A judge has allowed a paternity test to be carried out – four years after the man’s death.
The decision was a landmark ruling and could pave the way for more post-mortem DNA tests to be carried out in the future.
David Spencer, aged 29, initially thought his father was his mother’s partner whose name appears on his birth certificate. But his mother, Carol Spencer, later told him that his real father was actually a man called William Anderson, who had ended the relationship while she was pregnant.
But Mr Anderson died of a heart attack in 2012 before paternity was proved with a DNA test. After Mr Anderson’s death, Mr Spencer was warned he could have inherited Lynch Syndrome, which would put him at a high risk of developing bowel cancer.
Mr Anderson had been treated for the disease back in 2006 and Central Manchester University Hospital took a sample of his DNA to test it for two genes linked to cancer. A genetics counsellor from the hospital told Mr Spencer that is he was Mr Anderson’s biological son he would need have a colonoscopy every two years to look for signs of bowel cancer.
However, if Mr Anderson was not his real father, regular colonoscopies would not be necessary and the procedure would increase his risk of suffering from a bowel perforation.
This information led Mr Spencer to seek permission for a paternity test to be carried out using the DNA sample from Mr Anderson, which is currently being stored at Central Manchester University Hospital.
Judge’s decision is landmark ruling
Justice Peter Jackson granted a declaration, which gave permission for the sample to be tested. He said that refusing to allow the test could lead to “injustice” in this case due to the medical reasons Mr Spencer had for wanting to establish paternity.
He said he had no reason to believe that Mr Anderson would have refused to take a paternity test if he was still alive.
He said: “Whether or not he would have welcomed the possibility that he was a father, it may not do justice to his memory to assume that he would have withheld his support from a young man who might have inherited a serious medical condition from him.
“The information, in the form of the DNA sample, is readily available and does not require physically intrusive investigations. In particular it does not require exhumation, as to which particular considerations would undoubtedly arise.”
However, he did raise concerns over setting a precedent for DNA testing to be carried out after a person’s death.
He told a hearing of the Family Division of the High Court in Manchester: “DNA testing is an interference of the highest order with the subject’s right to confidentiality and the privacy of their known family members whose genetic relationships will also be revealed by such testing. If the court allows post-mortem DNA testing in the absence of consent, this is likely to discourage patients from providing DNA during medical treatment and encourage those in Mr Spencer’s position to defer making applications until after the death of the alleged father so as to circumvent the absence of consent.”
Mr Anderson’s mother, Valerie Anderson had opposed the request for a paternity test, arguing that as the DNA sample had been provided for medical reasons he was “entitled to a high expectation of confidentiality”.
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