Original URL: http://www.theregister.co.uk/2006/08/18/prison_for_rogue_dna_testers/

Cowboy DNA testers face prison terms

And you can't flog your kidney on eBay

By OUT-LAW.COM

Posted in Media, 18th August 2006 09:20 GMT

A law that could send eBay directors to prison if they fail to remove listings for body parts will next month extend to anyone holding saliva or hair samples for paternity testing or other DNA analysis if they do not have proper consent.

The Human Tissue Act of 2004 regulates the removal, storage and use of materials that include human cells, including blood or tissue samples. Not all of the businesses caught by the legislation are obvious.

One of the Act's provisions, in force since October 2005, introduced a maximum penalty of a fine and 51 weeks in prison for anyone who publishes an advert for human organs, blood or tissue samples.

Websites that allow users to post their own content may be familiar with the risk of defamation; they may be less familiar with the risk of users selling a human kidney. One company that is familiar with that risk is eBay.

Bids on a "fully functioning kidney" at eBay.com reached $5.7m in 1999 before the company intervened to block the sale. A similar sale was blocked at eBay.co.uk. Such sales have been outlawed since 1989, but jail terms are a new deterrent, and the 2004 Act also catches sales outside Britain for the first time.

OUT-LAW asked eBay about its procedures. The company referred us to its Human Parts and Remains Policy.

"Humans, the human body, or any human body parts may not be listed on eBay," it states. "Examples of prohibited items include, but are not limited to: organs, bone, blood, waste, sperm, and eggs. You may not include such items as a gift, prize or giveaway in connection with an item listed on eBay. However, items that contain human hair (eg, lockets) may be listed on eBay."

A spokesman added, "eBay promptly removes any items listed on the site that it becomes aware of that may break this policy."

It is understood that the company becomes aware of prohibited ads by inviting customers to notify policy breaches and also by using software to monitor for keywords.

Human hair can be sold without breaking eBay's policy and without breaking the 2004 Act; but buying that hair to perform a DNA test will soon become an offence unless there is consent.

From September, a maximum three-year prison sentence looms over anyone holding bodily material with intent to analyse its DNA without consent. This could apply to directors and managers if their company performs DNA testing and they neglect to take steps to ensure consent.

For little more than £100, several companies can determine whether a child is yours. They offer other services too. Some will analyse DNA in sperm stains, hair follicles, toothbrushes, chewed gum, cigarette butts and licked envelopes.

Existing regulation bans paternity testers from advertising their services on the radio or television but they can be promoted in print and online. Many offer only a basic service. Some offer more, including one which offers to help customers in their "own private detective work" which poses the question, "has someone been in your house without your knowledge?"

The Department of Health already offers a Code of Practice on Genetic Paternity Testing which calls not only for consent but also for those giving consent to be fully informed of the consequences of the test – given the irrevocable circumstances that knowledge of the test results may bring. It also expects robust measures to ensure that the identity of the provider of a sample can be established.

The Human Tissue Authority also provides a Code of Practice on consent. But it is the Human Tissue Act that introduces the offences and penalties.

OUT-LAW spoke to one DNA testing specialist, Crucial Genetics. Its labs are part of Glasgow University and its offices are based in Cheshire.

Business Development Manager Max Hamilton explained that the effect of the changes in September will be "very, very minor" for Crucial Genetics, but might be more significant for others. "Some businesses send DNA collection kits to homes," he said, pointing out that verifying consent in these circumstances is difficult.

Hamilton explained that the company only sends its kits to medical professionals and has them take the samples.

If you want Crucial Genetics to identify whether you are the parent of a child, you will be asked a series of questions about your motives and, for example, whether the child is old enough to understand the procedure.

A testing kit can be sent to your GP, if he or she has known you for three years or more - but it won't be sent to your home, Hamilton explained. The samples are taken by your GP and placed in a tamper-evident bag which is returned to the company with the signed consent forms and a photograph of you that has been signed by your GP. Hamilton said they also check the authenticity of the named GPs together with the supplied address details.

"We try as far as we can to eliminate the risk of forgery or tests being done without appropriate consent," said Hamilton.

He said the company often receives calls from spouses who request tests on a partner's underwear to detect evidence of cheating. "Lives are torn apart by that sort of thing," said Hamilton, also pointing out the difficulty of obtaining consent in these circumstances. "We're unwilling to do it."

See:

Copyright © 2006, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.