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On the Legal Status of Human Cerebral Organoids: Lessons from Animal Law

Published online by Cambridge University Press:  17 February 2023

Joshua Jowitt Open the ORCID record for Joshua Jowitt [Opens in a new window]
Joshua Jowitt*
Affiliation:
Newcastle Law School, 19-24 Windsor Terrace, Newcastle upon Tyne NE1 7RU, UK
*
Email: joshua.jowitt@newcastle.ac.uk
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Abstract

This paper will ask whether the legal status presently afforded to nonhuman animals ought to influence regulatory debates concerning human cerebral organoids. The New York Courts recently refused to grant a writ of habeas corpus to Happy the Elephant as she was property rather than a legal person while at the same time accepting that she is a moral patient deserving of rights protection. An undesirable situation has therefore arisen in which the law holds a being with moral status to be incapable of benefitting from legal redress due to their legal status as property.

The author argues that this is something that we ought to avoid when designing the regulatory framework which will govern the use of human cerebral organoids. Yet, a difference exists in that, whereas the judges already accept Happy is a moral patient, there is presently no consensus around the moral status of organoids. This paper will consider whether human cerebral organoids have passed the moral threshold of sentience. If they have, or are close to doing so, regulators ought to consider their legal status in advance so as to ensure that adequate limitations are placed on this usage so as to avoid unethical practices.

Keywords

human cerebral organoidssentienceanimal lawlegal personhood
Type
Symposium: Human Cerebral Organoids: Quo Vadis?
Information
Cambridge Quarterly of Healthcare Ethics , Volume 32 , Issue 4 , October 2023 , pp. 572 - 581
Creative Commons
Creative Common License - CCCreative Common License - BY
This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0), which permits unrestricted re-use, distribution and reproduction, provided the original article is properly cited.
Copyright
© The Author(s), 2023. Published by Cambridge University Press

Introduction

On Saturday June 11, 2022, The Washington Post published a story in which Google engineer Blake Lemoine claimed that an AI named LaMDAFootnote 1 had achieved sentience and was morally deserving of the personhood they claimed to possess.Footnote 2 The Internet was soon, and perhaps predictably, ablaze with commentary—both from those who supported Lemoine’s conclusion that LaMDA’s sentience meant it was capable of making legitimate rights claims, and those, such as Microsoft VP and Chief Data Scientist Juan M. Lavista Ferres, who thought the claim was nonsense.Footnote 3 The debate covers familiar territory, given that the possession of sentience is widely accepted as a threshold capacity beyond which rights can legitimately be claimed.Footnote 4 Yet, for those of us working in the field of animal law, what was of note in discussions around LaMDA was not whether it had passed this threshold. Rather, we noted an uneasy disconnect between the ease with which commentators speculated about how AI sentience may affect our future legal relationships with artificial beings, although the same attention was not given to rights claims that could be made by the billions of biological beings we know to be sentient and with whom we share our planet here and now.

The purpose of this paper is to apply this observation to the problem of how we ought to approach the legal status of human cerebral organoids, and how this ought to be considered when designing future regulation concerning their usage. It will do so in two main parts. First, the case of Happy the Elephant will be used as a case study to demonstrate a key fault with how the law presently interacts with nonhuman animals: that our institutions often accept that such creatures are capable of making legitimate claims to moral patienthood, but that the law claims to be powerless to address this problem due to their status as property.Footnote 5 It will be argued that it is at least desirable that regulators take reasonable steps to prevent the same problem from arising with regards to human cerebral organoids—whether as standalone entities or as part of chimera resulting from their implementation in nonhuman hosts.

This would require us to make an assessment of whether such organoids are to be seen as moral patients, and it is to this task that the second half of the paper will turn. It will be argued that current scientific evidence raises sufficient uncertainty around whether the threshold of sentience has been passed to warrant the use of precautionary reasoning, meaning that the moral status of human cerebral organoids should be of primary concern to regulators when considering whether limits ought to be placed on their usage.

A case study from animal law

How the law interacts with nonhuman animals is the proverbial elephant in the room, in that it is often overlooked in discussions of how the law does, or ought, to interact with what David Lawrence has labeled “novel beings.”Footnote 6 The first section of this paper will thus begin by introducing an actual elephant, whose recent day in court exposes a real and identifiable problem concerning the legal status of nonhuman animals. It does so with the aim of demonstrating that animal law can provide lessons on how the law ought to interact with potential moral patients such as human cerebral organoids, and in particular identify issues that regulators can take steps to address before they raise both legal and moral difficulties in future research.

