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Self-Determination, Health and Equality: The Constitutional Protections for Cognitive Enhancement

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Abstract

This chapter deals with cognitive enhancement and its compatibility with the Italian constitutional system. To this end, in particular, self-determination and the right to health is examined, and viewed in light of the most recent interpretations. Finally, it concludes that the right to enhancement could find its justification in this constitutional framework; nevertheless, these constitutional guarantees, as well as the principle of equality, would limit its application, in order not to cause damage to the individual and society.

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Notes

  1. 1.

    Cognitive enhancement refers to an area of human enhancement and consists of the modification of the normal functions of the mind. The aim of this treatment is to improve mental functions, thanks to a variety of procedures. See Palazzani (2015), p. IX. In particular, cognitive enhancers are “drugs that enhance mental alertness and alter mental processes” [Palazzani (2013), p. 206].

  2. 2.

    “Human enhancement” is in fact the umbrella term for a number of extraordinary scientific and technological interventions on the human body, which can be amplified by converging technologies [see Santosuosso (2016), p. 249 et seq.], in order to improve, both mentally and physically, a person’s physiological capabilities.

  3. 3.

    Casonato (2012), pp. 16, 17. By modifying the “actual biological state of the object which had legal protections” (ibidem), the Author maintains that so too must some of the categories of “the law” be redefined. (ivi, 19).

  4. 4.

    The meaning assigned to this term by Scoppola (2010), distinguishing it from the term “brain”, and that is to say “the set of cognitive activities possessed by every human with a conscience, thoughts and language”.

  5. 5.

    According to Pizzetti (2012), p. 13, the “new discoveries in neuroscience” have profoundly shaken “the traditional notion of ‘agency’, meaning […] self-representation of individuals as free agents, with the capacity to rationally control their actions…”.

  6. 6.

    There has been more attention paid to the forensic neurosciences not only in the fields of criminal, civil and case law, but also in constitutional law, due to their impact on fundamental rights, especially the right to defence and reliable evidence, a fair trial, health, physical integrity and the personal freedom of those who are subjected to neuroscientific evaluation [see, for all, Pizzetti (2012), part. 34–40].

  7. 7.

    See Italian Constitutional Court, decision no. 471/1990 and 438/2008, both of which concern informed consent. Of great importance is the 1990 sentence which was the first to acknowledge the transition from the “right” of the individual to the “freedom” of the individual over their own body. When the Italian Constitution came into force in 1948, this right was determined “based in particular on the principle of personal integrity.” It is on “the basis of the inherent and inseparable value of the person as such” that the question is posed in “terms of freedom of choice and self-determination relating to behaviours which, to varying degrees, involve and interest an individual’s body”. The 2008 sentence on informed consent specifically highlights, on the other hand, “the fact that for the first time a judge declared the existence of the autonomous right to self-determination in regard to an individual’s health, independent of the right to health itself” [Balduzzi and Paris (2009), http://archivio.rivistaaic.it].

  8. 8.

    Romboli (1991), p. 17, identifies the active aspect of the right to personal physical integrity as “the right of individuals to decide freely and voluntarily regarding activities” that involve him or her in some way.

  9. 9.

    Veronesi (2011), who uses the two formulae cited in the text on pp. 146 and 150 respectively.

  10. 10.

    Important examples of scientific and legal breakthroughs contributing to the definition of personal autonomy are life-prolonging medical interventions, artificial reproduction, genetic manipulation, sex reassignment surgery, voluntary sterilisation procedures, and voluntary pregnancy terminations.

  11. 11.

    Santosuosso (2016), p. 68, and, on the same page, note no. 2, in which the Author translates the concept presented in the text in the illustration of the “personal compass”.

  12. 12.

    Galván (2010), p. 785, seems to share this interpretation of self-determination when he contests the suitability of the term “cyborg” as a characteristic expressing “the quality of a technologically enhanced human being” (our italics). Conversely, the Author maintains that it is in fact “the human being that has the capacity to be technologically enhanced”. That is to say, “the organic system of a human has great plasticity that permits the modification of some aspects of his or her original biological structure, based on the choices of liberty and self-destination” (our italics).

