Imagine this scenario: A couple is involved in a heated custody dispute over their only child. As part of the effort to make the case of being a better guardian, one parent goes on a "genetic fishing expedition": this parent obtains a DNA sample from the other parent with the hope that such data will identify some genetic predisposition to a psychiatric condition (e.g., schizophrenia) and tilt the judge's custody decision in his or her favor.
As knowledge of psychiatric genetics is growing, it is likely to be introduced in civil cases, such as child custody disputes and education-related cases, raising a tangle of ethical and legal questions.
This is an example of how "behavioral genetic evidence" -- an umbrella term for information gathered from family history and genetic testing about pathological behaviors, including psychiatric conditions—may in the future be brought by litigants in court proceedings. Such evidence has been discussed primarily when criminal defendants sought to introduce it to make the claim that they are not responsible for their behavior or to justify their request for reduced sentencing and more lenient punishment.
However, civil cases are an emerging frontier for behavioral genetic evidence. It has already been introduced in tort litigation, such as personal injury claims, and as knowledge of psychiatric genetics is growing, it is further likely to be introduced in other civil cases, such as child custody disputes and education-related cases. But the introduction of such evidence raises a tangle of ethical and legal questions that civil courts will need to address. For example: how should such data be obtained? Who should get to present it and under what circumstances? And does the use of such evidence fit with the purposes of administering justice?
How Did We Get Here?
That behavioral genetic evidence is entering courts is unsurprising. Scientific evidence is a common feature of judicial proceedings, and genetic information may reveal relevant findings. For example, genetic evidence may elucidate whether a child's medical condition is due to genetic causes or medical malpractice, and it has been routinely used to identify alleged offenders or putative fathers. But behavioral genetic evidence is different from such other genetic data – it is shades of gray, instead of black and white.
Although efforts to understand the nature and origins of human behavior are ongoing, existing and likely future knowledge about behavioral genetics is limited. Behavioral disorders are highly complex and diverse. They commonly involve not one but multiple genes, each with a relatively small effect. They are impacted by many, yet unknown, interactions between genes, familial, and environmental factors such as poverty and childhood adversity.
And a specific gene variant may be associated with more than one behavioral disorder and be manifested with significantly different symptoms. Thus, biomarkers about "predispositions" for behavioral disorders cannot generally provide a diagnosis or an accurate estimate of whether, when, and at what severity a behavioral disorder will occur. And, unlike genetic testing that can confirm litigants' identity with 99.99% probability, behavioral genetic evidence is far more speculative.
Genetic theft raises questions about whose behavioral data are being obtained, by whom, and with what authority.
Whether judges, jurors, and other experts understand the nuances of behavioral genetics is unclear. Many people over-estimate the deterministic nature of genetics, and under-estimate the role of environments, especially with regards to mental health status. The U.S. individualistic culture of self-reliance and independence may further tilt the judicial scales because litigants in civil courts may be unjustly blamed for their "bad genes" while structural and societal determinants that lead to poor behavioral outcomes are ignored.
These concerns were recently captured in the Netflix series "13 Reasons Why," depicting a negligence lawsuit against a school brought by parents of a high-school student there (Hannah) who committed suicide. The legal tides shifted from the school's negligence in tolerating a culture of bullying to parental responsibility once cross-examination of Hannah's mother revealed a family history of anxiety, and the possibility that Hannah had a predisposition for mental illness, which (arguably) required therapy even in the absence of clear symptoms.
Where Is This Going?
The concerns are exacerbated given the ways in which behavioral genetic evidence may come to court in the future. One way is through "genetic theft," where genetic evidence is obtained from deserted property, such as soft-drink cans. This method is often used for identification purposes such as criminal and paternity proceedings, and it will likely expand to behavioral genetic data once available through "home kits" that are offered by direct-to-consumer companies.
