Friday, May 25, 2007

Vice Dean A/P Victor Ramraj responds to Asst/P Yvonne Lee

The freedom to disagree, respectfully
Victor V. Ramraj, For The Straits Times
9 May 2007
Straits Times
(c) 2007 Singapore Press Holdings Limited

IT HAS been argued that the decriminalisation of sodomy is the first step on a slippery slope towards a 'homosexual agenda' that includes civil unions and same-sex marriages.

I disagree with this view and the arguments advanced in support of it. Still, the debate on this subject has provided us with a key lesson on the importance of public discussion on matters of deep moral significance - and the importance of respectful disagreement.

First, a few comments on some of the claims in the debate.

Even in societies abroad where legal structures such as same-sex civil unions have been introduced, this did not happen overnight, but only after significant shifts in social and political attitudes.

If the majority of Singaporeans find homosexuality offensive, then there is little reason for them to worry that the entire legal landscape will change in an instant.

If change eventually does come, it will follow only after open and respectful debate and a conscious choice on the part of Singaporeans to become a more tolerant and hospitable society.

Others, particularly in cyberspace this past week, have challenged the accuracy of empirical claims behind the argument to retain sodomy as a crime - and the debate will no doubt continue. I will not repeat these arguments here. As for constitutional law, formal constitutional doctrine on such matters is hardly conclusive. In 1930, Lord Sankey likened a Constitution to 'a living tree capable of growth and expansion within its natural limits'. Particularly in Singapore, where the methodology of constitutional law is still evolving, there is much to be said for this vision.

Intolerant vs criminal

I WANT to turn, however, to a rather different point that arises from this controversy. Does branding opponents of decriminalisation 'intolerant' undermine or effectively censor free speech?

Surely, the answer to this question is no. Indeed, the reverse may be more likely; opponents of decriminalisation effectively silence others by continuing to regard the behaviour they oppose as criminal. To be branded intolerant is one thing; to be branded a criminal is quite another.

The publication of letters and commentary in this newspaper shows that those who disagree with decriminalisation are perfectly free to express their views. Perhaps, then, the deeper concern is not that these views will be censored (plainly, they haven't been), but that others will not find them convincing. If that is the true concern, then rigorous and respectful persuasion would be the answer.

If the discussion on Singapore blogs is any indication, recent exchanges about the decriminalisation of sodomy have provoked an important debate, one that demonstrates that Singaporeans, including many tertiary students, are far from apathetic when it comes to issues of great social significance. An issue of profound social importance is receiving the serious public attention, reflection and debate it deserves.

The sources of identity

FOR those who choose to engage in this debate, let us remind ourselves that our words have profound personal impact on those around us, on both sides of this controversy.

Those whose religious views are tolerant of homosexuality, and especially those of us with secular-humanist inclinations, must remain sensitive to the deeply personal and communal role that religious doctrine plays in the lives of many.

At the same time, we must have faith that those who oppose the decriminalisation of sodomy on religious grounds will acknowledge that personal identity need not be a matter of religion at all. It is possible, even common, to define one's identity outside of religion - in terms of one's intimate relationships, career goals, community service, life-long projects and deep personal convictions. A person's sense of identity is no less worthy of respect in the public square on account of its secular sources.

I can only imagine the deep personal anguish experienced by gays and lesbians in Singapore when confronted by the criminal law. Their voices should be heard in the spirit of an open, respectful and meaningful discussion.

Whatever is said in the course of this debate, it is clear that someone, somewhere, will take offence. But the ability for all to speak out should not be taken for granted. There are reasonable limits to be placed on hateful speech - a view that I have defended elsewhere. But in the present context, in a society that is increasingly more open, I find myself drawn to the pithy comment sometimes attributed to Voltaire: 'I disapprove of what you say, but I will defend to the death your right to say it.'
Just some background, A/P Ramraj runs the Criminal Law/Criminalization aspect of Introduction to Legal Theory for 1st year NUS Law Students and having read his book, I can assure you he is well aware of both sides of the debate but having come down strongly on one side for obvious reasons.

He's obviously a lot more polite and cordial than I would have been but this is still a very punchy article. Separately, he takes a much more accommodationist stance with regards to religion than I would (the difference between fairy tales/myths and religions is the number of adherents. Watch the rise of Scientology and I predict it will go the way of the Church of the Latter Day Saints in becoming mainstream).