  13. 13.

    Santosuosso (2016), p. 103. The image of the self-portrait suggested by the Author is reminiscent of the figure referred to by Luciani (1992), p. 10: “the Constitution does not intend to oblige an individual to accept a ready-made image of human personality, but leaves him or her free to seek self-determination, to self-define and develop as a ʻpersonʼ” (our italics).

  14. 14.

    Marini (2010), p. 384.

  15. 15.

    See Pino (2010), p. 299.

  16. 16.

    Taking into consideration the adventures of two Paralympians with bionic implants—Pistorious and Mullins—Rodotà (2010), p. 216, maintains that in future there will be “a wider concept of normality, allowing people more freedom when constructing their personality, by taking advantage of all the socially available opportunities”.

  17. 17.

    This is the first principle of the WHO Constitution, and the incipit goes on to say that it is “essential for the happiness, harmonious relations and security of all peoples” (the Constitution text is available on the WHO website: www.who.int).

  18. 18.

    Zatti (2009), p. 231.

  19. 19.

    Durante (2011), p. 586.

  20. 20.

    As defined by Durante, ibidem.

  21. 21.

    Durante (2011), pp. 588–590, looks at the legal evolution starting from l. no. 194/1978: “Legislation for the protection of maternity, and voluntary termination of pregnancy”, highlighting, in particular, the two formulae adopted in art. 4, concerning the “mental and physical health” and the “state of health” of pregnant women. It is evident that the Parliament deliberately chose to make a distinction between the two. The former has a wider meaning, in that it refers to the concept of “identitary health” (ivi, 588), and embraces the latter, which, on the other hand, expresses the actual medical definition of health. L. no. 833/1978 was introduced the following year, and the “Institution of the national health service”, was defined. In art. 1, the “principles” are listed. This law also referred to “physical and mental health”. Also, l. no. 180/1978, relating to “Medical examinations and elective and obligatory health treatments”, which refers to mental health issues, and not necessarily to a mental illness. Finally, the Author recalls the great significance of l. no. 164/1982, which contained “Sex discrimination (gender reassignment) regulations” in artt. 1 e 5 specifically, and where it was highlighted that sexual identity depends on psychological and social elements, as well as a person’s external sexual organs.

  22. 22.

    The case of l. no. 194/1978 on the voluntary termination of pregnancy is emblematic here. It was also preceded by Constitutional Court, decision no. 27/1975l. In fact, in the latter, the reference to “risks related to pregnancy and consequences on the physical and mental well-being of the expectant mother” was of great relevance (from Considered in law of the sentence). According to Durante (2011), p. 588, the “idea that health goes beyond the diagnosis of specific pathologies” had already “transpired” and would later be adopted by Parliament.

  23. 23.

    As in Morana (2015), p. 6.

  24. 24.

    Veronesi (2011), pp. 160–165, examines how the laws have evolved and recalls here, first of all, Constitutional Court, decision no. 161/1985, where gender reassignment (previously disciplined by l. no. 164/1982, and found to be constitutionally illegitimate thanks to this sentence) is considered by the Court as recognition of “identity for transsexual individuals and therefore, the acquisition, “as fas as is possible – [of] a state of well –being consistent with health” (point 10 of Considered in law). Once again, therefore, the occurrence of individuals being forced to undergo specific therapeutic treatments must be limited, even if by law (see Constitutional Court, decision no. 151/2009, on medically assisted reproduction protocols, where the fertilization of more than three embryos for artificial implantation is prohibited), but also, in homage to personalistic and pluralistic principles, and as an act of respect for the person who is forced to undergo compulsory health treatments (see Constitutional Court, decision no. 292/2000).

  25. 25.

    Morana (2015), p. 11 and note no. 18, which indicates Constitutional Court, decision no. 210/1987 e 641/1987 two of the first ever sentences stating this.

  26. 26.

    Cit. Durante (2011), p. 587.

  27. 27.

