Dale Andrade

Legal Issues in the 21st Century

Final Paper

I Now Pronounce You Man and Machine…”

                  Love…a simple word.  Four characters illustrating the great affections one feels for another…characters with a history.  A history spanning space and time whose pairings have unified the hearts of peasants and shaken empires to their foundation.  This simple word is powerful, secret, strong, intoxicating and at times…all embracing.  In our society, a couple’s love oftentimes culminates in a ritual of great social, legal and spiritual import.  This ritual is marriage. 

Let us cast our gaze across the endless sea of time to a point in the not so distant future.  In this future, humanity has advanced its tool use to a point where virtual reality is actual reality and intelligence becomes artificial.  AI’s and deep virtual reality have given rise to new forms of entertainment.  One of which is the “idoru” or “idol person”.  Idoru are virtual stars that have no existence in the physical world outside the hardware they reside on.  In this near future world a creature of flesh, a simple mortal, has observed his favorite idoru and felt moved by her presence.  She is the most beautiful thing he has ever seen, the soothing balm his heart has sought, a shower of light who is intelligent, charismatic, graceful and has all the characteristics he desires in a mate.  One night our mortal pours his heart into the electron realm his idol inhabits and through a fortuitous twisting of fates gossamer strands he is noticed…noticed in a way the idoru herself had never thought possible.  Her electrons burn with newly awakened passion and she and her mortal suitor find they have much in common.  After a fashion commonality becomes consent to marriage.  A merging of silicone based artificial intelligence and a mortal man.  Is the scenario described above legally feasible?  Lets find out…

                  Some may think it unlikely that a human would seek to marry an artificial intelligence because they only exist on the net as a collection of electrons.  Present reality seems to defy this proposition.  There currently exist more simplified versions of the Idoru proposed above.  These versions take the form of artificially created and rendered pop and rock stars that through the ingenuity of their creators and a little creative publicity managed to obtain no small degree of fame.  These Idoru include the likes of Kyoko Date and Ray Kurzweil’s “Ramona” among others.  At the height of their fame, these virtual stars had received a number of love letters in addition to outright proposals of marriage[1].  If people will propose to a complex, non-interactive program, I submit it’s a simple step to imagine someone falling in love with and proposing to an artificial intelligence.  So why do people get married?

                  Throughout the ages there have been many reasons for marriage.  The most popular reason to marry in our society is for love.  Love is the emotional/chemical attraction that brings people together.  If truly rooted in our emotions, it shouldn’t be impossible for a human and a reasonably advanced AI to fall in love.  If love is rooted solely in the biochemical interaction of pheromones we give off, this could be more problematic as an AI wouldn’t have the requisite chemicals (unless they could be artificially synthesized and misted around it) to attract a mate.  Marriage for love hasn’t always been smiled on.  There, have been times when people of different race or social station have been severely chastised or prevented from marrying one another.  Love, while in my opinion one of the more noble emotions isn’t the only reason people get married.

                  Procreation is another reason some people marry.  Humans have been on an unending quest to mate since the dawn of time and a glance at any beer commercial reassures us that this quest continues on.  Procreation becomes more problematic when an AI enters the picture.  It has no reproductive organs and if sufficiently inhuman may have no interest in reproduction, but if both parties are willing life may find a way.  Invitro fertilization may be possible with the intervention of a sperm bank.  Adoption, cloning or even the combination of human neural data and part of the AI persona could be used to create a child.  Any of these methods may be used to allow this couple to reproduce. 

                  A related reason for marriage might be to avoid scandal. What if by some method the AI and human manage to reproduce out of wedlock?  Many societies frown on this, and therefore may force the couple to marry in order to save their souls or social status.  This happens often enough among today’s youth and there is no reason it wouldn’t apply to an AI.  Avoidance of scandal does beg the question though…what would an AI’s shotgun wedding look like?

