Genetic Discrimination in Life Insurance

Version	Summary	Created by	Modification	Content Size	Created at	Operation
1		Mykhailo Arych	+ 3331 word(s)	3331	2021-12-30 04:54:27	\|
2	Done	Jason Zhu	-14 word(s)	3317	2022-01-18 02:26:44	\|

This entry is adapted from the peer-reviewed paper 10.3390/laws11010002

Research findings of insurance application forms review show that Ukrainian life insurance companies ask broad questions about health and family history that may be perceived by applicants as requiring the disclosure of their genetic information. Legal analysis shows that today there are no genetic specific law protecting Ukrainians people against GD in insurance.

Ukraine law Genetic Discrimination Insurance

1. The Life Insurance Industry in Ukraine: Context and Legal Framework

Today, the Ukrainian life insurance industry is growing both in terms of the amount of earned premiums, +3717.5 million UAH or +410.1%, from 2010 to 2019, and by the number of policyholders, +2,242,844 insured (a 77.6% increase), for the same period. However, looking at these data in isolation can be misleading. Indeed, the number of life insurance companies in business has sharply declined from 67 insurers in 2010 to 2020 in the third quarter of 2020 (^[1] 2020b; ^[2] 2020). Notably, the top three highest insurance premium earners now make up 57.6% of the market share premiums and, the top 10 accounts for 96.7% (National Commission for State Regulation of Financial Services Markets 2020). These data show that Ukraine now has a very concentrated life insurance market providing for a generally low level of competition. For consumers, this means that a person whose application has been rejected or charged above standard rate has fewer opportunities to seek a lower insurance coverage from another company.

1.1. The Law of Ukraine “On insurance” (1996)

The main legislative text that regulates the insurance market (life and non-life) is the Law of Ukraine “On insurance” (1996). This document describes in detail the role of life insurance (article 6); insurance payments and insurance tariffs (article 10); insurance application and entry into force of the insurance policy (article 18); duties of an insurer and an insured (articles 20, 21); rejection of insurance claims or insurance indemnification (article 26); licensing of insurance activity (article 38) and so on (The World Trade Organization 2021; Verkhovna Rada of Ukraine 1996c). Thus, according to the Law of Ukraine “On insurance” (1996), Life insurance is defined as follows:

“Life insurance—Is a kind of personal insurance, which provides for the obligation of the insurer to make an insurance payment in accordance with the insurance agreement in the case of death of the insured person, and also, if the insurance agreement provides so, in the event that the insured person reaches the age specified in the agreement or is alive at the end of the agreement. Terms of an agreement of life insurance may require the insurer to make an insurance payment in the case of an accident that happened to the insured person, or in the case of sickness of the insured person. If in the case of the insurance event the agreement provides for regular annuity insurance payments (annuity pension insurance), the agreement must provide for insurance against the risk of death of the insured person during the period between the beginning of the insurance agreement and the first annuity insurance payment. In other cases, taking into account the risk of death of the insured person is obligatory during the entire period of the life insurance agreement.”2

(The World Trade Organization 2021; Verkhovna Rada of Ukraine 1996c)

Subparagraph 2 of article 21 of the Law of Ukraine “On Insurance” (1996) stipulates that an insured “when entering an agreement on insurance, provides information to the insurer on all circumstances known to him which are essential for the evaluation of insurance risks, and subsequently, inform him of any changes in the insurance risk;”3 (The World Trade Organization 2021; Verkhovna Rada of Ukraine 1996c). Moreover, the insurance company may deny insurance benefits if the insured knowingly gave false information about the subject of the contract. For example, this information may be related to the health or medical history of the insured, or even his immediate family (The World Trade Organization 2021; Verkhovna Rada of Ukraine 1996c). This stipulation could be interpreted as imposing a duty to an applicant to disclose clinically relevant genetic information about himself to an insurer and thus opens the door to genetic discrimination.

