Read our related editorial: Why your DNA needs more protection
DNA from people in the UK may be being tested without their consent, despite a pioneering law that came into force more than two years ago expressly forbidding the practice.
麻豆传媒 approached genetic testing firms as a prospective UK customer, enquiring about running tests on DNA from stained bedding and other items. The responses raise serious concerns about some of the companies鈥� understanding of the law, and about the difficulty of policing tests that are sold online to customers in the UK but conducted outside the country.
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In many countries, consent is not required to run DNA tests for infidelity or paternity (麻豆传媒, 24 January, p 8). But since September 2006, it has been a criminal offence under the UK Human Tissue Act to have human bodily material with the intent to analyse its DNA without consent, except for certain specific purposes. These exceptions include when DNA is collected by the police for criminal investigations. Where consent is required, it must be provided by the individual concerned, or by their legal guardian in the case of a child. Breaches of the law are .
Some DNA testing firms that target UK customers include information on their websites about testing various items that may carry an individual鈥檚 DNA. These tests cost more than those run on cheek swabs, which would be the usual method of collecting a sample given by a person consenting to the test. Yet these websites do not always stress that UK customers must obtain consent from the people being tested.
鈥淪ome sites do not stress that UK customers must obtain consent from the people being tested鈥�
For example, the website of a company called states: 鈥淚f for any reason a swab cannot be collected for any of the individuals being tested, genetic material can often also be collected from other sources, including saliva (e.g. on chewed gum or cigarette butts), blood stains (e.g. on a razor), hair (e.g. from a hairbrush), or other forensic samples.鈥� It also promises discreet credit card billing to protect its customers鈥� privacy.
To investigate whether companies are following the UK law on covert testing, 麻豆传媒 posed as a customer and contacted a number of DNA testing firms by email or through their online query forms. All of the companies鈥� websites quoted prices in pounds sterling and either gave a UK mailing address or used a 鈥�.uk鈥� domain name.
For seven companies, we presented the query as coming from a man in London who suspected his wife of having an affair with a family friend. He did not want to confront her directly but had found a stained item of bedding and wanted any male DNA present to be compared with his own 鈥� to find out if it came from another man. The customer also asked whether it would be possible for the company to determine if the family friend was the source of the DNA in the stain, if he were able to provide an item such as a used wine glass to match against it.
Two companies correctly replied that they could not legally perform the tests on any of the items without the consent of each person involved. But the other five companies said they would test the stained bedding.
The precise scope of the law has not been tested in court. But legal experts consulted by 麻豆传媒 agree that ordering the test on the bedding should be considered an offence. 鈥淚t applies to anyone who is in possession of any DNA material and with an intention that it be analysed when there is no lawful consent and no lawful justification,鈥� says Graeme Laurie, who studies the legal aspects of genetics at the University of Edinburgh. 鈥淚t is irrelevant whether they have an identifiable sample with which to compare.鈥� Also irrelevant is the ownership of the item carrying another person鈥檚 DNA 鈥� the fact that the bedding itself belonged to the customer provides no defence.
Two of the companies that said they would test the bedding seemed aware that UK law would prevent them from testing the wine glass, but not that this law would also apply when DNA from semen left by another person is compared against a customer鈥檚 DNA.
Ian Withers of Priority Investigations in Belfast said that his company would run the test on the bedding, but he added that testing a wine glass carrying the suspect鈥檚 DNA, in order to compare it with the DNA on the bedding, 鈥渨ould breach current UK law on the gathering of genetic material鈥�.
Andrew Anderson of , which operates in the UK from Whitstable, Kent, similarly offered to test the bedding without commenting on the legal requirements. 鈥淲e handle a lot of forensic cases for infidelity testing,鈥� he noted. However, in a subsequent email about testing the wine glass, Anderson said that 鈥渓aws in the UK prevent this and you would need to send the sample to our US office in New York鈥�.
Legal experts say that a customer in the UK who had an item bearing someone鈥檚 DNA with the intention of analysing it without consent would already be on the wrong side of the law. Any company agreeing to run the test would also breach UK law when they received the item. However, it may prove difficult to prosecute companies if the sample was sent directly overseas without being handled by staff in the UK.
Cigarette butts and hair
That potential loophole may apply to and , which each said they would test the bedding and compare it with another item bearing the suspect鈥檚 DNA. While Genetrack runs a .uk website, it is based in Vancouver, Canada. Nimble Diagnostics is described as 鈥淯K-based鈥� on its , which gives no contact names or mailing addresses. Subsequent enquiries led to Tim Molloy, a geneticist at the Netherlands Cancer Institute in Amsterdam, who told 麻豆传媒 that samples from the UK are either sent directly to a US lab for testing or are forwarded by him from the Netherlands.
