De-extinction Technology:  Have We Assessed the Risks? - Part II 

Parnika Sharma is a final year B.A. LL.B student at Jindal Global Law School. She has developed a keen explorative interest in the areas of ADR, Environment Law, Human Rights Law, and Family Law.
- Mon November 15 2021

Introduction

In Part I of this paper, we understood the basics of de-extinction technology and addressed questions about its desirability in the current times of dwindling ecological health. We further discussed the multiple grounds of opposition to de-extinction technology ranging from that of animal welfare, environment, ethics etc. 

While it is essential for science to keep progressing and for people to continue acclimatizing themselves with scientific advancements without getting stuck in the scientific paradigm, it is equally important to make the technology as fool proof as possible. This requires exploring the underlying risks and concerns of governance-regulation. Therefore, in Part II, this article makes an attempt to explore whether it’s possible to justify the present-day usage of de-extinction technology when seen from the lens of environmental principles, scientific ethics, normative ethical theories, and law.  

Ethical & Environmental Risks 

It is argued that over-reliance on technology might pose environmental risks. Environmental concepts like the precautionary principle, emphasize the conservation of existing species. This is because conventionally it is considered difficult to bring such species back from extinction. In this sense of taking precaution, technological optimism might slow down conservation efforts and even condone actions causing extinction on the pretext of the same being compensated later through de-extinction. It will potentially establish complacency as lesser people would care about preserving animal and plant species, thereby undermining conservation biology.   

Further, in 2005, United States’ Center for Disease Control had revived a Spanish ‘virus’ and defended this action on the pretext of scientific advancement for developing an understanding of viruses and of subsequent medicinal responses to combat them. However, observing relatable situations like the COVID-19 pandemic which is believed to be a lab leak, it doesn’t seem feasible to allow unregulated usage of de-extinction technology given numerous instances of lab failures. Further, it is contended that private interests pose highly devastating and risky ramifications not meriting recurrence, even at the cost of scientific advancement.

Since we aren’t fully aware of certain species’ biology and there is not much historical data to prove the advantages & safety of de-extinction, there are reservations for continuing resurrection without an adequate impact assessment. Further, there is a knowledge gap in terms of how the resurrected species would learn behaviours and survive in the environment. 

Though experimental species are required to be located separately from the non-experimental species, there exists a possibility that resurrected species could cause destruction to the existing species and ecology when they are not monitored and/or accidently released in unintended locations. They could threaten the ecosystem like invasive species by impacting the quality of biodiversity and competing for resources with the local species. These species could also pose risks of spreading unpredictable diseases and related interactions. 

It also needs to be realized that de-extinction technology as it stands today, can’t create an exact copy of the extinct species, but can only allow the creation of a ‘similar’ species since this new species would have different genotype and phenotype. Thus, it is unclear if such a ‘resurrection’ would fulfill the ecological role played by the extinct species. 

Novel Analyses 

De-extinction has prompted some novel analyses with regard to our ethical notions. When examined under the theory of utilitarianism, this technology is justified for contributing to the creation of positive utility in the society due to its accompanying aspects of aesthetic value, technological & scientific progress, promotion of environmental restoration & causes. 

However, there are some others factors which are likely to cause negative utility. For example, de-extinction is considered a costly affair in comparison to conservation efforts, or one that poses a hazard to the health of surrogate animals/resurrected species/ecosystem in an unintended manner (as noted in Part I of the article). 

In another understanding, de-extinction is justified as a means for promoting wonderment and aesthetic value. Besides this, one of the primary reasons for carrying out de-extinction projects has also been the assumption of an obligation to restore justice to species that went extinct due to human intervention. 

However, it has also been considered ethically impermissible to ‘play God’ by interfering with the natural processes of evolution or by tinkering with species DNA etc. But it is argued that such understandings should be rejected as not only do they impede technological advancement, they also establish the problematic notion that human inventions can’t be likened to natural or god’s actions. 

Whilst it’s essential to identify risks and offer theoretical defences/justifications, it is equally important to regulate the technology of de-extinction and make it as infallible as possible.   

Legal Regulation & Governance 

Exploring the legal framework of countries with well-established environment law regimes like that of the US and the EU, one can note the absence of any explicit mention of de-extinct species in their legal instruments. Since these instruments, like the US’s Endangered Species Act (hereinafter, “ES Act”) and the EU Habitats Directive, are mostly for conservation purposes, a species’ taxonomic name gets added to the annexes to create a conservation status for it. Here, it is questioned if the de-extinct/artificially resurrected species should be construed as a new species or as an existing natural species, since either category entail varying listing and conservation procedures.  

If the de-extinct species were to be categorized as an existing species with endangered status, state’s funds would be diverted in heavy amounts to preserving their limited created populations instead of protecting the existing species. So, while on one hand these resurrections could be scientifically new species as seen under patent law, on the other hand it can be argued that they are hybrid/modified versions of another related species. Hence, this dilemma will continue until a separate category is carved for de-extinct species in the legislations. 

Although under the ES Act, protection is given to living endangered species, some scholars present the possibility of using the theory of dynamic statutory interpretation to implicate newly resurrected/de-extinct species within the ES Act. This is done considering the emergent circumstances and technology which couldn’t have been anticipated at the time of drafting the legislation. It is supported using a textual and purposive interpretation since the legislation’s purpose is to protect species facing risks, and resurrected species also face risk of going extinct until their population rises. 

Since these resurrected species would be genetically engineered species, they would most likely be treated as patents under intellectual property law as is done in the case of genetically modified organisms. Though this categorization is presently unclear, they could potentially be patented as it might be claimed that these are revived products of scientific intervention/invention rather than products of nature

Some assert possible cases of overlap/conflict as these species could be patentable but still be categorized as endangered species in certain circumstances, thereby having patent law accommodate government/institutions’ obligation to populate the species irrespective of the creators’ patent rights. Further, with respect to provisions for legal liability, it is asserted they can either be based on ownership of species’ specimens and/or on the action of releasing them, and be ascertained using law of negligence and environment law principles.   

It is imperative to bring the usage of this technology under protective legislations like the Environment Protection Act, Animal Welfare Act etc., besides requiring project proponents to seek environment clearances upon the conduction of environmental risk assessments prior to the release of these species. There is also need for the conduction of a lab-species review that could lay down guidelines for such research projects.

Way Forward

In both Parts I & II of the article, we observed both types of arguments, those supporting or opposing the de-extinction technology, besides exploring discussions rooted in environmental principles, scientific ethics, normative ethical theories and law. It can be said that though devoting state expenditure to de-extinction projects (that are likely to provide miniscule environmental gains vis-à-vis conservation efforts) seems to be an unsuitable option for numerous other reasons as demonstrated in the article, outrightly prohibiting such projects does look highly constraining. If at all there could be middle path, that will come out of dialogues and specialized legal governance. While the process of making a technology’s usage foolproof is a continuing conversation, progress can be made on the regulatory and governance front by either amending the existing law or creating a new law. This is because the absence of any appropriate governing provisions on the use of de-extinction technology, the resurrected species and the industry would in itself become a cause of worry at a more advanced stage when the industry expands even further.      


The views expressed above are solely of the author