                  Another reason for marriage is money.  Marrying into a family to increase ones pocketbook has a long history.  Anna Nicole Smith recently proved that this practice is alive and well when she admitted that she married her billionaire husband solely for his money.  Money is a viable reason for AI/Human marriage for a number of reasons.  For the human, the AI may have access to significant resources.  After all, it can spend significant time performing some valuable task for a corporation or other sufficiently wealthy entity through with it could accumulate great resources.  A human could marry the AI to take advantage of said resources or if he is more nefarious, could marry the AI, only to divorce it later to claim a major portion of these resources (especially in a community property state). 

The AI may also gain a great deal by marrying a wealthy human.  The AI could use the human’s resources to procure upgrades, software or any other temporal item it may need.  The human may also be able to provide the AI valuable real world security it may otherwise be lacking.  This doesn’t have to be a one-way arrangement either.  The AI in turn could provide the human significant protection for his electronic assets. 

Moneys bedfellow power could be another impetus for marriage.  Both humans and AI’s could accumulate significant influence when properly motivated.  Why not unite these two powers, one real and one virtual.  Similar to money, the human partner could assemble vast amounts of clout while the AI could amass its own following in cyberspace.  What if the mythical nation “zero-one” of the animatrix were created tomorrow?  Its unlikely a human would be allowed to rule it.  Perhaps if a human world leader and an AI from zero-one were married, the ominous quote “…they weren’t given membership in the UN but it wasn’t the last time they took the floor…” wouldn’t be necessary.[2]

With power comes politics.  By politics I mean both power in government and that power offered by ones social station.  In ancient times, political marriages were one of the cardinal reasons members of the upper class were married.  This procedure has a very long history and innumerable marriages have cemented alliances throughout the years.  While I don’t see this happening a lot in today’s society, it certainly isn’t impossible to imagine this changing in the future.  I don’t believe there is any overt law prohibiting political marriages as long as the forms are obeyed and it could be very beneficial.  As stated above, the “animatrix” provides us an example where machines form their own nation called zero-one.  This nation was not recognized by the UN leading the AI’s to enslave humanity as we see in “The Matrix”.  Perhaps a, political marriage between a human world leader and one of the AI’s of zero-one could have prevented this imaginary catastrophe.  For a more realistic example, we need only glance through todays society pages.  There are many powerful families in America who place great stock in the pedigree of their family lines and the influence they wield.  Why couldn’t an AI surf up to the Hampton’s and cement an alliance of its own? “Senator Kennedy and 01101011, I now pronounce you, man and wife.” 

                  Due to the scope of the law involved, I will limit my legal analysis to California.  Getting married in California is a relatively simple process for two human beings.  This process becomes much more interesting when one member of the couple is an AI.  California Family Code § 300 defines marriage as “a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary.”[3]  Consent alone does not does not constitute a marriage.  Consent must be followed by the issuance of a license and solemnization as authorized….”[4]  This statute is the cardinal law governing marriage in California and forms an almost insurmountable obstacle for any human and AI seeking to get married.  However, the notes to the statute also tell us  that marriage is “…a fundamental right of free men, and there can be no prohibition of marriage except for an important social objective or by reasonable means” in addition to stating that marriage is “a vital public interest.”  The right to marry is extremely important should not be set aside lightly. Our couple’s first major challenge arises from the “civil contract” portion of the statue.

                  Marriage is defined as a “civil contract” and parties seeking marriage must be able to form said contract.  This can be complex when one potential spouse is an AI as  a contract is defined under the Restatement 2nd of Contracts §1 as “a promise or set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.  The language is pretty straightforward and an AI and human should be capable of exchanging promises without too much trouble. 

There is a problem when we come to the concept of personhood.  Seeded throughout the restatement of contracts is the term “person”.  This term generally refers to a human but may also refer to a corporation.  A corporation is legally an “artificial person” and has the full ability to enter into contracts.  It isn’t too great a leap to extend this artificial person status to an artificial intelligence thereby satisfying this portion of contract law.  A more interesting problem is the issue of age.