Introducing Happy

Happy is a 47-year-old Asian elephant who has been resident at the Bronx Zoo for just over 40 years,Footnote 7 the last 15 of which have been spent alone since the death of her companion.Footnote 8 In 2005, she became the first Asian elephant to recognize herself in a mirror, which scientists believe provides strong evidence that she is self-aware and possesses advanced cognitive capabilities.Footnote 9 Elephant behavioral experts believe that these abilities evolved due to the fact wild elephants live in large social groups and to roam for up to 20 hours per day, and their isolation and confinement can therefore be linked to a range of mental and physical ailments including, but not limited to, depression, arthritis, and osteomyelitis.Footnote 10

Her legal journey began in 2018.Footnote 11 A petition for a writ of habeas corpusFootnote 12 and order to show cause was submitted on her behalf by the Nonhuman Rights Project (NhRP),Footnote 13 who describe themselves as the only civil rights organization in the United States “dedicated solely to securing rights for nonhuman animals.”Footnote 14 Their petition argues that Happy’s self-awareness and advanced cognitive abilities are evidence that she is capable of enjoying liberty and autonomy, and thus capable of benefiting from the writ of habeas corpus being sought. They claim that this constitutes sufficient evidence of her moral worth to render her detention unlawful in itself, rather than simply the conditions in which she lives.Footnote 15 Her case made history in December 2018 when Judge Tracey Bannister decided that there was a case to answer and issued an order to show cause.Footnote 16 This was only the second time such an order had been made on behalf of a nonhuman animal in U.S. history, and the first time that such an order had been made on behalf of an elephant.Footnote 17

The case and its outcome

The legal problem faced by the NhRP is a long-standing doctrine, accepted by most jurisdictions, that in order to be capable of bearing rights, one first needs to be recognized as a legal person. On an orthodox understanding, this is a strictly legal classification, and should be seen in opposition to the legal status of “property.” On this orthodox understanding then, the question the courts are being asked when confronted with a rights claim is one of Happy’s legal status: Is she a legal person and thus capable of bearing rights, or property that is not?Footnote 18

Although contemporary scholarship questions the soundness of the orthodox view,Footnote 19 it is accepted by the courts in New York who, when previously asked to recognize rights for two chimpanzees named Tommy and Kiko, refused to do so because of their property status.Footnote 20 In the court of first instance, Judge Alison Tuitt accepted that this rule applied to Happy and dismissed the claim.Footnote 21 This decision was appealed by the NhRP, but was upheld by a 15-line judgment of the appellate court that is notable in that—rather than engage with the substantive merits of the case—it merely repeated that Happy was not a legal person and that the issue of whether she ought to be was for the legislature.Footnote 22 This decision was further appealed to the Court of Appeals in Albany, who in 2021 agreed to hear the case—making this is the first time a nonhuman habeas corpus claim has reached the highest court of any English-speaking jurisdiction.Footnote 23

Lessons to be learned

Following a hearing on May 18, 2022,Footnote 24 the Court published its decision on June 14 and rejected the appeal by 5-2.Footnote 25 Writing for the majority, Chief Judge DiFiore held that—whatever the merits of the case—public policy considerations meant that previous courts’ decisions to defer the question of nonhuman rights to the legislature were correct.Footnote 26 Although the decision was clear, what is less clear is whether the reasons provided by DiFiore can support this conclusion. First, with reference to Art 1 §4 of the New York State Constitution, she suggested that habeas corpus was a procedural vehicle available open only to human beings,Footnote 27 yet the provision referenced makes no reference to human beings—but rather to persons.Footnote 28 As the question DiFiore was being asked by the NhRP is whether Happy was a legal person, her reason begs the question it attempts to answer and cannot support her conclusion. Her second reason for denying Happy’s legal personhood was that in order to be a legal person and benefit from rights, one also needs to be capable of understanding and bearing duties, and as Happy cannot do the latter, she cannot benefit from the former.Footnote 29 This is simply not the case as a matter of legal fact, as can be demonstrated by the fact that legal systems have no problem with recognizing children as legal rights bearers while holding them not bound by certain duties—for example, through imposing a minimum age requirement for criminal liability.Footnote 30 Given it is perfectly possible for the law to recognize a being can bear rights but not duties, this reason is also incapable of supporting DiFiore’s conclusion. A third reason provided is that recognizing rights for Happy would destabilize society—something that is undoubtedly true, but does not address the legal question before the court.Footnote 31 It also seems less appealing as a justification when we recognize it to be equivalent to the claim that the comfort of the majority ought not to be destabilized by the recognition of rights for a previously marginalized group.

