: Equality and Non-Discrimination at the Heart of Sustainable Development (2017).
Marcello Ienca & Roberto Andorno, Towards New Human Rights in the Age of Neuroscience and Neurotechnology, 13(5) Life Sci. Soc. Policy (2017); Marcello Ienca, On Neurorights, 15 Front. Hum. Neurosci. (2021).
Cornejo-Plaza & Saracini, supra note 19.
Rafaël Yuste et al., Four Ethical Priorities for Neurotechnologies and AI, 551 Nature 159 (2017).
Daniel Loewe, Cognitive Enhancement and the Levelling of the Playing Field, in Cognitive Enhancement 219–236 (Fabrice Jotterland & Viljko Dubljevic eds., 2019).
Lawrence, supra note 20.
Veljiko Dubljević, Toward a Legitimate Public Policy on Cognition-Enhancement Drugs, 2(3) Ajob Neurosci. 29 (2012).
Erden & Brey, supra note 169.
Diego Borbón & José M. Muñoz, Equal Access to Mental Augmentation: Should It Be a Fundamental Right? 16(4) Brain Stim. J. 1094 (2023).
Daniel Martin et al., Normality and the Treatment-Enhancement Distinction, 16(2) Neuroethics (2023).
Cornejo-Plaza & Saracini, supra note 19.
Leon R. Kass, Chapter 6: ‘Beyond therapy’: General Reflections, in Beyond Therapy: Biotechnology and the Pursuit of Happiness. President’s Council on Bioethics (2003).
Julian Savulescu, In Defence of Procreative Beneficence, 33(5) J. Med. Ethics 584 (2007).
Coates McCall & Dubljevic, supra note 152.
Alberto Giubilini & Francesca Minerva, Enhancing Equality, 44 J. Med. Philo. (2019).
Diego Borbón & Luisa Borbón, A Critical Perspective on Neurorights: Comments Regarding Ethics and Law, 15 Front. Hum. Neurosci. (2021).
Dubljević, supra note 181.
Borbón & Borbón, supra note 190.
Borbón & Muñoz, supra note 183.
Bostrom & Roache, supra note 93.
Nick Bostrom & Sandberg Anders. Cognitive Enhancement: Methods, Ethics, Regulatory Challenges, 15 Sci. Eng. Ethic. 311 (2009).
Walsh, supra note 116.
Id.
Allen Buchanan, Better Than Human (2017).
Walsh, supra note 116.
van Beers, supra note 125.
Nick Bostrom, In Defense of Posthuman Dignity, 19(3) Bioethics 202 (2005).
Katharina Bauer, Cognitive Self-Enhancement as a Duty To Oneself: A Kantian Perspective, 56(1) South. J. Philos. 36 (2018).
Martin Gunderson, Seeking Perfection: A Kantian Look at Human Genetic Engineering, 28(2) Theor. Med. Bioeth. 87 (2002).
O’Mahony offers an interesting analysis of different approaches toward the relation between dignity and autonomy of self-determination, persuasively concluding that self-determination should not be considered a value inherent to human dignity, yet a right to self-determination is firmly anchored in human dignity; Conor O’Mahony. There Is No Such Thing as a Right to Dignity, 10(2) I. Con. 551 (2012).
Koops, supra note 1231.
Britta van Beers, The Changing Nature of Law’s Natural Person: The Impact of Emerging Technologies on the Legal Concept of the Person. 18 (2) Ger. Law. J. 559 (2017).
Id.
van Beers, supra note 125.
Bublitz, supra note 96.
Zuzanna Warso, D3.2 Analysis of the Legal and Human Rights Requirements for Human Enhancement Technologies In and Outside the EU (The Sienna Project) (2019).
Contributor Information
Timo Istace, Faculty of Law, University of Antwerp, Antwerp, Belgium.
Kristof Van Assche, Faculty of Law, University of Antwerp, Antwerp, Belgium.