Genetic theft raises questions about whose behavioral data are being obtained, by whom, and with what authority. In the scenario of child-custody dispute, for example, the sequencing of the other parent's DNA will necessarily intrude on the privacy of that parent, even as the scientific value of such information is limited. A parent on a "genetic fishing expedition" can also secretly sequence their child for psychiatric genetic predispositions, arguably, in order to take preventative measures to reduce the child's risk for developing a behavioral disorder. But should a parent be allowed to sequence the child without the other parent's consent, or regardless of whether the results will provide medical benefits to the child?
Similarly, although schools are required, and may be held accountable for failing to identify children with behavioral disabilities and to evaluate their educational needs, some parents may decline their child's evaluation by mental health professionals. Should schools secretly obtain a sample and sequence children for behavioral disorders, regardless of parental consent? My study of parents found that the overwhelming majority opposed imposed genetic testing by school authorities. But should parental preference or the child's best interests be the determinative factor? Alternatively, could schools use secretly obtained genetic data as a defense that they are fulfilling the child-find requirement under the law?
The stigma associated with behavioral disorders may intimidate some people enough that they back down from just claims.
In general, samples obtained through genetic theft may not meet the legal requirements for admissible evidence, and as these examples suggest, they also involve privacy infringement that may be unjustified in civil litigation. But their introduction in courts may influence judicial proceedings. It is hard to disregard such evidence even if decision-makers are told to ignore it.
The costs associated with genetic testing may further intensify power differences among litigants. Because not everyone can pay for DNA sequencing, there is a risk that those with more resources will be "better off" in court proceedings. Simultaneously, the stigma associated with behavioral disorders may intimidate some people enough that they back down from just claims. For example, a good parent may give up a custody claim to avoid disclosure of his or her genetic predispositions for psychiatric conditions. Regulating this area of law is necessary to prevent misuses of scientific technologies and to ensure that powerful actors do not have an unfair advantage over weaker litigants.
Behavioral genetic evidence may also enter the courts through subpoena of data obtained in clinical, research or other commercial genomic settings such as ancestry testing (similar to the genealogy database recently used to identify the Golden State Killer). Although court orders to testify or present evidence are common, their use for obtaining behavioral genetic evidence raises concerns.
One worry is that it may be over-intrusive. Because behavioral genetics are heritable, such data may reveal information not only about the individual litigant but also about other family members who may subsequently be stigmatized as well. And, even if we assume that many people may be willing for their data in genomic databases to be used to identify relatives who committed crimes (e.g., a rapist or a murderer), we can't assume the same for civil litigation, where the public interest in disclosure is far weaker.
Another worry is that it may deter people from participating in activities that society has an interest in advancing, including medical treatment involving genetic testing and genomic research. To address this concern, existing policy provides expanded privacy protections for NIH-funded genomic research by automatically issuing a Certificate of Confidentiality that prohibits disclosure of identifiable information in any Federal, State, or local civil, criminal, and other legal proceedings.
But this policy has limitations. It applies only to specific research settings and does not cover non-NIH funded research or clinical testing. The Certificate's protections can also be waived under certain circumstances. People who volunteer to participate in non-NIH-funded genomic research for the public good may thus find themselves worse-off if embroiled in legal proceedings.
Consider the following: if a parent in a child custody dispute had participated in a genetic study on schizophrenia years earlier, should the genetic results be subpoenaed by the court – and weaponized by the other parent? Public policy should aim to reduce the risks for such individuals. The end of obtaining behavioral genetic evidence cannot, and should not, always justify the means.
In December 1958, on a vacation with his wife in Kenya, a 28-year-old British tea broker named Robin Cavendish became suddenly ill. Neither he nor his wife Diana knew it at the time, but Robin's illness would change the course of medical history forever.
