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Home > Articles > 2014 archive

"With this diode, I thee wed”: Marrying robots and what this tells us about 21st century marriage

Janet Bettle, Barrister, Trinity Chambers, Chelmsford and Jonathan Herring, Professor of Law, Exeter College, University of Oxford examine the nature of marriage and how it may evolve.
















Janet Bettle, Barrister, Trinity Chambers, Chelmsford
Jonathan Herring, Professor of Law, Exeter College, University of Oxford

"Simple. I got very bored and depressed, so I went and plugged myself in to its external computer feed. I talked to the computer at great length and explained my view of the Universe to it," said Marvin.
"And what happened?" pressed Ford.
"It committed suicide," said Marvin and stalked off back to the Heart of Gold."
Douglas Adams  "The Hitchhiker's Guide to the Galaxy"

Introduction
Meet Nao. He can display emotions ranging from fear, to sadness, to happiness. He loves to interact with humans, seeking a hug when he's happy. When he's frightened, he has to be soothed with gentle strokes.

Yet Nao is a robot. Not only can he display emotions, he can form bonds with people, learning their ways and moods with every interaction.

Robotics is huge business. The Japanese and Americans are world leaders, with Japan expecting revenue for robotics to be near 70 billion dollars by 2025. Many of these robots are designed for engineering – Japan is reported to want robotics to do for its economy this century what cars did for it in the 20th 1. But increasingly, robots are seen as being able to help when interacting with humans in a way that involves emotions – entertainment, hospitals, and care of the elderly. The race is therefore on to develop robots that can read human emotions, act on them and learn from every human encounter.

We are not there yet. But such is the pace of research and development in this field that there will come a time this century when humanoid robots will be sophisticated enough to relate to adult humans on at least an equal level. They will be able to read our emotions, say the right thing, respond to what we have to say and, some would say, meet our emotional needs.

That, of course, is what a good spouse is expected to do. Is there going to come a time when some robot owners fall in love with their robots and want to marry them? This may seem like a plot for a sci-fi novel but some are predicting that it is only a matter of time 2.

In this article we examine the obstacles to marriage with a robot as our laws currently stand and then go on to consider whether there is a policy argument for changing the law. Partly tongue in cheek, we ask you to read on as the arguments actually raise some deeper issues about the nature of marriage in this century and how it is likely to evolve.

Why would someone want to marry a robot?
Clearly, people can become extremely attached to non-humans.  Robots will increasingly become part of our lives as the century progresses and our marriage laws need to adapt to this. This generation of children has spent more time alone with computers than any before – a product of the increasing availability of the virtual world.  The BBC estimates that a million young Japanese men are "hakkiomori" (withdrawn).  These young men are unable to leave their rooms, devoted entirely to computer games and watching television for months or years at a time.   There are ample reports of experiences of grief when people's electronic devices are lost or break. Carpenter 4 has identified a tendency towards anthropomorphism in soldiers relying upon robots in mine clearance work in Afghanistan. It's a highly charged atmosphere in which the robots are saving the lives of troops. The machines are often given names and paint jobs. And when they are destroyed by hostile forces, their owners will often report feeling real emotions of loss and anger. 

This is no great surprise. We have always as a species had the ability to feel emotions towards non-humans.  Pets are a good example. But also, we can experience emotions towards non-living things: anger at a car that won't start; frustration at a computer that obstinately refuses to do what it's told; joy at a beautiful piece of art. These, of course, are objects that do not pretend to be anything other than what they are.

So, can stronger emotions be experienced by a human towards a non-living construction such as a robot?

Levy 5 puts forward ten reasons for falling in love: similarity, desirable characteristics of the other, reciprocal liking, social influence, fulfiling needs, situation, specific cues, readiness to enter a relationship, being alone with the love object, and mystery. He points out that few (if any) of these require the object of one's affections to be human.

How can it be love?
If a lasting definition of love has evaded thousands of years of philosophers, novelists and poets, two family lawyers are unlikely to solve the conundrum. Helen Thomson, writing in New Scientist 6  points out that neuroscientists regard love as a neurobiological phenomenon that falls into three subtypes – lust, attraction and attachment. Each of these stages typically results in chemical reactions in the brain. In the early stages of lust, for example, sufferers can present with unusually low levels of serotonin – similar levels, in fact, to sufferers of Obsessive Compulsive Disorder. This, she points out, could explain the obsessing over the tiniest details of a person and the significance of how they sign off their text messages.

