Judicature Genes and Justice
The Growing Impact of the New Genetics on the Courts
November-December 1999 Vol 83(3)
by Denise K. Casey
Symposium issue editor
We stand on the cusp of one of the most exciting and rapid expansions ever of knowledge about life's inner most secrets. By late spring, scientists in the international Human Genome Project (HGP) expect to deliver a rudimentary map of 90 percent of human DNA --the chemical blueprint that contains the information required to create and maintain all life's structures and activities. The HGP, cosponsored in this country by the Department of Energy (DOE) and National Institutes of Health, aims to complete a detailed human DNA map by 2003, along with genetic maps of other organisms.
Advances in DNA science already have led to revelations across all kingdoms of life on earth, from animals and plants to the hidden worlds of microscopic bacteria and viruses, all of which use DNA to encode life instructions. Potential applications of the new genetic tools and data are broad and diverse. They offer a dazzling array of possible benefits to humanity but also raise many ethical, legal, and social dilemmas that are beginning to arrive at the courts for resolution.
This symposium issue of Judicature, sponsored in part by the DOE component of the HGP, focuses on the growing societal impact of DNA technology and some of the genetics-related issues that courts will confront in the near future.
In "Genes, dreams, and reality: The promises and risks of the new genetics," I offer a brief primer on the basics of DNA science and the HGP and provide an overview of the controversies surrounding gene testing, one of the first commercialized applications of HGP data. This article also presents a glimpse into the potential benefits and pitfalls of an astonishing array of other current and future applications of DNA technology.
The genetics of human behavior and traits such as intelligence is a topic of long-standing fascination. Do genes influence us to be aggressive, shy, or depressed? Vulnerable to substance abuse? Proficient (or hopeless) in math or languages or art? Can we predict, prevent, or choose the future development of these traits in ourselves or others? "Genes and behavior: A complex relationship" by Joseph D. McInerney explains how scientists know that genes do indeed play a role in behavior, but the complex interplay between multiple genes and environmental factors is only beginning to be deciphered.
In "The impact of behavioral genetics on the law and the courts" by Mark A. Rothstein, the author observes that in the past the law has succumbed to cultural pressures to facilitate and legitimize "genetic determinism" --a mistaken belief that genes are the sole determinants of behavior. The article goes on to frame the legal issues surrounding behavioral genetics and suggests how the law might be expected to respond to new discoveries.
DNA technology will someday enable us to change the physical and possibly the behavioral characteristics of ourselves and future generations. "The Human Genome Project and the courts: Gene therapy and beyond" by Maxwell J. Mehlman examines a broad range of potential issues arising from enhancement technologies. It predicts that courts will be called on to settle an array of disputes involving patients, health care professionals, institutional providers, insurers and other third-party payers, and the government. Some issues include access; safety of human experimentation; new expectations for standard of care for healthcare providers in a dynamic, unsettled scientific environment; and parental vs. child rights.
Applying traditional patenting practices to biological materials such as genes presents some interesting issues, particularly in terms of health policy goals, and society may need to search for ways to merge ethical with business concerns. "Hope, fear, and genetics: Judicial responses to biotechnology" by E. Richard Gold discusses such considerations as whether patents increase or stifle innovation in biotechnology and encourage particular types of research over others, as well as concerns over the sometimes conflicting interests of patients and companies owning gene patents.
"Keeping the gate: The evolving role of the judiciary in admitting scientific evidence" by Joseph T. Walsh examines the increasing burden on judges to keep "junk science" out of the courtroom. The expanded gatekeeper role is the result of the 1993 decision of the United States Supreme Court in Daubert v. Merrill Dow Pharm., Inc., together with more recent refinements. The article discusses post-Daubert developments and some problems arising in their application as cutting-edge science evolves.
"From crime scene to courtroom: Integrating DNA technology into the criminal justice system" by Christopher H. Asplen presents the goals of the National Commission on the Future of DNA Evidence. The Commission's purpose is to determine how the Department of Justice can best encourage the effective use of DNA identification technology in postconviction proceedings as well as in crime scene investigations. The article describes the enormous potential value --and the challenges-- of implementing the newly established database [Combined DNA Index System (CODIS)] for fighting crime. CODIS stores identification data on DNA samples from offenders convicted of particular crimes. Both the United Kingdom and China have similar databases.
Jurors must be better prepared to cope with the increasingly complex issues if they are to evaluate contradictory opinions of expert witnesses and properly apply the law to the evidence presented. "Complex scientific evidence and the jury" by Robert D. Myers, Ronald S. Reinstein, and Gordon M. Griller offers a practical guide to jury reform as pioneered in Arizona, where the role of juror has been redefined from passive observer to active participant in the trial process.
Preparing judges to carry out their duties effectively in adjudicating cases of increasing scientific and technical complexity is a growing concern. "Educating judges for adjudication of new life technologies," by Franklin Zweig and Diane E. Cowdrey, presents an evaluation of one conference from a series of workshops aimed at introducing judges to some of the scientific and societal issues raised by genetics.
*****As Yogi Berra once observed, "The future ain't what it used to be." Hovering on the horizon are genetic technologies that will endow us with new powers to change and literally shape all forms of life at their most basic levels. The dilemmas presented in this issue represent only a sampling of the challenges that society will face as we apply genetic knowledge in ways we cannot even imagine today. Projects sponsored by the ethical, legal, and social issues components of the U.S. HGP begin to anticipate these issues, but the dialogue must grow to encompass all sectors of society worldwide as we move cautiously toward a new and exciting future armed with the keys to the kingdom of life.
Denise K. Casey is a science writer, editor, and educator with the DOE Human Genome Program Human Genome Management Information System at Oak Ridge National Laboratory. She has written numerous articles for technical and lay readers on genetics and its applications and has served as a faculty member at judicial education seminars.
|The online presentation of this publication is a special feature of the Human Genome Project Information Web site.|