This is probably the last I will say on this particular matter because the good Asst/P doesn't have much of a leg to stand on beyond whining about personal attacks (accurate insults much less insults don't detract from the substance of the argument) and playing the two-step by shifting the grounds of her argument.

Not impressed then, not impressed now.

Addendum: Link to my original response added above and here.

Labels: , , ,

On Causation, Correlation, Confounding Factors and Post Hoc Ergo Propter Hoc

*Emo Shaun waiting for his DS Lite for the last week and since 8am this morning and is generally hating on the world*

I am not a social scientist and much less a statistician (except for the stuff I did in math class which was possibly the most useful thing I learned considering my eventual decision to enter law school). What I understand about numerical literacy and statistical literacy was almost entirely self taught and I fear possibly superficial at best. The purpose of this disclaimer is to proclaim my ignorance and amateur status in this area and hope I don't screw the following discussion up too badly.

One of the biggest difficulties in the social sciences as it relates to making policy is deciding causality i.e. what causes Y? In natural science, the ability to repeat experiments, the fact that the Universe appears mechanical and we have no objections on experimenting on water (as opposed to humans) makes it fairly easy to determine causality, even in complex systems. In the social sciences (or the humanities), however, dealing with humans and the interactions between humans makes experimentation more difficult and extrapolation of data much more complicated.

So any answer to any social problem is not likely to be reducible to a large extent. This is not to say that we cannot operate on a reductionist model but we have to be very careful that that model does not cause more harm than good by basing itself on an erroneous cause to the exclusion of other possible or likely causes.

To take a simple case and one close to heart, my grades have drastically improved since I came over to UW and like any student concerned about his grades, given that his grades determines his career to a large extent in this industry, knowing what was the cause or causes of it would be eminently useful when I have to return to NUS.

If I had remained in NUS in this year and my grades improved (as seems to be the case for almost all law students), one might well hypothesize that this was due to perhaps an end to compulsory classes which allows students to take a class that they are personally interested in and presumably that interest translates into a better understanding of the topic and therefore better grades. Or it might be that now that there are smaller classes and there is no need to mark on a curve, that students are able to show that they are in fact just as proficient as the former A students but no longer get a lower grade simply because of the mandatory grade distribution. Or it might even simply be that with 2 years of law school experience, one had always had the capability but has finally figured out how to ace that examination. Or it might be a result of all three plus a combination of luck and fortitude etc.

Now translate that into doing a law program in a different country under a fairly different system and the potential factors affecting the improvement in grades multiple. Certain differences offhand between UW and NUS that might be contributing factors include i) opportunity to use a laptop for the final exams and therefore handwriting is no longer a factor in the marking scheme, ii) a lack of a social life and extra curricular activities that gives more time for studies, iii) actually spending more time on studies, iv) change in studying technique which involves a painstaking transcription of notes onto the laptop from the various sources and v) everything mentioned in the prior paragraph.

Now everything I have said so far is probably causative in one form or another. There is a reasonable rational mechanism in which each may translate into better grades one way or another.

The opposite of that of correlation wherein there might well be a statistically significant link between the two but it does not necessarily mean one causes the other. A good example of this with regards to the above mentioned situation might be that "because" I am hanging around more foreigners, therefore my grades have improved. There is a strong correlative tie if one should plot on one axis, Shaun's association with foreigners and on the other Shaun's law grades. But it should be clear that there is no necessary link between the two. Or another example near and dear to my heart (because I'm a Pastafarian), the decrease in the total number of pirates worldwide is closely correlated to the increase in mean global temperatures. Now that is primarily satirical but given the abuses of correlation (attempting to conflate it with causation) I hope that this would be something that we can keep in mind.

Somewhat related to this problem is that of the logical fallacy of Post Hoc, Propter Ergo Hoc i.e. After It, therefore because of It. Or to rephrase it, just because B occurred after A does not mean A caused B. There is a temptation because of the way we view and experience time as linear and of our strong innate (possibly biological imperative) to associate any occurrence (effect) with a cause that this fallacy crops up.



Thursday, May 24, 2007

Equal Protection, Sexual Orientation and the Homosexual "Agenda"

Been busy but have found some free time now that I've got drafts out on my Philosophy of Law paper and International Merger & Acquisition.