The point we make is just this. There is no need for reciprocity, although clearly that makes for a happier outcome. Love, in a biological sense, is a feeling, a mood, a neurochemical reaction or even a combination of all of these, that is experienced by the person in love. If you feel it, whatever it is, it's love. Love, to adapt a phrase, is in the cerebral cortex of the afflicted.  There is no definition of love that requires it to be a rational and sensible reaction. Indeed, it is often anything but. Similarly, the view of the outside world that this is not a normal relationship does not stop one falling in love. The mere fact that someone may be experiencing feelings of love for something that can never reciprocate cannot stop that person being in love.

It is key at this point to factor in that that robots will be endowed with increasingly sophisticated artificial intelligence which interacts with humans and which learns how to give responses which are increasingly acceptable to humans. To go back to Levy's reasons for falling in love, the technology will, in the foreseeable future, enable robots to exhibit points of view which are similar to 'their' humans; they will learn desirable characteristics, they will have social influence, they will fulfil a need for company, and they will spend a considerable amount of time with their human. Then add into the equation a human who wants to enter a relationship because  inevitably some real-life robot owners will fall for their robots.

And where there's love – there's often a wish for marriage.

Obstacles to marriage under the current law
Some of the problem areas might be:

i. A robot is not  a human – and maybe has no gender, either
Do our marriage laws require both (or indeed) either party to be human? We suspect this consideration did not particularly enter into the minds of those drafting the relevant legislation. An interesting anomaly is thrown up, however. The Matrimonial Causes Act 1973 refers to 'a man and a woman'. It is likely this would be interpreted as being a reference to humans and that would be clearly a bar to robots marrying.

Gender, however, could be important here. Under the Marriage (Same Sex) Act 2013, the requirement is that those concerned are 'a same sex couple' but does not use the words "male and female".  Further, there is no need for consummation. So, if a man and his robot are in a relationship, would that suffice for a same sex marriage, but not for a heterosexual marriage? Such a result seems absurd.

But then, could a robot have a gender? If it doesn't have a gender, who is to say whether a marriage would be under the 1973 Act or the 2013 one? This opens up a whole new area of debate, much of which we will skim over. Suffice it to say that the definition of gender in the courts is not a happy one.  For human relationships, the definition of a person' gender was determined by their capacity to consummate a marriage. Reading these decisions (Corbett v Corbett  7 and S v S (otherwise W) (No 2)  8 one is taken back to a jurisprudence that makes for uncomfortable reading. For humans, some of the issues have been superseded by the Gender Recognition Act 2004.  But if we can't use gender recognition for robots, are we thrown back to discussions about robotic artificial genitalia?

ii. Consent
Both parties have to consent to the marriage. If a robot does not have capacity, the marriage will not be valid. However, the whole point of a robot is that it makes logical and reasoned decisions. There will come a point where one is perfectly able to meet the capacity requirements under the Mental Capacity Act 2005. 

The only question that might arise is whether the robot would have sufficient engagement with other people to be able to make the choice of marriage partner.  An analogy might be drawn Re L (Medical Treatment: Gillick Competency) 9 involving a child who was a Jehovah's Witness, who was found to lack capacity because she had spent most of her life with other Jehovah's Witnesses and had not had experience of the world.  Might the same be said of a robot who has only lived with its creator? 

Quite possibly not.  Bizarrely, the courts have held that the test for capacity to marry is not a person specific test.  10 In other words the question is whether the individual understands the obligations and status of marriage generally, rather than whether they are making a wise or informed choice in relation to a partner.  It is likely that a robot could understand the formal obligations of marriage, even if it did not have the experience of life to know if it was making a good choice of life partner.  However, the Court of Appeal has recently suggested that the choice in relation to cohabitation is a person specific test 11  meaning that the robot would need to understand about the nature of cohabitation with the other person before living with them.  It is in that regard that there may be a problem if the robot has no experience of relating to others.  So, a plausible conclusion on the current law is that a robot has capacity to marry the person, but not live with them.   Again, some of the absurdity of the current law is revealed. 

iii. Consummation
Lack of consummation only makes a marriage voidable for opposite sex marriages, and would not affect the status of the marriage if neither human nor robot sought to end it. In any event, New Scientist 12  reports Dan O'Hara at Birmingham City University as believing that the sex industry, in the form of robotic sex dolls, will drive some of the biggest developments in artificial intelligence.  However, the law is very strict about what constitutes consummation.  Not every act of sexual intimacy will be sufficient.  For consummation there must be "male penetration of the female body: intercourse must be ordinary and complete, not partial and imperfect". 13    Whatever delights the robot may offer in relation to sexual activities the law will be interested in only thing: the ability to engage in heterosexual sex.  Provided the robot is capable of penetration then consummation may be possible.  Again the discussion casts questions on why so much weight is placed in the law on the ability to perform one particular sex act.  As already mentioned, the consummation requirement can be bypassed if the marriage is a same sex one. 