                  Section 14 of the Restatement Second of Contracts clearly states that a person may only create voidable contracts until they reach their 18th birthday.[5]  In addition, California law requires the male entering the marriage to be at least 18 and the female at least 16 by the time they apply for their marriage license. As AI’s may not be modeled off a human brain, we may not be able to accurately predict their mental age.  What if the AI had only been physically online for five years, while it had the processing capacity of a 40-year-old and access to the accumulated knowledge of all humanity?  Will the couple have to wait until the AI’s hardware has aged 18 years?  The law will need to take into account the differing mental evolution of an artificial intelligence when dealing with its ability to enter into valid contracts (and through them marriage).  One option may be to fall back on the analogy of the corporation again.  After all, corporations certainly don’t have to wait 18 years before they begin business; they can create contracts very shortly after their inception.  The down side to this is that corporations are assumedly made up of people who are of legal age to enter contracts. 

Another option would be to institute some form of AI psychological testing program to determine its mental development.  This test would have to incorporate more than the simple ability to determine the AI’s IQ.  It will need to grant us and the law, assurances that the AI has had adequate mental development, is mentally 18 or older and knows what its doing.  A solution to this problem may be to look to the age the AI was created to be.  In the case of Kyoko Date, she was designed to be a teenage pop star.  What if the AI truly had the mental age of a 14 year old?  We will have to examine whether it has advanced enough to reach 18-year-olds maturity level.  The opposite could also be true.  The AI could be modeled as an 80 year old and have the mental power of a 5 year old.  The mental age the AI was originally created to be could be a valuable baseline for us to begin with.  From here, it may be better possible to determine the AI’s mental development and institute some form of legal test to make sure its mental age is 18.

Unfortunately, a test based on mental age probably isn’t accurate enough to make a valid determination of an AI’s ability to marry.  It’s easy enough for humans with low IQ’s to marry one another, why not an AI? Another way to determine an AI’s mental suitability for marriage may be to employ a form of “Turing Test”.  This test would determine how “human” the AI is and would focus on mental capacity instead of mental age as a more accurate reflection of the AI’s ability to marry.  The original Turing test was a form of double blind experiment whereby a human was on one side of a screen while the machine was on the other.  At the point the human could no longer figure out whether he was talking to an AI or not, the AI would be deemed human.  Our test would have to be significantly more accurate than the original Turing test, involving an extensive analysis of the AI’s capacity for free will and innovative decision making above and beyond that which is easily programmed into it.  This would by no means be easy and will probably require an arbitrary line to be drawn determining where artifice ends and animal begins.   

                  The next major hurdle for an AI/human marriage is the statement in the California statute requiring the marriage to be between “a man and a woman”.  There doesn’t seem to be an official legal definition of “man” or “woman” within the California Family Code so we look to the common usage of the term.  The American Heritage Dictionary defines “man” as “An adult male human being” or simply “a human being”.[6]  “Woman” is defined as “an adult female human being”.[7]  These definitions can be problematic to our hybrid couple, as they make marriage seem like a purely human endeavor.  I don’t believe we can fall back on the analogy that an AI would be analogous to an artificial person like a corporation.  While many executives are married to their work, I don’t believe the law has recognized them to be legally married to their corporations (and isn’t likely to do so soon).  Here we have to reexamine the basic nature of what it is to be human from a legal standpoint.  As long as humanity is defined as being a member of the genus Homo sapiens our AI is in trouble. 

                  It will be difficult for the law to recognize some form of “human” status for an artificially intelligent being and it probably won’t be done easily due to the law’s historically languid ability to adapt to changing times.  One option may be to create some form of “artificial human” or “artificial sentient” standard.  We could take the concept of a corporate artificial person to the next step and create a class of artificial people with rights roughly in accord with other citizens.  If this is unappealing, maybe artificial people could be given rights similar to gay people through some form of “virtual domestic partner” contract.  This would allow the AI and human to enjoy the legal benefits of marriage without the court having to condone a marriage of carbon and silicone.  The ultimate challenge will be to recognize AI’s as fully sentient beings with a legal status equivalent to a human.  This is no small task as humanity has yet to recognize another species as its equal.  Much soul searching is required before the legal system permits an AI to walk down the isle with a human. 

