Epigenetics: From the Lab to the Law?

Excerpt from my book Epigenetics and Public Policy The Tangled Web of Science and Politics now available from my publisher here and at Amazon

The extent to which the epigenetics research being done in cancer expands the causal circles of different cancers to include identifiable factors in the external environment is the same extent to which epigenetics not only exacerbates these ongoing political contests between advocates and scientists but also expands the politics to include all those parties with potential responsibility for these newly identified environmental factors. In addition, with the possibility of some epigenetic effects spanning multiple generations, this expansion of the political arena could include not only the issues and concerns of contemporary parties but also consideration of the circumstances of persons living decades if not centuries in both the past and the future.

These political disputes could conceivably introduce a wide range of issues that are not adequately addressed by our current legal and political principles—particularly those involving nonexistent persons in the conventional sense of personhood (e.g., either those long dead or not yet existing). For example, what is the appropriate level of protection of the privacy of the parents (or grandparents and great-grandparents) in the disclosure of their epigenetic information that might have substantial bearing on cancer diagnoses of their offspring, potentially many generations down the line? Particularly when this information may impinge on their own current circumstances?

Although these kinds of bioethical issues have already been raised in the context of genetic sequence data, the presumptively fixed and immutable nature of gene sequences shields the disclosure of genetic data from some of the thornier implications of epigenetics. For example, how are insurance companies to fairly allocate the risks of certain cancers with identifiable epigenetic causes that may only manifest generations later (i.e., who is justly responsible for the increased premiums necessary to cover the costs of such future health conditions)? Likewise, the possibility that epigenetic markers linked to the environmental contexts and personal circumstances of individuals of one generation may become a significant factor in assessing the responsibility for cancer in subsequent generations (e.g., as occupational exposure to specific pollutants, decisions to smoke, available dietary options related to culture and socioeconomic status) raises the stakes considerably in ways not anticipated by the current model of genetics and its corollary in the prevailing understanding of legal individuals as autonomous living beings.

Epigenetics in Court

Although epigenetics research has not yet been used as the basis of legal actions, consider the possible challenges to current conceptions of the family and the individual from the causal connections being identified via epigenetics. Suits have already been brought against parents on behalf of children suffering from fetal alcohol syndrome disorders (FASD)—for which the epigenetic pathways are already being identified[1]—because of the consumption of alcohol during gestation, which induced the FASD. One such suit was recently filed in Britain by an unnamed local authority on behalf of a seven-year-old girl in its care, claiming compensation on behalf of the girl from the Criminal Injuries Compensation Authority (CICA) for the reckless negligence of the mother, with more than 80 other claims on behalf of other children suffering from FASD awaiting the outcome of this case.[2] Notably, the local authority was awarded its claim in its initial hearing, but this decision was reversed by the Upper Tribunal of the Administrative Appeals Chamber on the grounds that “an unborn child is not a person in law and therefore no criminal offence could have been committed.” Again, as long as this is accepted as the standard and legal definition of personhood, then many of the inter- and trans-generational connections being revealed by epigenetics are moot as they deal with unborn persons which are technically not persons in law—despite their revealing of physical connections between the experiences and exposures of one generation with the physical conditions of subsequent persons.

However, one of the appeal court judges hearing the case described the law in this case as somewhat “incoherent” for its reliance on this conception of personhood as an exclusively postnatal identification when harms to an eventual person had obviously resulted from the negligent behavior of another person. Further, although the suit by the local authority on behalf of the child was dismissed on these grounds, this same judge also opined that “it’s not an entirely fanciful suggestion” that eventually the child as a legal person could still bring a private prosecution against the mother on her own behalf for the consequences of harms suffered while not a legal person.

At the same time, though, an officer of the CICA observed the dangerous precedent this more expansive legal interpretation of personhood would set, opening the door to suits in which “a pregnant mother who eats unpasteurised cheese or a soft boiled egg knowing there is a risk that it could give rise to a risk of harm to the foetus” could be subsequently accused of a crime by the resulting child. From allowing such claims of harms inflicted in utero, it is only a small conceptual leap toward allowing claims of harms inflicted ex vivo (for lack of a better phrase). To the degree that such connections between present actions and future consequences can be established scientifically via epigenetics, a tidal wave of legal claims would potentially arise of children against parents, grandchildren against grandparents, and so on, introducing unprecedented and far-reaching legal and political complications into the mix.