Given these reasons are incapable of supporting the majority conclusion, we must conclude that it is her final justification that is doing the heavy lifting—that the question of rights for nonhuman animals is primarily a political question, and ought to be answered by the legislature. Footnote 32 This point was emphatically rejected by two dissenting judges. Judge Wilson noted as part of his seventy-page dissent that the common law is uniquely placed to develop in a way that addresses new beliefs, knowledge, and challenges, such as those posed by our increased awareness of elephant capacities,Footnote 33 arguing that to deny Happy is to denigrate “the human capacity for understanding, empathy, and compassion.”Footnote 34 In a concurring judgment, Judge Rivera adds that she finds the majority position unpersuasive:

This is question begging in its purest form. The majority’s argument boils down to a claim that animals do not have the right to seek habeas corpus because they are not human beings and that human beings have such a right because they are not animals.Footnote 35

Furthermore, the dissenters hold that the majority decision to defer to the legislature is an abrogation of their duty, in the absence of legislation, to respond to the question before them on common law as opposed to legislative principles. As put by Rivera, judges should not forget that “The common law is our bailiwick.”Footnote 36

What is of note is that all majority and dissenting judgments accept that Happy is a being with advanced capacities that may mean she is deserving of rights protection. This point has been accepted in an older judgment from New York, in which Judge Eugene Fahey expressed his unease in denying rights to a chimpanzee named Tommy for no other reason than his status as property. He noted that this conclusion ought not to be seen as “a decision on the merits of [the] petitioner’s claims.”Footnote 37 and suggested that the advanced cognitive capacities of certain nonhuman animals ought to be recognized as a more acceptable starting point for assessing rights claims than the designation of legal person.Footnote 38 He suggested that focusing on legal status to the exclusion of these factors ignored the moral status that such cognitive abilities evidenced, and to deny rights claims because of legal status was “a refusal to confront a manifest injustice”Footnote 39 insofar as it amounts to a refusal to accept that an “intelligent nonhuman animal who thinks and plans and appreciates life as human beings do” ought to benefit from rights to protect this capacity.Footnote 40

The lesson here is clear: Judges accept that Happy and other nonhuman animals are moral patients who can make legitimate moral rights claims,Footnote 41 but claim to be unable to legally recognize this unless the legislature explicitly allows them to do so—whether through recognition of legal personhood or other means. Until this happens, the law is clearly deficient insofar as it claims to be powerless to legally protect the interests of beings it recognizes have legitimate moral rights claims.Footnote 42 This point should be at the forefront of regulatory debates concerning the legal status of human cerebral organoids.

A lesson for regulation of human cerebral organoids

The preceding section has demonstrated that the courts see regulators as being uniquely placed to address questions as to the legal status of novel beings, whether nonhuman animals or human cerebral organoids. Yet, a difference exists between the two, in that whereas judges accepted that Happy was a moral patient, there is no consensus on the moral status of human cerebral organoids.

Given that sentience is widely accepted as an indicator of moral worth, this section will use this approach as a test by which the moral status of human cerebral organoids—whether as standalone entities or as chimera resulting from their implantation in nonhuman hosts—can be ascertained. Only once this question has been answered can we consider whether lessons can be learned from animal law with regard to their regulation and legal status.

The Nature of Human Cerebral Organoids

Human cerebral organoids, first developed around 2008 but known by this name since 2013,Footnote 43 are “three-dimensional structures created by imitating the process of organ formulation in vitro using pluripotent stem cells, such as induced pluripotent stem cells and embryonic stem cells.”Footnote 44 They are not and were never intended to be mini-brains; they are merely models of specific regions of the brain, and discussions as to their moral status ought to fully understand this limitation.Footnote 45 Organoids can exist as standalone entities in vitro, or be grafted onto living or artificial hosts, and Sawai et al. argue that separate moral questions are raised by each of these scenarios.Footnote 46 The sentience framework endorsed here, however, rejects this assessment, as the sole criterion that needs to be established when addressing moral status is its sentience as a standalone in vitro entity, or the sentience of any chimera that results from its integration with a living or artificial host.

