Benjamin Bestgen: Law and nanoscience
Benjamin Bestgen considers how the law might grapple with nanoscience. See his last jurisprudential primer here.
Imagine you are trying to conceive a child using artificial methods. A robot so tiny you could breathe it in without noticing selects the most promising sperm and directly inserts it into the egg. Similar robots swim through your body removing blood clots, repairing nerve cells or detecting and combating cancerous tumours when they are still only a few cells in size.
Consider a technology that can build things from the bottom up by moving atoms and molecules or that permits the building of computing devices that hold entire national libraries but are only the size of a sugar cube. Other uses include increasing the efficiency of solar cells or cleaning up air, water and soil.
Technology that small is called nanotechnology. One nanometer is 10-9m or 0.000000001m, which is approximately the size of ten hydrogen atoms in a row. Bacteria are in the micrometer range of 0.000001m, i.e. considerably larger than nanoparticles. A tiny ant of 1mm is a giant in comparison to a nanoparticle.
Nanoscientist Kristen Kulinowski notes that the aforementioned examples are still largely projections of what could be achieved with continued research into nanotechnologies. However, nanotech is already used commercially, for instance in sunscreen to improve UV blockage, durable tennisballs, tiny computer chips or stain-resistant clothing, furniture and glass. Military applications include nanoelectronics for surveillance and information gathering or storage, ABC warfare defence, bullet resistance and health monitoring for soldiers or increasing the durability of various military equipment.
Like many innovations which seem futuristic to us now, the law cannot risk being caught unaware (as it so often is) when these technologies are with us much sooner than many think possible. But what legal issues might crop up?
Health, safety and environment
Asbestos, DDT (an insecticide) or leaded petrol were once common and considered useful. Over time it became clear that the benefits of these things were dwarfed by their environmental and health risks. Ultimately these technologies were phased out and banned. Nanotechnologies are a diverse group of things with incredible potential but some may adversely affect entire ecosystems by killing off important bacteria or interacting with cells or DNA in unforeseen ways. Like microplastics, some could affect water and wildlife or even enter the foodchain through packaging or food engineering methods. Manufacture, disposal or recycling of nanomaterials also opens new areas of industry.
Medical, environmental and regulatory questions could keep lawyers very busy on these fronts. Corporate crime may also become relevant if corporations know about harmful effects of their nanotechnologies but conceal them, deliberately damaging people and environments.
Discussing nanotechnology and negligence, lawyer Alan Hannah and philosopher Geoffrey Hunt mention Roe v Minister of Health 1954 2 A.E.R 131, in which the claimant had a drug injected into his spine which was contaminated with phenol (a disinfectant), causing paralysis from the waist down. The contamination occurred because the vial containing the drug was stored in a container with phenol, a practice common at the time. The vial had molecular flaws, not detectable with the naked eye, which allowed the phenol to seep in. That this could happen was not known to the scientific community back then. The court held that the doctors had not been negligent.
But research in nanotechnology is fast-moving and the internet has changed what professionals can claim to be “not reasonably foreseeable or known to us”. Hunt and Hannah also note that courts may move to apply strict liability to applications of novel technologies with scientifically unknown risks, i.e. negligence will not have to be established for liability to arise.
Consumer rights and consent
Hannah and Hunt note that nanotechnologies applied to consumer goods, food or medical applications may carry risks. To minimise liability, it will be important for doctors and manufacturers to have clearly worded documentation stating the risks, likelihood of various consequences and the possibility of yet unknown complications. Lawyers knowledgeable about nanotechnologies will be well positioned to draft such documents and provide training about how to communicate these risks clearly and obtain valid consumer consent.
Some nanotechnology could possibly alter DNA and cells. Recall the sperm-selecting robot from above. Hunt and Hannah speculate what might happen if this robot somehow damages the sperm or the egg, resulting in congenital disabilities for the child. Who should be liable and to whom would a duty of care be owed?
And depending on the disability, what is the foreseeability of damage to future generations? Could a grand- or great-grandchild of the originally harmed person still sue if the disability travelled down the family line? Can economic loss be recovered for impaired intellect and loss of earning power as a result of the disability?
If the damage could be repaired or mitigated by some “DNA repair procedure”, would parents have a duty to allow such repairs? Would the parents’ “unreasonable refusal” to permit repairs limit or bind future generations? Would religious or philosophical objections to “DNA repair” count as reasonable grounds for refusal?
Historian Siva Vaidhyanathan notes that it is unfortunate for nanotechnology to have been labelled “technology”, as opposed to “nanoscience”, which is more accurate. The field is varied and highly interdisciplinary. And “nano-“ refers only to the size of the things that are being researched and developed but not all of them are “technologies”.
Our regulatory systems should account for the fact that nanoscience can benefit the entire planet while being mindful of the risks of each new development. This also includes our patent systems. Nanoscience is predominantly funded by public money. Privatizing nano-discoveries through an overly “corporatist” patent system not only hampers scientific advancement, it also increases transaction costs for new technologies to come to the market and arguably deprives the public of developments they already paid for.
Science works best when it is collaborative and open. Given the potential global benefits of nanoscience, Vaidhyanathan even proposes that the United Nations should take a lead on a global nanotechnology patent database and not leave the field to individual countries and private corporate interests.
Also, novel technologies and scientific fields can generate much hype and scepticism. The strong backlash against genetically modified food in many countries was caused, among other things, by a lack of industrial, political and scientific transparency. The potential benefits of nanoscience seem too great to squander by failing to earn the public’s trust and support from the beginning.
Benjamin Bestgen is a solicitor and notary public (qualified in Scotland). He also holds a Master of Arts degree in philosophy and tutored in practical philosophy and jurisprudence at the Goethe Universität Frankfurt am Main and the University of Edinburgh.