Genetics in the Courtroom
Judicial education is an important component of the U.S. Department of Energy's Human Genome program's Ethical, Legal, and Social Issues Program. The potential legal implications of the HGP are vast and information gleaned from the project is sure to be increasingly offered as courtroom evidence.
Discrimination cases based on the dissemination of genetic testing information to official or private entities will become commonplace. Motions for injunctive relief will be filed based on irreparable harm to general health, life, or the species posed by gene therapy and other biotechnology regimes. There will be judicial review of the administrative regulation of genetic testing methods and genetic counseling services. We can even expect claims challenging the validity of individual responsibility based on free will considerations in light of the discovery of genetic traits that, it will be claimed, predispose certain individuals to violence or antisocial, thrill-seeking behavior.
In criminal cases, genetic identification is now a commonplace technology. Genetic proofs routinely are offered in paternity actions, and genetic tests will soon flood the courtroom with evidence purporting to support medical and nonmedical cases alike. All have ethical and social implications. Is a predisposition for colon cancer, for example, a legally justified reason to bar a person from mortgage insurance? Should predictive diagnostic information derived from genetic tests be suppressed in the absence of measures to prevent or cure? Will genetic causation be overdetermined in both concept and evidence?
In turning judicial attention to some of these ripening issues, we are spurred by the velocity of genetic research and the vigorous activity to turn it into commercial products. Genetic tests are big business and are largely unregulated. Genetic counseling is an irregular calling just taking form as a profession. A 1996 New Jersey case (Safer v. Estate of Peck, 291 N.J. Super. 619, 677 A.2d 1188) questions the availability of a cause of action based on genetically transmittable disease. Is there a duty to warn, the case asks, when a physician detects a genetically transmitted disease such as colon cancer? Conflicts of law surface immediately. What happens to the established privileges governing the patient-physician relationship? New conflicts come into view. Will the availability of gene therapy early in the new millennium provide many new cases that integrate scientific, clinical, legal, and ethical perspectives?
Supported by a grant from the Human Genome Program of the U.S. Department of Energy, the Einstein Institute for Science, Health and the Courts (EINSHAC) is conducting a series of conferences for judges. The first conference was held mid-May 1997, cohosted by the Superior Court of the District of Columbia and the U.S. District Court for the District of Columbia. Fifteen jurisdictions sent representatives. Cases involving scientific evidence of natural inheritance were considered against a scientific backdrop of genetics, molecular biology, and biotechnology. Since 1997, conferences have been held nationwide, and two legal journals --Judicature and the Judges' Journal of the American Bar Association have devoted issues to genetics and the courtroom.