    Medical treatments not intended to cure pathologies are an example. Pain management, for instance, is “disconnected from healing” (palliative care is regulated by l. no. 38/2010). The same can be said for guaranteeing socialisation and school attendance for children with disabilities (see Constitutional Court, decision no. 167/1989 e 215/1987). Also to be included, perhaps, is access to new therapies. While the beneficial effects of these therapies may not have been proven, they should be made accessible nevertheless, based solely on the expectation generated (see Constitutional Court, decision no. 185/1998, on the so-called Di Bella case), as cited by Morana (2015), pp. 12, 13. In addition, requests for cosmetic surgery made by parents of Down Syndrome children should also be included. Although non-therapeutic, these procedures alter the distinctive physical features caused by the syndrome (see on this point the opinion of Comitato Nazionale per la Bioetica (2012), pp. 10–12, 16). Salardi (2014), p. 133 et seq., considers the availability of genetic screening, and successively, non-therapeutic treatments being offered to those who undergo screening and test positively for genetic disorders.

  28. 28.

    That is to say, the distinction between enhancement, which is solely trasformatio ad optimum, and therapy, traditionally considered to be restitutio ad integrum, is becoming more subtle: at times, because of the way in which enhancement techniques are applied [see Wiesing (2008), pp. 21, 22]; at others, because enhancement can be considered a therapy in itself, given that “the reduced use of an ability is subjectively perceived, both socially and culturally, as a source of malaise” [Palazzani (2015), p. 15].

  29. 29.

    Zatti (2009), p. 231, leading back to Constitutional Court, decision no. 471/1990 in particular.

  30. 30.

    Ubertone (2014), p. 158.

  31. 31.

    As a matter of fact, as noted by Giglio (2011), p. 62, the 2014 Italian Code of Medical Conduct is the first of all professional codes to mention the use of medical treatments for non-therapeutic ends. Donisi (2015), p. 255, finds no reference to enhancement medicine, not even in any of the European documents. This demonstrates that the choice made in the Italian code is “totally isolated”.

  32. 32.

    Art. 76 states: “Enhancement medicine. The doctor, both in practice and in research, must respect and safeguard the person’s personal and social dignity. When asked to carry out non-therapeutic treatments with the aim to enhance a patient’s physical and cognitive abilities, the professional must consider every aspect of the identity and integrity of the person and his or her genetic characteristics, and also apply the principles of proportionality and precaution. The doctor obtains written informed consent and takes care, in particular, to verify that the person has understood the risks involved. The doctor must refuse requests for treatments believed to be disproportionate, at high risk of invasiveness or potentially irreversible with respect to benefits which are non-therapeutic but pertain to enhancement”. In fact, in the text approved in 2014, art. 76 contained the same wording as Title XVI, and was the only content. A modification made on 15 December 2017 added art. 76 bis, and included prescriptions regarding aesthetic medicine previously included in the original art. 76. The text of the latter, was also modified, in part, on the same date, in order to highlight the importance of the decisions of the doctor, and to ensure the protection of the dignity of the person seeking treatment.

  33. 33.

    The first paragraph of art. 76 of the Code of Medical Conduct refers in fact to the “mental and physical abilities of the individual” and “respect of a person’s self-determination” (our italics).

  34. 34.

    See the remarks made by Nicolussi (2014), p. 103, on informed consent regarding prevalently cosmetic surgical procedures.

  35. 35.

    See, infra, in the text and part. note no. 44.

  36. 36.

    Nicolussi (2014), p. 91, believes that this is justified as it is an attempt to “take the matter out of the hands of a market closely resembling the Far West” (ibidem).

  37. 37.

    As already mentioned (see, retro, note no. 32), the text approved in 2014 regulated doctors’ conduct, both in enhancement and cosmetic medicine, in the same article (art.76). Nevertheless, this solution was not found immediately, and in fact, it did not appear in the first draft of the revised Code. See, on this point, Patuzzo and Tagliaro (2014), p. 331 et seq.

  38. 38.

    Nepi (2014), p. 165. Similarly, D’Aloia (2014), p. 95.

