DNA Profiling

     Genetic engineering has developed and blossomed at a frightening rate in the
last decade. Originating as merely an area of interest for scientists, genetic
engineering has now become an area of which all people should be somewhat
knowledgeable. DNA profiling has many uses, both positive and negative, in our
society. Aside from its usefulness in many legal investigations, DNA profiling
can be used in the workplace to discriminate against employees whose profiles
could pose a financial risk. For example, genetic technology can and has been
used to determine the capacity of a person to contract certain diseases, such as
sickle-cell anemia, which could cause many employers to hesitate in the hiring
and training of such people. In the early 1970's, the United States began a
carrier screening for sickle-cell anemia, which affects 1 in 400

African-Americans. Many of those identified as carriers mistakenly thought they
were afflicted with this debilitating disease. Furthermore, confidentiality was
often breached, and in some cases, carriers were discriminated against and
denied health insurance. Nevertheless, genetic profiling has been beneficial in
paternity suits and rape cases, where the father or the assailant could be
identified. However, despite its growing number of utilizations, DNA profiling
is extremely hazardous when results are inaccurate or used to discriminate. The
frequency of genetic testing in criminal investigations (more than 1,000 in the

U.S. since 1987) has been increasing dramatically despite the inconclusive
testing by the scientific community in many aspects of forensic identification.

A correlation between DNA patterns taken from a crime scene and taken from the
suspect has often been enough to charge a person with the offense in spite of
proof that some procedures for testing DNA are fallible by legal and scientific
standards. The complexity of scientific evidence, especially DNA profiling, has
also caused many problems within the legal profession. It is no longer enough
for attorneys or members of the jury to merely be knowledgeable about the law.

People need to familiarize themselves with today's scientific research rather
than relying on the credentials of a scientific expert witness. Too often, jury
members become in awe of the complicated, scientific terms used in court and
take a scientist's testimony as fact. Lawyers need to increase their scientific
knowledge and keep up with ongoing research in order to competently question and
understand scientific evidence put forth. But these do not represent the only
possible downfalls of DNA profiling in criminology. The involuntary seizure of
one's blood or hair undermines the constitutional rights guaranteed to all
citizens by the Fourth Amendment (protection from unreasonable searches and
seizures). Nevertheless, many argue that a DNA sample taken from a suspect could
lead to an indictment or release of the individual and, thus, warrants an
exception from the Fourth Amendment. Besides, one could make a plausible
argument that, once held in custody, the seizure of a person's strand of hair
does not violate a suspect's Fourth Amendment rights or rights of privacy
because the hair is visible. However, the use of DNA profiling does not end in
criminal investigations. DNA testing has ventured out of the courtroom in an
effort to show a genetic link between race and violent tendencies. If
successful, this link will do nothing but justify prejudice attitudes toward
minorities, particularly the black race. Furthermore, such biological approaches
towards criminality do not take into account sociological factors, such as
poverty, and would inevitably lead to the practice of controlling minority
children with the use of therapeutic drugs or worse. For this and other reasons,
courts of all levels must implement harsher scrutiny in the area of genetic
profiling and its uses. There is also a current effort to create a national
database of DNA, much like the existing database of fingerprints. Supposedly,
the use of numerical codes will allow huge databases to search for a match of a
individual DNA band. However, these matches are not 100 percent. This
inconclusive correlation between DNA patterns has led to a heated debate which
has culminated in federal court with Daubert vs. Merrel Dow Pharmaceuticals Inc.

The ruling in the Daubert case said that the acceptance by the scientific
community is not enough by itself to allow certain scientific techniques into
court as evidence, especially given the reality that a suspects entire future
could hang in the balance of a scientific finding. Many people have argued that
the use of a national DNA database infringes on the individuals constitutional
rights to privacy. However, law officials have claimed that the advantages this
database presents for society supercede the individual's rights. This dilemma
can easily be associated to the "social contract" presented by Thomas

Hobbes. In this contract, Hobbes believed that each individual should give up
certain individual rights in order to achieve protection from the whole. The
forfeit of the right to privacy of one's DNA can thus be considered one of these
forfeited rights. A person must weigh the advantages of having a past, present,
or future criminal's DNA profile on database with the disadvantages of having
one's own. But the disadvantages will outweigh the advantages when private
institutions develop access to this database and use the information for
discriminatory purposes. The impending usage of a national DNA database poses
many possible risks of political and commercial abuse of such information, along
with the danger this information falling into the hands of unfriendly parties,
are unpredictable. Such unpredictability, certainly, is a violation of people's
rights to privacy. For instance, if a private institution, such as a bank, an
employer, or an insurance company, receives access to this information, it could
influence decisions on loans, hiring practices, insurance rates, etc. Society,
then, is faced with a conflict between an individual's right to privacy in one's
genetic composition and the employer's or insurance company's interest in
knowing about a person's health problems. This conflict will constitute the
remainder of this paper. Over the next ten to fifteen years, scientists involved
in the federal government's "human genome project" will try to
identify in detail each of the human cell's estimated 100,000 genes. The
knowledge derived from the project will enable physicians to detect an
increasing number of diseases and predispositions for diseases. When Frank
married at age 31, he decided to take out a life insurance policy. A swimmer and
avid racquetball player with no previous hospitalizations, he felt cer- tain his
low premiums would be a worthy investment for his family. Weeks later, after a
routine physical exam, he was shocked by the insurance company's response.

Sophisti- cated DNA testing had revealed in Frank's tissues a sin- gle missing
copy of a so-called RB antioncogene and minor variations in two other genes.