1.2. The Law of Ukraine “On the National Bank of Ukraine” (1999)

To date, in Ukraine, the insurance market is regulated (beginning from 1 July 2020) by the National Bank of Ukraine (NBU) following the Law of Ukraine “On the National Bank of Ukraine” (1999) (Verkhovna Rada of Ukraine 1999). The sphere of financial market management by NBU also includes credit unions, financial companies, and credit bureaus (Verkhovna Rada of Ukraine 1999). Other financial market entities, such as private pension funds, mortgage issuers, construction, and real estate financing funds, as well as trust companies, are within the scope of regulation and the responsibility of the National Commission on Securities and Stock Market—a state collegiate body subordinated to the President of Ukraine and accountable to the Verkhovna Rada of Ukraine (Verkhovna Rada of Ukraine 2019).

2. European and Ukrainian Human Rights Legislation to Prevent Genetic Discrimination

2.1. European Law

The Convention on Human Rights and Biomedicine

According to the geographical overview of approaches adopted around the World provided by the Genetic Discrimination Observatory Ukraine currently has “not adopted specific laws, regulations, and policies to prevent GD” (The Genetic Discrimination Observatory 2021a). On 22 March 2002, Ukraine signed the Convention on Human Rights and Biomedicine (Oviedo Convention 1997) but has not yet ratified it (Council of Europe 2021). This means that while there may be an intention from Ukraine to implement the content of the Oviedo Convention, there is no legal obligation to enforce it yet. The Convention on Biomedicine is important at the European level here because it contains an explicit provision against GD included in article 11. More specifically article 11 of the Oviedo Convention states that “Any form of discrimination against a person on grounds of his or her genetic heritage is prohibited” (Oviedo Convention 1997). Furthermore, article 12 states, that predictive genetic tests “… may be performed only for health purposes or for scientific research linked to health purposes …” (Oviedo Convention 1997). Thus, this provision of the Oviedo Convention also could be a non-GD tool in life insurance in Ukraine after its ratification, but still does not clearly address the issue of using existing genetic tests results for insurance purposes.

Recommendation CM/Rec(2016)8 of the Committee of Ministers to the member States on the processing of personal health-related data for insurance purposes, including data resulting from genetic tests

This international legislation can be implemented as a tool to reducing the risks of GD for Ukraine as a member of Council of Europe as well as a members of the Committee of Ministers, because its regulates “… the processing of personal health-related data for insurance purposes, including data resulting from genetic tests” (Council of Europe 2016a). Similarly, with the provisions of article 12 of the Convention on Biomedicine, this recommendation (principle 4) also states that “… predictive genetic tests must not be carried out for insurance purposes” (Council of Europe 2016a). It means insurers are not entitled to subject the conclusion or modification of an insurance policy to the holding of a predictive genetic test (Council of Europe 2016b). Furthermore, regarding the existing genetic tests results paragraph 16 in principle 4 states that it “… should not be processed for insurance purposes unless specifically authorised by law” (Council of Europe 2016a). While the above mentioned Recommendation does not provide a directly transposable non-GD policy for Ukraine, its provisions can play an influential role in the shaping of human rights protection against genetic discrimination in Ukraine.

The European Convention on Human Rights and its interpretation by the European Court of Human Rights

While it has yet to ratify the Convention on Biomedicine, Ukraine has both signed and ratified the European Convention on Human Rights which does protect people against “… discrimination on any ground such as sex, race, colour, language, religion, political or other opinions, national or social origin, association with a national minority, property, birth or other status” (article 14) (Council of Europe 1950; Verkhovna Rada of Ukraine 1997a). According to article 9 of the Constitution of Ukraine, valid international agreements, that have been approved by the Verkhovna Rada of Ukraine, are part of national legislation (European Commission for Democracy through Law 2006; Verkhovna Rada of Ukraine 1996a). Thus, the European Convention on Human Rights has the force of law in Ukraine. While article 14 of the European Convention on Human Rights does not provide explicit protection against discrimination based on health status, genetic status or characteristics among the specifically prohibited grounds, it does include the expressions “any ground” and “or other status” (Council of Europe 1950). In the landmark Case of G.N. and Others v. Italy, the European Court of Human Rights stated that a difference in treatment based on a genetic disease should be considered “other status” within the meaning of article 14 of the European Convention on Human Rights (European Court of Human Rights 2009; Tyrer 2011). This important case shows that the expression “other status” in non-discrimination laws and policies could be interpreted to provide protection against other grounds of discrimination not specifically prohibited including, perhaps, GD. While the Decision of the Court was limited to “genetic diseases” the justification provided by the Court seem to indicate that this finding could be extended to include “genetic characteristics” (European Court of Human Rights 2009; Tyrer 2011).

