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Considered to be a side effect of genes selected for their role in boosting brain function – a thesis set forth in the above-cited research; see Cochran, Hardy and Harpending, supra note 7. See also Labman, supra note 3. The article discusses people's reticence to participate in ‘genetic’ cancer research studies for fear of being stigmatized as having a predisposition towards cancer. See also Green, and Thomas, supra note 14, at 586–587.Google Scholar

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Regarding impulsive violence, see the groundbreaking research conducted by Meyer-Lindenberg, A. et al., “Neural Mechanisms of Genetic Risk for Impulsivity and Violence in Humans,” Proceedings of the National Academy of Sciences of the United States of America 103, no. 16 (2006): 6269–6274 [hereinafter cited as Meyer-Lindenberg, , “Neural Mechanisms”]. “Our data identify differences in limbic circuitry for emotion regulation and cognitive control that may be involved in the association of MAOA with impulsive aggression, suggest neural systems-level effects of X-inactivation in human brain, and point toward potential targets for a biological approach toward violence.” See also Meyer-Lindenberg, Andreas et al., “Neural Correlates of Genetically Abnormal Social Cognition in Williams Syndrome,” Nature Neuroscience 8, no. 8 (2005): 991-993, Unit for Systems Neuroscience in Psychiatry Web site, available at <http://snp.nimh.nih.gov/Papers/Nature%20Neuroscience%202005c.pdf> (last visited February 21, 2007).CrossRefGoogle Scholar

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See Burley, J., ed., The Genetic Revolution and Human Rights: The Oxford Amnesty Lectures 1998 (Oxford: Oxford University Press, 1999). See also Howard-Hassmann, R. E., “Canadians Discuss Freedom of Speech: Individual Rights Versus Group Protection,” International Journal on Minority and Group Rights 7, no. 2 (2000): 109-138. Although the focus of this particular piece is freedom of expression, its discussion of individual versus group rights, with particular respect to vulnerable groups, is relevant.Google Scholar

See also Wiesenthal, D. L. and Wiener, N. I., “Privacy and the Human Genome Project,” Ethics and Behavior 6, no. 3 (1996): 189–202.CrossRefGoogle Scholar

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At the state level only, as addressed infra. For a more detailed discussion see Hoffman, S., “Legislation and Genetic Discrimination,” Journal of Law and Health 16 (2001): 47–51.Google Scholar

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Lemmens forcefully argues that anti-discrimination legislation is not necessarily required as it is doubtful that genetic information can be demarcated from other health related data for purposes of insurance, for instance: “It is debatable whether genetic information is sufficiently distinct from other medical information as to justify its special treatment by the law, such as through the enactment of specific genetic privacy and anti-discrimination legislation.” (See Lemmens, supra note 15, at 83).Google Scholar

In Canada, the only legislation that deals directly with genetic information, outside of the DNA warrants and other criminal law stuff in the Code, are the provisions dealing with human cloning in the Assisted Human Reproduction Act, R.S.C. 2004 c. 2, s. 40.Google Scholar

This is of particular concern in light of what is described as the likely expansion of the private market for genetic testing. For a more detailed discussion see Williams-Jones, B., “Private Genetic Testing in Canada: A Summary,” Health Law Review 9 (2001): 10, Health Law Institute Web site, available at <http://www.law.ualberta.ca/centres/hli/pdfs/hlr/v9_3/brynfrm.pdf> (last visited February 21, 2007). In the same vein, see Caulfield, T. A., Burgess, M. M. and Williams-Jones, B., “Providing Genetic Testing through the Private Sector – A View from Canada,” Canadian Journal of Policy Research 2, no. 3 (2001): 72-81, Canadian Journal of Policy Research Web site, available at <http://www.isuma.net/v02n03/caulfield/caulfield_e.shtml> (last visited February 21, 2007). The authors observe: “Genetic testing technologies are rapidly moving from the research laboratory to the market place. Very little scholarship considers the implications of private genetic testing for a public health care system such as Canada's. It is critical to consider how and if these tests should be marketed to, and purchased by, the public. It is also imperative to evaluate the extent to which genetic tests are or should be included in Canada's public health care system, and the impact of allowing a two-tiered system for genetic testing. A series of threshold tests are presented as ways of clarifying whether a genetic test is morally appropriate, effective and safe, efficient and appropriate for public funding and whether private purchase poses special problems and requires further regulation. These thresholds also identify the research questions around which professional, public and policy debate must be sustained: What is a morally acceptable goal for genetic services? What are the appropriate benefits? What are the risks? When is it acceptable that services are not funded under health care? And how can the harms of private access be managed?”; see also Holtzman, N. A., “The U.K.'s Policy on Genetic Testing Services Supplied Direct to the Public – Two Spheres and Two Tiers,” Community Genetics 1, no. 1 (1998): at 48-52, at 49;; and Caulfield, T. A. and Williams-Jones, B., eds., The Commercialization of Genetic Research: Ethical, Legal and Policy Issues (New York: Kluwer Academic/Plenum Publishers, 1999): At 181.Google Scholar

