Discrimination risks from biological risk profiling

Introduction

Discrimination risks from biological risk profiling refer to the possibility of unfair treatment of individuals or groups based on biological information, genetic characteristics, medical conditions, neurological indicators, or predicted health risks. Biological risk profiling involves collecting and analysing biological data to estimate an individual's susceptibility to diseases, inherited conditions, behavioural characteristics, or other health-related outcomes.

Advances in biotechnology, genetic testing, artificial intelligence, neurotechnology, and predictive healthcare have increased the use of biological information in decision-making. Employers, insurance companies, healthcare institutions, research organisations, and other entities may use biological data to assess individual risks. Although these practices can support medical diagnosis and preventive healthcare, they may also create discrimination when biological characteristics are used to restrict employment, insurance coverage, educational opportunities, or access to public services.

For example, an employer may unfairly reject an applicant because genetic information suggests a future possibility of developing a particular disease. Similarly, an insurance provider may use biological risk predictions to impose discriminatory conditions. Such practices raise important questions concerning equality, privacy, human dignity, and protection against arbitrary decision-making.

Meaning and nature of biological risk profiling

Biological risk profiling refers to the systematic examination of biological information to identify or predict potential health-related risks associated with individuals.

It may involve:

Genetic profiling: Analysing genetic variations to identify inherited disease susceptibility.

Biometric profiling: Using biological measurements and physiological characteristics for identification or assessment.

Neurological profiling: Examining brain-related information to assess neurological conditions or cognitive characteristics.

Medical risk profiling: Using medical histories, laboratory results, and health records to estimate disease risks.

Predictive biological profiling: Applying artificial intelligence to biological datasets to predict possible future health conditions.

The primary concern arises when probabilistic biological information is treated as definitive evidence about an individual's abilities, health, or future behaviour.

Major discrimination risks

1. Employment discrimination

Employers may use genetic or medical information to evaluate prospective employees or existing workers. An individual could face rejection, demotion, or exclusion because of a predicted medical condition rather than actual professional performance.

Such practices may undermine equality of opportunity and violate applicable employment protections.

2. Insurance discrimination

Insurance companies may use biological risk information to estimate the likelihood of future illness. This could result in unfair exclusions, increased premiums, or denial of coverage.

The problem becomes particularly serious when individuals are penalised for inherited characteristics that they cannot control.

3. Healthcare discrimination

Healthcare institutions may use predictive biological profiles to prioritise or restrict treatment. Incorrect risk classifications can lead to unequal access to medical services.

4. Educational discrimination

Educational institutions may misuse biological or neurological assessments to classify students according to predicted cognitive abilities or medical conditions.

Such decisions may create unfair barriers to admission, participation, and educational opportunities.

5. Social stigma and exclusion

Disclosure of genetic or medical information may expose individuals to discrimination within families, communities, workplaces, and social institutions.

Biological profiling can also reinforce stereotypes associated with particular inherited conditions or disabilities.

6. Algorithmic discrimination

Artificial intelligence systems may produce discriminatory predictions when trained on incomplete, unrepresentative, or historically biased biological datasets.

For example, an algorithm may generate inaccurate disease-risk predictions for certain populations because its training data does not adequately represent their biological diversity.

Legal framework governing biological risk profiling in India

1. Constitution of India

The Indian Constitution provides important safeguards against discriminatory biological profiling.

Article 14: Guarantees equality before the law and equal protection of laws.

Article 15: Prohibits discrimination on specified grounds, including religion, race, caste, sex, and place of birth.

Article 16: Provides equality of opportunity in public employment.

Article 21: Protects life and personal liberty, including privacy, dignity, and personal autonomy.

These provisions are particularly relevant when public authorities use biological information to make decisions affecting fundamental rights.

2. Digital Personal Data Protection Act, 2023

The Digital Personal Data Protection Act, 2023, establishes a framework for processing digital personal data.

Genetic, medical, and biometric information may fall within its scope when they constitute digital personal data relating to an identifiable individual.

Organisations handling such information must comply with applicable requirements concerning lawful processing, consent or other permitted grounds, security safeguards, and individual rights.

The Act does not establish a separate comprehensive category of sensitive personal data equivalent to the sensitive-data classifications found in some other jurisdictions.

3. Rights of Persons with Disabilities Act, 2016

The Rights of Persons with Disabilities Act, 2016, provides legal protections against discrimination on the ground of disability.

Section 3 establishes equality and non-discrimination requirements. These protections are relevant when biological or medical assessments are used to disadvantage individuals with disabilities.

4. Mental Healthcare Act, 2017

The Mental Healthcare Act, 2017, protects the rights of persons with mental illness.

Its provisions concerning confidentiality, equality, and non-discrimination are relevant where neurological or psychological information is used to classify individuals unfairly.