Computer analysis showed the molecular misprints more than tripled his risk of
getting small-cell lung cancer by age 55. His application was rejected. With the
newfound ability to reveal an individual's molecular secrets come significant
new possibilities for discrimination. The medical records of people who apply
for insurance are stored by the Medical Information Bureau, a data bank shared
by a consortium of hundreds of insurers. Ethicists warn that genetic tests could
tempt insurers to discriminate against the "healthy ill;" people who
are not yet sick but who carry genetic traits predisposing them to future
illness, such as in Frank's case. However, these people may not be denied health
insurance totally. Rather, they may be guaranteed a basic level of treatment and
rationed out of more costly procedures. For example, someone who carried the
cystic fibrosis gene, even if asymptomatic, could be denied a lung transplant.

The competitive nature of the industry may compel insurance companies to use
genetic information, since the fundamental principle of the insurance business
is "pooling uncertainty." The concept of adverse selection also causes
insurers much dismay. Adverse selection refers to the probability that people
privately aware of a medical problem are more likely to seek medical insurance.

This negates the insurers policy of setting premiums with accordance to
statistical information on the rates of illnesses and sicknesses in society.
"The whole foundation of insurance is based on the fact that we and the
insurance applicant are operating with equal levels of knowledge and
ignorance." Without this level of ignorance, insurance companies will lose
their social value as a means of spreading risk across groups of people. Genetic
engineering with respect to insurance does not stop here. Further development
could lead to a complete knowledge of who will develop a disease and when. This
will drastically effect the practicality of life insurance policies. "I can
see 20 or 30 years from now that life insurance policies will be essentially
accident policies, because everything else will be foreseeable. The essence of
insurance is you assess a risk against the unknown; if there's no medical
unknown, the only unknown is whether you're going to get hit by a bus."

Another striking danger of insurance companies discriminating with respect to a
person's DNA profile is with infants. The companies may become extremely
hesitant in insuring babies who have a high susceptibility to certain diseases.

In fact there have been some cases where the insurers actually demanded the
parents to abort the fetus or risk losing insurance. This obviously constitutes
a blatant violation of people's rights. Plus, it dangerously causes the
insurance companies to begin to play the role of God, that is, in deciding who
should live and who should not. "By agreeing to pay for some infants and
not for others, insurance companies could inadvertently practice a form of
economic eugenics, based not on grand designs for a superrace but on who
requires the least expensive medical care." Perhaps, some form of national
health insurance is the only remedy for these problems. "Genetic testing
may provide the best reason yet for a nationalized health-care policy." But
insurance companies are not the only private entities with the potential to
discriminate against people with unfavorable genetic profiles. Employers, too,
have a substantial financial risk in hiring an employee with an above average
propensity for illness or early death. Ellen spent four years completing her PhD
in industrial and chemical engineering. Now, wincing as a company doctor drew a
few drops of blood for her preemployment physical, she could hardly contain her
excitement about the job she'd been offered at one of the country's fore- most
metallurgical research institutes. Two days later the phone call came. You are
perfectly healthy, the young doctor said. But tests have revealed you harbor a
gene that can result in decreased levels of a blood enzyme, glucose-6-phosphate
dehydrogenase. With- out the enzyme's protection, you have a slightly increased
risk of developing a red blood cell disease if you come into contact with
certain chemicals in our laboratory. I'm sorry, he said. The job has been
offered to someone else. As Ellen's case shows, the danger of discrimination
certainly does not end with health insurance. There is also a grave danger of
discriminatory hiring practices in the workplace. In 1989, Jonathan Beckwith, a
geneticist at Harvard, and Dr. Paul Billings, director of the division of
genetic medicine at Pacific Presbyterian Hospital in San Francisco, completed a
small-scale study of genetic discrimination. Of 55 responses, Billings and

Beckwith could document 29 people who reported multiple instances of
discrimination by adoption agencies, employers and insurers. And the percentages
will only get worse as more and more companies implement genetic screening
policies. In a survey of 400 U.S. firms conducted in 1990, 15 percent of
companies responded that by the year 2000, they planned to check the health
status of not only their prospective employees, but their dependents as well
before making a job offer. These statistics show all too well the impending
problem with genetic discrimination in the workplace. Employers will have a
number of potential justifications for genetic testing in the workplace. In some
cases, there may be an argument in favor of testing for public health reasons.

Fortunately, judges and juries have predicted these justifications and have
began to make the necessary rulings to ensure true justification for
discrimination. The relevant judicial opinions indicate that there will have to
be a significant or reasonable likelihood of harm to others from having the
individual employed. Hopefully, rulings such as these will serve their purpose
in protecting the right of all citizens. With the balance of interests laid out
(individuals concerned about confidentiality and discrimination, and insurers
and employers concerned about adverse selection and fiscal liability), it will
fall upon legislators and the courts to define the proper use of genetic
information. Policy makers will have to confront an apparent discrepancy between
the reality of genetic variability and the democratic ideal that all citizens
are "created equal." The information itself is not the problem. What
matters is how the knowledge is used. Scientific advancements are not to blame.
"What science does is give society opportunities. What we have to do is
look at these opportunities and then set up the constraints and the rules that
will allow society to benefit in appropriate ways." Without the proper
constraints, the price of glimpsing one's medical future is high indeed. DNA
profiling can be an extremely beneficial tool in the war against crime. However,
when used for discriminatory purposes, this tool becomes a crime in itself. The
ability to compare and contrast a person's genetic code with another should not
be taken lightly, for with this great knowledge comes great responsibility. If
not used wisely, this ability of the few... will develop into a disability for
the many.

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