  39. 39.

    Self-determination seen as a “self-portrait” in the field of medicine first suggested by Santosuosso and mentioned above, fully describes the dual nature of personality which has both functions and external qualities.

  40. 40.

    The first paragraph of art. 76 bis of the Code of Medical Conduct, regarding diagnostic and therapeutic tests in the lead up to cosmetic procedures, states that a doctor “when informing patients in the run-up to consent, must not give false hope regarding the outcome” and must “look for alternative solutions of equal efficacy”.

  41. 41.

    Art. 76, par. 2, Code of Medical Conduct.

  42. 42.

    Thus Comitato Nazionale per la Bioetica (2013), p. 5, motivates its conscious choice to reflect only on pharmacological cognitive enhancement.

  43. 43.

    Ivi, 14–16. For this opinion, see Sala (2014), p. 175 et seq., who examines it.

  44. 44.

    The data is scarce because of problems related to collection, the occurrence of a number of illegal practices, and the dishomogeneous methodologies used in experimental protocols. Some empirical results would seem to indicate that these drugs, while sharpening alertness, dull creativity and/or other mental functions. There are also many instances that prove that their efficacy is inversely proportional to a person’s IQ. Finally, more regular use of these drugs would seem to suggest that they cause severe side effects [from the opinion of Comitato Nazionale per la Bioetica (2013), pp. 14, 15].

  45. 45.

    Ivi, p. 16.

  46. 46.

    Ivi, p. 20.

  47. 47.

    Ivi, p. 11.

  48. 48.

    As labelled by Canestrari (2013), p. 684.

  49. 49.

    See Eroina (2013), pp. 113–118, 129–138, who takes current criminal law into consideration regarding the use of drugs, or at least those cases closely related to enhancers, and ends up ruling out applicability. The Author first of all points out that the main source of the special legislation consists of d.lgs. no. 219/2006, “Implementation of Directive 2001/83/EC (and successive modification directives) relating to community code concerning medication for human use, as well as directive 2003/94/EC”; subsequently, she examines code law and in particular art. 445 c.p., entitled “Medication administration and threats to public health”, also with regard to “areas that have a natural affinity with this topic” (ivi, p. 179), that is to say the misuse of drugs law (d.P.R. no. 309/1990: “Consolidation act of laws regulating the misuse of drugs and psychotropic substances, prevention, treatment and levels of rehabilitation care from drug addiction”) and the law on anti-doping (l. no. 376/2000: “Health and Safety in Sports and the fight against doping).

  50. 50.

    In this respect, Eroina stated that (2013), p. 179, “people may continue to ask for prescriptions for certain medications claiming they are necessary for non-existent therapeutic purposes, and doctor might not be able to maintain adequate control of the situation”.

  51. 51.

    Canestrari (2013), p. 686, states that the doctor may have criminal liability if an off-label cognitive enhancer prescribed causes harm (either personal harm or fatal injury) and if the damage is attributable, objectively and subjectively, to the professional’s conduct.

  52. 52.

    Comitato Nazionale per la Bioetica (2013), p. 18.

  53. 53.

    For example, Quadri (2006), p. 72, recalls that some guidelines for healthcare workers in the area of assisted reproduction had already been included in the 1995 Code of Medical Conduct, in art. 14, then successively, in the 1998 Code, art. 42, well before l. no. 40/2004 came into force.

  54. 54.

    Donisi (2015), pp. 256, 257, points out that “the Medical Code cannot be at odds with the legal system within which it must operate”. Considering that the legal system has not (yet) included cognitive enhancement expressly, the “textual favor” expressed by the Code does not dispel the doubts regarding incompatibility with the current legislation.

  55. 55.

    The legal system neither bans nor contemplates the prescription of cognitive enhancement. While the enforcement of current criminal laws regarding pharmaceuticals has been ruled out (see, retro, note no. 49); legislation regarding off-label medications could be applied. In fact, for healthy individuals, pharmacological enhancement of cognitive abilities is obtained by using medication developed for the treatment of psychiatric and neurological conditions [see Comitato Nazionale per la Bioetica (2013), p. 6].

