Human Rights and Genetic Discrimination: Protecting Genomics’ Promise for Public Health
Michael Ashley Stein
Visiting Professor, Harvard Law School; University of Pretoria Faculty of Law, Centre for Human Rights
San Francisco State University - Department of Philosophy
February, 12 2010
The Journal of Law, Medicine & Ethics, Vol. 31, No. 377, 2003
William & Mary Law School Research Paper No. 09-40
We argue in this article for a much broader approach, an equality-based protection similar to the bans against race and sex discrimination. In doing so, we identify some problems that have made current prohibitions against disability discrimination less effective than was originally hoped, and we show that the prevailing approach to protection against genetic discrimination is subject to a similar weakness. In particular, we show that neither existing federal law banning disability discrimination nor proposed federal genetic discrimination law protects asymptomatic individuals with genetic anomalies who pursue prophylactic or mitigating measures. The diseases associated with these anomalies may never be expressed or, if expressed, may not manifest as unmitigatable functional impairments. Yet genetic anomalies may be used as proxies to disqualify their possessors from opportunity, as biological properties associated with race and female sex have been used in the past. We therefore advocate a novel civil rights paradigm that safeguards individuals from being discriminated against on the basis of genetic identity, as they now are protected from discrimination based on their identities in respect to race and sex.
Number of Pages in PDF File: 39
Date posted: February 14, 2010
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