Robin was rushed to a nearby hospital in Kenya where the medical staff delivered the crushing news: Robin had contracted polio, and the paralysis creeping up his body was almost certainly permanent. The doctors placed Robin on a ventilator through a tracheotomy in his neck, as the paralysis from his polio infection had rendered him unable to breathe on his own – and going off the average life expectancy at the time, they gave him only three months to live. Robin and Diana (who was pregnant at the time with their first child, Jonathan) flew back to England so he could be admitted to a hospital. They mentally prepared to wait out Robin's final days.
But Robin did something unexpected when he returned to the UK – just one of many things that would astonish doctors over the next several years: He survived. Diana gave birth to Jonathan in February 1959 and continued to visit Robin regularly in the hospital with the baby. Despite doctors warning that he would soon succumb to his illness, Robin kept living.
After a year in the hospital, Diana suggested something radical: She wanted Robin to leave the hospital and live at home in South Oxfordshire for as long as he possibly could, with her as his nurse. At the time, this suggestion was unheard of. People like Robin who depended on machinery to keep them breathing had only ever lived inside hospital walls, as the prevailing belief was that the machinery needed to keep them alive was too complicated for laypeople to operate. But Diana and Robin were up for the challenges – and the risks. Because his ventilator ran on electricity, if the house were to unexpectedly lose power, Diana would either need to restore power quickly or hand-pump air into his lungs to keep him alive.
Robin's wheelchair was not only the first of its kind; it became the model for the respiratory wheelchairs that people still use today.
In an interview as an adult, Jonathan Cavendish reflected on his parents' decision to live outside the hospital on a ventilator: "My father's mantra was quality of life," he explained. "He could have stayed in the hospital, but he didn't think that was as good of a life as he could manage. He would rather be two minutes away from death and living a full life."
After a few years of living at home, however, Robin became tired of being confined to his bed. He longed to sit outside, to visit friends, to travel – but had no way of doing so without his ventilator. So together with his friend Teddy Hall, a professor and engineer at Oxford University, the two collaborated in 1962 to create an entirely new invention: a battery-operated wheelchair prototype with a ventilator built in. With this, Robin could now venture outside the house – and soon the Cavendish family became famous for taking vacations. It was something that, by all accounts, had never been done before by someone who was ventilator-dependent. Robin and Hall also designed a van so that the wheelchair could be plugged in and powered during travel. Jonathan Cavendish later recalled a particular family vacation that nearly ended in disaster when the van broke down outside of Barcelona, Spain:
"My poor old uncle [plugged] my father's chair into the wrong socket," Cavendish later recalled, causing the electricity to short. "There was fire and smoke, and both the van and the chair ground to a halt." Johnathan, who was eight or nine at the time, his mother, and his uncle took turns hand-pumping Robin's ventilator by the roadside for the next thirty-six hours, waiting for Professor Hall to arrive in town and repair the van. Rather than being panicked, the Cavendishes managed to turn the vigil into a party. Townspeople came to greet them, bringing food and music, and a local priest even stopped by to give his blessing.
Robin had become a pioneer, showing the world that a person with severe disabilities could still have mobility, access, and a fuller quality of life than anyone had imagined. His mission, along with Hall's, then became gifting this independence to others like himself. Robin and Hall raised money – first from the Ernest Kleinwort Charitable Trust, and then from the British Department of Health – to fund more ventilator chairs, which were then manufactured by Hall's company, Littlemore Scientific Engineering, and given to fellow patients who wanted to live full lives at home. Robin and Hall used themselves as guinea pigs, testing out different models of the chairs and collaborating with scientists to create other devices for those with disabilities. One invention, called the Possum, allowed paraplegics to control things like the telephone and television set with just a nod of the head. Robin's wheelchair was not only the first of its kind; it became the model for the respiratory wheelchairs that people still use today.
Robin went on to enjoy a long and happy life with his family at their house in South Oxfordshire, surrounded by friends who would later attest to his "down-to-earth" personality, his sense of humor, and his "irresistible" charm. When he died peacefully at his home in 1994 at age 64, he was considered the world's oldest-living person who used a ventilator outside the hospital – breaking yet another barrier for what medical science thought was possible.