In theory, the European Court of Human Rights cannot establish formal legal precedents through its judgements. In practice, however, its judgments are a highly influential source of law and are cited by international and national courts in order to provide strategic legitimation for their judgements (Lupu and Voeten 2010). For instance, according to article 2 of the Law of Ukraine “On the Fulfillment of Decisions and Application of Practice of the European Court of Human Rights” and article 46 of the European Convention on Human Rights (Verkhovna Rada of Ukraine 2006), the judgments of the European Court of Human Rights are obligatory. Additionally, according to part 4 of article 382 of the Criminal Code of Ukraine ( intentional non-compliance by an official with a decision of the European Court of Human Rights is considered a criminal act (Verkhovna Rada of Ukraine 2001d). Article 17 of the Law of Ukraine “On the Fulfillment of Decisions and Application of Practice of the European Court of Human Rights” also stipulates that Ukrainian courts of law should apply the precedents established by case-judgments of the European Court of Human Rights as a source of law in their proceedings (Verkhovna Rada of Ukraine 2006). This basic provision is expanded upon by other acts of the national Ukrainian legislation in part 2 of article 6 of the Code of Administrative Proceedings of Ukraine (Verkhovna Rada of Ukraine 2005) which states that “The Court applies the principle of the rule of law, taking into account the practice of case-judgments of the European Court of Human Rights”4 (Verkhovna Rada of Ukraine 2005). The Criminal Procedural Code of Ukraine also includes similar provisions (Verkhovna Rada of Ukraine 2012d). Thus, Ukrainian courts of law ought to refer to the judgment of the European Court of Human Rights in Case of G.N. and Others v. Italy (European Court of Human Rights 2009; Tyrer 2011) in discrimination cases involving discrimination based on genetic characteristics or genetic diseases.

2.2. National Law

The Law of Ukraine “On the Ukrainian Parliament Commissioner for Human Rights” and the duties of the Ukrainian Parliament Commissioner for Human Rights

After analyzing the applicable European law and of the Law of Ukraine “On the Ukrainian Parliament Commissioner for Human Rights”, researchers suggest that the Commissioner may have an implicit duty to protect people against GD in Ukraine. In Ukraine, the governmental organization related to human rights protection that provides information to help people facing discrimination is the Ukrainian Parliament Commissioner for Human Rights (hereafter Commissioner). According to subparagraph 6 of article 3 of the Law of Ukraine “On the Ukrainian Parliament Commissioner for Human Rights” the purpose of the parliamentary control by the Commissioner is the “… prevention of any forms of discrimination in relation to the fulfillment of person’s rights and freedoms;”5 (International Labour Organization 2021; Verkhovna Rada of Ukraine 1997b). In addition, article 16 of the Law states that based on the information about human rights and freedom violations the Commissioner conducts legal proceedings and inspections according to appeals of (1) citizens of Ukraine; (2) foreigners; (3) stateless persons or their representatives; (4) People’s Deputies of Ukraine or, (5) on its own initiative (International Labour Organization 2021; Verkhovna Rada of Ukraine 1997b). While considering these appeals, the Commissioner has the following options:

“1. initiate proceedings on violation of human and citizens’ rights and freedoms;

2. explain what measures the person who has filed an appeal with the Commissioner should undertake;