Yet this focus on sentience is not uncontroversial; some believe that, as a concept relating to both body and mind, sentience cannot be measured with enough certainty to successfully ground a moral duty—particularly in the face of moral pluralism.Footnote 47 Others argue that even if we can be sure some beings are sentient, this philosophical standard is not where most people see moral value—instead preferring either theological or biological determinants. As put by John Evans with regard to sentient animals, “…short of a talking monkey, the public is not very concerned about [their] capacities.”Footnote 48 Despite these reservations, it remains true that legislators do see either sentience or consciousness as a proxy for moral concern that ought to be legally reflected, and there is a clear direction of travel in this regard as concerns animal welfare.Footnote 49

There is, however, no consensus on whether human cerebral organoids are sentient or conscious. As standalone entities, they are unable to vascularize, meaning that growth is limited to relatively simply structures;Footnote 50 they simply do not have the blood vessels required to reach greater size and complexity, “resulting in a necrotic core that hinders development and durations.”Footnote 51 As such, even though evidence exists to suggest that they exhibit neural connections and engage in electrical activity, “they have so far failed to form even basic synaptic circuits—without which consciousness is probably impossible.”Footnote 52 If this is true, then organoid sentience is a problem for the future, and their property status and use “does not raise ethical concerns beyond those associated with our treatment of human biospecimens more generally.”Footnote 53

Yet, the problem of vascularization is readily overcome by grafting said organoids to an animal host.Footnote 54 Technological developments now mean that organoids grafted in this way have greater survival rates,Footnote 55 and have potentially developed complex structures needed for sentience or consciousness to develop.Footnote 56 Recent evidence even suggests that grafted organoids can influence host behavior in unexpected ways.Footnote 57 Similar issues have also been highlighted in research involving in vitro organoids as standalone entities; studies have evidenced complex neural activity consisting of synchronized oscillation with individual firing in neural networks,Footnote 58 and have reproduced a waveform similar to those seen in preterm neonatal electroencephalography.Footnote 59 Though unable to sense the external world, research also shows that some organoids can respond to external stimuli in a meaningful way—allowing researchers to conclude that, even if we are not there yet, sentience or consciousness may not be far away.Footnote 60 And though dismissed by some as unhelpful hype, some studies even claim that organoids are capable of “playing” games or otherwise engaging with enactive learning when plugged into virtual worlds.Footnote 61

Such evidence might be as good as we are going to get with regard to ascertaining organoid sentience. Given that they are generally cutoff from sources of perceptive input and/or motor output in their own right, it is difficult to observe sentience or consciousness with absolute certainty. This is made even more difficult by the lack of consensus on what sufficient evidence may even look like, with large divergence on what constitutes relevant neural correlates of conscious experience (NCCs) even in humans.Footnote 62 Thus, even though evidence of organoid sentience is at best inconclusive, we cannot dismiss it out of hand.

A precautionary principle

Given this uncertainty, the research community is divided on whether regulation should promote continued organoid researchFootnote 63—especially as the alternative would be to prolong research on nonhuman animals whose sentience and moral status are more settledFootnote 64—or explore alternatives.Footnote 65

This uncertainty, in part stemming from the fact that concrete identification of sentience or consciousness is difficult to do with certainty,Footnote 66 means that the use of precautionary reasoning is desirable. This approach is already a common practice with regard to use of nonhuman animals where uncertainty over moral status may “delay the adoption of proportionate measures to protect those animals from severe welfare threats.”Footnote 67 The basic operation of this approach begins from a statement that if we are confronted with a being whose sentience (and therefore moral status) is uncertain, the following is true:

  1. a) If the being is sentient and has moral status, then:

    1. i. If the observer treats them in a way that respects this, the observer’s behaviour is permissible.

    2. ii. If the observer treats them in a way that does not respect this, the observer’s behaviour is morally impermissible.

  2. b) If the being is not sentient and does not have moral status, then:

    1. i. If the observer treats them in way that respects this, the observer’s behaviour is permissible.

    2. ii. If the observer treats them in a way that does not respect this, the observer’s behaviour is morally permissible.