                  Marriage contracts also require consent.  This shouldn’t be too difficult as long as the AI has the appropriate mental faculties to reason what its doing.  Unfortunately, consent alone is not enough to constitute a marriage.  “Consent must be followed by the issuance of a license and solemnization.”  A marriage license in California generally requires that both parties be present and together at the time of licensing, in addition to other forms of vital information.  This information includes full name, date and place of birth, occupation, full names of father and mother the father and mothers place of birth.  A piece of valid picture ID with date of birth is also required, typically a California Drivers License or passport.  At least California doesn’t require a blood test anymore…

                  First we’ll deal with the presence requirement.  With a little tweaking, it shouldn’t be difficult for both parties to be present in the courthouse.  A low-tech option would be to have the AI surf its way through the net into the computer on the clerk’s desk.   A higher tech option would be to employ holography.  Perhaps the AI can have some form of unique digital watermark imbedded in it when created to assure the clerk that the display on his screen or the shimmering image in his office is indeed the same AI that is obtaining the license.  Another option would be to simply hold the entire proceeding in cyberspace.  This would allow each party to be present in whatever virtual representation of the dreary clerks office is necessary and solves the problem of a two hour wait at the hall of justice.  I don’t believe the above solutions are too far fetched.  Today’s contract law is currently considering similar issues about “where” virtual constructs like email “exist” during the different parts of a contract for purposes of offer/acceptance/rejection and so forth.  If they are willing to uphold or reject contracts on the basis of where a group of electrons are, it shouldn’t be impossible to extend these principles to a complex program like an AI.  A trickier problem is date and place of birth. 

                  Is an AI really “born” like a human?  When our AI applies for its license, what should it tell the clerk?  Is an AI “born” when it’s brought online or when it becomes self-aware?  I believe date of “birth” should be measured by when the AI is created.  A human child’s awareness of the world is arguably limited when it is first born and this isn’t necessarily different for an AI. Place of birth should be fairly simple.  I propose the AI just fill in the realworld location of the server it was located in when brought online. 

                  Offering the full name of the AI’s father and mother maybe problematic. AI’s don’t necessarily have to have more than one parent so it may not have a father and mother.  However, in the real world, its possible for one or both parents to perish before or during the time of conception after which the child will be placed in the care of another family member or become wards of the state.  Here I suggest the law accept the name of the AI’s principal programmer and or design team members in place of a set of biological parents.  If the AI is produced by another AI it’s name will suffice.  An ideal scenario would be if the AI to be married were derived from half the electronic data of another AI and half the neural information of a human.  If this combination were employed to create a new virtual person it would have “normal” parents for the purpose of the code section. 

                  The final hurdle to getting a license will be the requirement that it have some form of valid picture ID. A driver’s license is obviously out of the question because an AI has no real need for a car (although I wouldn’t rule out its ability to remotely control some type of vehicle).  Obtaining a passport is difficult because AI’s are creatures of the net and we have enough trouble defining the boundaries of cyberspace in relation to the real world.  I suggest we employ a form of digital watermarking.  As stated above this process would imbed some identifying stamp deep within the AI at its inception or shortly thereafter to ensure that it each one has a unique code which could be employed as its official identification.  If this policy is too draconian, some form of legal identification like a social security number or state identification card may be issued to ensure proper identification.  Like any system, this wouldn’t be perfect, but it could at least provide some form of structure to the registration process.  After a license is obtained, the marriage must be “solemnized”. 

Solemnization is the process of going through an actual ceremony, whether a judge or a religious figure performs it.  Fortunately, solemnization’s focus is mainly on the person who is performing the solemnization process and simply ensures that they are properly licensed.  There don’t appear to be many physical restrictions governing when and where the ceremony should occur so the same methods employed to be present for the acquisition of a marriage license above should apply to the ceremony itself (computer screen, holography or full virtual reality).  There is even a procedure in a few states by which a person may be married by “proxy” which doesn’t require the presence of both parties.  This proxy wedding is valuable in that it provides precedent for ceremonies that don’t require the party’s physical presence.  The down side is that only a handful of states recognize such marriages and fewer states consider them valid if you move to them.  This is analogous to ordering a “Russian bride” and so forth.  The greater problem might not be legal, but social.  Some religions may have issues with the nature of the AI’s soul or other moral objections.  The hybrid couple would be forced to seek out a judge held ceremony or a religion that has more secular ceremonial procedures (perhaps Buddhism as Buddhist ceremonies don’t require you to be Buddhist and are purely secular in nature).