Anyway, Asst/P Yvonne Lee wrote the following article articulating her viewpoint about why decriminalization of homosexuality in Singapore would be an error and I think her article is pretty much logically fallacious on a number of grounds. I had her as a lecturer and thought she was decent and fairly sensible unlike the other constitutional law profs who have made their (erroneous) feelings on this matter pretty clear. As such I must say I am sorely disappointed by her views (not that she would care of course)

A/P Victor Ramraj has a response here. He makes most of the major arguments that need to be made but unlike him, I don't have space constraints.

READERS of The Straits Times have written in to question the rationale for the criminalisation of homosexual acts. It is imperative that we understand the legal and broader social implications, and that Parliament, in the forthcoming debate on the Penal Code reform, carefully considers these implications.

The Home Affairs Ministry has indicated that Section 377A of the Penal Code (S377A) will be retained. S377A prohibits the commission of gross indecency by one male person with another male person. Opinions have been expressed that S377A may be unconstitutional because it discriminates against homosexuals by criminalising homosexual sex and not oral and anal sex committed by heterosexuals or lesbians.

This is an over-simplistic reading of the equality clause.
It should be worth noting that given she was US educated and cited a US Supreme Court case upholding Affirmative Action in University Admissions, she ought to have been aware of Lawrence v. Texas as well, which struck down Texas's anti-sodomy laws as violating the 14th Amendment (Equal Protection Clause). I raise this because despite raising the constitutional issues, I believe it is her analysis that is the overly simplistic one, one governed primarily by parochial and a highly formalistic approach. As we shall come to see, she simply relies on a logical fallacy that the status quo is good in defending the legality of this homophobic piece of legislation.

Worse still, she never provides a substantiation for why we ought to discriminate between heterosexual and homosexual couples. To reframe the issue, it isn't about the right to homosexual sodomy but rather the right for consenting adults (which takes out the fucking stupid pedophilia and bestiality argument out of the water) to engage in sexual acts in the privacy of their bedroom.
FIRSTLY, the legal meaning of equality must be understood within its social context. Equality is not an absolute value. Extreme applications of equality impair community interests and violate the rights of others. Furthermore, the Constitution does not prohibit all forms of discrimination.

Like cases must be treated alike, but Parliament may enact measures which differentiate between different groups. The courts hold that such measures must satisfy two tests to be constitutionally valid: Firstly, the classification must have a rational basis. Secondly, the law must serve a legitimate purpose which is reasonably related to the basis for the classification.

Each differentiating legal measure serves a social objective. For example, a married individual with four children enjoys higher tax relief than one without children. The public good is to encourage married couples to have more babies.
True but primarily irrelevant because she never establishes how a) it is in fact in the public interest to criminalize sodomy, b) to criminalize it only for homosexuals and not heterosexuals and c) to criminalize it only for male homosexuals but not female homosexuals.

At this point, under US Equal Protection Doctrine, it fails not only the rational basis test of Lawrence v. Texas but also the anti-animus principle of Romer v. Evans.

To view the issue of S377A exclusively as a matter of equality omits the broader context - that rights can clash with other rights and community values.
Again irrelevant and begging the question.

When they do, Parliament may pass laws which reflect the public good in preference over the rights of the individual or groups.
I could make the same critique again but I want to do it on a deeper level this time. She's begging the question on a meta-systemic level in that she is asserting that the current judicial interpretation of the Equal Protection Clause is necessarily the right one and the only one at that.

I will proffer instead that the whole idea of individual freedoms is that they cannot be at the mercy of the majoritarian will. Yes, no right is absolute as she correctly points, but her balance is one that would sacrifice the individual's right on the altar of "the public good" when she has provided no grounds for doing so. Short of "because" this is currently the way the legal rational basis review test is structured.

I also want to point out what the rational basis test can stand for. It stands for discriminating on any basis the government wants to. Quotas for women in medicine? Easy, allocation of scare resources, we have statistics that show women don't stay in medicine long. Only families with more than a certain level of income may have 2 or more children. Why? Because only they would be able to afford it etc. I submit that the rational basis test simply is incapable of striking down discriminatory laws, law which would strike the majority of us as unjust.