  56. 56.

    See, retro, note no. 11.

  57. 57.

    The terminology used by Palazzani (2015), p. 110, to embrace all the technological devices used for cognitive enhancement; consequently, refer to this Author (ivi, pp. 110–117) for an accurate description.

  58. 58.

    These are the main concerns of L. Palazzani, ivi, p. 113.

  59. 59.

    Microchips implanted in the cerebral cortex will allow digital data to be uploaded from a computer and vice versa.

  60. 60.

    See Rinella (2014), p. 126.

  61. 61.

    According to Picozza (2011), p. 6, in the near future, Constitutional law will be impacted by matters regarding the new neurosciences, including “the manipulation of the political message and the limits to the TV use, being it a service of economic general interest, but not fully economic under certain aspects”.

  62. 62.

    As defined by Comitato Nazionale per la Bioetica (2010), p. 6.

  63. 63.

    “The real issue”—warned Rodotà (2010), p. 223—“is the immersion of the person in a constant flow of information, […] which has a resounding effect, and calls into question some extremely significant aspects, starting with identity”.

  64. 64.

    See Ienca (2014), p. 363 et seq., S. Rodotà, ibidem, Santosuosso (2016), p. 257.

  65. 65.

    The need for security, in fact, can be created or ‘deliberatelyʼ exasperated. Rodotà (2004), www.repubblica.it, warns us about a treacherous reality, characterised by substantial “investments and economic interests […] which amplify fear in order to create a security market”.

  66. 66.

    Huxley (1991), p. 332.

  67. 67.

    Rodotà (2010), p. 217.

  68. 68.

    Comitato Nazionale per la Bioetica (2013), p. 19.

  69. 69.

    As a result of enhancement medicine, Donisi (2015), pp. 253, 254, fears that there will be a “new social élite of ‘superhumans’”, and a “virtual ghetto of ‘non-superhumans’. This will undoubtedly have social, educational and professional repercussions, and will lead to discrimination regarding work opportunities”.

  70. 70.

    For more information on arguments for and against enhancement, see Palazzani (2015), pp. 28, 48.

  71. 71.

    See D’Aloia (2014), p. 101.

  72. 72.

    See Eroina (2013), pp. 93–95, and Palazzani (2015), p. 49.

  73. 73.

    Luciani (1992), p. 9. On the right to healthcare as a conditional right in the constitutional jurisprudence and, in particular, in Constitutional Court, decision no. 455/1990, see, ex plurimis, Salazar (2013), p. 8 et seq., e F. Minni and Morrone (2013), p. 8 et seq.

  74. 74.

    D’Aloia (2014), pp. 100, 101. The possibilities available for human enhancement undoubtedly amplify the “paradox of contemporary medicine” which Chieffi (2003), p. 14, discerns in the imbalance between the vast knowledge of “technologies capable of preventing and curing illnesses” and the “impossibility of being able to assure widespread use”.

  75. 75.

    Comitato Nazionale per la Bioetica (2013), p. 17 and note no. 34.

  76. 76.

    Ivi, note no. 34.

  77. 77.

    On the contrary, Salazar (2014), p. 268, would permit graft prosthetics or bio-robotic equipment on the national health service for therapeutic purposes only.

  78. 78.

    The opposite is said in Palazzani (2015), p. 49. The Author disagrees with this opinion and maintains that this is “sophisticated technology which requires the expertise of scientists and specialised technicians. No automation processes are involved […] and there will be no scope for curbing or cutting production costs, and consequently, no opportunity for increasing access to the technologies”.

  79. 79.

    In primis, self-determination is achieved when the individual chooses which abilities are to be improved or activated, to what extent, and “by going in the direction he or she prefers”: Balistreri (2011), p. 124.

  80. 80.

    In the presence of which, on the other hand, the supportive soul of Italian our Constitution would seem to expect “a choice that gives precedence to those individuals believed to be in greatest need of state-funded assistance”: Chieffi (2003), p. 21.

  81. 81.

