A Theory of Genetic Interests
Posted: 17 Jun 2019
Date Written: June 5, 2019
For several decades now, jurists have struggled to adapt the law to questions raised by genetic science. They have done so primarily by seeking to fit these new questions into existing legal categories. These efforts have intensified as uses of genetics have expanded in areas such as criminal law enforcement, genealogy, genetic testing and screening (including prenatally), and the development of genetics-based medical therapies, including stem cell technologies, gene therapies, immunotherapies, and more. But genetics fits poorly into existing legal frames. Genetic materials are at the same time chemical, functional, and informational entities. They are widely shared and intimately individual, fixed and everchanging, and they are rife with meanings that keep evolving as our knowledge and understanding of genetic science broadens and deepens. Efforts to capture some aspects of genetic materials under one legal category inevitably leave out other aspects, and legal approaches taken in one area are often inconsistent with approaches taken in others. In sum, genetic materials and the information they encompass are uniquely multifaceted in ways that cannot be adequately captured under existing bodies of law.
In this article we identify the shortcomings of existing efforts to capture genetics within the law and suggest an alternative approach that is grounded in the multifaceted nature of genetic materials. We begin by elucidating the multitude of aspects of genetic materials and information: chemical-physical, informational, structural-functional, reproductive, taxonomical, and identity-conferring. We then illustrate why existing legal constructs — e.g., under property law, privacy law, tort law, patent law, criminal law, and even constitutional law — fail to adequately capture the full range of interests that individuals, families, and society at large have in genetic materials and information. We conclude with the case for a new holistic legal approach to genetics that would encompass the multidimensional nature of genetic materials and information.
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