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The provinces that have created a statutory tort of invasion of privacy are the following: British Columbia (Privacy Act, R.S.B.C. 1979, c. 336); Manitoba (The Privacy Act, R.S.M. 1987, c. P125); Newfoundland (Privacy Act, R.S.N.L. 1990, c. P-22); Saskatchewan (The Privacy Act, R.S.S. 1978, c. P-24). The Courts have left the door open for a general American-style privacy tort and have not rejected it as in England. For a broader discussion, see Craig, J. D. R., “Invasion of Privacy and Charter Values: The Common-Law Tort Awakens,” McGill Law Journal 42, no. 2 (1997): 355–496.Google Scholar

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And therefore will not be repeated therein. See e.g., Doe v. High-Tech Institute, Inc., 972 P.2d 1060, 1064 (Colo. Ct. App. 1998) at 1071 holding that “[a]n unauthorized HIV test, under the circumstances as set forth in plaintiff's complaint, would be considered by a reasonable person as highly invasive, and therefore, such is sufficient to constitute an unreasonable or offensive intrusion….” The court also held that “there is a generally recognized privacy interest in a person's body. Because personal information concerning a person's health may be obtained through one's blood, urine and other bodily products, such products cannot be extracted from a person or initially tested without either consent or proper authorization.” Id., at 1068.Google Scholar

Very roughly, PIPEDA (Personal Information Protection and Electronic Documents Act, R.S.C. 2000, c. 5), regulates the collection, use and disclosure of personal information by commercial organizations that are federally regulated. It also provides individuals with a right of access to information held about them who may wish to clarify that this is only in the employer-employee context; the legislation applies to all businesses with respect to their customer's personal information.Google Scholar

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While the Equal Protection Clause is a Fourteenth Amendment restriction on the states rather than the federal government, the Due Process Clause of the Fifth Amendment has been read to house an equal protection principle applicable to the federal government identical to that of targeting the states.Google Scholar

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The latter group is precluded using genetic information to do the following: “[D]ischarge, fail or refuse to hire, or otherwise discriminate against any employee with respect to the compensation, terms, conditions, or privileges or employment of that employee, because of protected genetic information with respect to the employee, or because of information about a request for or the receipt of genetic services by such employee.”Google Scholar

For a more detailed analysis of the legal regime in place (in the context of health care, specifically), see Lillquist, E. and Sullivan, C. A., “The Law and Genetics of Racial Profiling in Medicine,” Harvard Civil Rights and Civil Liberties Law Review 39, no. 2 (2004): 391–483.Google Scholar

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The ADA defines “disability” as the following: “a physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment.” In March 1995, the EEOC interpreted the definition of “disability” as applying to individuals who have been subjected to discrimination based on genetic information related to illness, disease, or other disorders. In such cases, entities that discriminate against such individuals are regarding the individual as having an impairment that substantially limits a major life activity. For an in-depth critique of the ADA's shortcomings as they relate to genetic information, as well as other U.S. statutory schemes, see Kling, N., Pillay, S. and Lasprograta, G. A., “Workplace Privacy and Discrimination Issues Relating to Genetic Data: A Comparative Law Study of the European Union and the United States,” American Business Law Journal 43, no. 1 (2006): 79–171, at 132.CrossRefGoogle Scholar

