"A matter of opinion" - Unofficial paternity tests and the impacts on children
by Barry Pearson
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Children's rights to privacy

Types of privacy

Two very different issues about DNA testing need to be separated out, especially for paternity testing [4]. One is the sampling process. The other is the knowledge gained. They often gets mixed together in the literature, especially in the media.

These may be related to what Dr Graeme Laurie calls spatial privacy and information privacy [5]. But for ease this paper refers to samples or sampling and information or knowledge. The reason for keeping these concepts separate is that DNA testing does something interesting. It makes sampling much less invasive, and knowledge potentially much more invasive. This helps pinpoint where the concerns about DNA testing are.

Is paternity testing an invasion of a child's privacy?

If a child "owns" the rights to a piece of information, then obtaining a copy of that information would be an invasion. (It would still be invasion if the child didn't personally know the information concerned). What does society feel that a child owns?

This is easily illustrated. A mother would happily tell a complete stranger, in the child's presence, "the child inherits my brains and his father's looks; here is a picture of the father". A mother would rarely tell anyone "the child is a carrier for cystic fibrosis" or "the child will probably submit to Huntington's Chorea by the age of 60". From birth, we consider that children's parentage is something that we can freely talk about.

This is not simply a discussion about social fatherhood. This is illustrated by the willingness to discuss what the child has inherited from each parent. Or from phrases such as "like father, like son". UK society does not consider that knowledge of a child's biological parentage belongs to the child. It belongs at least to the family, and in fact is typically in the public domain. (Although sometimes with errors!) The same applies to many other societies.

Can we say (for some reason) that knowledge of probable parentage is in the public domain, but knowledge of true parentage really does belong to the child? Then consider:

- Is it a breach of the child's privacy for the mother to know if the putative father really is the child's biological parent? If so, what should we do about it?
- Is it a breach of the child's privacy for the mother to know that she really is the child's biological parent? If not, why are mothers and fathers different in terms of privacy?
- Is it a breach of the child's privacy for the child to be given false knowledge about its biological parents, and therefore to "own a lie"?

Is this about the dignity or the autonomy of the child?

A genetic test may determine whether someone can purchase insurance or get a job. A paternity test may determine whether a man is the child's biological father. The only factor that connects these tests is the use of DNA. It appears that this common factor has caused unwarranted assumptions to be made about the need for common regulation.

The President of the Australian Law Reform Commission is Professor David Weisbrot. The Commission published proposals for laws on genetics information [6]. Terry Lane interviewed him on a programme called The National Interest in June 2003 [7]. Here is part of the transcript:

Terry Lane:

Well you have recommended a protocol for obtaining genetic tissue for testing from children where paternity is in dispute; how are you recommending that should be done?

David Weisbrot:

Well essentially we've said that this one of those areas - and I should say it's consistent with the way we've approached it all the way through our inquiry - although there's been a lot of focus on the parentage testing, we've said much the same thing in respect of employment, insurance, scientific experimentation, medical procedures, and that is that the dignity of the individual, the autonomy of the individual is so important that where at all possible, they should be able to consent or not to it.

Professor Weisbrot asserted the need for consistency between genetic diagnosis and paternity testing. He used the grounds of dignity of the individual, the autonomy of the individual. This was not just for the radio programme. It is a feature of the Reform Commission's report.

What do dignity and autonomy mean here? Do they refer to the sampling, or to the knowledge? DNA sampling does little to violate one's person. Since the Reform Commission's proposal is to restrict the use of DNA tests, rather than the sampling of DNA, these words probably refer to knowledge. They refer to the need to have respect for a child as an individual, to avoid intrusion into matters specific to a child, and to provide choice. Dr Graeme Laurie has pointed out to the HGC some serious limitations of the concept of autonomy [8]. In fact, it is hard to know what it means in the context of paternity testing. Autonomy is about independence or self-governing. Paternity tests are not about an independent person, a self. They are about a relationship between two people.

Society doesn't treat knowledge of biological parentage as a matter private to a child. Society does, however, does treat some aspects of the physical nature of the child, such as knowledge of the risk of certain health problems, as private. So if the comparison between genetic diagnosis and paternity testing really is to do with knowledge, these types of test are seen to be very different. As many have said, one size (of law) doesn't fit all.


[4] "The truth is out there" - Commentary on "Move to outlaw secret DNA testing by fathers". Appendix D: Ethics of personal knowledge paternity tests.

[5] Genetic Privacy: A challenge to Medico-legal Norms. Dr Graeme Laurie, Faculty of Law, University of Edinburgh. Cambridge University Press, 2002. ISBN 0 521 66027 0. See also his response to the HGC's 'Whose hands on your genes?' consultation.

[6] "Essentially Yours: The Protection of Human Genetic Information in Australia". Australia Law Reform Commission and Australian Health Ethics Committee, March 2003.

[7] http://www.abc.net.au/rn/talks/natint/stories/s868380.htm

[8] Response to the 'Whose hands on your genes?' consultation, Dr Graeme Laurie, Faculty of Law, University of Edinburgh.

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Page last updated: 13 December, 2003 © Copyright Barry Pearson 2003