Problems of practice and principle if centring law reform on the concept of genetic discrimination

Advances in genetic science are increasing the significance of genetic information within the contractual environment. While there may be an obligation upon governments to respond to this trend a number of problems may be associable with any attempt to do so that is centred on the concept of genetic discrimination as such. An attempt to exclusively limit regulatory reform to the acquisition and use of specifically genetic information may prove ultimately indefensible: the nature of genetic information is likely to render any such reform either ineffective or unworkable in practice or prove it arbitrary in principle. This position may be defended through a sustained look at what might conceivably be understood by the term ‘genetic discrimination’. The term may, broadly speaking, be understood to refer to one of three kinds of discrimination. Tracing the conceptual contours of genetic discrimination in a primary, secondary and tertiary sense helps to illustrate potential regulatory difficulties of both principle and practice. If the identified practical problems are to be avoided then lines must be drawn not between the three ‘kinds’ of genetic discrimination described but rather through them. However, drawing a line through a particular concept of genetic discrimination (and of genetic information) involves undeniably excluding certain genetic information from the scope of the regulation. If an unblinking focus upon the concept of genetic information per se demonstrates the limits of this concept as a focus of legislative reform then questions are raised as to the significance of ‘genetic’ interpretation to the raison d’être of regulation. I conclude by proposing that, while advances in genetic science may provide the motivation, the most appropriate target of reform may not indeed be genetic information per se at all.