Massachusetts Genetic Bill of Rights: Chipping Away at Genetic Privacy
The average human loses between forty and one hundred strands of hair every day. Humans make one liter of saliva each day. In a lifetime, the average human sheds about forty pounds of skin. Hair, skin, and saliva are just a few ways in which individuals leave behind traces of their identity in the form of deoxyribonucleic acid (DNA). DNA has become an irrefutable method for identifying a person. In essence, humans are constantly leaving traces of their identity everywhere they go.
In the past decade, DNA has transformed criminal procedure jurisprudence. Law enforcement officers and prosecutors now rely heavily on DNA to solve crimes. DNA reveals unique genetic information about an individual’s race, ethnicity, and medical risks for diseases such as breast cancer or the risk of having a child with cystic fibrosis. Access to a person’s DNA provides a dangerously intimate blueprint of a person’s body. If misused, DNA information could cause a person to be stigmatized, discriminated against, or targeted for criminal prosecution. Some scientists have even proffered the idea of a behavioral gene predisposing an individual to a tendency to commit crimes. Easy access to DNA exposes an individual’s most private and intimate information to the world.
As genetic information becomes increasingly easy to obtain, it renews the timeless debate over precisely which circumstances trigger an individual’s right to privacy. An individual’s right to be left alone has deep roots in English common law, but it continues to be the subject of contentious legal debate today. Although advancements in science and technology have many advantages, these advancements can sometimes encroach upon individual privacy rights. Unless DNA is protected by law, government access to an individual’s genetic information will greatly undermine Americans’ Fourth Amendment rights. In response to the dire need to protect an individual’s private genetic information, the Massachusetts Legislature introduced a Genetic Bill of Rights (GBR) that would establish property and privacy rights for genetic information and genetic material.
This Note explores the proposed Genetic Bill of Rights—including the current proposed version’s flaws—and makes recommendations for a more effective version. Part II.A summarizes Fourth Amendment history and the basis of the constitutionally implied right to privacy. Part II.B presents different legal theories for protecting DNA. Part II.C studies and explains the proposed Massachusetts Genetic Bill of Rights. Part II.D studies the application of conflict of laws in criminal procedure. With conflict-of-laws principles as a foundation, Part III analyzes the effectiveness and validity of the proposed Genetic Bill of Rights. . .
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