Any argument to decriminalise homosexual sex must consider the harmful social consequences. For example, would affirming homosexual sexual practices serve the common good? It is a known medical fact that homosexual intercourse or sodomy is an inherently unhealthy act that carries higher risks of a number of sexually transmitted infections. The law should not facilitate acts which threaten public health.
1) This should then apply to heterosexual sodomy as well
2) Preventive measures can be taken
3) It proves too much: on that highly paternalistic basis, we can ban any activity that is "harmful". Smoking, alcohol, skydiving, driving, eating fast food etc.
To claim that it threats public health is scare mongering and ultimately irrelevant to the consideration here. To iterate, if it's okay for heterosexual couples, why is it not for homosexual couples.

In fact, this is a good example of a measure being both "underinclusive" (why only gay men then?) and "overinclusive" where the ends-means nexus is not particular rational much less tight (preventive measure not bloody criminalization). Of course, our rational basis test is not going to strike it down.

Moreover, any reform to the Penal Code must preserve fundamental values which serve the public good, instead of abstract notions of equality or fashion.
Assertion, begging the question, non-sequitur. I find it utterly hysterical that a Constitutional Law professor is running this argument. Article 4 of the Singapore Constitution states that any law that is inconsistent with the Constitution, is to the extent of that inconsistency, void. So major premise, Constitution trumps any normal piece of law. minor premise, the notion of equality before the law is enshrine under our Constitution (yes one could make the argument that sexual orientation is not a protected class but I want to focus on the idea that the Penal Code trumps these individual freedoms). Therefore, the "abstract notion of equality' does in fact trump the Penal Code.


Broader agenda
RECENT developments in foreign jurisdictions like Canada, Sweden, the United Kingdom and the United States indicate that the move to decriminalise homosexual sex is the first step in a broader homosexual rights agenda to transform social morality:
It becomes clear at this stage, her arguments boils down to homosexual sodomy is icky and somehow morally wrong, despite never proving this particular point. I understand that in her exchange with Mr. Selby she takes offense to a great many things that he says. But not once does she actually demonstrate that she is not in fact myopic or homophobic etc.

Sorry, an accurate insult is not an ad hominen attack, Asst/P.

• If S377A is repealed, homosexual sex is legitimised, transformed from a crime into an 'alternative lifestyle'.
So what? Unless the right of consenting adults to engage in sexual activity in the privacy of their bedrooms is somehow wrong?! That's why I don't buy any of her arguments that she is not perpetuating an anti-homosexual agenda (see how framing and tossing terms around work? Except in my case, it's probably true).

• The minimum age for sodomy must then be specified. This opens the door for homosexual lobbyists to pursue the next step of equalising the age of consent for homosexuals and heterosexuals. The current age of consent for homosexual sex in countries which have decriminalised sodomy ranges from 13 to 18, covering Singapore males from Secondary 1 to junior college.
Again so what? I can legally have sexual intercourse with a secondary school girl. This is an appeal to emotions (another logical fallacy).

• The third step is re-conceptualising homosexuality as a civil right in the name of equality. As an 'alternative lifestyle', homosexual lobbyists will seek for this to be endorsed and 'mainstreamed' into society (for example, arts, education, entertainment and media), beyond the privacy of the bedroom. The current view that 'sexual orientation' should not be a basis for discrimination is problematic. 'Sexual orientation' is a vague term covering a range of sexual expressions, including paedophilia and bestiality. Also, the assertion that one is 'born gay' is scientifically unproven.
Poisoning the well. Non-sequitur. The interesting thing is that unlike anti-gay activist here in the US, she can't use the Teflon coated slippery slope of polygamy because our legal system already sanctions it! Oops.

So what's the basis for why decriminalizing homosexual sodomy (as oppose to homosexual cunnilingus or masturbation which is legal by the way under the new Penal Code) will lead to such horrors and not the legal ones? Hmmmm now... Inquiring legal minds want to know!

Separately, so what if sexual orientation is a vague term, consenting adults, privacy of bed room. Yup that settles the problem of pedophilia or bestiality.

Whether one is "born gay" to me is an irrelevant question. One isn't born Christian or Hindu or Buddhist of Marxist etc. etc. It's a false argument. But the evidence tends to lean towards a genetic basis.

