International Neurolaw . Tade Matthias Spranger Editor

International Neurolaw

A Comparative Analysis Editor Associate Professor Tade Matthias Spranger BMBF Research Group ELSI at the Institute of Science and Ethics University of Bonn Bonner Talweg 57 53113 Bonn Germany [email protected]

ISBN 978-3-642-21540-7 e-ISBN 978-3-642-21541-4 DOI 10.1007/978-3-642-21541-4 Springer Heidelberg Dordrecht London New York

Library of Congress Control Number: 2011939219

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Springer is part of Springer Science+Business Media (www.springer.com) Preface

While the past few years have repeatedly been entitled as the “era of biotechnology”, most recently one has to get the impression that at least the same degree of attention is being paid to the latest developments in the field of neurosciences. As in the fields of biotechnology and nanotechnology, neuroscientific research also opens a barely manageable range of possible applications, some of which are still related to a purely experimental setting, while others are already in practical use. The possible applica- tions cover aspects as diverse as the development of mind reading machines, lie detection methods, or brain–computer interface applications for the improvement of disabled person’s daily life. It is by now nearly impossible to oversee the number of research projects dealing with the functionality of the brain – for instance concerning the organizational structure of the brain – or projects dealing with the topic neuro-economics or neuro- marketing. Massive efforts have also been taken in the field of prediction; for instance, some scientists consider it possible to predict a person’s decision before he has ever told it. Hence, a huge practical interest is being paid to neuroscientific developments. This especially holds true for the usage of neuroscientific methods in court trials. In the USA, companies such as Cephos and NO Lie MRI canvass the usage of image-guided procedures – especially the functional magnetic resonance tomography – in different legal areas. Also other countries show a strong develop- ment of comparable methods: In India, two states with together about 160 million citizens use the so-called BEOS-Test (Brain Electrical Oscillations Signature), which is initially based on the electroencephalography (EEG). The activity measured by the EEG is evaluated by specific software; an interpretation of the data by the investigator is not planned. In 2008, the decision of an Indian court gained worldwide attention, basing its conviction essentially on the result of a BEOS-Test and convicting the concerned woman to a life-long sentence. The above-mentioned procedures are connected to a wide variety of legal questions. These questions concern the frame conditions of scientific projects as well as the right approach toward the usage of generated findings. With regard to this utmost importance of the topic for latest developments, it is of special interest

v vi Preface to compare the different legal systems and strategies which they hold at hand for dealing with those legal implications. Therefore, this volume contains several “country reports” from around the world, as well as reports of selected international organizations, in order to show the different legal approaches towards the topic. Each chapter aims to survey the relevant legal order’s landscape both for the generation of neuroscientific knowledge (i.e. probands’ rights, the relationship between research participant and researcher, the problem of incidental findings etc) and for the usage of neuroscientific knowledge. This book aims to give a first and lasting impetus for further and – given the dimension of the issue – much-needed internationalization of the discussion. My special thanks go to my colleagues involved for their commitment, to the members of my research group at the University of Bonn for their substantial input, and last but not least, to Dr. Brigitte Reschke at Springer Publishing for supporting this project.

Bonn Tade Matthias Spranger Contents

Neurosciences and the Law: An Introduction ...... 1 Tade Matthias Spranger

Neuroscience and Law: Australia ...... 11 Leanne Houston and Amy Vierboom

Country Report: Austria ...... 43 Marianne Johanna Hilf and Karl Sto¨ger

Brainzil Imaging: Challenges for the Largest Latin American Country ...... 67 Henrique Moraes Prata and Ma´rcia Arau´jo Sabino de Freitas

Research Ethics Challenges in Neuroimaging Research: A Canadian Perspective ...... 89 Ciara Toole, Amy Zarzeczny, and Timothy Caulfield

The Council of Europe’s Next “Additional Protocol on Neuroscientific Research”? ...... 103 Caroline Ro¨diger

Legal Landscape of Neuroscientific Research and Its Applications in Finland ...... 117 Salla Silvola

The Obtainment and Use of Neuroscientific Knowledge in France ...... 137 Caroline Ro¨diger

vii viii Contents

Legal Implications of Neuroscientific Instruments with Special Regard to the German Constitutional Order ...... 153 Tade Matthias Spranger

Neurolaw in Greece: An Overview ...... 179 Takis Vidalis and Georgia-Martha Gkotsi

