DNA viability testing for court

However, viability testing using DNA extracted from an alternative sample such as toenail clippings, fingernail clippings or, less regularly, blood or tissue, can be used to extract a genetic profile without the need for a cheek swab.

As an accredited DNA testing laboratory with extensive experience providing DNA testing for legal matters, AlphaBiolabs is highly experienced in extracting DNA profiles from a variety of samples. 

In this article, we take a closer look at DNA viability testing for court, how viability testing is performed, and when a viability test can be useful for legal matters.

What is DNA viability testing?

A DNA viability test is usually performed where an individual is not available to provide a cheek swab sample for DNA testing.

For a DNA viability test – also referred to as a viability study – our in-house scientists will typically work with an individual’s nail clippings to extract a viable DNA profile for the purposes of performing a DNA relationship test.

For example, if the person in question has passed away, and a living relative wants to perform a DNA relationship test, a sample of the deceased person’s nail clippings (usually toenail clippings) or less frequently, tissue or blood, could be used to obtain a viable DNA profile, provided the next of kin has given consent for their DNA to be used in testing.

If a genetic profile can be obtained from the nail clippings, tissue or blood sample, a DNA relationship test can then be performed in the usual way, by analysing and comparing two or more DNA samples to identify matching DNA markers.

If the individual’s share enough DNA markers, this indicates a biological relationship. If they do not share enough DNA markers, this means the individuals are unlikely to be related.

What samples are needed for a legal DNA viability test?

The samples needed for a DNA viability test (viability study) can vary, depending on the reasons for the court ordering a viability DNA test or DNA relationship test.

For most DNA relationship tests such as paternity and maternity tests, a cheek (buccal) swab is rubbed quickly and painlessly on the inside of each donor’s cheek to collect cheek cell DNA.

These samples are then compared in the laboratory to identify matching DNA markers (loci) and determine whether the individuals being tested are biologically related.

However, in certain circumstances where it is not possible to collect a cheek (buccal) sample for testing, a DNA viability test may be required to extract a genetic profile from an alternative sample.

Alternative samples used to perform DNA viability testing for court include fingernail clippings or toenail clippings, tissue or blood.

If a genetic profile can be obtained from these alternative samples, a DNA relationship test can then be performed in the usual way, by comparing two or more DNA samples in the laboratory to identify matching DNA markers and either verify or rule out a biological relationship.

Below are a couple of examples of when these types of samples might be used to perform a DNA viability test, prior to a DNA relationship test.

Wills and probate

Where a living relative needs to provide proof of a biological relationship to be recognised as a beneficiary of the deceased person’s estate.

For example, if a child wanted to prove that a deceased man is their biological father to claim inheritance, a legal DNA viability test using nail clippings, tissue or a blood sample from the deceased man may be required to retrieve a genetic profile and perform a paternity test.

The nail clipping (usually toenail clippings), tissue or blood sample from the deceased person is collected by the coroner or funeral director, who will complete a declaration form at the time of sample collection to maintain chain of custody.

When performing a legal DNA viability study that involves a deceased person, the next of kin must provide consent for their DNA sample to be tested.

If a genetic profile can be obtained from the person who has passed away, a DNA relationship test can then be performed in the usual way, comparing the deceased’s DNA to the living relative’s cheek (buccal) cell DNA sample.

Paternity disputes

A major benefit of DNA viability testing is that it provides a discreet method of sample collection, where the use of a cheek (buccal) swab may lead to awkward questions.

For example, if the court requires a paternity test to be performed on an older child (under 16 years of age), a sample of the child’s nail clippings may be easier to obtain, where a cheek swab sample could lead to awkward questions.

It is important to note that consent is still an important factor for DNA viability testing and subsequent DNA relationship tests.

Any person aged 16 or over must provide their own written consent (a signature) for their DNA sample to be used for testing.

For children under 16 years of age, written consent must be provided by a parent or guardian with parental responsibility for the child.

Is consent needed for legal DNA viability testing?

Yes, consent is always needed to perform any kind of DNA test, including DNA viability tests.

Perhaps the most important consideration regarding the legality of DNA testing is the Human Tissue Act 2004.

Section 45 of the act makes the issue of consent for DNA testing reasonably straight forward. This part of the act states that a 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 reputable testing laboratories – including AlphaBiolabs – will carefully adhere to the act to ensure the correct consent has been obtained before any DNA test is performed.

Any person aged 16 or over must provide their own consent (a signature) for their DNA samples to be used for DNA testing.

For a child under the age of 16, only parental consent is required to carry out a DNA test. This consent must be provided by a person with parental responsibility for the child.

In the UK, a mother has parental responsibility for her child automatically. A father has parental responsibility if they are:

• Married to the child’s mother or
• Listed on the birth certificate (after a certain date, depending on which part of the UK the child was born in)

When testing the DNA of a deceased person, consent must be provided by the next of kin to retrieve a sample of their DNA for testing.

When is viability testing useful for legal matters?

Whatever the reason for the court requesting a DNA relationship test or a viability study, the test must be performed by an accredited DNA laboratory for the results of any subsequent DNA relationship test to be admissible in court.

Furthermore, samples must be collected under strict chain of custody conditions to reduce the likelihood of tampering and ensure samples are collected from the right people.

When testing the DNA of a deceased individual, the samples are collected by the coroner or funeral director, who will complete a declaration form at the time of sample collection to maintain chain of custody.

There are many circumstances where a DNA viability test might be useful for legal matters, including:

Wills and probate

Where a living relative needs to provide proof of a biological relationship to be recognised as a beneficiary of the deceased person’s estate.

For example, if a child wanted to prove that a deceased man is their biological father to claim inheritance, a DNA viability test using nail clippings, tissue or a blood sample may be required to retrieve a genetic profile and perform a paternity test.

If a profile is retrieved, a paternity test can then be performed in the usual way using a cheek (buccal) cell sample from the child and comparing it to the deceased man’s DNA profile.

When performing a legal DNA viability study that involves a deceased person, the next of kin must provide consent for the person’s DNA sample to be tested.

Paternity disputes

A major benefit of DNA viability testing is that it provides a discreet method of sample collection, where the use of a cheek (buccal) swab may lead to awkward questions.

For example, if the court requires a paternity test to be performed on an older child (under 16 years of age), a sample of the child’s nail clippings may be easier to obtain, where a cheek swab sample could lead to awkward questions.

It is important to note that consent is still an important factor for DNA viability testing and subsequent DNA relationship tests.

Any person aged 16 or over must provide their own written consent (a signature) for their DNA sample to be used for testing.

For children under 16 years of age, written consent must be provided by a parent or guardian with parental responsibility for the child.

Where can I get a DNA viability test for court?

AlphaBiolabs is a long-established, highly regarded, and accredited laboratory, with over 15 years’ experience providing court-approved DNA testing for family law professionals, social workers, local authorities, and immigration solicitors.

Our legally-instructed DNA testing follows strict procedures to maintain chain of custody, meaning that our results are court-approved and accepted by the Family Court, the Ministry of Justice, the Child Maintenance Service, UK Visas and Immigration and the Home Office.

We are also the only UK laboratory to be UKAS-accredited for non-invasive prenatal paternity (NIPP) testing.

For expert advice on which DNA test is best for your client, call the AlphaBiolabs Legal team on 0333 600 1300 or email testing@alphabiolabs.com and a member of the team will be in touch.