The law fails to accommodate the inconvenient fact that an individual’s identifiable genetic information is involuntarily and immutably shared with her close genetic relatives. Legal institutions have established that individuals have a cognizable interest in controlling genetic information that is identifying to them. The Supreme Court recognized in Maryland v. King that the Fourth Amendment is implicated when arrestees’ DNA is analyzed, and the Genetic Information Nondiscrimination Act protects individuals from genetic discrimination in the employment and health-insurance markets. But genetic information is not like other forms of private or personal information because it is shared — immutably and involuntarily — in ways that are identifying of both the source and that person’s close genetic relatives. Standard approaches to addressing interests in genetic information have largely failed to recognize this characteristic, treating such information as individualistic.
While many legal frames may be brought to bear on this problem, this Article focuses on the law of property. Specifically, looking to the law of tenancy by the entirety, this Article proposes one possible framework for grappling with the overlapping interests implicated in genetic identification and analysis. Tenancy by the entirety, like interests in shared identifiable genetic information, calls for the difficult task of conceptualizing two persons as one. The law of tenancy by the entirety thus provides a useful analytical framework for considering how legal institutions might take interests in shared identifiable genetic information into account. This Article examines how this framework may shape policy approaches in three domains: forensic identification, genetic research, and personal genetic testing. In some of these domains, experts are already advocating for policies consistent with this framework.
DNA by the Entirety, 115 Colum. L. Rev. 873 (2015)