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As was the case of the above-cited Montreal psychiatrist. As Barondess warns, “[w]e face the possibility of a new eugenics that is immensely more powerful because it is based on valid science.” See Barondess, supra note 8.Google Scholar

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A related issue is the growing enthusiasm for drugs that are tailored for use with specific racial or ethnic groups. This concept is based on the problematic assumption that race can be used as a visible marker for a certain genotype, an assumption that is bound to be false in some cases and could lead to stereotyping with serious health implications. Studies have shown that existing drugs for treatment of cardiac patients were not effective in African Americans. See e.g., Exner, D. V. et al., “Lesser Response to Angiotensin-Converting-Enzyme Inhibitor Therapy in Black as Compared with White Patients with Left Ventricular Dysfunction,” New England Journal of Medicine 344, no. 18 (2001): 1351–1357. For a good review, see Cooper, R. S., Kaufman, J. S. and Ward, R., “Race and Genomics,” New England Journal of Medicine 348, no. 12 (2003): 1166–1170. See Kahn, J., “How a Drug Becomes ‘Ethnic’: Law, Commerce, and the Production of Racial Categories in Medicine,” Yale Journal of Health Policy, Law and Ethics 4, no. 1 (2004): 1–46, for a very interesting discussion of how the FDA subsequently approved a “new” drug exclusively for use in African Americans, essentially allowing the drug company to extend patent protection on an existing drug. If these kinds of drugs continue to be developed, it could lead to a surge in the number of individuals seeking testing, which in turn could further enhance the idea in the general population that cardiovascular disease in African Americans is entirely genetic, when in fact it is just as likely to be the result of poor diet and other social determinants of health factors related to systematic oppression and poverty.CrossRefGoogle Scholar

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Condit argues: “Usually scientists are very careful in developing their technical vocabulary. But it's hard to describe the geographic dispersion of people properly – and they have these easy [racial] terms in their heads.” Quoting Carolyn Abraham: “Despite the long and ugly social history of race, there is no clear-cut definition for the term. Is a person's race defined by skin colour, that most visible of markers? By language, country of birth, the food they eat or the religion they practice? Not even scientists can agree…[i]f you have a [genetic] sample from Nigeria, can you really say that it represents Africans? Is that the same as African Americans? [In some studies], Jews are white, sometimes they're not. Sometimes they're compared to Caucasians.” Abraham, C., “Race,” The Globe and Mail, June 18, 2005, at F1. See also Condit, C. et al., “Psychosocial, Clinical and Scientific Barriers to Race-Based Genetic Medicine?” 2004, University of Georgia Biomedical and Health Sciences Institute Web site, available at <http://www.biomed.uga.edu/RaceBasedMedicine2.pdf> (last visited February 22, 2007). (last visited February 22, 2007).' href=https://scholar.google.com/scholar?q=Condit+argues:+“Usually+scientists+are+very+careful+in+developing+their+technical+vocabulary.+But+it's+hard+to+describe+the+geographic+dispersion+of+people+properly+–+and+they+have+these+easy+[racial]+terms+in+their+heads.”+Quoting+Carolyn+Abraham:+“Despite+the+long+and+ugly+social+history+of+race,+there+is+no+clear-cut+definition+for+the+term.+Is+a+person's+race+defined+by+skin+colour,+that+most+visible+of+markers?+By+language,+country+of+birth,+the+food+they+eat+or+the+religion+they+practice?+Not+even+scientists+can+agree…[i]f+you+have+a+[genetic]+sample+from+Nigeria,+can+you+really+say+that+it+represents+Africans?+Is+that+the+same+as+African+Americans?+[In+some+studies],+Jews+are+white,+sometimes+they're+not.+Sometimes+they're+compared+to+Caucasians.”+Abraham,+C.,+“Race,”+The+Globe+and+Mail,+June+18,+2005,+at+F1.+See+also+Condit,+C.+et+al.,+“Psychosocial,+Clinical+and+Scientific+Barriers+to+Race-Based+Genetic+Medicine?”+2004,+University+of+Georgia+Biomedical+and+Health+Sciences+Institute+Web+site,+available+at++(last+visited+February+22,+2007).>Google Scholar

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