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Duquesne Law Review

Abstract

Many Americans apply for a life insurance policy to protect their spouses and families in the event of an untimely death.1 What if insurance companies required genetic tests as part of the application process? What if those results were used to exclude applicants or calculate premiums? Can an individual who has taken a commercial genetic test, such as the popular 23andMe, 2 be forced to disclose the results to obtain an insurance policy? Surprisingly, genetic discrimination regarding life insurance decisions is currently legal in forty-nine of the fifty states.3 This Article argues that additional federal legislation to prohibit genetic discrimination, modeled after existing Florida law, is necessary to protect against genetic discrimination involving life insurance.

In the United States, the Genetic Information Nondiscrimination Act of 2008 ("GINA") is the main source for antidiscrimination law surrounding an individual's "genetic information."4 GINA accomplishes this goal with two main components: Title I and Title II.5 Title I prohibits health insurance companies from using genetic information to discriminate in issuing health insurance.6 But that prohibition does not extend to genetic discrimination involving life, disability, or long-term care insurance.7 Title II prohibits employers from using genetic information to discriminate in the employment context.8

Between Title I and Title II, GINA has made a bigger impact in the employment context, with a handful of courts finding that employers unlawfully requested or used genetic information to discriminate in employment decisions.9 However, outside of employment and health insurance, genetic discrimination is not prohibited under federal law.10 To fill this gap, some states have enacted their own legislation to protect against genetic discrimination in many other industries, including non-medical insurance, housing, education, mortgage lending, and even elections.11

In addition to problems with GINA's coverage limits, courts have not uniformly interpreted the term "genetic information."12 Courts have essentially settled on two possible interpretations.13 One definition interprets the term to mean literally any type of genetic information, while the other definition only considers genetic information that shows the propensity of disease.14 At the state level, Florida has recently passed a law which applies GINA's antidiscrimination principles to life insurance decisions, but the statute has an even more narrow definition of "genetic information" than GINA.15 While many genetic antidiscrimination activists are trying to amend GINA to cover more industries like life insurance, a balance must be struck between the interests of the companies writing the policies and those whom they insure.16

First, this Article will explore a detailed background of GINA's history, as well as Florida's new law passed in Summer 2020.17 The Article will analyze how federal genetic antidiscrimination caselaw yields different definitions of "genetic information."18 The Article will highlight the problems with incorporating those definitions (and Florida's new, narrow definition) into the life insurance context.19 This Article will conclude with reform proposals to create a sensible approach to prohibiting genetic discrimination in life insurance. Ultimately, this Article proposes that life insurance companies should be prohibited from requiring specific genetic testing (or inquiring about genetic testing) in an application or as part of the disclosure process, while allowing insurers to continue asking applicants questions about family history.

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