iv. Age
This could well be a problem. The minimum age for marriage is 16. Even if you could age a robot, a prospective marriage partner is unlikely to want to wait that long to get married to it.  It may be argued that the age of marriage for humans is selected as a marker for capacity.  If so it may be that a different age for robots is appropriate to mark the point at time in which a robot has the maturity to make decisions.  Indeed it may well be that although age is a good rough and ready indicator in humans, it tells us nothing about the capabilities of robots and a different test would be required.  The size of its RAM or some such criterion may be a better indicator of a robot's capacity. 

Policy reasons to enable human/robot marriage
So, if we would need to legislate to allow human/robot marriage, should we do so? The answer to this goes to the heart of the meaning of marriage today.

What is marriage?
Marriage, as a social institution, has evolved to meet the needs of different generations and different classes. It bestows a status on a relationship which is recognized both in society and by the law. A marriage could be dynastic. It could be a means of redistributing property. It could be a way to legitimize children. Today, it is probably best described as a status in which both parties can enjoy mutual financial and emotional support.

The point has to be made, though, that marriages vary enormously. Some exist to provide a secure base in which to raise a large family with parents following traditional role models. In others, neither party wants children. Some marriages are same sex. Some marriages are intensely religious; others not at all. Some marriages are abusive. Some are happy; some not so. In some, the parties live apart, separated by continents; in others, they work and live together constantly.

So this leaves us with a flexible meaning to marriage in which perhaps the key elements are mutual support and the provision of fulfillment and happiness. On the negative side (and see later in this article) it can also be argued that divorce is a defining feature of marriage – in other words, a marriage only attracts significant legal consequences when a party seeks to exit from it.

Increasingly, there is perceived to be a right to marriage. Article 12 of the European Convention on Human Rights sets out a right to marriage; Article 8 contains the right to a private and family life. Linked to this is the concept that one can reasonably expect marriage to provide personal fulfilment –and that if it fails to do so, it is not unreasonable for the marriage to end.  Indeed the European Court of Human Rights has recently confirmed that the Convention protects a right to divorce (or at least a right to remarry) within a reasonable length of time from one's application for a divorce (VK v Croatia) .14

Policy considerations

Encouraging marriage
Marriage is viewed as something to be encouraged. It provides stability from the perspective both of the individuals concerned and the state. There are health benefits to marriage. Politically, it is favourable for a government to be seen to be supporting this institution. At the same time, too radical an intervention into marriage laws can be criticised by policy conservatives as being an attack on the fabric of marriage  and by liberals as demonizing those who are unmarried- so law-makers are dealing with something of a double edged sword. Generally, however, governments want to encourage marriage and this means adapting its availability as social mores develop over time. Failure to do so would leave the institution marooned in time whilst couples opt for other alternatives, such as cohabitation.

Some sociologists looking at the nature of marriage have argued that we are witnessing a shift in the public understanding of marriage.  At one time marriage was seen as largely a matter of property and social status.  Romance played little role.  In the Victorian era and up until comparatively recently, marriage was seen as inextricably tied to love.  They went, as the song tells, together like a horse and carriage. 

However, it could be argued that the focus has shifted in more recent times to a growth of individualism. Relationships are entered into for the purposes of self-fulfilment. Each party remains in the relationship for as long as he or she considers that it is providing what he or she wants from it - be that self development, sex, lifestyle, or any other factors.  When it fails to provide what is required, the marriage can be put to one side and another more acceptable relationship is found.  We have moved from seeking the perfect partner, to seeking the perfect relationship. 15

If this is a correct analysis (and however unromantic it may seem, it will be for some relationships) then marriage to a robot is probably more likely to meet the needs of someone who seeks such a relationship than marriage to a human. Mainstream disapproval may exist, but this is not a reason to deny such a marriage to those that would choose it. This takes us on to the next policy consideration.

Facilitating individual fulfilment
If someone wishes to marry, there would need to be strong justification to outlaw such a relationship, particularly if there is a right to marriage. Is it any business of the state to interfere with a sincerely held wish?

