The Genome and the Law: Should Increased Genetic Knowledge Change the Law?
Elliott, E. Donald, Harvard Journal of Law & Public Policy
Nature, to be commanded, must be obeyed.
-- Francis Bacon (1)
The title of this symposium asks: "Does scientific knowledge change the law?" On one level, the answer is obvious: of course, science and technology are always changing the law. (2) As a matter of positive description, law is an integral part of a culture, and as cultural knowledge and beliefs about human nature change, law inevitably changes with them. But the more interesting and important question is the normative one: how should our law change in light of increasing knowledge of the human genome? That will be a central question occupying legal thought in coming decades as progress in genetics changes not only our understanding of human nature, but also our ability to manipulate human nature. Just as legal scholars in prior decades struggled to incorporate the Freudian view of human nature into law, (3) in the coming decades we will struggle to incorporate a genetic and evolutionary conception of human nature into law. Today, I do not purport to have the answers, but I can identify a few important legal questions that the genetic and evolutionary revolution in human understanding presents.
I. TWO DIFFERENT VISIONS OF THE MISUSE OF GOVERNMENT POWER
The potential for human beings to manipulate their own evolution by applying genetic engineering to the human genome generates a number of frightening hypotheticals: What if parents use new genetic knowledge to design taller, or smarter, or more attractive children? (4) There is also the potential for a new kind of "genetic profiling," in which knowledge of genetic susceptibility is used to exclude persons from exposure to chemicals in the workplace. (5) While these threats are real and must be regulated, they have long been foreseen and discussed in the legal literature. My own view is that governmental reinforcement of prevailing scientific orthodoxy and regulatory impediments to the development of useful technologies is the greater danger. (6) We already see politicians lining up to denounce human cloning and stem cell research. (7) The future is alarming for many people because of its uncertainty. At many points in human history, the politically popular course has been to try to use law to stem the rising tide of progress to preserve "the good old days." While there are indeed legitimate fears that new technologies may be abused, these concerns should be balanced against the benefits these new technologies may bring. We must always be careful that we are not fearfully opposed to something merely because it is new. (8)
Our collective ambivalence about growing genetic knowledge is illustrated by two stories that appeared in the same issue of USA Today on February 13, 2001. On the front page of the Money section, the headline was "Investors Bet on Biotechnology Stocks, Map of Human Genome." (9) In the first section of the newspaper, however, there was a story about the EEOC suing to prevent DNA tests that identify people who are particularly susceptible to carpel tunnel syndrome. (10) We are excited by the promise of genetic technologies, but we also fear they will be used to unfairly discriminate.
To date, most of the writing in law about genetic technologies has been about how to manage, control, and prevent misuse of these technologies. That focus is not surprising, because we live in an age of environmentalism, characterized by legal concerns about how to deal with the adverse consequences of past technological revolutions. But as important as managing and controlling the new genetic technologies through law may be, I believe that the major effect of the new knowledge of the human genome on law will be to transform our understanding of human nature. This transformation will then have profound consequences for the law.
II. THE GENOME AS AN EVOLUTIONARY RECORD
The human genome is a biochemical fossil that records our evolutionary history. …