DNA testing is becoming more and more commercially available, with home testing kits being sold in high street stores, pharmacies and available online. Requirements for DNA testing in legal cases or custody disputes for legal reasons are also on the increase. Such tests, particularly when performed by UKAS ISO 17025 laboratories, are usually conducted ethically to the highest standards.

Instances where the ethical line may be drawn concerning DNA testing is whether or not consent has been given for the use of someone’s DNA for analyses. Sometimes when DNA testing is mentioned as being ‘discreet’, it means that the packaging of kits are subtle or that the information gathered is kept 100 percent confidential. However, more and more companies are now offering ‘discreet’ or ‘Infidelity’ DNA testing, which involves gathering genetic or forensic data about a person without their consent.

Is ‘Discreet’ DNA Testing Illegal?

Perhaps the most important consideration in regards to this is the Human Tissue Act 2004. It would take a much larger article to explain every section of this act, but when it comes to consent it seems reasonably straight forward.

In section 45 of this act testing any person’s human tissue may be considered DNA theft if “he has any bodily material … [intended to be] analysed without qualifying consent.” Punishments for not following the Human Tissue Act include three years imprisonment, a fine or both. Therefore most companies are very careful to adhere to the as firmly as possible.

Obviously there are certain services that are exempt from this act such as coroners, criminal investigations and national security. But commercial companies are offering DNA testing services for purposes such as establishing whether or not they are the true parent of a child or to test if someone is being unfaithful without gaining their permission for such as test.

How ‘Discreet’ DNA Tests Obtain Their Samples

They could potentially do this in a number of ways, the majority of which are considered underhanded when they are designed with the intention of avoiding gaining consent (albeit this is not usually expressed when the services are being offered on websites, certainly not in bold flashing lettering in any case). Just some of the objects and materials that can be tested include:

  • Blood stains
  • Cigarette Butts
  • Toothbrushes
  • Floss
  • Gum
  • Licked Envelopes
  • Used tissues
  • Finger and toe nails

These tests usually have varied costs and likelihood of test success rate, but they all sound like ways around gaining permission. This is surely evident because if you had the consent of the individual, taking a swab of their inner cheek or a hair sample would be more practical and provide more accurate test results (especially when the sample material must not have come into contact with any other biological matter, animal or person). Most of the things mentioned in the list above are often discarded and would not require any contact with the person to be tested, or even for them to be around at all for that matter.

This could be where such a loop-hole with common law applies, that if the human tissue has been put in the bin as waste, then it is no longer the possession of the individual and therefore can not be stolen. However, this still does dispense with the need for consent from the Human Tissue Act that even mentions that ‘relevant material does not include hair and nails from the body of a living person’.

The act also states that an authority must have no reason to believe ‘that a decision of the donor to refuse consent to the use of the material for that purpose’. It could be for ‘the benefit of another person’ or ‘that the donor lacks the capacity to consent to the use of the material for that purpose.’

Therefore exceptions of consent can apply to the disabled and those with mental conditions for example. Parents or next-of-kin would most likely be involved when it comes to giving ‘qualifying’ consent for children and the deceased. It is not the intention of this article to dispute the need for DNA testing in such cases as these are legitimate reasons to waive the need for consent.

This particular section of the act would seem to allow DNA testing for commercial purposes without consent as long as the individual has not been given the opportunity to refuse. They can not refuse to take part in something that they are not even aware of can they? But later in the act it is stated that the authority must be satisfied that ‘reasonable efforts have been made to get the donor to decide whether to consent to the use of the material for that purpose.’

So from the stated clauses in the act it would seem that the only legal way to do the ‘discreet’ tests would be if reasonable attempts were made to gain consent from the individual, but they never replied or refused to comment in a way that indicated either preference when approached on the subject. How an individual wishing to obtain such consent would do so while still remaining ‘discreet’ like the tests advertise would surely be impossible without illegal activity, or at the very least, deceptive tactics.

Storage of Human Tissue

Furthermore the act states that storage of someone’s tissue for non-permitted purposes is not allowed. So even if consent or refusal could not be obtained after reasonable attempts, then an individual who wishes to test materials obtained such as hair or finger nails would not be able to keep hold of it before sending it off to be tested.

It would also suggest that the company would have to test the sample immediately after it arrived and would not be able to store it once the results were obtained (which is common practice in DNA testing in case the sample needs to be retested for example). Presumably everyone would need to play a proverbial game of DNA sample hot-potato in this regard to remain within the law.

There is Nothing Wrong with Being ‘Discreet’ – it Depends on the Methods

As touched upon earlier in the article some companies may advertise themselves and their testing as ‘discreet’ in terms of keeping results etc. confidential from any third party and this article is not suggesting that this is in anyway wrong (in fact you should always favour a testing service that offers confidentiality in this manner). There are different associations of the word both in general and within the industry. The issue of morality is more concerning specific tests that are branded as ‘discreet’ for the purposes of intentionally either tip-toeing around or leaping over the need for consent when DNA testing.

Some of the companies offering such services may have found legal loop-holes and are operating legally, but does this mean that they are operating ethically?