The first part of this essay evaluates the contemporary focus of the genetic revolution seen as such through the Human Genome Initiative - a project which brings not only great hope for new advancements of genetic knowledge designed to control disease and minimize human suffering, but raises real fears of unabated invasions of personal privacy that in turn would lead to discrimination for those found to be genetically handicapped. The extent to which this central fear is justified or rational is justified within the present context of the Genome Initiative, together with the past practices of genetic screening, will then be probed. Next, the four basic types of genetic engineering available for use will be discussed as a background for analyzing the impact of these technologies have on society's pre-occupation with biological determinism and thus genetic testing and gene therapy as tools for achieving genetic determinism. The ethical and philosophical conundrums created by the new genetics will in turn be considered with the realization that the theories for resolving these issues impact directly upon the formation of legal norms. The essay then explores in depth constitutional and legislative protections for individuals who, as a result of particular genetic makeup, might be subject to discrimination. To this end, it first examines safeguards from discrimination based on genotype afforded to individuals under the Equal Protection clause of the Constitution and proceeds to examine in the second part the extent to which the confidentiality of genetic material is protected by the fundamental right to privacy derived from the due process clause of the Fourteenth Amendment to the Constitution. Finally, the essay analyzes the Human Genome Privacy Act, one legislative attempt to afford individuals protection from discrimination based upon genotype. With the recent enactment by Congress in May, 2008, of the Genetic Information Nondiscrimination Act of 2007 - seen by some as the first major civil rights legislation of the 21st century - it is hoped that Americans will now be assured that getting tested for genetic disease and embracing new genetic treatment when appropriate, will not subject them to employment discrimination. This legislation will bar health insurance companies from using genetic information to set premiums or determine enrollment eligibility. Similarly, employers could not use genetic information in hiring, firing or promotion decisions. The general conclusion of this essay is that while there are, to be sure, risks associated with the pursuit and development of the new genetics, man's dehumanization and depersonalization will not be fostered as a consequence of the Human Genome Initiative. Rather, so long as science pursues its basic quest for knowledge with the purpose of establishing truth and integrity and with promoting the goal of minimizing human suffering and maximizing social good, then, the noble integrity of evolution and genetic progress will be preserved and irrational fears of eugenic supremacy advanced through programs of genetic screening dispelled. Restraining scientific inquiry and the application of its results should be limited only to actions considered unreasonable.
George P. Smith, II, Genetic Determinism or Genetic Discrimination, 11 J. CONTEMP. HEALTH L. & POL’Y 23 (1994).