Despite the welfare of the child being the ‘paramount consideration’, it appears that the law is currently not objective in its application to children. There is an undeniable link between healthy child development and education, with the latter greatly impacting on mental health and general well-being. Drawing on the example of the differential treatment of gifted children in an educational context, I argue that the legal framework with regard to learning disabilities and cognitive impairments operates contrary to the proclaimed goal of protecting and promoting the welfare of the child. This, I argue, constitutes unjustified discrimination, especially since there is a case to be made that highly cognitively able children could be considered disabled under a social model of disability. Whilst the group of affected children is small at present, developments in cognitive enhancement technologies mean that many more children might in the future be discriminated against. In addition, since the most promising cognitive enhancement interventions involve genetic technologies, such as pre-implantation genetic diagnosis, authorisation from the Human Fertilisation and Embryology Authority will likely be required. This means the state will be acting as a facilitator in ‘creating’ cognitively enhanced children, and as a result shares in the responsibility for such children and their particular welfare needs. Given the current treatment of gifted children in our educational and welfare system and the similarities to cognitively enhanced children, it is time to start regulating for the future.

Conference Details

Human Enhancement and the Law: Regulating for the Future
7-8 January 2016
St. Anne’s College, Oxford / UK

Conference Organiser: The NeuroLaw Project, supported by the Arts and Humanities Research Council.