Insurance Risk Classification in an Era of Genomics: Is a Rational Discrimination Policy Rational?

I. Introduction II. Theoretical Underpinnings and Foundation of Insurance Regulation III. Policy Approaches ... A. Prohibitive Approach ... B. Status Quo Approach ... C. Rational Discrimination Approach ... 1. United Kingdom Moratorium and Concordat ... 2. Australian Guidance ... 3. U.S. Uniform Law Commission Proposal IV. Risk Classification and Economic Efficiency ... A. Classifying Risk ... B. Why Insurers Classify Risks ... C. Choosing a Risk Characteristic ... 1. Statistical Considerations ... 2. Operational Considerations ... 3. Social Considerations V. Genetic Test Results and Insurance ... A. Genetic Test Results as Risk Characteristics ... B. Current Use of Genetic Test Results ... 1. Insurer Access to Genetic Test Results … 2. Insurer Use of Genetic Test Results VI. Are Transparency and Oversight Necessary? ... A. Insurer Misuse of Genetic Test Results ... B. Transparency of the Insurance Market ... C. The Arms Race of Risk Classification ... D. Fear of Genetic Discrimination VII. Standards of Evidence ... A. Uniform Law Commission Draft ... B. U.K. Moratorium ... C. Australian Guidance ... D. Additional Considerations ... 1. What Types of Evidence Are Sufficient? ... 2. How Should the Context of Genetic Tests Come into Play? ... 3. Should Relevance Be Measured by Marginal Added Value? ... 4. How Should Preventive and Treatment Measures Be Taken into Account? ... 5. How Should Variants Within a Gene Be Considered? VIII. The Case for a Rational Discrimination Approach ... A. Prohibitive Approach Comparison ... B. Status Quo Consideration IX. Conclusion