A Study of Genetic Information and Insurance Discrimination

• Main Authors: JerShien Chen, 陳哲賢
• Other Authors: Wei-Ta Pan
• Format: Others
• Language: zh-TW
• Published: 2015
• Online Access: http://ndltd.ncl.edu.tw/handle/e2xr5s

碩士 === 東吳大學 === 法律學系 === 103 === This paper studies if the genetic information should be applied to private business insurance company as doing risk evaluation. Starting in review five characteristics of genetic information, we consider the five characteristics are correlated, not independent. Especially, the feature of development in genetic information is the core of genetic information, because new biological technology or genetic engineering is growing. Today, some genetic characteristics or effect are not discovered, but it may not mean these will be covered forever in the future while science and technology is more advanced. Genetic testing and genetic screening are most general method of getting genetic information, but, there exists uncertainty, which mean that the individual may take mistake in understanding such testing or screening results with error probability. However, the above uncertainty embodied in genetic information is not protected in Personal Information Protection Act and protected in Insurance Act consistently. Personal Information Protection Act Article 6 describes that “Personal information of medical treatment, genetic information, sexual life, health examination and criminal record should not be collected, processed or used. However, the following situations are not subject to the limits set in the preceding sentence: ……3. when the Party has disclosed such information by himself……”. Insurance Act Article 177-1 describes that “An person that complies with any of the subparagraphs below may collect, process or use personal information such as medical records, medical treatment or health examination of individuals, with the written consent of the principal party: 1. Insurance enterprises, insurance agents, brokers……”. Hence, we challenge if these poor or minority people with “exotic” genetic information are with enough bargain power against those rich and profit-oriented business insurance companies!? These poor or minority people may “be forced” to make “written consent” or to disclose genetic information “by himself”!? Based on assumption of microeconomics theory, the behavior of private business insurance company is one kind of firm, and those firms believe profit maximization. Therefore, there exists strong incentive so that those firms want to collect, process, or use genetic information, especially if the testing or screening cost will be down in the future. Under microeconomics theory, those firms are also with “self-interest” and, maybe, “rational” “personality”. Therefore, there exists strong incentive so that those firms want to transfer all risk to these poor or minority people with “exotic” genetic information. Will insurance system be distorted into one tool of Social Darwinism!? Should insurance system be operated as one all free market or should government take some better and active regulation to rule or monitor insurance market. As United States Genetic Information Nondiscrimination Act of 2008 (GINA 2008) points out that “Congress has been informed of examples of genetic discrimination in the workplace” (cited from GINA 2008 preamble) and “Congress clearly has a compelling public interest in relieving the fear of discrimination and in prohibiting its actual practice in employment and health insurance” (cited from GINA 2008 preamble). One critical-thinking is that will “bad” microeconomics theory destroy “good” insurance practice or fair mechanism, in other words, similar to Sumantra Ghoshal (2005), generating more genetic discrimination and exploiting consumer surplus!? In summary, we do a study on insurance of genetic disease based on comparative jurisprudence.