• An active homosexual agenda has engendered clashes with fundamental liberties such as free speech and religious liberty. Christian pastors have been criminally prosecuted for sermons declaring that homosexuality is a sin, a view also held by Muslims and many non-religious people who consider homosexuality unnatural and morally repugnant. Attempts have been made to extend 'hate speech' laws to the Bible and Quran.
So we smack them down if that happens. Big whoop. And besides, how is this even bad or worse than the current criminalization?

And gee, we do have something called the Maintenance of Religious Harmony Act which places quite a few restrictions on what religious figures can say so that's a legitimate restriction on her so-called religious liberty there. If preaching hate from the pulpit against political figures is illegal, why not homosexuality? And if rights aren't absolute, why should the balance swing against them? So once again, begging the question.

People who oppose the homosexual agenda are branded as intolerant, bigoted, homophobes, or hateful towards homosexuals who are merely 'different'. This does not promote free speech but seeks to censor it. If this intolerance against religion is imported into multiracial and multireligious Singapore, this will breed social divisiveness.
So what? Begging the question. And because I haven't seen a rational argument against homosexuality yet, yes I will brand them as intolerant, bigoted, homophobes and hateful. Please, I readily await being proven wrong.

Besides, oh boo hoo... Being called a bad name is worse being branded a criminal, or deviant or abomination unto god or specifically immoral as her article has insinuated. And because of religious privilege, one can't strike back as effectively.

I say that beliefs should not get a free pass just because they are "religious" in nature. And separately, Muslims and Christians aren't a majority and even there are divisions as to their viewpoints on homosexuality. And last I check, Singapore was a secular state. Between hurt feelings and genuine deprivation of liberty, I think I'll pick the latter thank you.

Public good? What's sauce for the goose is sauce for the gander. The claims is easier made that it is in the public good that valuable members of society ought not to subject to impermissible discrimination because of certain erroneous interpretations of some bronze age religions.
• The final step involves attempts to redefine 'marriage', the fundamental institution and bedrock of many civilisations. The redefinition is a radical reconstruction of 'marriage' - no longer a union between man and woman but includes 'same-sex marriage'. Homosexuals must then be allowed to marry someone of the same sex and be given the benefits of marriage such as tax benefits, adoption of children and/or state-funded access to alternative 'reproduction' methods.
So what? Assertions as to the nature of marriage. It so was not a bed rock in Roman Civilization. Under Roman Law, marriage (assuming it was not in manus which fell out of favour rapidly anyway) was purely consensual and divorce was simply a matter of deciding that one did not want to be in a marriage anymore. Changes to marriage and divorce occurred when Christianity became the state religion. As long as we're engaging in post hoc fallacies, we can also say that Christianity caused the downfall of the Roman Empire because its adoption preceded it.

And oh, the real fundamental basis of marriage and bedrock principle was that women were chattel and wives a extension of their husbands (under a Roman manus marriage, wives were consider children to their husband which explains their massive unpopularity and disuse). So what exactly is she arguing about here?

The argument that decriminalising homosexual sex will not cause a change in moral attitudes is erroneous. It has been suggested that even after adultery was decriminalised, it remained morally reprehensible. So too, decriminalising homosexual sex will not cause a shift in moral attitudes.
So what? Actually I would up the case of Plessy v. Furgeson where the US Supreme Court held that "separate but equal" did not harm the Blacks because any notions of inferiority was simply self-inflicted. The law does have normative force. The US Supreme Court eventually had to make a massive mea culpa in Brown v. Board of Education and reject this doctrine because they were proven wrong empirically and recognized that if the law says you're different or deviant, people actually buy that.

While the law embodies a moral judgment, it is not always prudent for the law to punish all immoral behaviour. However, to draw an analogy between adulterers and homosexuals is fallacious. Adulterers do not seek societal approval, but certain homosexual activists campaign to alter the public mindset and to gain legal and social endorsement of the gay lifestyle.
Non-sequitur. Firstly, presumes that the law should ban some and not all immoral behavior, I would love to see where she can logically draw that line. Second, begging the question that homosexuality is immoral. Third, my moral views on adultery can be grounded on non-religious grounds. I challenge anyone trying to do so for homosexuality on non-religious grounds.

The fact is, under the proposed Penal Code reform, homosexuals wishing to lead private lives may do so, provided they do not foist their homosexual acts on the public.
This very neatly exposes her real agenda. The only explanation left for her argument is that she opposes homosexuality.

