216 Children’s Legal Rights Journal [Vol. 37:2 2017]
means of intellectual enhancement, for example, by increasing the brain’s efficiency through the
use of drugs and other means.288
Moreover, as physicist Michio Kaku notes, there are known limits to biological
enhancement of the human brain. He explains that although there is a general knowledge about the
specific human genes that code for intelligence,289 there are several genetic changes not directly
affecting the brain, which are necessary to sustain greater intelligence and would thus make the
process of biological enhancement more difficult.290 In addition, Kaku explains that there are limits
as to how much human intelligence can be enhanced through physical changes to the structure and
functioning of the brain itself before the laws of physics intervene.291 Kaku’s explanation shows
that enhancing intelligence through genetic modification would be a particularly risky type of
genetic engineering—even within the inherently risky realm of genetic engineering in general—
thus warranting more stringent restrictions.292
Another argument against the proposed definition is that it is too imprecise, as there are
other essential aspects of the human brain that can be used to define what constitutes a human
person, such as human consciousness. Kaku defines human consciousness as “a specific form of
consciousness that creates a model of the world and then simulates it in time, by evaluating the
past to simulate the future. This requires mediating and evaluating many feedback loops in order
to make a decision and achieve a goal.”293 However, as precise as a definition—such as the one
adopted by Kaku—may be, it results non-functional as applied to law and policy. Consciousness,
although undoubtedly essential to human identity, is not the engine upon which human society—
as a collective of individuals sharing something inherently essential across cultures and across
time—is founded.294 Rather, consciousness is an internal process which allows a human to interact
in a highly-advanced manner with the world which surrounds her or him.295 In other words,
consciousness looks inwards, while psychology looks outwards.
In conclusion, implementation of the proposed definition would provide a starting point
for the regulation of genetic engineering. It would allow the development of genetic engineering
applications which do not immediately threaten the survivability of the human species through the
288 KAKU, supra note 136, at 162.
289 Id. at 150-51.
290 Id. at 155-56 Kaku notes that, for example, in order to increase the intelligence of a chimpanzee to approximate
that of a human, numerous other physical changes would be required, for example, he notes: “a larger brain would
be useless unless it could control fingers capable of exploiting tools… But since chimps walk on their hands, another
gene would have to be altered so that the backbone would straighten out and an upright posture would free up the
hands…” Id. at 156.
291 Id. at 161. Kaku explains for example, that one approach to increasing intelligence could be to attempt increasing
the size of the brain. Id. However, a larger brain size means a greater consumption of energy, which generates heat
and can cause tissue damage. Id.
292 Mehlman explains that despite the great discretion that parents enjoy in raising their children, the state is not
without power to place proper restrictions, suggesting that at levels of great risk, the parents’ desire for a
genetically-enhanced, super-intelligent child might not be sufficient to justify parental discretion. MEHLMAN, supra
note 48, at 107-108.
293 KAKU, supra note 136, at 46.
294 See CAMPBELL, supra note 270.
295 Kaku, supra note 136, at 34. Kaku defines consciousness generally as “the process of creating a model of the
world using multiple feedback loops in various parameters (e.g., in temperature, space, time, and in relation to
others), in order to accomplish a goal (e.g., find mates, food, shelter).” Id.