Genetic Discrimination In Insurance And Strategies To Deal With

With the development of biotechnology,more and more human genetic information can be interpreted,and a new form of discrimination,genetic discrimination,has emerged.Genetic discrimination refers to the unfair differentiation of the defects or risks indicated by an individual’s genetic information.From the end of the last century when people in Europe and the United States were alarmed by potential genetic discrimination,to the present when genetic discrimination has appeared in many fields such as employment,education and insurance,it is urgent to regulate the problem of genetic discrimination through legal means.This article is divided into five parts,introducing the problem of genetic discrimination in insurance and possible solutions.The first two parts discuss the causes of genetic discrimination and the significance of regulating genetic discrimination in insurance through legislation.Although it is considered unjust to discriminate between individuals based on their genetic information,it cannot be simply assumed that such behavior constitutes discrimination because of the specific nature of commercial health insurance.On the one hand,the use of the policyholder’s genetic information can help insurer to classify the insured’s risk,make more accurate risk calculations,and calculate the insurance fee that is appropriate to the insured’s future risk of illness,which is also conducive to the insurance company’s profitability.On the other hand,if insurance companies use the genetic information of the policyholder as a basis for insurance pricing,they will consequently increase the premiums of the policyholder who may have a higher risk of disease in the future,resulting in the inability of this group of policyholders to obtain the medical insurance necessary for survival.The main difficulty is that,due to the limitations of current level of technology,scientists cannot fully grasp the meaning of human genetic information yet,and the correlation between some genetic defects and diseases is uncertain or even exaggerated.So,the use of genetic information as a tool for risk assessment has significant shortcomings.If insurance companies misuse the genetic information of policyholders,they will calculate extremely unreasonable insurance rates and lose the meaning of insurance.In order to protect social justice,to better realize the role of commercial health insurance as a supplement to social health insurance,and to reduce the difficulty of accessing commercial health insurance,the government usually restricts commercial insurance companies from using policyholder genetic information for insurance pricing.The third part summarizes the legislation on genetic discrimination in the insurance industry in Europe,the United States and China.Among the legislation in Europe and the United States,the U.S.Genetic Information Discrimination Act(GINA)is the most detailed,prohibiting the use of genetic information of insured persons for underwriting all types of health insurance and providing an expanded interpretation of what genetic information refers to.Other countries have adopted different regulatory strategies than the U.S.,such as limiting the use of policyholder genetic information for underwriting only for specific types of insurance with lower compensation.China also achieved a zero breakthrough in legislation in this area in 2019,when the China Banking and Insurance Regulatory Commission adopted and implemented the Measures for the Administration of Health Insurance,which prohibits insurers from obtaining policyholders’ genetic information through illegal means and differentiating pricing based on genetic information.In addition to this administrative regulation,the existing Civil Code and the upcoming Personal Information Protection Law are expected to protect the rights of policyholders who are subject to genetic discrimination.Part four examines the ongoing issues of genetic discrimination in the insurance field in China by analyzing insurance contract clauses and insurance contract dispute cases.With the introduction of laws which prohibit insurance companies from differentiated pricing based on the genetic information of the policyholders,the number of such violations has been significantly reduced.However,a new type of "genetic discrimination" has emerged,i.e.,the exclusion clause of insurance contracts stipulating that diseases caused by genetic defects cannot be covered by insurance.Although some courts have interpreted the exclusion to deny its application in individual cases and to protect the interests of the insured,none of the cases have addressed the core issue of genetic discrimination-equity.Genetic discrimination through the special agreement of the exclusion clause cannot be effectively resolved by the relevant laws and regulations in China to prevent "genetic discrimination",and new legal regulations need to be paid attention to and formulated to regulate it.In the last part,in view of the loopholes and defects in the existing legal norms in this field in China,as well as the current problem of genetic discrimination in China’s insurance industry,the author gives a localized solution idea by combining the legislative experience of European and American countries and the actual needs of China.The solution idea is divided into direct and indirect solutions.The direct solution is to formulate a special law against genetic discrimination in the insurance field,which fundamentally prohibits health insurance insurers from using policyholders’ genetic information for pricing,or treating diseases caused by genetic defects differently.The indirect solution is to prevent insurers from further use of policyholders’ genetic information by preventing them from obtaining it through various means through effective personal information protection.