3. submit an appeal, as appropriate, to the body which is competent to consider the case, and control the consideration of this appeal;

4. decline consideration of an appeal”.6

(International Labour Organization 2021; Verkhovna Rada of Ukraine 1997b)

In the context of filling the gaps in Ukrainian non-GD policy it is also useful to consider the provisions of article 13 of the above-mentioned Law, that states:

“the Commissioner has right to: … (3) appeal to the Constitutional Court of Ukraine with regard to: conformity of the laws of Ukraine …; the official interpretation of the Constitution of Ukraine and the laws of Ukraine; (3-1) make in due course proposals for improvement of legislation of Ukraine in the sphere of protection of human and citizen’s rights and freedoms;”.7

(International Labour Organization 2021; Verkhovna Rada of Ukraine 1997b)

This right of the Commissioner could be used to ask a question to the Constitutional Court of Ukraine regarding the official interpretation of the broad discrimination grounds such as “other characteristics”, “other status”, “other grounds”, or “other circumstances” in article 24 of the Constitution of Ukraine and in other Ukrainian human rights laws. The Commissioner could also, following proper investigation on the matter, make a recommendation to clarify Ukrainian human rights and non-discrimination legislation to explicitly include “genetic characteristics” as a prohibited ground of discrimination.

Indeed, while Ukraine has no specific laws that protect people against GD, there are several human rights laws that include sections prohibiting discrimination based on illicit grounds. The more relevant of these laws include: Constitution of Ukraine (Verkhovna Rada of Ukraine 1996a); Law of Ukraine “On the Principles of Prevention and Counteracting Discrimination in Ukraine” (2012) (Verkhovna Rada of Ukraine 2012c) and the Law of Ukraine “On Protection of Personal Data” (2010) (Verkhovna Rada of Ukraine 2010).

The Constitution of Ukraine (1996)

The basis of Ukrainian legislation for the protection of human rights and freedoms, including against discrimination, is article 24 of the Constitution of Ukraine which establishes that “citizens have equal constitutional rights and freedoms and are equal before the law”8 (European Commission for Democracy through Law 2006; Verkhovna Rada of Ukraine 1996a). Furthermore, this article notes that “There shall be no privileges or restrictions based on race, color of skin, political, religious, and other beliefs, sex, ethnic and social origin, property status, place of residence, linguistic, or other characteristics”9 (European Commission for Democracy through Law 2006; Verkhovna Rada of Ukraine 1996a). Thus, the Constitution of Ukraine provides protection against discrimination of citizens on various grounds. In this case, “genetics” is not explicitly included among the listed characteristics in article 24.2, but the expression “other characteristics” clarify that the enumerated grounds are not exhaustive.

It is also helpful to analyze how Ukrainian courts of law have interpreted “other characteristics” in the meaning of the anti-discrimination part of article 24 of the Constitution of Ukraine. To date, in Ukraine, there are only two judgments by the Constitutional Court of Ukraine—the Court responsible to provide the official interpretation of the Constitution of Ukraine (Verkhovna Rada of Ukraine 2017)—that are related to the non-discrimination grounds of article 24.2 of the Constitution and to the expression “other characteristics”. In both cases, the plaintiffs argued that “age”, as a ground of discrimination, should be placed among “other characteristics” in the meaning of article 24.2 (Constitutional Court of Ukraine 2004; Constitutional Court of Ukraine 2007). However, these two judgments by the Constitutional Court lack specificity and are difficult to reconcile with one another. Thus, they neither strengthen nor weaken claim.10

The Law of Ukraine “On the Principles of Prevention and Counteracting Discrimination in Ukraine” (2012)

The Law of Ukraine “On the Principles of Prevention and Counteracting Discrimination in Ukraine” (2012) describes discrimination and illicit grounds in greater details, according to subparagraph 2 of article 1:

“discrimination—is a situation in which the individual and/or group of persons because of their race, skin color, political, religious or other beliefs, sex, age, disability, ethnic or social origin, nationality, and marital status, place of residence, linguistic or other characteristics that existed, exist and can be real or perceived, suffered, incurred or may incur limitations in any form, established by this Law except the cases when such limitation has a legal, objectively reasonable goal, ways to achieve what are appropriate and objective”11.

