The role of law in regulating neurosciences: discrimination and inequality as major concerns.

In recent years, neurotechnologies have become smaller, easier, less expensive to produce, and spread across different fields ranging from medicine to marketing and entertainment. Major concerns regard direct-to-consumer devices, like self-making TMS and other BCIs, that lack data for their long-term safety. Legal regulation out of the medical field is absent at the international, European, and national levels. One of the main reasons is the influence exerted on legislators by those having technological and economic power. In particular, transhumanist thinkers, who use ideological argumentation to advocate for major changes in our society through the means of neurosciences, maintain that the law should have a marginal role as individuals can rely on self-regulating markets. This paper, using the methodological approach of the bioethics’ and biolaw’s perspective, provides a philosophical-juridical analysis aimed to study the different claims used by transhumanists, such as the argument of the slower pace of law compared to technological progress, and to underline their fallacies and misconceptions. Moreover, we brought to light that these arguments risk hiding forms of discrimination and inequality that can stem from the misuse of neuroscientific devices, data, and the absence of regulation. Hence, through the assessment of the different interests at stake, we can imagine effective legal regulations inspired by the European approach to the challenges posed by other technologies (for instance, GDPR, Oviedo Convention, etc.) and based on the balance between the respect of human rights and dignity, the advancement in scientific research, and the interests of different stakeholders.