Insurance underwriting restrictions on brain data

Introduction

Brain data refers to information collected from the human brain through technologies such as electroencephalography (EEG), functional magnetic resonance imaging (fMRI), brain-computer interfaces (BCIs), and other neurotechnological devices. Such information may reveal aspects of an individual's cognitive activity, neurological conditions, emotional responses, behavioural patterns, and mental processes.

The increasing use of neurotechnology in healthcare, artificial intelligence, medical research, and commercial applications has created new challenges for the insurance industry. Insurance companies may seek to use brain data when assessing an applicant's health condition, predicting medical risks, determining premiums, or deciding whether to provide insurance coverage.

Insurance underwriting restrictions on brain data refer to legal and regulatory limitations on collecting, processing, analysing, and using neurological information for insurance risk assessment. These restrictions aim to prevent discrimination, protect mental privacy, ensure informed consent, and establish fair insurance practices.

Meaning and Scope of Brain Data Underwriting

Insurance underwriting is the process through which an insurance company evaluates an applicant's risk before issuing an insurance policy. It involves examining medical information, lifestyle factors, financial circumstances, and other relevant details to determine coverage conditions and premiums.

Brain data underwriting involves using neurological information to evaluate an individual's potential health risks.

Examples include:

Using EEG information to assess neurological abnormalities.

Examining brain imaging records to identify neurological conditions.

Analysing brain-computer interface data to assess cognitive functions.

Using neurological information in disability insurance assessments.

Evaluating brain-related medical information while determining life or health insurance eligibility.

Analysing neurotechnology-generated information through artificial intelligence systems.

However, neurological information may reveal highly sensitive details about individuals. Its use in insurance underwriting therefore requires strict privacy, fairness, transparency, and legal safeguards.

Legal and Regulatory Framework in India

1. Digital Personal Data Protection Act, 2023

The Digital Personal Data Protection Act, 2023 establishes a framework for processing digital personal data in India.

Brain data may qualify as digital personal data where it relates to an identifiable individual and is processed digitally.

Organisations processing such information must consider their statutory obligations relating to lawful processing, applicable consent requirements, security safeguards, and individual rights.

The Act does not establish a separate category of neurodata or expressly prohibit insurers from using all forms of brain data. Nevertheless, its general data protection obligations are relevant to insurance underwriting.

2. Information Technology Act, 2000

The Information Technology Act, 2000 provides legal protections concerning electronic information and computer systems.

Section 43 addresses compensation for specified unauthorised computer-related activities, while Section 66 deals with specified computer-related offences committed dishonestly or fraudulently.

These provisions may become relevant where neurological information is obtained through unauthorised access to digital medical records or neurotechnology platforms.

3. IRDAI Regulatory Framework

The Insurance Regulatory and Development Authority of India regulates insurance companies and supervises insurance operations.

Insurers must comply with applicable requirements concerning policyholder protection, disclosure, fair treatment, and appropriate handling of personal information.

The use of brain data in underwriting should therefore be examined against applicable insurance regulations and contractual requirements.

4. Constitution of India

Article 21 protects the right to life and personal liberty, which includes the fundamental right to privacy.

Brain data may involve particularly sensitive information concerning mental processes and personal autonomy. Its collection and use by insurance companies must therefore be assessed against constitutional privacy principles and applicable legislation.

5. Mental Healthcare Act, 2017

The Mental Healthcare Act, 2017 protects the rights and dignity of persons receiving mental healthcare.

Its confidentiality provisions are particularly relevant to mental health information maintained by healthcare professionals and institutions.

Although it does not establish a comprehensive insurance-specific prohibition on brain data underwriting, it provides important protections concerning confidentiality and access to mental health information.

Major Restrictions on Using Brain Data in Insurance Underwriting

1. Restriction on Unauthorised Collection

Insurance companies should not obtain neurological information through unauthorised access to medical records, neurotechnology devices, or research databases.

Collection and processing must comply with applicable legal requirements.

2. Restriction on Discriminatory Underwriting

Insurers should avoid unfair treatment based on speculative neurological predictions or unverified assumptions about an individual's cognitive abilities.

For example, an algorithmic prediction about future neurological disease should not automatically become the basis for rejecting an insurance application without reliable evidence and appropriate legal justification.

3. Informed Consent and Transparency

Individuals should receive clear information about the collection and intended use of their brain data.

Where consent is the applicable legal basis, it must satisfy the relevant statutory requirements. Insurance applicants should also receive appropriate disclosures concerning medical information requested during underwriting.

4. Restriction on Secondary Use

Brain data collected for medical treatment or neurological research should not automatically be reused for insurance risk assessment.

Any further processing must have an appropriate legal basis and comply with applicable purpose and data protection requirements.

5. Data Security and Confidentiality

Insurance companies must establish appropriate safeguards to protect neurological information against unauthorised disclosure, alteration, and misuse.

6. Restriction on Automated Decision-Making

AI-based underwriting systems may analyse neurological information to estimate health risks. Such systems can create problems involving inaccurate predictions, bias, and lack of transparency.

Insurers should ensure that underwriting decisions comply with applicable legal obligations and are supported by reliable information.

International Legal and Regulatory Frameworks

1. European Union General Data Protection Regulation (GDPR)

The GDPR provides enhanced protection for special categories of personal data, including health-related information and biometric data used for uniquely identifying individuals.

Brain data may fall within these categories depending on its nature and purpose of processing.

Article 9 establishes restrictions on processing special-category data, subject to specified exceptions.