5. Information Technology Act, 2000

Section 43A historically provided compensation for failure by a body corporate to maintain reasonable security practices involving sensitive personal data or information.

However, its continued application must be assessed in light of the Digital Personal Data Protection Act, 2023, and the statutory transition and enforcement framework. Section 72A addresses specified disclosures of personal information in breach of lawful contracts.

Relevant case laws

Indian courts have not yet developed a comprehensive body of case law specifically addressing discrimination arising from genetic or biological risk profiling. Nevertheless, constitutional privacy, equality, disability rights, and medical confidentiality judgments provide important legal principles.

1. Justice K.S. Puttaswamy v. Union of India (2017)

The Supreme Court recognised privacy as a fundamental right under Article 21 and other constitutional freedoms.

The judgment recognised informational privacy and individual autonomy as important dimensions of constitutional protection.

Legal significance: Biological information, including genetic and medical information, can reveal deeply personal characteristics. Organisations using such information for profiling must respect privacy and applicable constitutional and statutory safeguards. Unfair biological profiling may also raise concerns about dignity and individual autonomy.

2. National Legal Services Authority v. Union of India (2014)

The Supreme Court recognised the constitutional rights and dignity of transgender persons and emphasised equality and protection against discrimination.

Legal significance: The judgment establishes broader principles of human dignity, equality, and respect for individual identity. Biological characteristics should not become an automatic justification for exclusion or unequal treatment.

3. Jeeja Ghosh v. Union of India (2016)

The Supreme Court examined discrimination against a person with a disability and emphasised dignity, equality, and non-discriminatory treatment.

Legal significance: The decision is relevant when biological or medical classifications are used to exclude individuals from employment, transportation, education, or public participation. Decisions must respect disability rights and individual dignity.

4. Suchita Srivastava v. Chandigarh Administration (2009)

The Supreme Court recognised reproductive autonomy as an important aspect of personal liberty under Article 21.

Legal significance: Biological and medical information must be handled with respect for personal autonomy. Individuals should not be subjected to coercive decisions merely because of their biological or medical characteristics.

5. Common Cause v. Union of India (2018)

The Supreme Court recognised the importance of individual autonomy and dignity in medical decision-making.

Legal significance: The judgment reinforces the principle that medical decisions affecting individuals must respect their autonomy. Biological risk predictions should not automatically replace informed individual decision-making.

Regulatory and institutional safeguards

Preventing discrimination from biological risk profiling requires strong legal, technical, and institutional safeguards.

1. Informed consent: Individuals should receive appropriate information about the collection and intended use of their biological information.

2. Purpose limitation: Biological data should not be used for unrelated employment, insurance, or commercial decisions without an appropriate legal basis.

3. Data minimisation: Organisations should collect only the biological information necessary for a legitimate and lawful purpose.

4. Algorithmic transparency: Predictive systems should be evaluated for accuracy, bias, and discriminatory outcomes.

5. Human oversight: Important decisions should not depend exclusively on automated biological risk assessments where meaningful human review is required.

6. Anti-discrimination policies: Employers, healthcare institutions, insurers, and research organisations should establish clear rules against unfair biological profiling.

7. Complaint and appeal mechanisms: Individuals should have appropriate opportunities to challenge inaccurate biological classifications and discriminatory decisions.

International legal developments

International frameworks provide additional guidance for preventing discrimination arising from biological information.

UNESCO Universal Declaration on the Human Genome and Human Rights, 1997: Recognises the importance of human dignity and protection against discrimination based on genetic characteristics.

UNESCO International Declaration on Human Genetic Data, 2003: Establishes principles for responsible collection, processing, and use of human genetic data.

International Covenant on Civil and Political Rights, 1966: Articles 17 and 26 provide protections concerning privacy and equality.

Convention on the Rights of Persons with Disabilities, 2006: Promotes equality, accessibility, dignity, and protection against disability-based discrimination.

These instruments provide important guidance for developing responsible biological data governance policies.

Conclusion

Discrimination risks from biological risk profiling represent a significant legal and ethical challenge in modern biotechnology. Although genetic testing, biometric analysis, medical databases, and predictive algorithms can improve healthcare and scientific research, their misuse can create unfair treatment based on inherited characteristics, predicted illnesses, disabilities, and neurological information.

In India, Articles 14, 15, 16, and 21 of the Constitution, the Digital Personal Data Protection Act, 2023, the Rights of Persons with Disabilities Act, 2016, and the Mental Healthcare Act, 2017, provide important legal protections. Judicial decisions such as Justice K.S. Puttaswamy v. Union of India, Jeeja Ghosh v. Union of India, and Suchita Srivastava v. Chandigarh Administration reinforce the principles of privacy, equality, dignity, and personal autonomy.

Ultimately, biological risk profiling must be based on scientific accuracy, legitimate purposes, individual rights, and non-discrimination. Biological predictions should not become instruments for social exclusion or unequal treatment.