As it is morally desirable that we avoid behavior that does not respect moral status, we ought to avoid outcome (a)ii in the above scenario. Given that their sentience is uncertain, we must ask whether there is sufficient evidence for us to believe that human cerebral organoids might be sentient. If there is, then we are required to treat them as though they are in order to ensure we avoid outcome (a)ii “to the extent that it is possible and meaningful … to do so.”Footnote 68

Jonathan Birch and Heather Browning would agree with this approach, and endorse the following use of the precautionary principle with regard to human cerebral organoids:

[I]f an organoid contains structures or mechanisms that any serious and credible theory of the human NCCs posits to be sufficient for conscious experience, we should take proportionate measures to regulate research on that organoid.Footnote 69

They acknowledge that this is a low threshold, but such is the inescapable nature of precautionary thinking—which “requires us to take seriously theories of consciousness that cannot be ruled out on the basis of current evidence, even if they do not command strong positive evidential support.”Footnote 70 The evidence in favor of in vivo or in vitro organoid sentience contained in the previous section, though inconclusive, appears to indicate that we may be close to this threshold being passed—if it has not been already. We should therefore see such organoids as moral patients, and it is desirable that this be reflected in regulatory circles.

Factoring this into regulatory debate

Having established this, we can now finally turn to the question posed by the title of this piece: whether animal law can provide lessons as to how regulation ought to take organoids’ moral patienthood into account. Søren Holm and Jonathan Lewis argue that there is no legal problem with owning sentient or conscious beings, as the law allows us to own nonhuman animals for both companionship and instrumental purposes as pets and livestock. As such, they argue that there is no de facto reason to see organoids as legally different to nonhuman animals.Footnote 71 Yet, as has been shown in part one of this paper, the way the law treats nonhuman animals is clearly deficient. Their property status has been shown to lead to a problem where moral patients are denied protection of their interests, so regulators ought to learn from this and future proof the law relating to organoids in order to avoid replicating this problem. Put simply: if there is a likelihood that human cerebral organoids possess sentience or consciousness, then not only are there moral limits on what we can do to them, it is highly desirable that this be reflected through appropriate regulation.Footnote 72

This ought not to be a problem, since—as noted above—there is already a clear direction of travel with regulation of nonhuman animal interests when they are used in laboratory research, whereby sentience is seen as a direct proxy for moral worth deserving of specific legislative protection.Footnote 73 An initial recommendation from Birch and Browning is one that should be endorsed as a minimum; that organoids should be brought under protection equivalent to that offered to nonhuman animals used in laboratories in the UK by the Animals (Scientific Procedures) Act 1986, “requiring ethical review, a careful weighing of harms and benefits, and evidence that scientists have duly considered the imperative to reduce, refine, and replace.” Footnote 74 These principles are known as the three Rs, and have been well-established principles in research involving nonhuman animals for some time.Footnote 75

Yet, as has been noted above, this is weak protection that does not address property status does not adequately protect nonhuman animals’ moral rights claims and, as such, does not go far enough. Given that there is sufficient evidence for us to take the potential for human cerebral organoid sentience seriously and employ precautionary reasoning, regulation ought to be much stricter in considering their potential for moral rights if we are to avoid the same legal issues currently faced by Happy. Claims that such an ethics-led approach is undesirable or unworkable due to the fact of ethical pluralism, though well intentioned, are misplacedFootnote 76; the Warnock Report in the UK shows that ethics-led approaches are an effective means by which the moral and legal status of novel beings can be ascertained.Footnote 77 A similarly wide-ranging enquiry would therefore be desirable with regard to establishing the moral and legal status of both in vivo and in vitro human cerebral organoids.

Conclusion

This paper has attempted to present a cautionary tale. When we consider the moral status of new biotechnologies, our comparator ought not be new and speculative technology such as LaMDA. We can better see future regulatory problems if we look at how the law interacts with beings whose moral status is comparatively settled. The recently settled case of Happy the elephant shows us that there is presently a stark disconnect: The courts are happy to accept that she is a moral patient whose interests are deserving of legal protection, but they do not wish to take the steps necessary to do so. The law is clearly failing Happy, and it is surely better that regulators take proactive steps to avoid this problem when faced with beings such as human cerebral organoids.

Conflicts of Interest

The author declares none.

References

Notes

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