“We are not our own any more than what we possess is our own. We did not make ourselves, we cannot be supreme over ourselves. We are not our own masters” – Aldous Huxley, Brave New World

In 1931, dystopian novelist Aldous Huxley wrote Brave New World. The futuristic novel opens in the fictional World State — a world where citizens are artificially engineered through manmade wombs and class divisions are based on intelligence and labour in the quintessential industrial age.

A farfetched notion in 1931, but artificial intelligence (AI) developments have made artificially engineered humans possible. In recent years, there has been remarkable progress in the field of reproductive technologies. Artificial wombs, for instance, are devices that can grow a foetus to term outside the body of an organism.

Currently, however, there are limited ethical conditions and human embryos can only be grown for 14 days. The 14th day is when a spherical embryo forms a body and cells begin taking on characteristics.

Elsewhere, gene editing allows for the alteration of DNA through removal, insertion or replacement in the human genome with the potential to combat genetic disease or optimise health.

Huxley’s work emerged as a glance into the future but need it be quite as terrifying as the book suggests? The World State in Huxley’s novel was arguably devoid of a suitable ethical or legal framework.

In the 21st century, what are the ethical implications of reframing our creation of humans — are we bordering on eugenics with “designer babies” with the implied risk of marginalising or even eradicating groups?

How do we establish gene editing guidelines to ensure the process is ethical? Where do we draw the line? What is the legal status of a foetus created in an artificial womb? Who is liable if something goes wrong? What are the legal rights of children posthumously conceived?

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These questions merely scratch the surface of the interface between AI and the law regarding reproduction. As we venture into our own “brave new world”, we must do so with a framework in place.

There are two broad factors to consider: how do we safeguard core legal values — such as equal treatment under the law, procedural fairness and due process and adequate access to justice for all, for instance — and how do we adapt to these broad societal changes?

At Unesco’s General Conference in 2021, member states adopted the Recommendation on the Ethics of Artificial Intelligence, the first set of global standards emphasising protecting and promoting human rights and human dignity.

Unesco referred to it as a “global normative bedrock allowing us to build strong respect for the rule of law in the digital world”. This could be considered “soft law” which is not legally binding but emphasises a set of values. However, it serves as a guideline for establishing a legal framework.

To illustrate, in 2020, Thaldar et al argued that principles already derived from the Constitution such as scientific research relating to human reproduction should serve as a basis for the approach to genetic editing in South Africa.

However, the authors argue that regulation of the process, ensuring a well-established standard of safety and efficacy, measures for allowances of non-therapeutic uses of gene editing, respect for the individual’s reproductive autonomy and equal access should guide new regulations.

What is apparent is that as these technologies increasingly emerge, society needs to respond accordingly. Legislation is largely reactive. However, in the Fourth Industrial Revolution (4IR), there is an increasing argument for a proactive approach.

If we have any hope of subverting Huxley’s dark premonition of the future, if you will, then we must ensure that regulating AI is not a futile exercise.  

As Huxley wrote in the foreword of the new edition of Brave New World in 1946, “If I were now to rewrite the book, I would offer the Savage a third alternative. Between the Utopian and primitive horns of his dilemma would lie the possibility of sanity… Science and technology would be used as though, like the Sabbath, they had been made for man, not (as at present and still more so in the Brave New World) as though man were to be adapted and enslaved to them.”

Ethical and legal frameworks are necessary to close the gap between science and fiction. DM