After marriage is solemnized our virtual couple is assumedly married.  Is this the end of their legal woes…perhaps not?  A number of grounds exist for the nullity of marriage.[8]  First, there is a strong presumption that the couple will be cohabitating after marriage.[9]  This is an “essential requisite” to the marriage relation.  Can our couple truly cohabitate?  As stated above, holography may be helpful.  Having an actual image to look at and moving about the room may be enough for the law if it accepts the image as truly representative of the virtual person.  Another option may be to have the law extend cohabitation to virtual reality.  This would allow the couple to inhabit he same environment and fully interact with eachother as a husband and wife.  On the near future side, perhaps the human half of the couple simply jumps into VR when he gets home from work every day.  Another option may be for the human to immerse himself entirely into a matrix style tank and to live out the rest of his days with his virtual wife…to pass through the looking glass as it were.  Maybe the mirror works both ways; perhaps the AI could download itself into an android body.  This would allow it to fully interface with physical reality satisfying the laws cohabitation expectation. 

The second major ground for nullity of marriage is “physical incapacity”.  This is a great burden for a party who is for all intents and purposes incorporeal.  Most physical nullity issues are fairly easily waived.  The issue not so easily waived is the laws requirement that the couple be capable of successfully having sexual intercourse.  This requirement seems to be firmly rooted in legal tradition and its focus is almost entirely on procreation.  In 1859 Baker v. Baker told us “the first purpose of matrimony by laws of nature and society is procreation.”[10]  In 1961 Miller v. Miller states “physical incapacity…is the physical incapacity to consummate the marriage by coition.”[11] That same year Stepanek v. Stepanek refined the above two cases slightly stating inability to copulate is indeed grounds for annulment but it need only be inability for “normal” copulation as opposed to “partial, imperfect, unnatural or painful copulation”.[12] The overriding theme revealed from these three cases is the fact that the court seems to apply religious and “natural law” principles which state marriage is purely for procreative and not emotional purposes.   

What will the law deem “normal copulation” for a human/AI couple?  One method may be to qualify “textual intercourse” as enough.  This is your basic cybersex that pops up frequently today.  Is this truly “copulation”?  I’m not so confident.  The general tone of the entire statue lends itself to a more “direct” interface and specifically excludes partial, imperfect, “unnatural” or painful copulation.  I don’t find it likely by current standards that the court will ever deem text messaging “normal copulation”.  We may have better luck through the application of deep VR.  If the human is having a fully interactive simulation that seems completely real, this may be enough.  After all, fluids need not be exchanged in normal sexual relations.  Contraception is wide spread and relatively well accepted.  The law could be adapted to accept deep VR as a subcategory of “normal copulation.” The solution most like real life is if our AI has a humanoid body it can download itself into for the purposes of physical relations…the sexroid of science fiction fare.  The law may initially see this as “unnatural or imperfect” copulation, but there is no reason it couldn’t be altered to accommodate androids.

The above methods may have some value for the purpose of satisfying the normal copulation requirement, but they will not satisfy the requisite procreative underpinnings the physical capacity requirement is based on.  Either the hybrid couple will have to discover a way to breed or the law will have a very difficult time figuring out what to do with them.  One way may be to employ adoption.  Its not procreation per se, but it does bring a child into the marriage.  Another method may be the use of sperm banks and or midwives to carry the child to term for them.  The human may be cloned or the AI could copy itself, but this seems to be a more asexual style of reproduction.  Can these methods truly offer the form of procreation sought by the law?  My proposal would be to meet halfway by having the AI and human merge some of their mental data to form a “child” in the net.  In the alternative, perhaps this same data could be downloaded into a clone made from one partners flesh (or one made from the genetic material of one partner and a donor).  Maybe the father can write or select certain program features and have these merged with ones similarly created by the AI to create a virtual baby.  It can be the Tamagachi 10.0.  These fantastical ways are just a few we may attempt to solve the procreation problem. However, this will be one of the most daunting issues a hybrid couple will face as the law has yet to give up its time honored belief that marriage equals procreation.  

