April 02, 2019

SCIENCE AND TECHNOLOGY LAW: The Use and Misuse of Genetic Data

Gary E. Marchant

Discerning valid from invalid uses of genetic information is 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. The second category involves emerging uses of genetics that are borderline, the subject of legitimate debate among experts as to their validity and utility. The third category of genetic data, the primary focus of this article, contains applications that fall under the definition of pseudoscience. We must identify invalid or dubious applications of genetics, both to prevent contaminating our perceptions of legitimate uses and to provide precedents to expose fraudsters who seek to exploit genetics’ growing popularity.

The sordid history of race and genetics. There is a centuries-old history of misusing heredity, and more recently genetics, to support racist beliefs. The consistent theme in the claims of racial differences is that they come more from preexisting political and racial beliefs of the proponents than from scientific data.

Unable to learn the lessons of these prior abuses, modern actors continue to play the genetic race card. In 2012 a member of the Hungarian parliament from the far right Jobbik Party proclaimed his ethnic purity based on the absence from his genome of variants allegedly attributable to Italian or Jewish ancestry. In 2007 Nobel Prize–winning geneticist James Watson got into hot water when he stated that he was “inherently gloomy about the prospect of Africa” because “all our social policies are based on the fact that their intelligence is the same as ours—whereas all the testing says not really.”

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