ELSIcon2022 • Paper • May 31, 2022
Current "genome conceptualization and governance" (GCG) in the U.S. is framed around individual rights and has taken on a libertarian ethos. An individual genome—i.e., genetic material and information extracted from a person—is conceptualized as either an object capable of supporting property rights for the person from whom it was extracted or an object available for appropriation by other entities. By property rights, I mean private authority that is enforceable against the whole world.
The current GCG is troublesome. First, it reduces legal interests to individualist claims subject to individualist remedies that are structurally incapable of representing all of the interests at stake. Second, it underlines a commitment to a binary view of property rights. Consequently, we are trapped in a "tragic choice"—we must determine whether an individual genome is owned by the person from whom it was extracted or another entity. Third, it suffers from inconsistencies. An individual genome is deemed property for some entities but not others and genetic information is treated as property only in some contexts.
In this paper, I develop an alternative approach for GCG. Building on Elinor Ostrom’s commons theory, the legal framework I propose treats an individual genome as a commons and implements a common property regime. Moreover, it is guided by a liberal conception of property. According to this conception, property must be committed to “relational justice” and abide by the maxim of reciprocal respect for one another. Finally, the new framework uses proportionality and reasonableness to guarantee appropriate—rather than exclusive—control and use.