The Age

Paternity: stop DNA by 'stealth'

By Larry Schwartz
The Age (Melbourne)
May 26 2002

The Chief Judge of the Family Court has called for legislation making it a criminal offence to carry out secret DNA paternity testing using a child's hair or saliva removed without permission.

Justice Alastair Nicholson told The Sunday Age a legal requirement to seek permission from the child or mother was now "not as clear as it could be" and the results of secret DNA tests should not be admissible in court proceedings.

He said that any criminal sanctions should apply to both those ordering the test and DNA laboratories that conducted them knowing the samples had been removed from children without permission.

"I agree with the view that it should be made an offence," Justice Nicholson said. "I think it's an invasion of the children's rights to do it . . . it may be that the court could restrain someone from doing it."

Justice Nicholson's concerns were echoed by the head of the Australian Law Reform Commission, David Weisbrot, who said last week it was "certainly possible" an inquiry into the protection of human genetic material - in which the commission is involved along with the Australian Health Ethics Committee - will recommend prosecution in some cases.

In a preliminary draft paper prepared for the inquiry, it is revealed that less than 5 per cent of an estimated 3000 Australian DNA paternity tests a year come before the Family Court.

Justice Nicholson said if fathers had a genuine reason for seeking a DNA paternity test they "ought to go to the court and ask for it".

Where parentage is in dispute, the court can order testing under the Family Law Act. This can involve sampling blood or DNA, the latter considered more accurate.

Justice Nicholson said he was particularly concerned about the effect on children who later discovered fathers had secretly tested parentage. "It's rather terrible for a child to find out that Dad has been off taking DNA tests to see if he's really your dad," he said.

Justice Nicholson said he agreed that not only men involved in questioning their parenthood but laboratories doing the DNA testing might be liable to prosecution. "One would have to establish that it (the laboratory) knew that it was taken without permission," he said.

Professor Weisbrot said it was likely the inquiry report to the government in March 2003 might make "similar responses" to proposals by a UK watchdog, the Human Genetics Commission, for new laws that could see British fathers who conduct "secret" paternity tests face prosecution.

It recommended that it be a criminal offence to test someone's DNA or access genetic information without their knowledge or consent "for non-medical purposes, except as allowed by law - forensic uses".

Professor Weisbrot said: "We're still considering whether it will be sufficient to deal with it along the lines of the Privacy Act, which is basically a non-criminal model, or whether . . . we would also need to have criminal sanctions."

The inquiry findings, to be presented to Attorney-General Daryl Williams and the Minister for Health and Ageing, Kay Patterson, will deal with parentage issues as well as the use of test results by employers, insurers and police.

"We're not looking for one-size-fits-all solutions," Professor Weisbrot said. "So it might be, in some circumstances, we might recommend that criminal sanctions are appropriate and in others not."

Only a small proportion of DNA paternity testing is conducted by firms accredited by an organisation called the National Association of Testing Authorities, a requirement for it to be admissible as evidence in the Family Court.

"These are really serious, life issues," Professor Weisbrot said. "Where it happens through the Family Court, they have a large counselling apparatus that is skilled in keeping the family together, and the central issue is the best interest of the child."

Ian Smith, director of Genetic Technology, reportedly Australia's largest NATA-accredited testing chain, said there were no guidelines on permission and he would welcome guidance on this issue and regulation of the industry.

He attributed a steady demand for DNA paternity testing in recent years in part to a requirement that mothers seeking single parents' benefits identify fathers. He declined to say whether failure to gain consent should be a criminal offence, saying the issue was "far too complex".

Vern Muir, director of the unaccredited tester DNA Solutions accused the critics of testing without consent of scaremongering.

He said it was mostly men who requested the thousands of tests his company had done, and only about half of them indicated that permission had been sought from children or mothers.

"It's really quite disturbing that they are going to lock fathers away, from testing their own children," Mr Muir said.

Copyright 2002 The Age Company Ltd.