Epigenetics and ‘Wrongful Life’ Claims

Granted, this example of FASD is not an example of epigenetics in cancer but the extent to which similar causal pathways for cancer could be identified via epigenetics is also the extent to which similar legal and political complications would arise, only for each form of cancer for which these causes are identified. One currently accepted legal action that might apply to such claims relying upon these epigenetic pathways for cancer is the legal doctrine of “wrongful life,” from the landmark California Court of Appeals decision in Curlender v. Bio-Science Laboratories (1980)[3] that involved the issue of the reliability of genetic screening for congenital disorders. The most famous and relevant passage of the Curlender opinion states:

The circumstance that the birth and injury have come hand in hand has caused other courts to deal with the problem by barring recovery. The reality of the “wrongful-life” concept is that such a plaintiff both exists and suffers, due to the negligence of others. It is neither necessary nor just to retreat into meditation on the mysteries of life. We need not be concerned with the fact that had defendants not been negligent, the plaintiff might not have come into existence at all. The certainty of genetic impairment is no longer a mystery. In addition, a reverent appreciation of life compels recognition that plaintiff, however impaired she may be, has come into existence as a living person with certain rights.

That the California Court of Appeals reasoned—contrary to the Administrative Appeals Chamber in Britain—that fetuses exposed to certain harms become living persons manifesting the effects of those harms demonstrates both the subjectivity of these kinds of metaphysical distinctions but also the legal implications of rulings in one direction or the other. However, given these differences in interpretations of philosophical concepts such as “life” and “personhood,” wrongful life claims are currently only allowed in a few states in the United States, and are also not widely recognized internationally. That said, to the extent that epigenetic pathways for cancer can be identified, the precedent of Curlender at least opens the door for the assertion of “epigenetic impairment” due to the negligence of others—even those separated in both time and space—as a legally recognizable condition.

Epigenetics and the Discovery of Harm rule

The legal implications of hypotheticals like this may not be as far-fetched or as far away as it might seem. Consider the potential application of the Discovery of Harm Rule which is an already an accepted legal precedent, which holds that while a statute of limitations may set temporal restrictions on the filing of personal injury lawsuits after an accident or injury, these time periods do not begin to run until the persons filing suit become aware that they had suffered harm, or that the nature of that harm was realized. This rule suggests that to the extent that the research in epigenetics is able to establish these kinds of causal connections to a reasonable certainty, or even to a probability, there is likely to be an avalanche of legal actions brought forth on these grounds.

The combination of the increasing legal acceptance of wrongful life claims—which involves a reconception of the nature individual suggested elsewhere—with the application of the Discovery of Harm rules in the context of the multi-generational transmission of effects established via scientific work in epigenetics could potentially swamp our legal, political, and financial systems. All this is not to mention the legal and political complications that could arise if the initial exposures occurred within one political jurisdiction (i.e., a state or a country), perhaps generations prior, but the effects are only now being realized in a different political jurisdiction. And so on.

The sheer, dizzying magnitude of these potential consequences suggests the external pressures that could be brought to bear on the development of the science of epigenetics over the next few years, as any number of corporations and government entities would have vested interests in discouraging the discovery and the reporting of such connections. An actual example of this dynamic in action is the acrimonious and litigious reaction from the pesticide industry to the work from the Skinner Laboratory, in the Center for Reproductive Biology at Washington State University, on the epigenetic heritability of the effects from vinclozolin, a widely-used fungicide.[4] Notably, these kinds of results were not initially disputed when the focus of the Skinner Lab was on the pesticide methoxychlor, a known endocrine disruptor, which has been banned from use for years.[5]

To assume that the science would advance unencumbered by these political concerns—especially given the history detailed in previous chapters—would be inexcusably naive. Still, the highly political aspects of epigenetics are thus readily apparent, as is the magnitude of the potential repercussions.

Granted, the actual result of the research in epigenetics could be that eventually the possibilities indicated by this initial work—such as the linking of factors in the environment more directly with gene function, and the potential for transgenerational inheritance of epigenetic effects—do not pan out as initially expected. In this case the political repercussions would be much more muted than suggested in this book. However, given the development of the science of epigenetics thus far, outcomes like the scenarios just described are not only conceivable but increasingly plausible.

[1] Chater-Diehl, E. J., Laufer, B. I., Castellani, C. A., Alberry, B. L., and Singh, S. M. (2016). Alteration of gene expression, DNA methylation, and histone methylation in free radical scavenging networks in adult mouse hippocampus following fetal alcohol exposure. PloS One, 11(5), e0154836.

[2] Bowcott, O. (November 5, 2014). Foetal damage caused by alcohol “equivalent to attempted manslaughter.” The Guardian. [online] Retrieved July 28, 2017, from https://www.theguardian.com/law/2014/nov/05/foetal-damage-mother-alcohol-manslaughter

[3] Curlender v. Bio-Science Laboratories, 106 Cal. App. 3d 811 (1980).

[4] Epigenetic Transgenerational Actions of Vinclozolin on Promoter Regions of the Sperm Epigenome (http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0013100); Ancestral vinclozolin exposure alters the epigenetic transgenerational inheritance of sperm small noncoding RNAs (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4933025/); Shifting the Genetic Paradigm with Epigenetics (https://www.aaas.org/blog/member-spotlight/shifting-genetic-paradigm-epigenetics)

[5] http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0102091

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