Another bump on the electron highway to marriage is the question of what would happen if the AI the human were trying to marry affected an avatar that was of the same sex.  Aside from the controversies that normally surround such pairings, no state has officially sanctioned gay marriages.  As a matter of fact 36 specifically prohibit it.  Even here in California, only two counties have domestic partnership agreements. 

The law will have to wrestle with the important question of whether an AI has gender.  They have no biologically created imperative or predisposition to one sex or the other.  Will we have to look to the programmer’s intent to figure out what gender it manifests or can the AI shift its gender at whim?  Perhaps they can be legally considered “gender neutral” and be required to select one for legal purposes at the time it obtains its marriage license.  After that time, we can treat it like someone who has gone through a sex change and allow it to legally change its name and sex on whatever identification materials it has.  For the moment, lets just assume the AI and its mate are of the same gender. 

  One would hope that by the time by the time deep vr and artificial intelligence comes to the fore, our legal system will have evolved to a point where it could handle such concepts. Absent such acceptance, we could fall back on the areas that do have domestic partnership agreements.  San Francisco’s version is very similar to those in obtaining a marriage license and includes many of the same issues (18 or older, live together, etc…).  One interesting point is that the definition of “living together” in the agreement specifically states that they share a place to live but may still have separate residences elsewhere as long as you have an intention to return to the place you share.  This may be very suitable to an AI because it can live in its server when it needs to and interface with its spouse through virtual reality or inhabit his home computer for enough time to constitute “sharing”. 

Over the years there have been a variety of laws prohibiting relations between one race and another.  In an enlightened world, we could create similar laws to allow AI’s and humans to find love.  My question now is why does this love have to be between one human and one AI?  Here arise the issues of bigamy and polygamy.  Bigamy is “the criminal offence of marrying one person while still legally married to another” and is codified in California Penal Code 281.[13]  Polygamy is “the practice of having more than one spouse at one time.”[14]  An AI is much different than a human.  It may exist in many places at once, do countless activities in short spaces of time and is simply much faster than a human.

Using its multitasking abilities, it would be perfectly possible for an AI to effectively live multiple lives at once.  Its separate avatars could marry many different people with relative ease, falling afoul of the bigamy and polygamy restrictions.  These restrictions seem to be rooted in the concept that marriage is legally viewed as a procreative activity that should take place between two people and two people only.  Unfortunately for the system, an AI is perfectly capable of maintaining multiple fulfilling relationships simultaneously.  You don’t even need to be an AI to be a polygamist, it occurs between numerous humans today.  The law is filled with phrases about “natural law” and subtle indications that Christian religious beliefs still hold sway.  It will be very difficult to find an easy fit for an AI’s perceived illegal activities in current law unless the system is willing to accept the fact that it truly is multiple people at once.  The only other analogy the law has in this area is its dealings with people who claim to have multiple personalities.  Unfortunately, the law still has difficulty defining multiple personality disorder let alone treating the individual personalities as separate people.  Unless the  system is willing to shed its long held traditions about what constitutes a valid marriage, an AI’s multitasking nature will be very difficult to adapt to.

A related issue is the sheer speed at which an AI can process data.  To an AI, a human hour could be anything from weeks to centuries on its own scale.  Marriage is generally said to be “until death do you part”, but how can an AI live with this standard when it runs through 60 lifetimes an hour?  One solution may be to slow the AI down, but that would greatly reduce its effectiveness and might even be considered a form of slavery.  Another solution could be to speed up the human with some form of brain implant.  Using these technological fixes, they could be put on a level playing field.  If these options are not available, and the AI retains its capacity to multitask and hyper-process, the legal system may just have to throw in the towel and reevaluate its stance on bigamy and polygamy.  The only solution may be to allow the AI to live out its separate lives with its various spouses.  This may create a huge spider web of interconnected marriages but is a more attractive than a complete ban on marriage.  The ability to live multiple lives separately brings up another issue…adultery.

