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Gary E. Marchant is the Lincoln Professor of Emerging Technologies, Law & Ethics, Center for Law, Science & Innovation, Sandra Day O’Connor College of Law, at Arizona State University. He can be reached at email@example.com.
In the recent Supreme Court decision overturning patents on naturally occurring gene sequences (Ass’n Molecular Pathology v. Myriad Genetics), Justice Scalia filed an intriguing concurrence in which he joined in the decision except for the parts “going into fine details of molecular biology. I am unable to affirm those details on my own knowledge or even my own belief.” Of course, understanding the specifics of genetic testing was critical to delineate the appropriate bounds of patents for protecting genetic data in that case. So Justice Scalia’s inability or refusal to engage with that knowledge demonstrates the challenges that legal and other decision makers confront in our era, when genetic data are increasingly applied in a growing range of medical, forensic, legal, and other applications. Going back at least to the time of T. D. Lysenko, Stalin’s agricultural minister who overrode modern genetic knowledge with unsupported scientific theories more compatible with his political ideology, genetic information has been prone to hype, exaggeration, fraud, and distortion by charlatans using the science for their own agendas. Discerning valid from invalid uses of genetic information is therefore critical for law, government, consumers, and businesses.
In this regard, the applications of genetics can be grouped into three general categories. The first includes well-established, clearly beneficial, and relatively noncontroversial applications. Examples include testing for the BRCA gene to predict the risk of cancer in women with a family history of breast cancer, DNA profiling to test matches between criminal suspects and forensic samples left at crime scenes, and DNA testing to prove or disprove paternity. This first category of accepted uses of genetics, slow to expand for many years, is now growing rapidly.