Understanding the Use of 'Genetic Predisposition' in Canadian Legal Decisions

Finkler, L., Mykitiuk, R., Nisker, J., & Pioro, M. (2013). Understanding the use of “genetic predisposition” in Canadian legal decisions. McGill Journal of Law and Health, 7(1).

Osgoode Legal Studies Research Paper No. 37/2014

67 Pages Posted: 22 Jun 2014 Last revised: 8 Nov 2014

See all articles by Lilith Finkler

Lilith Finkler

Memorial University of Newfoundland (MNU)

Roxanne Mykitiuk

Osgoode Hall Law School

Jeff Nisker

University of Western Ontario - Applied Mathematics Department

Mark Pioro

York University - Osgoode Hall Law School

Date Written: June 20, 2014

Abstract

Since the advent of the Human Genome Project in 1989, the ethical, legal, and social implications inherent in future genetic science and its applications have worried researchers and scholars in law and ethics. Concern that the results of genetic testing might be used to discriminate against particular individuals and groups of individuals has been paramount, prompting calls for specific legislation to protect against genetic discrimination. Against this backdrop we sought to investigate instances of genetic discrimination in Canadian legal decisions. We searched Canadian court and administrative tribunal decisions, using the key words “genetic predisposition” and its cognates, and found none that took up the issue of genetic discrimination. However, in 468 decisions, “genetic predisposition” was used by courts and tribunals when describing the causal origins of health related conditions. Genetic predisposition was cited with respect to numerous health conditions, and in various areas of law, in particular criminal, family, workers’ compensation, and tort. In several criminal law decisions, genetic predisposition served to explain the origin of a mental health condition in addressing the issue of criminal responsibility. The predominant use in family law was in describing a child’s health condition in crown wardship and youth protection proceedings. In workers’ compensation and tort, genetic predisposition was used to argue whether the claimant’s condition was inherited rather than related to the workplace or the negligence of the defendant. Genetic predisposition, when used to argue the issue of disease causation on a balance of probabilities, reflects “geneticization”: the tendency to describe the underlying basis of health and disease as genetic. Geneticization, like genetic discrimination, can be problematic. Specifically, both may exaggerate the extent to which genetic information is exceptional and determinative of health and disease outcomes. Also, geneticization, like genetic discrimination, may marginalize people on a perceived genetic basis.

Keywords: Human Genome Project, genetic science, genetic predisposition

JEL Classification: K10

Suggested Citation

Finkler, Lilith and Mykitiuk, Roxanne and Nisker, Jeff and Pioro, Mark, Understanding the Use of 'Genetic Predisposition' in Canadian Legal Decisions (June 20, 2014). Finkler, L., Mykitiuk, R., Nisker, J., & Pioro, M. (2013). Understanding the use of “genetic predisposition” in Canadian legal decisions. McGill Journal of Law and Health, 7(1).; Osgoode Legal Studies Research Paper No. 37/2014. Available at SSRN: https://ssrn.com/abstract=2457019

Lilith Finkler

Memorial University of Newfoundland (MNU) ( email )

Faculty of Education
St. John's, Newfoundland A1B 3X5 A1C 5V3
Canada

Roxanne Mykitiuk (Contact Author)

Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

Jeff Nisker

University of Western Ontario - Applied Mathematics Department ( email )

1151 Richmond Street
London, Ontario N6A 3K7
Canada

Mark Pioro

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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