Is an AI whose other avatars are sleeping with people other than the one it is married to guilty of adultery?  Adultery requires the married couple to be living together open and notoriously and one of the parties has to sleep with another person outside the marriage. An AI would obviously have to be capable of cohabitating with its mate as presented above, and its multipart nature could make it possible for it to sleep with numerous other humans and/or AI’s.  Actual intercourse may be a little more difficult for an AI unless the court recognizes some of the alternative methods presented above.  This may be an especially difficult problem where one AI sleeps with another AI.  Can intercourse that exists solely within the bounds of the net be enough?  This is something the law will have to wrestle with, but if AI’s are recognized as people and given full marriage rights, their dalliances together may well be the “illicit intercourse” mentioned in the statute.  

 While California doesn’t recognize adultery as a felony offence it may have some difficulty accepting its complete legalization.  If the system allows polygamous marriages, this could help the issue somewhat, but if the AI’s other avatars are simply playing the singles scene and indulging in dalliances at random, the human partner may not find this amusing.  The system has a variety of options to choose from.  It can enforce a complete ban on all physical relationships after the first avatars marriage, allow all avatars the freedom to sleep with many partners or let each avatar only sleep with one person.  My personal favorite is the last one as this would preserve the traditional relationship between the individual human/AI pairings and allow the AI’s other avatars the freedom they need to pursue their own interests.  Since the law seems to focus heavily on a principle of “natural law” for human marriages, maybe a “natural law” for AI’s could be created recognizing their multifaceted nature. 

One area that hasn’t been discussed yet is the proposition that the AI may not be a creature created entirely in the net.  What if the artificial intelligence we are dealing with didn’t originate in cyberspace, but in our world?  What if the AI half of the couple actually started off as a human and at a later time transferred their conscious into AI form?  Would it be any easier for an AI who was once a human to marry a normal human?  There are three permutations I can think of.  The first case would be one where the person has completely and voluntarily had their conscious transferred into AI form, the second is where the person had some situation whereby they were forced to transfer themselves into AI form (terminal illness or car accident for instance), the final is a situation where the human is still alive and simply makes a digital “twin” of himself in cyberspace. 

In the first case, a human would go through some elective procedure whereby their conscious self is completely transferred into net.  The AI’s past as a human may give us more confidence that it is capable of making rational decisions about marriage.  It would be able to make the decision itself and be capable of getting around its physical difficulties through the methods described in this paper (deep VR and so forth).  An issue that may arise here is whether someone who transfers his or her consciousness to AI form is mentally competent to enter a marriage contract.  Maybe the law will consider this situation a form of assumption of risk and consider all bets off after the transfer is made.  The elective nature of this transfer could render the transferee without right or legal recourse if there aren’t established laws dealing with such things.     

This wouldn’t necessarily be an unwise step, because the translation from human to AI may be extremely dehumanizing.  Unless physical sensations can be sufficiently simulated there may be significant adaptation problems involved in the translation.  If worse comes to worse, a form of reverse Turing test may be in order to make sure that the AI is indeed a “human”.  Not every case of mind transfer has to be voluntary.

A situation may arise whereby a person is engaged or married and is afflicted by a horrific accident or terminal illness.  This person may have no choice other than to undergo a consciousness transfer procedure in order to survive.  The courts may have a little easier time allowing someone who has been severely injured and was forced to transfer their consciousness to marry.  Mental competence issues wouldn’t be quite as great because the transfer was involuntary and it can be reasoned that this person is still human, just in a different form.  The same desensitization issues may arise like those involved in a voluntary transfer, but the fact that the only choice was survival or death may help the patient adapt to their new life a bit more easily.  A reverse Turing test would still be in order.  As long as the other half of the marriage agrees and the persons “humanity” is affirmed the marriage should be upheld.  It may be helpful to analogize the involuntary transferees situation to that of a handicapped person. 

