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Human Rights and Genetic Discrimination: Protecting Genomics’ Promise for Public Health

The Journal of Law, Medicine & Ethics, Vol. 31, No. 377, 2003

William & Mary Law School Research Paper No. 09-40

39 Pages Posted: 14 Feb 2010  

Michael Ashley Stein

Visiting Professor, Harvard Law School; University of Pretoria Faculty of Law, Centre for Human Rights

Anita Silvers

San Francisco State University - Department of Philosophy

Date Written: February, 12 2010

Abstract

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.

Suggested Citation

Stein, Michael Ashley and Silvers, Anita, Human Rights and Genetic Discrimination: Protecting Genomics’ Promise for Public Health (February, 12 2010). The Journal of Law, Medicine & Ethics, Vol. 31, No. 377, 2003 ; William & Mary Law School Research Paper No. 09-40. Available at SSRN: https://ssrn.com/abstract=1552047 or http://dx.doi.org/10.2139/ssrn.1552047

Michael Ashley Stein (Contact Author)

Visiting Professor, Harvard Law School ( email )

1585 Massachussetts Avenue
Austin Hall 305
Cambridge, MA 02138
United States
617-495-1726 (Phone)

University of Pretoria Faculty of Law, Centre for Human Rights ( email )

Private Bag X20
Hatfield 0028
Pretoria
South Africa

Anita Silvers

San Francisco State University - Department of Philosophy ( email )

1600 Holloway Avenue
San Francisco, CA 94132
United States

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