Relevant legal category

Courts that followed the precedent of White-Smith by holding that machine language programs were not writings applied existing rules by asking whether the new entity fit the description of the relevant legal category (Friedman 2001). The answer was obviously “no;” a machine language program burned into a computer chip is not a writing in any ordinary sense of the word. Throughout almost all of human history, the fact that a child was born from the body of a particular woman was conclusive proof that she was the child's mother.

Paternity, on the other hand, was in most cases impossible to establish; it was a wise child that knew his father. Until very recently, these facts were reflected in the law by rules providing that the woman who bore a child was his legal mother and her husband the child's legal father, even if there was some evidence to suggest that he was not the biological father (Friedman 2001). These facts are no longer true. Reproduction using a host mother implanted with an egg fertilized in vitro means that a child can be born from an unrelated woman. Genetic testing permits biological paternity to be established with a high degree of confidence.

Legal rules at the state level have begun to change, by court decisions and by legislation, to reflect these new facts. Further technological progress is likely to raise additional legal issues. Consider the parentage of a child produced by cloning. As judged by the clone's nuclear DNA, the child's parents are the parents of the donor whose cell was used to produce the clone. As determined by the clone's mitochondrial DNA, the mother is the woman who donated the egg into which the donated cell's nucleus was implanted. Judged by the traditional rule for motherhood, the mother is the woman in whose uterus the fertilized ovum was incubated.

Determined by the plausible criterion of genetic relatedness, the parent is the cell donor, who is almost twice as closely related to the clone as an ordinary parent to its children, although not quite as closely as one of a pair of identical twins to the other (Friedman 2001). If legal rules are defined in sufficient breadth, legal innovation is never necessary. Most issues raised by new reproductive technologies, for instance, could be resolved by a single, non-novel, rule: define parentage in whatever way best serves the interests of the child.

Indeed, it is arguably possible to resolve all legal issues by a single very broad rule: have whatever legal rules maximize economic efficiency. Such principles, however, are too broad to apply with predictable results at a reasonable cost. Hence legal systems employ significantly more specific statements of the law, such as the traditional rules for defining parentage, and fall back on general principles like efficiency only when such rules prove insufficient for dealing with hard cases or when changed circumstances require the development of new rules.

If what we mean by “new law” is “new legal rules at the level of generality of the rules now used to decide cases,” it is clear that new technologies will at least sometimes require new laws. Legal rules that assume the identity of host mother and gene mother or take it for granted that paternity cannot be reliably determined are no longer useful in a world in which both assumptions are false — and the legal system has begun to alter itself accordingly.

Legal rules that assume that a brief examination is sufficient to determine whether someone is alive or dead and that the latter status is irreversible might produce unfortunate results in the context of cryonic suspension. Rules that consider as legal persons only human beings or organizations of human beings and take it for granted that persons have the characteristics associated with human beings and human organizations will be wholly unsuited to a world of advanced artificial intelligence, when and if that world arrives.

In these cases and many others, new technology requires new law. Law and science are two of the most important sources of authority for modern governments (Jasanoff 2005). The relationship between law and science is asymmetric on the axis of deference. The law has historically carved out a quasi-autonomous place for scientific knowledge and expertise, for example, by creating exemptions for expert testimony from "ordinary" rules of witnessing (Jasanoff 2005).