Neurotecnologías y autonomía contractual: Retos jurídicos del derecho privado ante la irrupción de los neuroderechos

Abstract

The rapid development of neurotechnologies (devices and systems capable of recording, interpreting, or intervening in brain activity) has opened a new field of legal reflection that challenges the traditional foundations of private law, particularly the principle of autonomy of will in contractual relations. In this emerging context, so called neurorights are taking shape as a necessary and urgent category of protection against the risks these technologies pose to individual identity, mental privacy, consent, and psychological integrity.

Initially driven by the neuroscientific community (especially through the BRAIN initiative and the Neurorights Foundation, led by Rafael Yuste) the debate around neurorights has begun to permeate legal, ethical, and political spheres. A catalog of five fundamental rights has been proposed: mental privacy, personal identity, free will, equitable access to cognitive enhancement, and protection against algorithmic bias. These guarantees seek to anticipate scenarios in which neurodata, automated profiling, or brain-computer interfaces may profoundly affect decision-making, including the very act of contracting.

From the perspective of private law, this technological breakthrough introduces an unprecedented tension: is it possible to speak of free and informed consent when one party’s cognitive capacities may have been directly or indirectly modified by technologies acting upon the brain? How should the legal system respond to these sophisticated forms of influence or manipulation? The answer is not yet codified, but it is beginning to take shape in regulatory frameworks such as the General Data Protection Regulation (GDPR), the forthcoming Artificial Intelligence Act, and Spain’s Charter of Digital Rights, documents that, albeit unevenly, recognize the need to regulate the intersection between the mental and the digital.

The current doctrinal debate on mental privacy (understood as the control over neural data and the mental processes derived from it) oscillates between three main positions: the skeptics, who deny the existence of a real threat; the conservatives, who argue that existing legal frameworks can be extended to address these risks; and the liberals, who claim that the unique nature of neural data demands the creation of a new normative body. As López-Silva, Wajnerman-Paz, and Molnar-Gabor (2024) demonstrate, the issue is not merely technical but ontological and ethical: neurodata are not merely external representations, but can constitute structural fragments of the mind itself, which amplifies their legal significance.

In response to these emerging risks, proposals such as those from the Neurotechnology Ethics Taskforce (NET) and pioneering reforms in Chile and Brazil have sought to explicitly regulate neurorights, including prohibitions on the use of technologies that compromise psychic continuity or decisional autonomy. However, there is still no consensus on whether existing protection systems (such as the GDPR in Europe) are sufficient to confront the novel challenges posed by neuroreading or “neuroprofiling” in contractual contexts.

This article aims to critically and doctrinally examine the challenges posed by the implementation of neurotechnologies in the contractual domain, questioning the limits of private autonomy in the face of technologies capable of intervening in decision-making processes. Through the analysis of specific risks (such as involuntary self-incrimination, neurocognitive discrimination, loss of mental opacity, and the erosion of freedom of thought) this work seeks to identify the need for a robust regulatory framework that bridges classical principles of private law with the contemporary ethical demands arising from the neurotechnological revolution.