    Comitato Nazionale per la Bioetica (2013), pp. 11, 12, and note 19 on p. 11, in this regard, clearly condemns the opinion of Buchanan (2011), p. 145 et seq., who believes cognitive enhancement should be formally included in educational curricula.

  82. 82.

    It is common knowledge that Pistorius, the athlete equipped with bionic prosthetics, was allowed to compete in an Olympics event (the Olympic Games in London in 2012). The question discussed in the main text is different, however, because in Pistorius’ case, the intervention was on an athlete with a deficit (the loss of his lower limbs), and not on an able-bodied person, as is the case with enhancement. However, the two situations are not entirely dissimilar, since enhancement treatment can be carried out with the aim of bringing an individual’s state of health to a normal standard (see, retro, note no. 28). What does make Pistorius’ case different from the question being tackled in this paper, is the conclusion reached by the Court of Arbitration for Sports in Lausanne, and that is to say, that the prosthetic legs of the South African sprinter did not give him any advantage over able-bodied athletes, nor did they ʻenhanceʼ him (see Arbitration CAS 2008/A/1480, Pistorius v/IAAF, 16th May 2008, in Jurisprudence, http://jurisprudence.tas-cas.org).

  83. 83.

    Articles which prescribe, respectively, the running of competitive examinations to access employment in public administration, and “state examinations for admission to and graduation from the various levels of schools, and also for qualifications to exercise a profession”.

  84. 84.

    Obviously this does not refer to prosthetics—as mentioned previously with reference to Pistorius, retro, note no. 82 –, which are generally beneficial for the individual and have no negative side effects. This is the case, however, regarding the use of prohibited substances. In the context of both of the parameters in the main text—i.e. safeguarding fairness in the competition and protecting the athlete’s health—doping has been made a criminal offence (the above-mentioned l. no. 376/2000: “Health and safety in sports activities and anti-doping”; see, retro, note no. 49).

  85. 85.

    Chieffi (2008), pp. 245, 246, associates “deference to the rules of fair competition”, which is required in sports activities, with the capacity to “educate […] to show respect for others”, encouraging “socialisation within the group of individuals “where the athlete’s personality is expressed” (art. 2 Cost.)”.

  86. 86.

    Di Prampero (2019), www.multiversoweb.it, identifies the person’s desire to “go beyond his/her limitations” in competitive sport as “an intrinsic aspect of sport at all levels”.

  87. 87.

    On brain doping in sports, see Patitucci (2017), www.ilfattoquotidiano.it; Longhi (2016), www.avvenire.it.

  88. 88.

    According to Rinella (2014), p. 131, all the rules concerning public competitions show the need to guarantee the selection of the most competent candidates.

  89. 89.

    Reaching the same conclusion as A. Rinella, ibidem, who considers such practice “in open contrast with the objectives of public competitions”, and which, therefore, must be declared “null and void”. As a result, this leads to “exclusion from the public competition, or annulment of any exam taken, and an official report filed with the competent authorities in order to ascertain criminal responsibility”. The Author recalls that every candidate in public competitions has a legitimate interest that public competitions be conducted according to the rules (ibidem).

  90. 90.

    In application, the d.lgs. no. 165/2001, including “General provisions on the organisation of work in public administration”, art. 35, par. 1, establishes that “individual work contracts are awarded: a) through selection procedures, conforming to the principles in paragraph 3, in order to certify the expertise required…”.

  91. 91.

    In regard to the hypothesis of permanent neuro-cognitive enhancement for those wishing to take part in public competitions, according to Rinella (2014), p. 128, “attention should be shifted from the integrity of the selection procedure for access to employment in public administration, to the judicial and moral legitimacy of appropriation of above-normal qualities by artificial means”.

  92. 92.

    Where possible, in the case of technological enhancement, by “deactivating” the various implanted mechanisms (perhaps not always technically viable at the time of the test, as surgical removal might in fact be required); or else, if the enhancement is pharmacological, blood tests could be carried out. According to A. Rinella, ivi, p. 132, “as these treatments become more prevalent, the rules surrounding public competitions ought to be integrated to ensure persistent conditions of regularity and correctness”.