Back to US Constitutional law, the Court should not (especially under Equal Protection Doctrine) give succour to private prejudices, Palmore v. Sidoti, where the Supreme Court reversed a decision to give custody of the child to the father because the mother had married outside of her race to a Black man.

So why have this special provision which signals out homosexuals and only male homosexuals at all?!! We already have public indecency laws. Sorry ma'am, you can't have you cake and try to eat it. Now the article is just incoherent.

S377A is a legitimate statement of the values of our society. In constitutional terms, equality claims operate within a broader social context.
Assertion. Begging the question. Legitimate in the eyes of the law perhaps. But hardly moral. In fact if you're a Natural Lawyer, Lex Injusta non Est Lex, An Unjust Law Is Not Law. So even if the Constitution does not prohibit it, Natural Law does.

Homosexuality is offensive to the majority of citizens. Allowing an aggressive homosexual rights agenda to dictate law reform ignores the nature of Singapore's multireligious, multiracial community. Such an agenda would be divisive. Therefore, the attention given to fundamental moral values of the majority of citizens by retaining S377A in its entirety strikes the right balance.
Assertion. Prove it.

So is adultery, so is the marital rape exemption which is finally going to be repealed. Using phrases like "aggressive homosexual rights agenda" just marks you out as a religious conservative right wing fundy using the same old repeatedly debunked talking points.

This has been a monumentally wrongheaded and badly written piece. I am always very happy to stand by what I say and always remain ready to defend them.

Addendum: Here is a philosopher's take (Editor of Royal Institute of Philosophy Journal Think) on the common arguments against homosexuality. It's a marvelous taking apart and a great read to boot.

Addendum 2: I realize that not all of us have such a distinct lack of life as to read up obsessively about logical fallacies and/or debaters. So I have included links that explain some of the terms I have used.

Labels: , , , ,

Tuesday, May 01, 2007

Genetic Testing and Liability

The hypothetical question is about a famous television personality who is thinking of undergoing BRCA1/2 mutuation testing and making a documentary special about it in order to raise awareness. She has three daughters (who react differently, one of which has kids of her own) and two sons. The specific details ought to be clear from the answer itself.

The most immediate issue that Flora presents is why people undergo genetic testing and when is such genetic testing warranted. Genetic testing has the ability to confirm whether one suffers from a particular deleterious genetic abnormality (carrier or otherwise) and individuals tend to do so if there is any indication in their family history of heightened susceptibility. But the warranting of any genetic test is via its efficacy which is determined by its clinical validity. “Clinical validity reflects both the sensitivity of the test—the proportion of affected people with a positive test—and the penetrance of the mutations identified by the test. Penetrance refers to the proportion of mutation carriers who will manifest the disease”.[1]

The most important thing to note is that estimates of the lifetime risk of breast cancer that is associated with BRCA 1 and BRCA 2 ranges from 26 percent to 85 percent. While the risk for ovarian cancer is elevated, it is to a lesser extent than for breast cancer although the risk estimates similarly vary. Nevertheless, given her advanced age, and her high risk family history, it would be rational to get tested for the BRCA mutations. This is born out by the 2005 U.S. Preventive Services Task Force’s, “Genetic Risk Assessment and BRCA Mutation Testing for Breast and Ovarian Cancer Susceptibility” and its summary of recommendation which gave a very low recommendation for routine testing but gave a much higher grade for referring women with “increased-risk family history) for genetic counseling as they believed it “allows informed decision making about testing and further prophylactic treatment”.[2]

The second issue is how genetic testing (for various genetic diseases) ought to be portrayed in the media and here the fear is that there is some possibility that it might be potentially misleading. Areas of concern include the BRCA test’s clinical utility not being recommended as a routine test. Furthermore, a positive test merely means increased risk (and not a certainty) of contracting breast and/or ovarian cancer and conversely, a negative test does not mean a person is safe from breast or ovarian cancer. But if the three episode special is done properly and in conjunction with genetic counseling, this could be a very useful tool for women at high risk and for generally educating the public and even dispelling possible misconceptions, myths, prejudices and stereotypes that the public may have about carriers of the BRCA mutation. In summary, this may well be a great educational opportunity if properly done but it could also worsen the situation by raising awareness but not the public’s understanding of the issue and generating fear and also increasing the negative psychological externalities that carriers will suffer.