International Biosciences, based in Edenbridge, Kent, also said it would run both of the requested infidelity tests.
International Biosciences, Genetrack and Nimble Diagnostics advised in their emails that a wine glass might not be a reliable source of DNA from the wife鈥檚 suspected lover and suggested alternative items that could be used. For instance, International Biosciences suggested that used tissue, chewing gum, cigarette butts or hair would work better.
To investigate the situation for paternity testing, 麻豆传媒 then contacted a further five companies, this time posing as a man living in London who a few years previously had had an affair with a married woman and now suspected that he might be the father of her child. In this set of emails, we asked: If the customer obtained some chewing gum or a toothbrush used by the child, could the DNA on it be compared with his own?
Two firms did not respond, while two replied to say that the test could only be performed with the woman鈥檚 consent. As she would be the child鈥檚 guardian, that would meet UK legal requirements.
Another company, , headquartered in Miami, Florida, but with a .uk website and an address in London, indicated that it would conduct the tests without the mother鈥檚 consent. The samples could be sent to the UK address, an employee confirmed in further emails. 鈥淎nd the mother is not required to fill out any information鈥� since you are the one requesting the test.鈥�
, a specialist in forensic genetics who runs a paternity testing lab at Barts and The London School of Medicine and Dentistry, is especially concerned about the prospect of paternity tests being conducted without the consent of the child concerned, or his or her legal guardian. This risks 鈥渆normous harm鈥�, she argues. 鈥淛ust imagine if you were suddenly told that your mother had been lying to you all these years. How does it make you feel about that relationship?鈥�
After our customer queries were completed, 麻豆传媒 revealed to the companies involved that the enquiries had actually been sent by a reporter, and asked if they wished to comment.
Dan Leigh, marketing director for DNA Solutions, explained that the individual who responded about the stealthy paternity test was new to the company. 鈥淚 have spoken to the entire team regarding this matter in relation to the UK Human Tissue Act and advised accordingly,鈥� he added.
Three companies said that consent forms would have been required if an order had actually been placed. 鈥淚 guess your question was just answered a little too hastily, and had you placed an order it would have been refunded to you once the samples were received by the lab without the appropriately signed and witnessed consent forms,鈥� said Molloy of Nimble Diagnostics.
鈥淧roper written consent is always obtained for all of our tests,鈥� replied June Wong of Genetrack.
Ian Meekins, a director of International Biosciences, also said that the tests would not have been run unless consent forms had been filled in. 鈥淭o the best of my knowledge we have only carried out one infidelity test to date and this is due solely to the difficulties of obtaining consent in cases such as this.鈥�
HomeDNAdirect, meanwhile, stressed that samples would have been sent overseas, not to its UK office. 鈥淩esults would have then been issued directly by the foreign lab and the case would not have been handled in the UK,鈥� Anderson explained.
After we approached HomeDNAdirect for comment, its web page on was also amended to say: 鈥淒NA Testing using non-standard samples cannot be performed in the UK unless the person who鈥檚 [sic] sample is tested gives consent. In the case of minors, you are able to consent on their behalf if you have parental responsibility.鈥�
Priority Investigations said that it would consult with the UK Human Tissue Authority (HTA), which is responsible for implementing the law, to check the legality of its procedures for accepting DNA samples.
DNA testing firms that are scrupulous in explaining the requirement of consent to their UK customers fear that companies that run tests without consent will tarnish the reputation of the entire industry. David Hartshorne of Orchid Cellmark in Abingdon, Oxfordshire, wishes the law were more rigorously enforced. 鈥淚 would like to see more teeth to it,鈥� he says.
鈥淔irms that run tests without consent will tarnish the reputation of the entire industry鈥�
The HTA did write to eight genetic testing companies in October 2006, notifying them that information on their websites appeared to contravene the law and warning them that the authority 鈥渉as the power to prosecute鈥�. DNA Solutions and Genetrack were two of the companies that received these letters.
However, the HTA does not actively police DNA testing websites on an ongoing basis. 鈥淢embers of the public should contact the police if they suspect the law has been broken,鈥� says Vicki Chapman, the HTA鈥檚 director of policy and strategy.
The HTA has itself received complaints from members of the public alleging breaches of the law, in June and September 2008. In these cases, the matter was turned over to the police. No prosecutions have yet been brought, and the HTA declined to reveal which individuals or companies were named in the complaints.
Read our related editorial: Why your DNA needs more protection