2. OECD Recommendation on Responsible Innovation in Neurotechnology (2019)

The OECD recommendation establishes principles for responsible neurotechnology development and governance.

It highlights the importance of privacy, safety, accountability, and public trust in neurotechnology applications.

These principles are relevant when insurance companies consider using neurological information for risk assessment.

3. UNESCO Recommendation on the Ethics of Neurotechnology (2025)

The UNESCO Recommendation on the Ethics of Neurotechnology addresses human dignity, mental privacy, autonomy, and the responsible development of neurotechnology.

It provides an important international ethical framework for protecting individuals against inappropriate use of neurological information.

Important Case Laws

1. Justice K.S. Puttaswamy (Retd.) v. Union of India (2017)

The Supreme Court of India recognised privacy as a fundamental right under Article 21 and other relevant constitutional provisions.

The judgment recognised informational privacy and individual autonomy as essential elements of personal liberty.

Relevance: Brain data may reveal highly personal information concerning neurological functioning and cognitive activity. The judgment provides an important constitutional foundation for protecting individuals against unjustified collection and use of such information by insurers.

2. District Registrar and Collector v. Canara Bank (2005)

The Supreme Court examined privacy concerns relating to confidential financial documents and the legal authority of public officials to access private records.

The judgment recognised the importance of protecting confidential information against unjustified interference.

Relevance: Neurological records maintained by hospitals and research institutions require appropriate confidentiality safeguards. Insurance companies should obtain and process such information in accordance with applicable legal requirements.

3. Suchita Srivastava v. Chandigarh Administration (2009)

The Supreme Court recognised reproductive autonomy as an important aspect of personal liberty under Article 21.

The judgment emphasised individual autonomy and the importance of personal decision-making concerning one's body.

Relevance: The principles of bodily autonomy and personal liberty are relevant by analogy to neurotechnology. Individuals should have meaningful control over the collection and use of neurological information, subject to applicable law.

4. Common Cause v. Union of India (2018)

The Supreme Court recognised the importance of dignity, personal autonomy, and individual choice in end-of-life medical decisions.

The judgment reinforced the constitutional importance of respecting individual decision-making in medical matters.

Relevance: Brain data may reveal information concerning cognitive and neurological conditions. Its use in insurance decisions should respect personal dignity, autonomy, and applicable confidentiality requirements.

5. Samira Kohli v. Dr. Prabha Manchanda (2008)

The Supreme Court emphasised the importance of informed consent in medical treatment and explained that patients must receive adequate information before medical procedures are undertaken.

Relevance: The judgment provides useful principles for understanding consent in neurotechnology-related healthcare and research. Where neurological information is collected or shared for insurance assessment, applicable consent and data protection requirements must be respected.

Challenges in Regulating Brain Data Underwriting

The use of brain data in insurance creates several legal and practical difficulties.

Lack of specialised legislation: India does not currently have a dedicated statutory framework specifically regulating the use of neurodata in insurance underwriting.

Scientific uncertainty: Brain imaging and neurological measurements do not always provide reliable predictions about future behaviour or health outcomes.

Privacy concerns: Brain data may reveal sensitive information that individuals do not intend to disclose.

Algorithmic discrimination: AI systems may produce unfair underwriting outcomes because of biased or incomplete neurological datasets.

Data ownership disputes: Questions may arise concerning control over neurological information collected through privately owned devices and healthcare platforms.

Limited awareness: Insurance applicants may not fully understand how neurological information is collected, analysed, and used.

Cross-border data processing: International insurance companies may transfer neurological information across jurisdictions with different privacy requirements.

Role of Insurance Companies and Regulatory Authorities

Insurance companies should establish clear policies governing the collection, storage, and use of neurological information.

Their responsibilities should include:

Collecting only relevant and legally permissible information.

Providing transparent explanations of underwriting practices.

Protecting neurological records through appropriate security measures.

Avoiding unsupported medical predictions.

Reviewing automated underwriting decisions for potential bias.

Establishing appropriate procedures for correcting inaccurate information.

Ensuring compliance with applicable data protection and insurance regulations.

Regulatory authorities should develop clearer standards concerning neurotechnology, informational privacy, and the use of sensitive neurological information in financial decision-making.

Conclusion

Insurance underwriting restrictions on brain data represent an emerging legal issue at the intersection of biotechnology, neurotechnology, insurance law, constitutional rights, and data protection. As EEG devices, brain-computer interfaces, and advanced neurological imaging technologies become increasingly common, insurance companies may obtain access to information that reveals highly sensitive aspects of human cognition and neurological functioning.

In India, the Constitution, Digital Personal Data Protection Act, 2023, Information Technology Act, 2000, and Mental Healthcare Act, 2017 provide important legal protections relevant to the processing and confidentiality of brain data.

Judicial decisions such as Justice K.S. Puttaswamy v. Union of India (2017), Suchita Srivastava v. Chandigarh Administration (2009), and Samira Kohli v. Dr. Prabha Manchanda (2008) establish important principles of privacy, autonomy, dignity, and informed consent.

Ultimately, an effective legal framework should prevent unjustified neurological surveillance, protect confidential brain information, promote transparent underwriting practices, and prevent discriminatory insurance decisions based on unreliable neurological predictions. Such safeguards can support responsible neurotechnology development while preserving individual privacy and human dignity.

Note: The cited judgments establish broader constitutional, privacy, autonomy, and medical consent principles. They do not directly decide whether insurers may use brain data for underwriting.