Neuroscience and Converging Technologies in Italy: From Free Will Approach to Humans as Not Disconnected Entities ...... 197 Amedeo Santosuosso

Neurolaw in Japan ...... 215 Katsunori Kai

Neuroscientific Evidence and Criminal Responsibility in the Netherlands ...... 227 Laura Klaming and Bert-Jaap Koops

Neuroscience and the Law in New Zealand ...... 257 Mark Henaghan and Kate Rouch

Switzerland: Brain Research and the Law ...... 269 Rainer J. Schweizer and Severin Bischof

Neuroethics and Neurolaw in Turkey ...... 289 Berna Arda and Ahmet Acıduman

Neuroscientific Evidence in the English Courts ...... 305 Lisa Claydon and Paul Catley

Neurolaw and UNESCO Bioethics Declarations ...... 329 Darryl Macer

Law and Neuroscience in the United States ...... 349 Owen D. Jones and Francis X. Shen

Summary: Neurolaw in an International Comparison ...... 381 Henning Wegmann Contributors

A. Aciduman Department of Medical Ethics and History of Medicine, Ankara University, Faculty of Medicine, Ankara, Turkey

B. Arda Department of Medical Ethics and History of Medicine, Ankara University, Faculty of Medicine, Ankara, Turkey

S. Bischof Forschungsgemeinschaft fu¨r Rechtswissenschaft der Universita¨t St. Gallen, St. Gallen, Switzerland

P. Catley University of the West of England, Bristol, UK

T. Caulfield Faculty of Law, Law Centre, University of Alberta, Edmonton, Canada

L. Claydon University of the West of England, Bristol, UK

M.A.S. deFreitas University of Sa˜o Paulo Law School, Sa˜o Paulo, Brazil

G.-M. Gkotsi ETHOS, Interdisciplinary Ethics Platform, Quartier UNIL-Sorge, Batiment Amhipole, Lausanne, Switzerland

M. Henaghan Faculty of Law, University of Otago, Dunedin, New Zealand

M.J. Hilf Institut fu¨r Strafrecht, Strafprozessrecht und Kriminologie, Universita¨t St. Gallen, St. Gallen, Switzerland

L. Houston University of Technology Sydney, Sydney, Australia

ix x Contributors

O.D. Jones MacArthur Foundation Research Network on Law and Neuroscience, Vanderbilt University, Nashville, TN, USA

K. Kai Center for Professional Legal Education and Research (CPLER), Waseda Law School, Tokyo, Japan

L. Klaming Tilburg Institute for Law, Technology, and Society, Tilburg University, Tilburg, The Netherlands

B.-J. Koops Tilburg Institute for Law, Technology, and Society, Tilburg University, Tilburg, The Netherlands

S. Lo¨tjo¨nen Docent in Medical and Bio Law, University of Helsinki, Helsinki, Finland

D. Macer RUSHSAP, UNESCO, Bangkok, Thailand

H.M. Prata Alameda Joaquim Eugeˆnio de Lima, Sa˜o Paulo, Brazil

C. Ro¨diger Institute of Science and Ethics, University of Bonn, Bonn, Germany

K. Rouch Faculty of Law, University of Otago, Dunedin, New Zealand

A. Santosuosso European Center for Law, Science and New Technologies, University of Pavia, Corso Strada Nuova, Italy

R.J. Schweizer Forschungsgemeinschaft fu¨r Rechtswissenschaft der Universita¨t St. Gallen, St. Gallen, Switzerland

F.X. Shen Tulane University Law School and The Murphy Institute, New Orleans, LA, USA

S. Silvola University of Helsinki, Helsinki, Finland

Tade Matthias Spranger BMBF Research Group ELSI, Institute of Science and Ethics, University of Bonn, Bonn, Germany

K. Sto¨ger Institut fu¨rO¨ sterreichisches, Europa¨isches und Vergleichendes O¨ ffen- tliches Recht, Politikwissenschaft und Verwaltungslehre, Universita¨t Graz, Graz, Austria

C. Toole Faculty of Law, Law Centre, University of Alberta, Edmonton, Canada

T. Vidalis National Bioethics Comission, Athens, Greece Contributors xi

A. Vierboom University of Technology Sydney, Sydney, Australia

H. Wegmann Institute of Science and Ethics, Bonn, Germany

A. Zarzeczny Faculty of Law, Law Centre, University of Alberta, Edmonton, Canada