  93. 93.

    The epilogue of the story told by Alan Glynn, in The dark fields, recounted in the film “Limitless”, on which it was based, is totally unexpected: Eddi Morra, the main character, detoxifies from his enhancing “drug”, NZT, but manages to preserve all the synapses that the drug had created during use. This is a desirable scenario but still far from what is currently possible in pharmacological enhancement research. It is advisable however, to start considering the possibility of what might easily happen in the near future and is suggested in the text: an enhanced individual could decide to give up enhancement and allow his or her cognitive abilities to return to their natural levels, while still under a binding contract (in this instance, a work contract) that had been stipulated precisely because of (or also because of) those abilities which had been artificially increased.

  94. 94.

    Reference is made here to d.lgs. no. 150/2009, implemented in “Enforcement of the 4 March 2009 law, no. 15, in reference to optimisation of productivity in the public service, and efficiency and transparency in public administrations”. This is the so-called Brunetta reform which requested that, regarding evaluation of the performance of individual employees, “the culture of completing tasks be replaced with one of achieving results” [see Martone (2010), p. 2710]. Finally, the so-called Madia reform intervened and, specifically relevant here, is d.lgs. no. 74/2017, “Modifications to legislative decree 27 October 2009, no. 150, in implementation of art. 17, par. 1, letter r), of law 7 August 2015, no. 124”, that is to say, modifications to the previous evaluation system of public sector worker performance. Of all the new regulations, ʻrewardingʼ is the main defining aspect.

  95. 95.

    As foreseen by Amato (2014), p. 82, indeed making no distinction between the public and private sectors.

  96. 96.

    Nicolussi (2014), p. 91 suggests that in order to adapt to the new scenario, adjustments could be made, for example, to the employer’s responsibility, as defined in art. 2087 c.c., for the psychophysical integrity of a worker. Art. 2087 c.c. recalls that an entrepreneur “must adopt all those measures necessary to safeguard the physical health and moral integrity of personnel, based on the specifics of the work entailed, and experience and techniques involved in running the company”.

  97. 97.

    In 2004, Neil Harbisson was granted permission, by the British authorities, to use a picture for his passport in which he was wearing a device that had been implanted into his skull. The device resembles an antenna and curves up and over the back of his head and onto his forehead. It was initially implanted to combat a severe form of colour blindness (the antenna is connected to a chip which translates colours into sounds) and was recently upgraded to allow him to connect to the internet and to nearby devices via Bluetooth. On this subject, see Porcu (2013), www.tomshw.it, Jeffrie (2014), www.theguardian.com, L. B. (2014), www.ilsole24ore.com; Guerrini (2017), www.lastampa.it.

  98. 98.

    Comitato Nazionale per la Bioetica (2013), p. 20.

  99. 99.

    See point 59, sub. f), of the paragraph on “Responsibility” in the Resolution of the European Parliament of 16th February 2017, with recommendations to the European Commission on civil law rules on robotics (2015/2103(INL)).

  100. 100.

    On the state of robotics and the relative ethical, social and legal questions, see the recent opinion of the two competent Italian Committees: Comitato Nazionale per la Bioetica - Comitato Nazionale per la Biosicurezza, le Biotecnologie e le Scienze della Vita (2017), p. 6 et seq.

  101. 101.

    See Barrat (2013), www.theguardian.com, Titcomb (2016), www.telegraph.co.uk, Hurlburt (2017), p. 6 et seq.; Solé (2017), p. 1 et seq., Titcomb (2017), www.telegraph.co.uk.

  102. 102.

    See Innes and Morrison (2017), p. 34 et seq., Lightbound and Studebaker (2017), www.etfsecurities.com.

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Fattibene, R. (2020). Self-Determination, Health and Equality: The Constitutional Protections for Cognitive Enhancement. In: D’Aloia, A., Errigo, M.C. (eds) Neuroscience and Law. Springer, Cham. https://doi.org/10.1007/978-3-030-38840-9_11

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