Ethics, law and an underlying question of morality are increasingly intersecting with technological advances in areas such as human genetics and augmented reality.

What was once the stuff of science fiction is being pioneered in our laboratories. Is this the next stage of human evolution, or should it be categorised as unlawful and unethical?

In human genetics, the world was confronted by Chinese scientist He Jiankui’s experimentation on human children by altering their DNA to develop resistance to HIV, smallpox and cholera. He unveiled his work in 2019. The genetic alterations were said to be inheritable, a first for the human race.

The ethical issues associated with the experiment include the impossibility of obtaining consent from the children and a failure to assess any detrimental effects that the children may suffer, particularly to brain function. It appears he was not criminally prosecuted, although it is likely he would have been if the experiment had been conducted in a western democracy.

Although this genetic surgical experiment was ostensibly to increase disease resistance, the possibilities it opens up require careful consideration by lawmakers and ethicists alike.

The issue of consent can be overcome if enhanced brain or body function through external means is agreed to by the patient. The use of tech in the human body is nothing new. Cochlear has been implanting devices to assist the deaf for years, with remarkable results.

Virtual reality, while in its relative infancy, is here to stay. From gaming to shopping, the use of VR straddles the virtual and the real, allowing the user experiences from afar in the comfort of their lounge rooms.

Is this the next stage of human evolution, or should it be categorised as unlawful and unethical?

It seems the step of permanently attaching or implanting tech to enhance or complement brain function is a natural segue to these developments. Apple has been trying to adorn us with their body tech for years anyway. Why not fasten it on permanently?

Elon Musk, ever at the forefront of tech progress, has funded startup Neurolink with an aim of implanting neurotech into the brains of people with severe disabilities in order to use thought and neural pathways to cause responses in the external world. Experimentation thus far has been in monkeys and pigs, and in fact is not as cutting edge as it first appears. Experiments in this area have been going on for a decade now.

The ethical question will arise when such tech is used on human subjects. Is it any different to implanting an organ or a pacemaker? Is the brain just another body part?

The challenge confronting lawmakers and ethicists is perhaps more pronounced if we fast forward to a point where brain enhancements might be optional and used on a wider scale. Nobel laureate Kazuo Ishiguro in his most recent novel, Klara and the Sun, imagines a world in which some are ‘lifted’ either by genetic or artificial enhancement. Not only does it create a new class in society, it may have the ability to cause physical and psychological.

Outside of the world of Ishiguro, what about issues of big tech and privacy?

Recently Amazon-controlled vacuum cleaners were released to consumers with a disquieting feature. To function, it must map your home. As a result, Amazon becomes the digital repository of your home’s measurements and contents, and keeps all of that metadata to its most obvious advantage. But how concerned are we about our increasing loss of privacy? Will convenience outweigh our inclination to stay private and protected from snooping digital eyes and ears?

As disturbing as this is, it’s not a patch on the idea of big tech gaining access to our thoughts. That is the essence of the idea of neurotech. That tech will connect and interface with our brains and use our thought processes to garner information, allowing actions to follow.

No one, least of all big tech, would expect this area to be unregulated. The problem with law and regulation, though, is that it almost by definition lags behind tech innovation. While innovation in this area may begin under the guise of medical science, its application can quickly morph into something else, particularly in the hands of unconscionable nation-states or people. He Jiankui may be working on disease resistance, but the interests of the state may be served by grander types of genetic surgery.

In any case, nation states aside, the worst enemy is in fact us. In the pursuit of convenience, humans will give away just about any data in return for life made easier or more interesting. A combination of the malign, the stupid, the lazy and the apathetic is bound to deliver greater and greater power by way of data collection straight into the hands of big tech. And we will do it voluntarily. We would rather have big tech know the ins and outs of our living spaces than vacuum a floor ourselves.

The problem with law and regulation is that it almost by definition lags behind tech innovation

Against this backdrop is a role for lawyers, the legal profession and law reformers.

Last month the Law Society of England and Wales published a body of research about ‘brain-monitoring technology’ and how it will influence the practice of law’. Neurotechnology is considered to be tech that interacts with the brain or broader nervous system. In citing the work of Musk and other big tech companies, the publication introduces to us the concept of ‘mental privacy’.

It raises the spectre of mental manipulation, and suggests that the issues to confront are ‘ethical, social, political and economic’ in character.  It poses the question as to whether our current regulation is sufficient. While in no way addressing all of the potential answers to this complex and challenging area, the research raises a great deal for our consideration. The author is an Australian, Dr Allan McCay, Deputy Director of The Sydney Institute of Criminology and an Academic Fellow at the University of Sydney’s Law School. The work is insightful and timely.

This area of technology has great promise, and has a seeming inevitability to it. Readers of Iain M Banks will readily understand the concept of enhancements carried out to improve the human condition, in his imagined future universe. The same is happening in laboratories now, although in baby steps.

Forewarned is forearmed. Lawmakers should start to grapple with legislating for a new set of right: the right to privacy of the mind, the right to self-determination and a right against manipulation, the right to self. By getting the big rocks set early we will have a framework within which to guide these genetic and technological experiments, rather than trying to legislate after the fact.

Most confronting of all will be avoiding an unnecessary social divide between the ‘enhanced’ and those who choose or cannot afford to go down that road.

There will be no easy answers. Yet the world has been ever thus: the haves and the have nots, the Luddites and the technologists. However, this time we are talking about the human mind.

I think this will happen come what may, so we had better be ahead of the curve in our preparations for what might become a real-life iteration of Huxley’s Brave New World.

Morry Bailes is Senior Lawyer and Business Advisor to Tindall Gask Bentley Lawyers, past president of the Law Council of Australia and a  former president of the Law Society of South Australia.