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Law-Matters

Genetic discrimination on the horizon

Most everyone can say that they have been discriminated against at some point in their lives, whether it was based on skin colour, a physical attribute, religion, culture, or sexual orientation. But how many people can say that they have been discriminated against based on their genetics? Probably not many – at least, not yet. In the context of insurance, genetic discrimination is on the horizon.

In today’s world, individuals are less able to rely on families or other social support networks to help shoulder loss—the loss of a home to a fire, or any loss resulting from sudden sickness, injury, or death.  As a result, the insurance industry developed to provide some ‘cushioning’, compensating people if they suffered some loss. To provide that cushioning, insurance companies require that each applicant susceptive to risk (of some kind of loss) contribute to a common ‘pool’ by paying premiums, which, of course, spreads out that risk. When deciding who to insure, insurance companies make calculations about how likely the risk will materialize for each applicant because, of course, some people are thought to carry a lot more risk than others. Those people who represent a higher risk, based on personal characteristics, will pay a larger premium into the pool or, if they represent too high of a risk, they may be denied coverage entirely. As you can see, discrimination is fundamental to the insurance industry.

In the past, insurance companies have generally discriminated against applicants, particularly for life and health insurance, based on lifestyle choices and medical records. In the future, insurance companies may (and will likely try to) discriminate against applicants based on genetic information.

At some point, in the not-to-distant future, imagine attending your doctor, after completing a ‘genetic test’, and being told that you are genetically predisposed to get cancer, diabetes, or multiple sclerosis; illnesses that, if they don’t lead to your death, will greatly impact your life. This type of technology isn’t that far off. This information would be immensely useful – you could make certain lifestyle choices, doing whatever you could to avoid that illness and, in some cases, cheat death. This information would not just be useful for you – it would be useful for insurance companies, too.

At present, some genetic information can be revealed by amniocentesis, or a urine test, or even by reviewing physical attributes or checking family history. Also, a lot of medical information can be considered genetic. A large number of illnesses or disabilities have genetic components. So, it is not surprising that it is often argued (by you know who) that genetic information does not deserve special treatment. But, I think it deserves special treatment – and I do not think I am alone.

Granted, I am not a doctor; but, the practice of genetic discrimination seems, at least to me, to be unfair as genetic information is merely a precursor to disability/illness and is not reliable. Some gene mutations have ‘incomplete penetrance’, meaning the mutation will be asymptomatic, resulting in no physical disabilities or illnesses. Of course, as time passes, reliability will likely improve. But, aside from that, the mere idea that insurance companies can discriminate against an applicant because they are genetically predisposed to some disability/illness is dehumanizing. The idea of it reminds me of Gattaca, a 1997 science-fiction movie, in which humans are sorted into classes according to the ‘desirability’ of their genetic make-up. Is this the sort of world in which we wish to live?

For a glimpse of what may come, consider Audet v. Industrielle-Alliance, Cie d'Assurance Sur la Vie, [1990] R.R.A. 500-502 (C.S.). In this Quebec case, the insured individual failed to disclose that he carried a genetic mutation associated with myotonic dystrophy, a degenerative disease, which is not always disabling. The insurance company argued, and was successful in arguing, that the genetic information should have been disclosed. In the end, the life-insurance contract was annulled, even though the cause of the insured’s death, an automobile accident, was unrelated to the genetic mutation. In effect, the insurance company was permitted to make distinctions based on genetic information.

So, what is being done about this? Well, the concern for insurance companies using genetic data has been addressed in France, Belgium, Israel, South Korea, Germany, Ireland, and the United Kingdom. In these countries, laws have been made, restricting or preventing the use of genetic information by insurance companies. At present, Canada is lagging behind. But, despite that, strong efforts are being made: various Canadian advisory groups, researchers in law and medicine, and even some insurers are recommending clearer laws on the use of genetic information. Whatever happens, it will be interesting to watch. After all, there have been movies made about this – but let us try to keep this on the big screen, not in our ‘real’ lives. 

Jeff Zilkowsky is a lawyer with Hergott Law in West Kelowna, practicing primarily in personal injury and real estate law.  He also holds a Bachelor of Arts in Sociology.  In his column, Jeff provides information about current legal events or points of interest or concern relating to the law. 



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About the Author

Jeff Zilkowsky is a lawyer practicing at MacLean Law in the Lower Mainland and in Kelowna, and focuses his practice on family law and litigation.  

In his column, Jeff provides information about current legal events or points of interest or concern relating to the law. 

The information contained in Jeff’s column should not be used or relied upon as legal advice.

Comments are always appreciated and encouraged, so don’t hesitate to email Jeff at [email protected]

Visit Jeff’s website at www.jeffzilkowsky.com or visit the website of MacLean Law.



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The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet does not warrant the contents.

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