Sarah Watts is a health and science writer based in Chicago. Follow her on Twitter at @swattswrites.
In June 2012, Kirstie Ennis was six months into her second deployment to Afghanistan and recently promoted to sergeant. The helicopter gunner and seven others were three hours into a routine mission of combat resupplies and troop transport when their CH-53D helicopter went down hard.
Miraculously, all eight people onboard survived, but Ennis' injuries were many and severe. She had a torn rotator cuff, torn labrum, crushed cervical discs, facial fractures, deep lacerations and traumatic brain injury. Despite a severely fractured ankle, doctors managed to save her foot, for a while at least.
In November 2015, after three years of constant pain and too many surgeries to count, Ennis relented. She elected to undergo a lower leg amputation but only after she completed the 1,000-mile, 72-day Walking with the Wounded journey across the UK.
On Veteran's Day of that year, on the other side of the country, orthopedic surgeon Cato Laurencin announced a moonshot challenge he was setting out to achieve on behalf of wounded warriors like Ennis: the Hartford Engineering A Limb (HEAL) Project.
Laurencin, who is a University of Connecticut professor of chemical, materials and biomedical engineering, teamed up with experts in tissue bioengineering and regenerative medicine from Harvard, Columbia, UC Irvine and SASTRA University in India. Laurencin and his colleagues at the Connecticut Convergence Institute for Translation in Regenerative Engineering made a bold commitment to regenerate an entire limb within 15 years – by the year 2030.
Dr. Cato Laurencin pictured in his office at UConn.
Photo Credit: UConn
Regenerative Engineering -- A Whole New Field
Limb regeneration in humans has been a medical and scientific fascination for decades, with little to show for the effort. However, Laurencin believes that if we are to reach the next level of 21st century medical advances, this puzzle must be solved.
An estimated 185,000 people undergo upper or lower limb amputation every year. Despite the significant advances in electromechanical prosthetics, these individuals still lack the ability to perform complex functions such as sensation for tactile input, normal gait and movement feedback. As far as Laurencin is concerned, the only clinical answer that makes sense is to regenerate a whole functional limb.
Laurencin feels other regeneration efforts were hampered by their siloed research methods with chemists, surgeons, engineers all working separately. Success, he argues, requires a paradigm shift to a trans-disciplinary approach that brings together cutting-edge technologies from disparate fields such as biology, material sciences, physical, chemical and engineering sciences.
As the only surgeon ever inducted into the academies of Science, Medicine and Innovation, Laurencin is uniquely suited for the challenge. He is regarded as the founder of Regenerative Engineering, defined as the convergence of advanced materials sciences, stem cell sciences, physics, developmental biology and clinical translation for the regeneration of complex tissues and organ systems.
But none of this is achievable without early clinician participation across scientific fields to develop new technologies and a deeper understanding of how to harness the body's innate regenerative capabilities. "When I perform a surgical procedure or something is torn or needs to be repaired, I count on the body being involved in regenerating tissue," he says. "So, understanding how the body works to regenerate itself and harnessing that ability is an important factor for the regeneration process."
The Birth of the Vision
Laurencin's passion for regeneration began when he was a sports medicine fellow at Cornell University Medical Center in the early 1990s. There he saw a significant number of injuries to the anterior cruciate ligament (ACL), the major ligament that stabilizes the knee. He believed he could develop a better way to address those injuries using biomaterials to regenerate the ligament. He sketched out a preliminary drawing on a napkin one night over dinner. He has spent the next 30 years regenerating tissues, including the patented L-C ligament.
As chair of Orthopaedic Surgery at the University of Virginia during the peak of the wars in Iraq and Afghanistan, Laurencin treated military personnel who survived because of improved helmets, body armor and battlefield medicine but were left with more devastating injuries, including traumatic brain injuries and limb loss.
"I was so honored to care for them and I so admired their steadfast courage that I became determined to do something big for them," says Laurencin.