In conventional marriage cases, the Courts have been quite clear that they will not assess the wisdom of an individual's decision to marry or the suitability of their proposed marriage partner.  In Re MM 16 Munby J (as he then was) emphasised:

"83. … [T]he question is whether E has capacity to marry, not whether she has capacity to marry X rather than Y, nor whether she has capacity to marry S rather than some other man.

84.  It is, moreover, a question quite distinct from the question of whether E is wise to marry; either wise to marry at all, or wise to marry X rather than Y, or wise to marry S."

It is, of course, understandable that the courts do not want to get into discussion about what are or are not good marriages, or what are good reasons for marrying.  This is reflected in the broader approach of the law to marriage: there is careful and detailed regulation on how to enter a marriage and how to exit a marriage.  But there is virtually nothing governing what happens during a marriage, save the normal criminal law.

This is interesting.  It shows that for all the talk of the law wanting to uphold marriage and privilege it as an institution, it provides virtually no regulation of it.  It may be, as some academics have argued, that the values of marriage (privacy and intimacy) are only found in an absence of regulation. 17 The extreme reluctance of courts to entertain arguments on divorce for conduct to be taken into account in financial provision cases demonstrates again the reluctance of the state to form any judgments on how a marriage should be conducted.

The Narcissism argument
Those opposed to robot marriage may argue that the idea of marrying a robot is simply a demonstration of extreme narcissism. The robot is programmed to respond to the opinions and wishes of its owner – it may therefore become the human's reflection. Is one therefore marrying a roboticised version of oneself? Marriage to a human usually involves give and take and mutual adaptation. Marriage to a robot would not.

If the purpose of marriage has become a flexible route to self-fulfilment (as opposed to a journey of self –improvement) then what can be wrong with a narcissistic approach if this is what makes the human happy?  Indeed, one can presumably engineer the robot to have precisely the characteristics and abilities the human considers they need to maximize their chances of a "good life".   Further, the robot's programming can be tweaked to ensure that it changes to meet the human's needs.

Upgrading is such a way to say Goodbye …..
If robots are like i-phones, a substantial proportion of their owners will wish to change and upgrade them as new models come out. Certainly, the rate of progress will be very fast initially and the temptation to do so high. If this proves to be the case, owners will seek to divorce their robots.

The counter argument is that if robots are programmed to develop over time to become ever more attuned to their owners, then the owners might not wish to start all over again with a new model. And further, it is hardly unknown behaviour for humans to engage in serial marriages. Is it therefore such a bad thing for there to be serial robot divorce?

But robots are not real!
 By offering state sanction of marriage to a robot, are we encouraging people to live in a fantasy world in which they are given licence to believe that their robot is a human? But others would argue that we are nothing more than the sub-total of our genetic and societal programming – perhaps super-robots. Those of faith might argue that we are made in God's image; those without, that we have evolved over vast periods of time to our current situation. If we can make robots that also, in effect evolve, then (at least for those without religion) are we just not a more advanced machine?   Indeed as we move the use of mechanical replacement organs and computer enhancement for brains the line between humans and robots will become increasingly fine.

Paedophiles
Would marriage to a robot enable paedophiles to obtain and marry robots who look like children? This seems an unacceptable idea, but others could argue that if it stops a paedophile seeking out a real child, there is some benefit. Against this, would this bring paedophilia more into the mainstream – clearly a problem.  The issue would match the debates over computer generated child pornography.

Morality issues
At the moment, it would seem at the very least strange to imagine someone in a relationship with a robot, particularly if that extended into the sexual sphere. Some would find it offensive. Yet social and sexual mores are notoriously changeable over the generations. Sex outside marriage and gay relationships were taboo in the not so distant past and in the latter case, criminalized; we have, thankfully, moved on. It would be dangerous therefore to rely upon perceived notions of the acceptability of robot relationships as being fixed for all time, particularly as we become increasingly accustomed to the company of robots.

Although robot relationships seem strange, we are not as far away from them as may be thought.  Couples are increasingly living apart together and there is increased use of technology as an aid in long distance sexual or nonsexual relationships. 18  Computer-based pornography is widely used, playing a major role in many people's sex lives.  And we are already seeing robot relationships being introduced in the mainstream media.  Scarlett Johansson received much acclaim for her role as a loved computer in the film "Her".  In the film "Lars and the Real Girl" Ryan Gosling fell in love with a blow up doll.   In Hirokazu Koreeda's film "Air Doll" the doll developed a soul and fell in love with her owner.  These reflect uncertainties and uneasiness about the feelings for computers.

