Before the mind is touched: What Chile’s neurorights mean for South Africa’s legal and ethical framework

Abstract

This article examines what Chile’s neurorights reforms may mean for South Africa (SA)’s legal and ethical framework. Chile is the first country to adopt an explicit constitutional and legislative response to neurotechnology, including protection for brain activity and information derived from it. Using Chile as a comparative lens, the article argues that SA does not necessarily require an immediate sui generis constitutional amendment to address neurorights-type concerns. Rather, existing constitutional protections for dignity, privacy, bodily and psychological integrity, freedom of thought and informed consent are already normatively receptive to many of the harms posed by emerging neurotechnologies. The more urgent challenge lies in timing; SA law remains largely reactive, often offering remedies only after intrusion, extraction or misuse has already occurred. The article therefore contends that protection should move upstream through proactive, risk-sensitive procedural reform and anticipatory governance, particularly in high-risk contexts involving coercion, asymmetrical power or intimate mental inference. It further argues that a neurotechnology-sensitive interpretation of existing rights, informed by local constitutional doctrine, neuroethics, and SA concerns around dignity, vulnerability and relational personhood, provides a more coherent and contextually appropriate path than immediate constitutional transplantation. The article concludes by outlining the general contours of ex ante safeguards for neurotechnology in SA while leaving open the possibility that more explicit neurorights protections may become necessary if existing doctrines prove systematically under-protective.