The inspiration of genetic technology on the equal protection under the constitution──focusing upon the regulation of the genotype and the phenotype

• Main Authors: Mu-min Cheng, 鄭牧民
• Other Authors: nigel n. t. li
• Format: Others
• Language: zh-TW
• Published: 2007
• Online Access: http://ndltd.ncl.edu.tw/handle/95338472217533915029

碩士 === 東吳大學 === 法律學系 === 95 === Abstract The subject of this thesis is the impact brought by the development and knowledge of genetic technology on ensuring human equal rights under the constitution. After the Human Genome Project is completed, there are many discussions on the Ethical, Legal, and Social Implication arising from the genetic technology Given that the influence of gene manifestation on our physical characteristics perplexes with newest scientific discovery, it’s inappropriate to simply forbid any discrimination based on genome alone without other considerations. Furthermore, discrimination with reasonable considerations is allowed by the constitution. What is “justifiable discrimination”? In each case, we face the controversial issue of balancing utilitarianism and fundamental human rights. The author believes that, jurisprudential discussion at the most fundamental level are necessary in order to arrive at the most appropriate choice amongst competing values. John Rawls, the modern political philosopher, who had a most impressive discourse on the principle of equality, provides the theoretical structure for the foundation of discussion of inequality arising out of each individual`s genetic make-up. Both genotype and phenotype can be used as distinguishing standards in law. The scientific evidence shows that the correlation between genotype and phenotype varies from person to person, and that acquired genome inborn cannot be altered or reconstructed. When genotype is used as the distinguishing standard for differentiated treatment(or discrimination), uncertainty becomes an issue to be reckoned with. On the other hand, when phenotype is used as the distinguishing standard, the issue of externally-imposed limitations that are insurmountable by the individual`s effort however hard the individual in question tries. If the law provides unequal treatment without taking the aforementioned into consideration, such provisions are likely to infringe on and contradict with human equal rights.(it’s necessary exhaustive conditions should be taken into careful considerations regarding restrictions in legislation progress in order not to contradict the principle of equality.)In scrutinizing the selection of the distinguishing standards, the constitution as the safe guard of fundamental human rights, requires that the selection be well-reasoned. Depending on the standard selected, differentiated treatment(or discrimination)can be constitutional in some case and unconstitutional in others. Therefore, if any law prescribes unequal treatment based on genotype or phenotype, juridical review must be triggered with the most strict scrutiny test to insure human equal rights in a stringent demand. Moreover, the balance between public interests and fundamental human rights, together with cost-benefit analysis, should be guaranteed during (incorporated in) juridical review of individual cases.