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Delhi High Court: While deciding the issue that whether persons having genetic disorders can be discriminated against in the context of health insurance, the Bench of Prathiba M. Singh, J., held that right to avail health insurance is an integral part of the Right to Healthcare and the Right to Health, as recognised in Art. 21 of the Constitution, therefore discrimination in health insurance against individuals based on their genetic character, in the absence of appropriate genetic testing and the laying down of intelligible differentia is unconstitutional.

The plaintiff took a medi-claim insurance policy of Rs. 5 lakhs for himself and his family from the Defendant Company. The policy was renewed continuously without break till 10th September, 2012. The plaintiff suffers from Hypertrophic Obstructive Cardiomyopathy (HOCM). He was hospitalised on 23rd January, 2004 and 27th February, 2006 and his claims for the said periods have been honoured and payments were made by the Insurance Company. The Plaintiff was again hospitalised for treatment on 27th November, 2011. He made a claim for an amount of Rs.7, 78,864/- with the defendant. The claim however was rejected on the ground that genetic diseases are not payable as per the policy genetic exclusion clauses. The plaintiff contended that the exclusion of genetic disorders was not part of the initial policy which was availed by him but was added as part of the `Exclusions’ in a later policy document, without specific notice to him and hence the said exclusions do not bind him. Per contra, the stand of the defendant was that HOCM is a genetic disorder which is clearly excluded and hence the claim cannot be entertained.

Examining the contentions, the Bench framed the issue regarding the legality of the exclusion based on genetic disorders. The Court examined at length the meaning of genetic disorders noting that genes pass on several positive characteristics; they could at times be responsible for some abnormal medical conditions which are passed on from one generation to another which are termed as genetic disorders. The Court noted that in order to exclude genetic disorders from insurance claims, there has to be genetic testing Without doing genetic testing and prescribing what is the kind of genetic disorder which is excluded, applying a general exclusion would lead to arbitrariness. The Court also deemed it fit to analyze the global position on the subject and noted that eventhough there is lack of uniformity in the nature of regulation, the unanimous opinion appears to be that discrimination based on genetic heritage and disposition is contrary to human rights and in the context of insurance, exclusions relating to genetic disorders is heavily regulated. With the aforesaid observations, the Court held that the broad exclusion of genetic disorders is not merely a contractual issue between the insurance company and the insured but spills into the broader picture of Right to Health. It was also observed that there is an urgent need for a proper framework to prevent against genetic discrimination as also to protect collection, preservation and confidentiality of genetic data. Insurance companies are free to structure their contracts based on reasonable and intelligible factors which should not be arbitrary and exclusionary. [United India Insurance Co. Ltd. v. Jai Prakash Tayal, 2018 SCC OnLine Del 7415, decided on 26.02.2018]