Modern regulatory frameworks for the use of genetic and epigenetic underwriting technology in life insurance

Following Florida's recent prohibition on the use of genetic information in life insurance risk classification, this paper analyzes insurance regulatory law and policy pertaining to the use of modern molecular biotechnology and InsurTech--particularly in the developing field of epigenetics, which studies the area above and around a human cell's immutable DNA, and the changes in gene expression brought about by a person's behavior and experiences. Public policy to date, from the health insurance prohibitions in the 2008 federal Genetic Information Nondiscrimination Act (GINA) to the 2020 GINA-like Florida prohibitions for life insurance, seeks to redress concerns that genetic information identifying pre-dispositional risk of disease could be used to penalize otherwise healthy insureds who have not manifested a diagnosable health condition. In contrast, epigenetic information, derived from a noninvasive saliva specimen, can be used to identify current health and wellness statuses, both negative and positive, that result from behavioral choice (such as tobacco, alcohol and drug use, as well as diet and exercise), with more precision than traditional, incumbent paramedical testing methods. By providing more accurate information about insureds' current and changeable health status, while avoiding the perceived unfairness of immutable genetic information, the use of epigenetic testing in life insurance underwriting would conform to the fundamental regulatory norms of information transparency and symmetry; accurate risk classification; sound risk pool construction; and a resulting alignment of interests between insurers and insureds