Laura and her husband’s concern about the loss of privacy and the psychological effect on her young daughters is a fair one. First, given the hereditary nature of genes, it logically means that “[a] genetic diagnosis often indicates that other family members are at risk for the same condition.”[3] Second, just as people have the right to learn of their medical condition, they too should, prima facie, have a right to know of their medical condition on their own terms,[4] therefore they have the right to insulate themselves from Laura’s results. Admittedly, the situation here is greatly simplified in that both husband and wife are of the same mind. It may be that there are conceivable circumstances whereby a person (or their wards) ought to be informed regardless of their wishes e.g. where a genetic disease will manifest itself with devastating results unless there is early intervention and even possibly where the parents disagree with each other. But given that the BRCA mutation “merely” presents itself as a increase risk and one with a huge variance at that, the impetus for informing without the person’s consent is greatly diminished.

If Laura is known to be Flora’s daughter, there is a good chance that she would be linked to Flora’s condition. This would include the associated societal opinions about carriers of the BCRA mutation. Her daughters might well be similarly “tainted” and suffer negative psychological effects from the very knowledge of their (possible) “genetic curse” as well as ostracization or stigmatization due to ignorance, all of which would be exacerbated by their youth/immaturity. In fact, given their minor status and the fact that they are not the ones being tested, it cannot be said that they have assented or much less consented to being “tested”. Furthermore, since they are years away from any possible preventive treatment and decades away from any phenotypic manifestation, therefore knowledge that they have the BRCA mutations would simply weigh on their minds for these years to come without any real positive externality.

Lisa’s plans to skip testing, but increase her frequency of mammograms appears to be very sensible. Currently, mammograms are still the best way of cancer screening i.e. it detects as oppose to predicts manifestation of cancer. Even if she had tested positive for BRCA1/2 mutations and is thus at increased risk of early onset cancer, starting frequent mammograms would have been likely anyway and is the best medical response short of radical preventive surgery. Given that the background risk of breast-ovarian cancer is very high relative to other types of cancer and her family history, so even without the BRCA mutation, it is still a good decision. Plus medical information as opposed to genetic information poses less of an issue to familial privacy which should allay Laura type fears and concerns.

There are grounds for Lisa’s worry about being stigmatized in terms of future employment opportunities in the broadcasting industry. But in terms of pure job discrimination that is what the law through the Anti-Discrimination Act (ADA) seeks to prevent. There is little that one can do about private discrimination except personal and broad based societal education (which Flora’s three-part special might achieve). But it could be said that her proactive stance with regards to regular mammograms (other than it being private medical information) would also serve to allay the fears of her bosses since early detecting of cancerous breast masses (Stage I-II) have very high cure rates and resulting prognosis.

It appears that Flora may be able to restrict Linda should she decide to undergo a prophylactic bilateral mastectomy. The conflict between Flora and Linda presents the general difficulties of who ought to make the medical decision for a minor. The law generally presumes that minors are not capable of competent in making their own decisions and therefore cannot decide without parental consent to undergo a particular medical procedure. This is subject to the “mature minor rule” which recognizes that some adolescents “as capable of understanding the consequence of some medical decisions”,[5] but these rules are circumstantially circumscribed to situations in which “the state has an interest in the adolescent’s seeking medical attention that might not be sough if the problem were disclosed to the parent” e.g. reproductive rights and sexually transmitted diseases.[6] Another exception is that of the “emancipated minor” but that treats minors as adults by virtue of the state recognizing their “adult” status as a result of certain situations, none of which are applicable here.[7]

What complicates matters is a) the relatively advanced age of Linda (16), b) the low penetrance of BRCA mutations and c) the radical and extreme prophylactic surgery Linda wishes to undergo. As things stand, the AAP does not support genetic testing of adolescents to predict late onset disorders “when the genetic information has not been shown to reduce morbidity and mortality through interventions initiated in childhood.[8] This is eminently sensible especially in this situation given the irreversible nature of such a surgery, the low penetrance,[9] plus the fact that it is a mere 2 years to full adulthood and that this time-lag would not adversely affect Linda’s condition. But if it could be shown that Linda is as competent and fully cognizant of the situation as any adult and would suffer from tremendous psychological trauma whether through the uncertainty of not being tested or not having the surgery, a case could be made that in these very specific circumstances, Flora’s wishes should not be given precedence over Linda’s.

