July 4 juillet 10:15 – 12:15
Room CMEL-102
Chair: Beverlee Ann Cox
, University of Hawaii
This paper will explore the teaching of genetic concepts to lawyers, suggesting that a useful teaching tool is the use of analogies. The particular analogies utilised are that of language, that of law and that of manufacture. These are utilised in the following way in this paper: (1) DNA-RNA-Protein: language analogy. DNA and RNA are like dialects of the same language. They “understand” each other, although DNA uses deoxyribose sugar and adenine pairs with thymine while RNA uses ribose sugar and adenine pairs with uracil. The DNA/RNA (nucleotide) language has four letters, adenine, thymine/uracil, guanine and cytosine. Words are three letters long. Protein is a different language, which is translated from the RNA dialect using the ribosome as translator. The 64 three-letter words of the nucleotide language represent the 20 amino acids of the protein language, plus words which signify the beginning and end of a particular sentence. (2) Function of DNA: a legal analogy. DNA is transcribed (“written over”) to RNA, since both are in the same language–nucleotides. It is translated into protein, since protein is written in a different language–amino acids. DNA is written in the legalese of legislation (whereas, inasmuch as, heretofore). It is like the constitution. RNA is in simpler language and contains shorter documents which appropriate people can understand and act upon. The number of copies of RNA needed depend on how much of the translated protein is required, whereas there only needs to be one full master copy of the DNA at head office. (3) Function of DNA: a manufacturing analogy. DNA is the master blueprint for construction of a car (the whole organism). Copies of the whole master plan are kept in each of the factories involved in making the car (cells). Each factory then makes multiple photocopies of the part of the plan necessary for that factory’s task (RNA). So different factories would make copies of the plan relevant to the metal work, upholstery, engine, tyres, brakes, paint etc (structural proteins). The plan also specifies the construction of machines to carry out the construction (enzymes) and mechanisms for communicating between factories to ensure that production of car components is co-ordinated.
Compensation is a primary legal mechanism to provide
recompense for harm. It is a feature of both common (Anglo-Celtic) law and of
civil (European) law systems. In both systems it deals with harms that occur
across the world. It has featured, in particular, in claims for product
liability, vehicle accident- and workplace accident-related harm. This form of
claim is common to both the common law and the civil law system, although each
system of law has developed distinctive features. While there are differences
between the common law and the civil law jurisdictions in this context, there
have been distinctive, new and common features to emerge from the concept of
compensation over the past decade. Chief among these is the search for a
unifying principle of compensation, one that can encompass the most recent
pressure upon this area of law: compensation that reflects reparation for
wrongs, now the subject of broad human rights or humanitarian concern. Such
wrongs include criminal actions by the state and breaches of duty of care by
state bodies leading to abuse and neglect of children. This paper will canvass
some recent cross-jurisdictional cases with a view to establishing commonalities
in the quest for a global shift from compensation to reparation. It will look,
in particular, at the situation in Australia where there have been concerted
calls for compensation for the ‘stolen generation’ of Aboriginal children
removed from their families under government policy during many decades of the
20th century. The communal and inter-generational effects of this
breach of their human rights continue to resonate today, and the eugenic aspects
of the policy continue to be debated and disputed. In the compensation context
this situation raises problems about entitlement to compensation, particularly
since claims for compensation may involve injured individuals and injured
communities. This paper looks at the eugenics issues and the compensation issues
arising from this key unresolved human rights dilemma.
Genetic techniques can aid in the documentation of war
crimes and the identification of the victims of human rights violations. To this
end, we have been using genetic sequencing techniques to assist in the
identification victims of war crimes, genocides and kidnappings. In particular,
we have genetically identified of victims of genocide from Bosnian, Croatian and
Rwandan mass graves, and missing children from Argentina and El Salvador
children. On a case by case basis, we sequence DNA from bone of the victims or
blood spots of the children, and from blood from their potential maternal
relatives to determine possible biological relationship. Specifically, we are
sequencing the hypervariable regions, HRV-1 and HRV-2, of the mitochondrial
origin of replication, a 1200-base pair region that can be used to distinguish
maternal families. Continuing analysis of cases and the establishment of a
mitochondrial DNA sequence database will assist in future identifications and
the historical documentation of these gross human rights violations.
In dealing with the emerging concerns regarding genetic information, the first question policy makers need to address is whether and how genetic information is unlike other health information, posing problems that require a unique regulatory response. This paper first analyzes traditional arguments invoked to distinguish genetic information, showing that many regulatory approaches uncritically assume differences where there are none. It is claimed that the combination of the following three elements constitutes the primary reason why we have to develop appropriate regulatory measures or adapt existing ones to deal specifically with the challenges of genetic information: the volume of information that can be extracted from one sample; the speed of testing; and its link with computer technology. These features do not raise new concerns so much as augment traditional concerns regarding the uses of health information. But even if these concerns are not in themselves new, the new contexts in which they are raised may require different types of responses, or additional responses, than those pertaining to more traditional health information. Examples of novel types of genetic research will be given to highlight particular ethical issues raised by the new genetics.
The law of intellectual property provides a means by which the most wealthy nation states and multinational corporations can colonize other nations, minority groups and individuals. Referring to international law, these corporations and nations have imposed onto others their political ideologies concerning the role of human genetics in society. With growth in knowledge of the human genome–or the “human cartography”–these corporations and nation states have gained unprecedented control over responses to health and environmental concerns. International and global interests may supersede national and local interests. Health care systems, in particular, seem susceptible to colonizing forces that claim new areas of the public sphere in the name of private, for-profit corporations. Patent law may protect corporate control over new innovations and improvements in the application of knowledge about human genetics. By separating nature and human invention (culture), the law may provide corporations with the ability to control and exploit the “humanness” of the human body as a commodity. Patent law presupposes the separation of: subject (inventor) and object (patentable subject matter); the new and unobvious and the old and obvious; and utility and non-utility. This paper challenges the democratic legitimacy of the current international system of patent law where wealthy nation states and multinational corporations have substantial control over resolving disputes between local and global views, particularly those concerning public interests in the patentability of human genetics and in the compulsory licensing of a patented invention.
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