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Ten Points for Lawmakers to Consider

The enhancement debate has seriously challenged the normative foundations on which the entire prohibitive framework of the ICR rests: the treatment/ enhancement distinction, the principled ignorance of nonmedical benefits of drug use, and its exclusive concern with health rather than human rights. Once health as the only legitimate aim of drug policy is supplemented with the idea of cognitive liberty, new problems and complexities such as social pressure in competitive contexts emerge. Many more questions need to be answered. Whether states should encourage or discourage enhancements and the objectives of drug policies ultimately depends on value judgments, in the absence of which concrete policy proposals are premature and tend to put the cart before the horse. Nonetheless, the foregoing affords to formulate some standards for novel regulatory frameworks:

  • 1. Although self-evident, the reluctance of the ICR to promote harm reduction strategies and its adverse consequences on health and welfare prove that any regulatory system must pursue clearly stated objectives that are recognized at every level of implementation.
  • 2. Any novel regulatory framework should seek to overcome today’s piecemeal approach by setting coherent parameters for the use of all means to directly intervene into minds and brains, from pharmaceuticals to magnetic or electrical brain stimulation.
  • 3. Risk profiles have to be specified for each neurotool and for different use patterns based on empirical findings of risks and benefits and according to an objective harm scale. Assessments should be reviewed in due course. To enable informed decisions by individuals or legislators, governmental bodies should insist on transparency in pharmaceutical trials and possibly fund non-industry sponsored research.
  • 4. Human rights must be the central principle to guide regulations: the main objective of drug policy must consist in their protection and enforcement. The exclusive focus on public health must therefore be supplemented by— and possibly yield to—the human rights of users not only with respect to issues in the enforcement of anti-drug laws but also in regard to access to neurotools. The yet to be fully accepted human right to cognitive liberty entails the prima facie permission to use as well as to refuse neurotools.
  • 5. Consequently, the therapeutic value of neurotools cannot be the only applicable criterion in risk-benefit assessments. Instead, regulatory models must be sensitive to account for those effects that users deem beneficial, from attaining pleasure to improved cognitive capacities.
  • 6. Thresholds for permissible/impermissible harms should be uniform for all neurotools and correspond to thresholds of acceptable self-harm in other fields (e.g., risky sport activities).
  • 7. Depending on the permissible degree of paternalism, protection of health and prevention of dependence are legitimate aims to limit cognitive liberty. However, restrictive measures must demonstrably promote these goals and have to be superior to other approaches. Harm reduction strategies from syringe exchange and injection rooms to drug checking should be adopted.
  • 8. Because states are obliged to restrict liberties only in the least invasive manner, regulatory models should avoid across-the-board prohibitions that disregard individual (health) dispositions or consumption patterns and develop more fine-grained systems suited to incorporate difference among users and use patterns. This likely requires a prescription model.
  • 9. To ensure the right to alter one’s mind, states should not set insurmountable hurdles to access to neurotools in addition to those required by considerations of safety or the rights of others.
  • 10. To ensure the right to refrain from using neurotools, social pressure on abstainers in the form of incentives to induce or persuade them to using neurotools should be minimized. To reconcile the rights of potential users and nonusers, different regulations for typically competitive and noncompetitive domains of social life have to be devised. Neurotools typically utilized to enhance performance in competitive fields have to be regulated more strictly if they create risks that abstainers cannot be legitimately expected to bear. Neurotools unsuitable to enhance performance in competitive fields (recreational drugs in a more literal sense) may not have to observe these additional limits.

Policy proposals should be tested against these ten points. Although they might appear unfamiliar, most of them are, at least from a theoretical view, hardly controversial. They follow from general legal principles that presumably roughly apply to many jurisdiction and form the outer structure of a reasonable rights-based regulation. The rest is politics. Further argument and eventually value decisions by legislators are required with regard to the strength or weight of the right to cognitive liberty, the degree of permissible paternalism, and thresholds for socially acceptable risks. The most challenging factual demands on regulatory systems are the separation of competitive and noncompetitive purposes as well as a proper recognition of individual dispositions. Within the confines of these parameters, lawmakers have leeway to calibrate regulations according to further aims and public interests through measures such as eligibility requirements, consumption under supervision, regular health checks, taxation, and further preventive or repressive measures.™

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