The sons’ lack of concern is indicative of their ignorance and unfortunately probably that of wider society’s as well, regarding male risk of contracting breast cancer. Albeit small, this risk still constitutes 1% of all cancers afflicting males. But further, according to the American Cancer Society, it appears that the BRCA mutations have a similar effect on the risk of breast cancer in male carriers but also an increased risk for prostate and skin cancer.[10] Given that mammograms are not generally part of any male’s routine medical examination, there is a much stronger case here for genetic testing particularly as a positive result might signal the need for more regular medical tests. This is so whether it is for breast cancer or simply that of prostate cancer because of the elevate risk the BRCA mutation poses.

The scenario Flora’s daughter-in-law presents is one familiar in prenatal genetic testing and screening i.e. the use of such testing to choose a healthy baby, by terminating fetuses with genetic abnormalities. The moral issue here is whether a positive test for a BRCA 1/2 mutation warrants an abortion given that it is merely presents an increased risk of breast and ovarian cancer which is hardly a debilitating disease and does not impose any particular hardship on the parents unlike babies born with cystic fibrosis or Down syndrome.

Alternatively, even with an increased risk for early onset breast or ovarian cancer as with a BRCA 1/2 mutation, nevertheless, there is an absence of the sort of massively shortened life span and poor quality of life that is presented in cases of incurable diseases such as thalassemia major or Huntington’s Disease which strongly factors into decisions to terminate the pregnancy. In these latter situations, there are considerations weighted in favour of terminating the pregnancy on the basis of the emotional guilt that parents suffer when they deliberately birth a child who is likely to die in their own lifetime. This inversion of the “natural” order of things can bear heavily on the minds of parents and generate such strong negative emotions e.g. sorrow and guilt that it affects their ability to properly bond with their other children and can put a strain on the marriage and the family upon the child’s death. Similarly the surviving “normal” siblings might well suffer from survivor’s guilt with repercussions on their capacity to form healthy familial bonds. In contrast, a BRCA 1/2 mutation does not appear likely to generate those sorts of negative sentiment as it simply presents an increased risk of cancer, while admittedly of the sort that is early onset, that can be cured or even prevented.

There is further, no legal liability to avoid the pregnancy and the birth of the child on the basis of a “wrongful birth” suit i.e. an action by the child for having been born and forced to live with the disabilities and disadvantages of her birth. Even if one ignores the tiny number of jurisdictions that recognize such a cause of action,[11] it hardly presents a case whereby a reasonable person might well say that the suit ought to be successful because “non-life” is preferable to the “life” the plaintiff is living.[12]

This also highlights the importance of genetic counseling. On the facts, we are given no indication of why Laura’s daughter-in-law might want to terminate a pregnancy on the basis that the fetus has a BRCA mutation. If her decision is made on some erroneous understanding of the consequence of having such a mutation to the child, then genetic counseling is manifestly important is providing such information that she can make an informed decision as to the status of her pregnancy such that she does not make a decision she will later regret.

[1] Wylie Burke, Genomic Medicine: Genetic Testing, 347 New Eng. J.Med. 1867 (2002) extracted in Kuszler et. el., Genetic Technologies and the Law, (Caroline Academic Press, 1st ed.), p. 605-610 at 607

[2] , accessed on Feb 08 2007

[3] Wylie Burke, supra n. 1, at 606

[4] Personal medical information after all is one of the “zones of privacy” recognized by the US Supreme Court and also the Common Law’s general recognition that one may refuse life-saving medical treatment.

[5] American Society of Human Genetics/American Cllege of Medical Genetics, Points to Consider:

Ethical, Legal, and Psychosocial Implications of Gnetic Testing in Children and Adolescents, 57 Am. J. Hum. Genet. 1233 (1995) in Kuszler, supra, at p. 624-634 at 631

[6] Ibid.

[7] Ibid.

[8] See Kuszler, supra, at p. 635

[9] Thereby requiring more evidence to establish the efficacy of intervention to reduce risk, see Burke, supra, at p. 608

[11] Only 3 jurisdictions allow such a claim and California prohibits a child from suing her parents

[12] See e.g. Turpin v. Sortini, 643 P.2d 954 (Cal. 1982)

Labels: , ,