Cryogenics case shows our laws are lagging behind science

The headline-grabbing case of a teenage cancer sufferer winning the legal right to cryopreservation was never really about science. It was to arbitrate in a family dispute. The mother and father of the anonymous British 14-year-old disagreed over their daughter’s wish to be deep frozen after death so that she could be revived if a cure is found.

The landmark court case ended with a legal ruling in favour of the teenager and her mother. The argument did not turn on whether cryopreservation — also called cryogenics or cryonics — works. Many scientists are sceptical. It may eventually be possible that a corpse can be coaxed back into functioning after being stored at about -196C; but the gamble is whether brain tissue, which houses our consciousness, would survive.

The case does, however, throw light on the growing intersection between science, technology and the law. In the coming decades, politicians and judges will be called on to make decisions necessitated by the extraordinary pace of scientific progress. Brain scans and other forms of neuroscientific evidence are already being used in the courts to influence sentencing or determine the limits of culpability.

It does not take long for a once futuristic legal or regulatory framework to look antiquated, especially in the life sciences. For example, cryopreservation is not covered by the Human Tissue Act 2004, which regulates the removal, storage and use of human tissue (such as transplant organs). The laws banning genetically modified embryos from being implanted in a womb were in place long before scientists realised that altered mitochondrial DNA might have some therapeutic use in preventing some devastating childhood diseases. The law was updated accordingly.

If an organisation builds a library of the building blocks for life, who should own the library?

In the past few years, the European Court of Justice has been busy pondering stem cells. In 2014, the ECJ permitted patents to be filed on certain kinds of embryonic stem cell — overturning a blanket ban it had imposed just three years earlier.

The twists and turns of the genetic revolution — which kicked off in 2003 with the completion of the sequencing of the human genome — have been mirrored in the courts, as biotechnology companies have attempted land grabs in certain sections of the human genome; for example to develop tests for breast cancer.

Synthetic biology — the creation of bespoke life forms by sewing together specially selected genes — will bring its own challenges. If an organisation builds a library of the building blocks for life, who should own the library? This is something that legal experts are pondering. Legal considerations must also take account of what societies generally believe to be moral.

One of the thorniest legal areas may well be one of the most hidden. The rise of the machines means our lives are more dependent on algorithms than ever before. Many of us engage with the world through laptops, smartphones and tablets — and algorithms will dictate the news feeds you rely on, the job ads you see and the loans you are offered. There is evidence to suggest that some algorithms entrench historical biases rather than eliminate them — one study found that men were more likely than women to be shown ads for high-paying jobs.

How long before we see the first legal test of discrimination by algorithm?

The author is a contributing writer on science for the FT
thecoolhead@ft.com