DNA Paparazzi (and Other Ramifications of Legally Unrecognized Interests in One's Biological Makeup)
Georgia State University College of Law
July 16, 2014
Advancements in technologies that are able to analyze the various components of our biological makeup (“biological analysis technologies” or “BATs”), in particular genetic testing and sequencing technologies (“GTSTs”), challenge the law as never before and our existing legal institutions are struggling to keep up. The resulting technological disruption is evident in a variety of legal areas, including criminal law, privacy law, property law, intellectual property law, and health law, among others. In particular, there are a number of deficiencies in how property law and intellectual property law reflect and address our ethical perceptions and intuitions regarding certain applications and implications of such technological advancements.
Lying at the heart of the challenges that BATs in general and GTSTs in particular pose to legal discourse is the fact that our biological makeup is a multi-faceted phenomenon having several aspects to which we ascribe significance and, at times, legal relevance. First, our biological makeup is a physical phenomenon that manifests in the form of molecules, cells, tissues, organs, body systems, body parts, etc. Second, much of our biological makeup carries information in the form of sequences of nucleic acids (DNA and various forms of RNA), the makeup of our proteins (a.k.a. proteome), the makeup of our intestinal bacteria (a.k.a. microbiome) and so forth. Further, because most such information is unique to each individual, this information content of our biological makeup is often associated with one’s identity and perception of self. Third, much of our biological makeup has functional aspects related to the various elements of the phenomenon that we identify as life. And fourth — perhaps also a functional aspect of our biology but, arguably, uniquely important — at least some of our biological makeup constitutes the stuff of inheritance that is passed along to our progeny as part of procreation. While these categories do sometimes overlap, when taken as a whole they seem to incorporate the sum of our thinking about our bodies. Thus, recognizing and acknowledging all of these facets of our biology is essential for the formulation of balanced and coherent legal frameworks and institutions involving our biology. By the same token, failure to consider all of these facets by courts, policymakers, and legislators inevitably leads to inappropriate or incomplete legal responses to challenges posed by BATs in general and GTSTs in particular. This project seeks to flesh out such occurrences and show how the failure to consider all of the facets of certain BATs results in deficient legal institutions. The first article in this project explores the tensions surrounding the rights of public figures and celebrities to control the distribution and use of their biological materials and genetic information.
We all — rich and poor, old and young, famous and infamous — incessantly drop all around us pieces of our biology (including full and partial copies of our genetic makeup) as we shed skin, hairs, and nails, cough, sneeze, and respond to nature’s callings. This involuntary constant aspect of our being is becoming increasingly legally relevant as genetic testing and sequencing technology becomes evermore accurate and accessible. Specifically, it raises the question of the legal status of the genetic material that we drop and its availability for anyone to collect, analyze, and profit from. The legal status of such involuntarily dropped portions of our biology has not been the subject of a publicized legal dispute as of yet, but the moment is coming fast that such dispute will arise. One legal context in which we can envision such a dispute happening involves the right of celebrities to prevent the collection, analysis, publication, and/or use of their genetic material. This is mostly due to the fact that while privacy laws generally protect common individuals from having their genetic material appropriated in such ways without consent, the same might not be as true for those who have voluntarily thrust themselves into the public eye.
The diminished level of legally enforceable expectations of privacy for public figures and celebrities has already allowed for the emergence of a prosperous tabloid industry, which provides for swarms of paparazzi. Might such lowered expectations of privacy that celebrities and public figures have also apply to their genetics? Could we soon witness armies of paparazzi carrying swabs and sterile tubes in search for genetic materials dropped by the subjects of their pursuit? And, if so, is it possible that we will soon be able to learn not only about the predisposition of our elected officials to develop mental illnesses but also about which celebrities carry the “infidelity gene?”
working papers series
Date posted: July 18, 2014
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