Striking Out with GINA

An article in the New York Times refers to the problems the major leagues have encountered in verifying the ages of young baseball players from the Dominican Republican. It reports that there is talk of taking fingerprints from aspiring players at around age 10. It adds that

The disclosure that Major League Baseball is considering fingerprinting young prospects comes six months after The New York Times reported that investigators for the commissioner’s office were conducting genetic testing on some Dominican prospects and their parents to ensure that the players were not lying about their identities and ages.

The practice was widely criticized by experts in genetics and bioethics who said they believed it was a violation of personal privacy and that it was illegal under an act passed by Congress that took effect in November 2009.

According to several people in baseball, the commissioner’s office has not conducted DNA testing since the practice was disclosed.

But was the earlier “genetic testing” was “a violation of personal privacy” and illegal under the Genetic Information Nondiscrimination Act”? It depends, I would submit, on the tests done. GINA was meant to prohibit tests for medically relevant conditions in employment and insurance. Its application — if any — to identity testing is discussed in the essay, GINA’s Genotypes. There, I argue that GINA should not prohibit an employer from testing potential or actual employees at the usual forensic identification loci. Of course, the privacy issue is more acute if the leagues were doing parentage testing, but even that is outside the strike zone of GINA.


David H. Kaye, Commentary, GINA’s Genotypes, 108 Mich. L. Rev. First Impressions 51 (2010),

Michael S. Schmidt, Baseball Considers Plan to Curtail Age Fraud, N.Y. Times, Feb. 10, 2010, at B11

Previous entries in this blog tagged with “GINA”