Should We Embrace Genetic Discrimination?

By Mary R. Anderlik
Health Law & Policy Institute

In "Baby Needs a New Set of Genes," Michael Kinsley, editor of the on-line magazine Slate, urges Americans to "gather courage to discriminate genetically." Kinsley begins by reviewing evidence of the nearly universal condemnation of genetic discrimination. He takes the contrary view, arguing that genetic discrimination is not only unavoidable but desirable. In his words: "[G]enetic discrimination is universal, inevitable and, in some ways, essential. Leaving aside the hot issue of intelligence, consider clearly genetic traits such as musical or athletic talent. Practice, practice will get you to Carnegie Hall, but only if you’re born on the right bus. The notion of not discriminating on the basis of inborn talent is not even an abstract ideal. The world would be a poorer place if it did not distinguish between me and Yo Yo Ma in doling out opportunities to be a concert cellist." Later Kinsley suggests that the association between gene and ability is so clear that it would be wasteful to wait and see how an individual actually develops: "A Julliard tryout is, in part, a genetic test. If there is a blood test for musical talent, as there may be some day, it would do the same thing more efficiently." More fairly, too, than the "crude substitutes we use instead to judge and choose among people."

Kinsley goes on to pooh-pooh any distinction between discrimination based on having a genetic condition (for example, symptomatic Huntington disease) and discrimination based on a predisposition for a condition (for example, testing positive for a gene associated with a higher than average risk for breast cancer). He also slights the need for legal protections, even where discrimination is based on stereotypes or a total misunderstanding of genetics. The market will punish employers and insurers who discriminate "by mistake"—eventually. Similar arguments have been made in the context of racial discrimination.

Kinsley should be applauded for keeping the need to address the social fallout from new developments in the field of genetics before the public. His column also serves as a reminder of the need to better educate the public about the dangers of "genetic reductionism," the view that all behaviors are reducible to DNA, and "genetic determinism," the view that an individual’s future is set by genetic make up and cannot be changed.

Kinsley is correct in suggesting that some of the rhetoric concerning present risk of genetic discrimination is overblown. So far, the evidence of discrimination is largely anecdotal, although the existence of laws prohibiting access to or use of genetic information on the part of insurers and employers may be a factor here. In addition, some forms of "discrimination"—discrimination in the sense of differential treatment based on different aptitudes or personal qualities—are inevitable. We need to, well, discriminate. Some kinds of discrimination, say, choosing Ma over Kinsley to play Carnegie Hall, are desirable. Other kinds, say, selection based on physical beauty in circumstances where physical beauty is irrelevant, may be regrettable, but the costs of a ban would be intolerable. On the other hand, we as a society have said that it is intolerable to refuse to hire people who are African-Americans or users of wheelchairs. To the extent that a form of discrimination is desirable or tolerable, simply labeling it "genetic" does not make it less so.

But oh how easy it is to slide from the reasonable to the outlandish! Musical talent is among the "clearly genetic traits"? A blood test might be fairer than "crude substitutes" such as tryouts before expert judges? Surely some achievements are easier or harder according to genetic endowment, and in some cases the presence or absence of a particular gene may preclude the development of a particular characteristic. Still, it is a long way from eye color (which can, or course, be modified by contact lenses) to musical talent, let alone the musical artistry displayed by a Yo Yo Ma. And how would a blood test that detects persons with potential for exceptional agility in fingering prove fairer, or more enriching to the world, than an audition that allows human judges to be struck with wonder in the moment when a technically competent performance is raised to an entirely different level by a young person’s passion for music?

Genetic tests for a risk of disease or a capacity relevant to musical performance are crude substitutes for evaluations of human beings because human beings are not reducible to their DNA. Genes are expressed, or not expressed, in interaction with the environment, and human beings are social creatures with consciousness and a capacity for choice that goes by the name of free will. A woman who learns she has the BRCA1 mutation can use this knowledge to take action to reduce her risk. Although it may be rational for an individual employer or insurer to demand access to the test results, it is bad social policy to allow fear of discrimination to serve as a barrier to testing for those who would benefit from it. With the guidance and encouragement of a dedicated teacher, a child may pick up a violin and find the key to self-discipline and self-confidence, if not a career as a concert performer. It would be irrational to favor Kinsley over Ma in the matter of musical performance, given Ma’s demonstrated talent; it would be a tragedy to thwart the potential of the child by using genetic testing as a tool of segregation at a point where opportunities should be offered rather than foreclosed.

Recent experiments confirm that genes influence rather than determine development. If genes come to be regarded as destiny, the basis for a new caste system keyed to chromosomes, it will be our doing.