(UPR Info 2021; Verkhovna Rada of Ukraine 2012c)

The broad formulation used that include “perceived” characteristics could be interpreted as prohibiting genetic discrimination based on the results of predictive genetic testing (European Court of Human Rights 2009; Tyrer 2011). The scope of the Law (according to article 4) extends to such areas of public relations as “… health care; education; the social protection; housing relations; access to goods and services; to other areas of public relations”12 (UPR Info 2021; Verkhovna Rada of Ukraine 2012c). This indicates that it also applies to life insurance contracts.

There are several other laws in Ukraine that complement the protection against discrimination in different areas and also could provide some protection against GD based on a similar reasoning. What these laws have in common is that the list of discriminatory grounds they enumerate is not exhaustive, as established by the use of expressions such as: “… and/or other features (characteristics, grounds, signs) or, all forms of discrimination”. The most relevant of these legislations are the Law of Ukraine “Fundamentals of the Legislation of Ukraine on Health Care” (Verkhovna Rada of Ukraine 1992); Law of Ukraine “On Higher Education”(Verkhovna Rada of Ukraine 2014); the Law of Ukraine “On Complete General Secondary Education” (Verkhovna Rada of Ukraine 2020), the Law of Ukraine “On Employment of Population” (Verkhovna Rada of Ukraine 2012b); the Labor Code of Ukraine (Verkhovna Rada of the Ukrainian SSR 1971); the Law of Ukraine “On Collective Agreements and Contracts” (Verkhovna Rada of Ukraine 1993); the Law of Ukraine “On Advertising” (Verkhovna Rada of Ukraine 1996b); the Law of Ukraine “On Social Work with Children and Youth” (Verkhovna Rada of Ukraine 2001c).

In addition, other sector specific laws containing non-discrimination provisions have a narrower formulation, each including what appears to be a comprehensive list of prohibited grounds. These laws are unlikely to be interpreted by a Court of law as providing protection against GD. They include: the Law of Ukraine “On Political Parties in Ukraine” (Verkhovna Rada of Ukraine 2001a); the Law of Ukraine “On Civil Associations”(Verkhovna Rada of Ukraine 2012a); the Law of Ukraine “On Civil Service” (Verkhovna Rada of Ukraine 2015); the Law of Ukraine “On Service in Bodies of Local Self-Government”(Verkhovna Rada of Ukraine 2001b); the Law of Ukrainian SSR “On Consumer Rights Protection” (Verkhovna Rada of the Ukrainian SSR 1991).

The Law of Ukraine “On Protection of Personal Data” (2010)

More specifically subparagraph 1 of article 7 states:

“The processing of personal data shall be prohibited if such data are about racial or ethnic origin, political views, religious or other convictions, membership in political parties and trade unions, criminal record as well as if data relate to health or sexual life, biometric or genetic information …”13.

(Ukrainian Parliament Commissioner for Human Rights 2021; Verkhovna Rada of Ukraine 2010)

However, based on subparagraph 2 of article 7 this prohibition “… shall not apply if the processing of personal data: (1) is conducted in case the personal data subject gives a univocal consent to the processing of such data;”14 (Ukrainian Parliament Commissioner for Human Rights 2021; Verkhovna Rada of Ukraine 2010). This ‘consent exception’ substantially limits the protection of the law, most insurance application forms in Ukraine require the consent of the applicant to the processing of their health data for verification purposes.

Thus, based on the review of Ukraine’s national legislation, this country has not adopted any laws, regulations, and policies that explicitly prevent GD. However, keeping in mind Ukraine’s ratification of the European Convention on Human Rights and the practice of the European Court of Human Rights, researchers believe that a legal basis for such protection does exist in Ukraine.

References

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