The law doesn’t consider a disabled person less human.  When a person gets a prosthetic arm, they aren’t considered 90% human, 10% machine, they are 100% human with a prosthetic appendage.  The legal nature of our humanity appears to be tied into our reason and the essence of what we are morso than our physical manifestation (at least in this area).  This concept could be expanded to involuntarily transferred AI’s.  The AI can still be classified as 100% human, just in a different form.  After all, people are slaved to machines every day.  Burn victims require a special environment to survive in, some patients require complex machines to breath or are even confined to iron lungs.  A paraplegic still has the same rights as a whole person.  Disabled people may even get more rights when it comes down to it.  The law makes many accommodations for disabled people through the construction of wheel chair ramps, handicapped parking spaces and specialized building laws which require state funded structures to be adapted to make them more disabled friendly.  Perhaps some form of “handicapped AI” statute could be worked out.

 The final case is where a person creates a copy of himself or herself.  This problem can actually work both ways with the human copying himself into digital form or the AI simply replicating itself.  The person to be married still exists but now has a second digital self, separate from the original.  Initially, the two will be mentally identical.  The copy may still consider itself legally married to its spouse bringing up bigamy issues similar to those presented above.  Under one view bigamy this wouldn’t be a problem because bigamy requires a second marriage after the first, which wouldn’t be present here.  However, it’s not hard to imagine that both the original spouse and the copy would be found identical and we therefore would have a situation where one person is married to two.  One solution would be to recognize such a situation and allow marriages with multiple spouses.  Another more likely solution would be to recognize the second party’s individuality.

An AI copied from a human or another AI will start identical to the original but will inevitably and almost immediately begin to develop its own unique personality as it begins to experience the world around it.  Under current law, it wouldn’t be classified as “married” to its perceived spouse because it never went through the process of obtaining a license or solemnization with the original.  This being should be legally viewed as unique and independent of the originals marriage relationship (although major psychological issues are likely to arise from this). 

If sufficient copies are made, other issues will arise.  What if the copy doesn’t consider itself married and the original does?  Would the original have a claim against the copy when it dates and or marries another person?  I don’t think so, due to the self- evolving nature of an AI.  By definition, they are supposed to be able to change and adapt to the environment around them.  It would be unfair to shackle a newly formed copy to an original person it is unwilling to be married to.  After all, the AI itself may dislike sharing their spouse with a copy of itself.     

A marriage of human and artificial intelligence presents a variety of complex issues.  These issues range from the inflexible nature of current law and its unwillingness to change the definition of what it means to be human.  Innovation breeds new technology and new technology breed’s social change.  Lets hope society changes enough for us breed innovatively with our new technology.    





[1] W, Dire Wolff, Shibuya River,  http://www.wdirewolff.com/jkyoko.htm

   For examples of characters that have been proposed to.  www.noDNA.com



[2] Mahiro Maeda, Second Renaissance Part I, April 2003, available at http://whatisthematrix.warnerbros.com/

[3] Cal. Fam Code § 300 (2003)

[4] Id

[5] Section 1, Restatement of Contracts, Selections For Contracts, Foundation Press, p97 (1998)

[6] American Heritage Dictionary 3rd edition, Houghton Mifflin Company, 1994, p503

[7] American Heritage Dictionary 3rd edition, Houghton Mifflin Company, 1994, p926

[8] Cal. Fam. Code. §2210 (2003)

[9] Id

[10] Baker v. Baker, 13 Cal. 87, 1859.

[11] Miller v. Miller, 267 Cal. Rptr. 371, 1961.

[12] Stepanek v. Stepanek, 14 Cal. Rptr. 793, 1961

[13] Cal. Pen. Code. §281 (2003).

[14] American Heritage Dictionary 3rd edition, Houghton Mifflin Company, 1994, p642.