Privacidad mental y neuroderechos: ¿nueva categoría de derechos fundamentales o su integración como derechos implícitos?

Abstract

The rapid development of neurotechnologies has led to significant advances in scientific research and medicine. However, it has also posed new challenges for the law, particularly regarding the protection of information derived from brain activity and so-called neurodata. Its ability to reveal cognitive, emotional, or behavioral aspects has reignited the debate over whether existing fundamental rights provide sufficient protection against the risks arising from their processing or whether it is necessary to recognize a distinct category of rights: neurorights. The purpose of this study is to analyze whether neuro-rights constitute new fundamental rights or whether they represent new manifestations of already recognized rights, capable of addressing technological challenges through an evolutionary interpretation. The research is conducted from a qualitative perspective and employs a legal-doctrinal and comparative methodology, based on a review of doctrinal sources, international instruments, legal norms, and constitutional experiences related to this issue. Furthermore, the practical implications of both positions for the regulation of neurotechnologies and the protection of neurodata are examined. Finally, the study argues that neurodata require enhanced protection but do not necessarily imply the recognition of new, autonomous fundamental rights. The risks arising from neurotechnologies can be addressed through an evolutionary interpretation of already established rights—such as dignity, privacy, freedom of thought, and the protection of personal data—supplemented by specific rules governing the processing of neurodata. Thus, the study seeks to determine which legal response most effectively protects individuals’ autonomy and mental sphere.