When he tells people about his plans to regrow a limb, he gets a lot of eye rolls, which he finds amusing but not discouraging. Growing bone cells was relatively new when he was first focused on regenerating bone in 1987 at MIT; in 2007 he was well on his way to regenerating ligaments at UVA when many still doubted that ligaments could even be reconstructed. He and his team have already regenerated torn rotator cuff tendons and ACL ligaments using a nano-textured fabric seeded with stem cells.
Even as a finalist for the $4 million NIH Pioneer Award for high-risk/high-reward research, he faced a skeptical scientific audience in 2014. "They said, 'Well what do you plan to do?' I said 'I plan to regenerate a whole limb in people.' There was a lot of incredulousness. They stared at me and asked a lot of questions. About three days later, I received probably the best score I've ever gotten on an NIH grant."
In the Thick of the Science
Humans are born with regenerative abilities--two-year-olds have regrown fingertips--but lose that ability with age. Salamanders are the only vertebrates that can regenerate lost body parts as adults; axolotl, the rare Mexican salamander, can grow extra limbs.
The axolotl is important as a model organism because it is a four-footed vertebrate with a similar body plan to humans. Mapping the axolotl genome in 2018 enhanced scientists' genetic understanding of their evolution, development, and regeneration. Being easy to breed in captivity allowed the HEAL team to closely study these amphibians and discover a new cell type they believe may shed light on how to mimic the process in humans.
"Whenever limb regeneration takes place in the salamander, there is a huge amount of something called heparan sulfate around that area," explains Laurencin. "We thought, 'What if this heparan sulfate is the key ingredient to allowing regeneration to take place?' We found these groups of cells that were interspersed in tissues during the time of regeneration that seemed to have connections to each other that expressed this heparan sulfate."
Called GRID (Groups that are Regenerative, Interspersed and Dendritic), these cells were also recently discovered in mice. While GRID cells don't regenerate as well in mice as in salamanders, finding them in mammals was significant.
"If they're found in mice. we might be able to find these in humans in some form," Laurencin says. "We think maybe it will help us figure out regeneration or we can create cells that mimic what grid cells do and create an artificial grid cell."
What Comes Next?
Laurencin and his team have individually engineered and made every single tissue in the lower limb, including bone, cartilage, ligament, skin, nerve, blood vessels. Regenerating joints and joint tissue is the next big mile marker, which Laurencin sees as essential to regenerating a limb that functions and performs in the way he envisions.
"Using stem cells and amnion tissue, we can regenerate joints that are damaged, and have severe arthritis," he says. "We're making progress on all fronts, and making discoveries we believe are going to be helping people along the way."
That focus and advancement is vital to Ennis. After laboring over the decision to have her leg amputated below the knee, she contracted MRSA two weeks post-surgery. In less than a month, she went from a below-the-knee-amputee to a through-the-knee amputee to an above-the-knee amputee.
"A below-the-knee amputation is night-and-day from above-the-knee," she said. "You have to relearn everything. You're basically a toddler."
Kirstie Ennis pictured in July 2020.
Photo Credit: Ennis' Instagram
The clock is ticking on the timeline Laurencin set for himself. Nine years might seem like forever if you're doing time but it might appear fleeting when you're trying to create something that's never been done before. But Laurencin isn't worried. He's convinced time is on his side.
"Every week, I receive an email or a call from someone, maybe a mother whose child has lost a finger or I'm in communication with a disabled American veteran who wants to know how the progress is going. That energizes me to continue to work hard to try to create these sorts of solutions because we're talking about people and their lives."
He devotes about 60 hours a week to the project and the roughly 100 students, faculty and staff who make up the HEAL team at the Convergence Institute seem acutely aware of what's at stake and appear equally dedicated.
"We're in the thick of the science in terms of making this happen," says Laurencin. "We've moved from making the impossible possible to making the possible a reality. That's what science is all about."