Divorce – what's to happen?
This seems to us to be the critical argument for lawyers. Marriages are infinitely variable. The only thing they have in common is that to end one, you have to get divorced. And that will mean subjecting the fallout from the marriage to the scrutiny of a Judge, who will have power to redistribute assets in a way which is considered to be fair.

In the case of a robot, what would be the point of judicial asset adjustment on divorce? It would take a great mental and legal leap forward to hold that robots can own property which should be redistributed in their direction on marriage breakdown. This would involve creating an entirely new jurisprudence which would give robots enforceable rights. Could this ever happen? Isn't the whole point of robots that they are a reliable and cheap to run source of labour? And if a robot is entitled to money or property on divorce, how long before it is has the right to be paid for its work in factories? At a stroke, one of the main reasons for the invention of robots (efficient and largely free labour) would be removed.

So, does this tell us that in fact, the defining feature of marriage today is the fact that it can only end through divorce? This sounds, at first blush, rather depressing – like the sort of thing the recently divorced bore at a party might say. But, in fact, maybe that's not such a bad situation. It reflects that there is meaning to the commitments entered into during a marriage ceremony. Without it, those commitments could be empty words.

It does, though, to us seem to be the knockout blow for robot marriage. And it also demonstrates that the question of property rights (particularly on divorce) is still at the heart of the modern marriage.

Summary
It seems fair to say that we will be increasingly reliant upon robots in the course of this century and that there is every likelihood that people will develop strong feelings for them. The examination of whether people should be allowed to marry a robot throws up some of the absurdities of the current law. It is political dynamite, of course, to be seen to change marriage too much; law-makers have had to adapt the meaning of the relationship as social attitudes have changed, but in an ad hoc way. The older law is concerned with issues of gender and consummation – perhaps a throwback to ideas of marriage being for procreation. Now, though, such an approach seems a long way out of date. Marriage, ultimately, is what people want it to be. Provided they have capacity, they are free to live, as married people, however they wish. It may seem odd to us now that someone might wish to marry their robot but almost all of the policy arguments have a perfectly reasonably counter.

The only argument we consider can't be answered is the property question. Unless a robot has a right to own property, there is no point in the Court having any role in a divorce. It seems intuitively wrong to hold that a robot has property rights – and it would, more importantly, be economically unacceptable, too (and this latter point would probably be more important). We can't have the idea of a second class of marriage to robots, with no property adjustments available, as this would be to countenance a second class of marriage which is surely unacceptable.

Therefore, it seems to us that the defining feature of marriage still has to be the availability of property adjustment on divorce. And that, it seems, is what the idea of robot marriage is able to tell us. Love and Marriage – it's all about the property.

We have imagined the notion of marriage to a computer.  In doing this we have thrown up some of the absurdities of the current law - its obsession with certain sexual activities and constrained notions of what it is to be male and female.  We have also indicated how the notion of computer marriage ties in with some attitudes about the nature of marriage and individualism.  Maybe the idea of programming a robot to become one's perfect spouse has a deeper lesson. Is the attraction of a Stepford Wife or Husband superficial and slightly creepy? Or have our goals changed with the cult of individualism and increased narcissism? Will it be regarded as rather quaint, in a few generations' time, to seek a relationship of give and take with another human? Never, as they say, say Never.

25/03/14
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1 www.toyota.co.jp/en/news/04/1203_Id.html.
2 David Levy, Love and Sex with Robots (Duckworth Overlook, 2008)
 
http://www.bbc.co.uk/news/magazine-23182523
4 Just Doesn't Look Right: Exploring the impact of humanoid robot integration into Explosive Ordnance Disposal teams. In R. Luppicini (Ed.), Handbook of Research on Technoself: Identity in a Technological Society (pp. 609-636) (Information Science Publishing).
5 David Levy,  Love and Sex with Robots (Duckworth Overlook, 2008)
6 15 Feb 2014.
7 [1970] 2 All ER 33.
8 [1962] 3 All ER 5.
9 [1998] 2 FLR 810.
10 D Borough Council v AB [2011] EWHC 101 (COP).
11 [2013] EWCA Civ 478.
12 New Scientist, 15 February 2014 .
13 D-e v. A-g [1985] 63 E.R. 1039.
14 European Court of Human Rights 27 November 2012 .
15 See e.g. A. Giddens, The Transformation of Intimacy (1992, Stamford University Press).
16 Re MM (an adult) [2007] EWHC 2003 (Fam)
17 See e.g. J. Eekelaar, Family Law and Personal Life (OUP, 2006).