Abstract for the Ius Commune workshop on “Heterogeneity in Tort and Insurance”
GENETIC TESTING AND ACCESS TO INSURANCE
As the topic of the workshop concerns the legal limits of the use of individual characteristics in
insurance contracts, the present paper will analyze the legal limits of the use of genetic data in such
contracts. Predictive genetic tests, which disclose genetic data, are of great importance for an insurer
in order to evaluate the risk, and to decide whether and under what conditions to offer insurance 1.
Firstly, the paper will involve a comparative legal enquiry of the situation in Belgium and the
Netherlands. These EU Member States have a very different view on the extent to which genetic
testing may be performed in an insurance context and on the data that may be used. Belgium has
banned the use of genetic testing in Articles 5 and 95 of the Insurance Act, while the Netherlands
makes a distinction in Article 5 of the Medical Examination Act between basic insurance contracts and
insurance contracts that exceed a certain financial ceiling. Insurers of the latter type of insurance
contracts are allowed to take genetic risk factors into consideration for risk selection, tarification and
premium setting.
These different approaches give proof of a different view with respect to the social role of insurance
(Does the insurer have to provide access to insurance, even for a “bad” (genetic) risk? / Does the
insurer have to contribute to a subsidizing solidarity system?) and on the use of actuarial technique,
more specifically the problem of adverse selection. They may also be an externalization of the
difference in insurance cultures 2.
Secondly, the paper aims to explore the limits set or to be set by the European Union and the Council
of Europe to the use of genetic tests in an insurance context. Indeed, although EU Member States
remain competent for the organization of the insurance sector, law-making at EU level can have a
significant impact. In this context the normative documents on data protection are considered, such as
1
A definition of genetic tests can be found in Council of Europe, DH-BIO/INF (2012) 1, Consultation Document
on Predictivity, Genetic Testing and Insurance, 18: “Tests involving analysis of biological samples of human
origin and aimed specifically at identifying the health-related genetic characteristics of a person that are inherited
or acquired during early prenatal development. Analysis refers to chromosomal analysis, DNA or RNA analysis,
and analysis of any other element enabling equivalent information to be obtained, i.e. information that is directly
linked to the genetic characteristics sought and thus allows direct information to be obtained concerning the
genetic characteristics of the person concerned”; Genetic tests have to be contrasted with diagnostic tests and
non-genetic examinations.
2
The difference between alpine (Belgium) and maritime (the Netherlands) insurance cultures: M. ALBERT,
Capitalisme contre capitalisme, Paris, Editions du seuil, 1991, 99-100 ; H. COUSY, “Harmonisation of national
laws against the background of diverging Legal cultures”, in Liber Amicorum per Francesco D. Busnelli, Il
diritto Civile Tra Principi E Regoli, Milano, Guiffrè Editore, 2008, 530; J.G.C. KAMPHUISEN, “De tussenpersoon
in de maatschappij. Enkele verkenningen naar marktwerking en toezicht”, AV&S 2003, 76-80.
the working paper on genetic data by the EU Working Party 3, as well as the European Commission
Proposal for a General data protection Regulation 4. Furthermore, genetic data are protected by human
rights instruments, such as the Convention on Human Rights and Biomedicine 5. In addition, recent
initiatives at EU and Council of Europe level regarding genetic testing, in particular the Consultation
on Predictivity, Genetic Testing and Insurance of the Council of Europe 6 show that the topic is still
very much contemporary and challenge national approaches taken by EU Member States.
While ethical arguments for and against the right of insurance companies to genetic information are
never far away, the present paper aims to put forward an essential legal assessment of the arguments
for and against the use of genetic information. EU law and the law of the Council of Europe form a
crucial normative framework in that regard.
3
Article 29 Data Protection Working Party, is an independent European advisory body on data protection and
privacy; Working Document on Genetic Data, 12178/03/EN WP 91, 10: “The processing of genetic data in the
field of insurance should be prohibited in principle and only authorized under really exceptional circumstances,
clearly provided for by law”.
4
European Commission, COM(2012) 11 final, Proposal for a Regulation on the protection of individuals with
regard to the processing of personal data and on the free movement of such data.
5
Article 12 CHRB, which provides that tests which are predictive of genetic diseases or which serve either to
identify the subject as a carrier of a gene responsible for a disease or to detect a genetic predisposition or
susceptibility to a disease may be performed only for health purposes or scientific research linked to health
purposes.
6
DH-BIO/INF (2012) 1