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DNA testing, parentage disputes and the law

DNA testing can create unexpected issues and outcomes that have a far wider impact on people’s lives than they ever imagined. They can include unforeseen discoveries about conception, maternity and paternity, unknown siblings and relatives. They can also uncover family secrets and stories of loss and infidelity, as well as IVF mix-ups, fertility fraud, donor conception and adoption that can upend the lives of individuals and families. In turn, these discoveries can result in complex legal disputes about parentage, birth certificates, contact and upbringing of a child, child maintenance and inheritance, negligence as well as evolving issues about the use of personal genetic information.

Far reaching implications of direct-to-consumer DNA testing

There are lots of reasons for taking an at-home DNA test with the likes of AncestryDNA, MyHeritageDNA and 23andMe. They can be the result of receiving a DNA testing kit as a gift for a birthday or Christmas. They can be motivated by an interest in genealogy and curiosity to know more about personal ancestry and increase understanding about genetic legacy. They can also be driven by a long held desire to trace birth parents, donors and genetic relatives or answer questions or suspicions about family relationships and fertility fraud.

However, the impact of direct-to-consumer DNA testing is not just felt by people who decide to take a DNA test themselves. It can have far reaching implications for their families including spouses, partners, children, grandparents and siblings. DNA testing is also increasingly affecting people who have not chosen to take any form of direct-to-consumer DNA testing. It is estimated that more than 40 million people worldwide have now taken an at-home DNA test and uploaded their results onto databases and extensive family trees that can produce genetic matches from say a distant cousin, nephew or niece who have taken a test. This is making it easier than ever before for people to search and trace genetic relatives, donors and birth parents and for people to unexpectedly find themselves in complex situations emotionally, legally and practically that they were not prepared for and never envisaged.

Parentage and birth certificates

At home DNA testing can raise fundamental questions about “who is my parent?”. DNA test results can lead to discoveries that the person thought to be a parent wasn’t and enable people who grew up with no knowledge of their paternal or maternal birth ancestry to trace their biological origins with increasing ease. It can also introduce new narratives about deception, donor conception, adoption, fertility fraud, IVF mix-ups and even babies who were separated or swapped at birth. This can trigger much soul searching as people struggle to process and come to terms with test results that can re-write family history and challenge and shape people’s sense of personal identity.

At home DNA testing can also lead to complex legal issues and proceedings as people seek to resolve and confirm their biological parentage as a matter of fact, their parentage as a matter of law and rectify birth certificates. This can lead to applications to court within legal proceedings for a declaration of parentage for legal DNA testing involving secure chain of custody testing through legally accredited providers to confirm biological parentage beyond doubt. Birth certificates are an important document of public record that confirm biological and legal parentage and they carry important legal and emotional weight as well.

Citizenship and passports

People can seek to rectify their birth certificate following DNA testing as a gateway to obtaining additional citizenship and a further passport. This might be driven by a desire to feel more connected to their personal ancestry, or to travel, work and settle abroad with greater ease. Following the UK’s exit from the European Union, this can for example bring into closer focus the value of having an EU passport with its associated rights of free to live, work, study, look for a job or retire across Europe.

Financial claims

A finding that an individual is a legal parent by virtue of DNA testing and/or a declaration of parentage within legal proceedings can also give rise to claims for child maintenance or an inheritance claim in some cases. Such financial claims can result in complex and hard fought legal proceedings that can have significant and long-lasting implications for parents, children and families.

Fertility fraud and mix-ups

The results of a direct-to-consumer test can also uncover very challenging issues related to fertility fraud, mix-ups and negligence. In some instances this has uncovered situations where a fertility clinician has over a long period of time used his own sperm sample instead of a couple’s own sample or a sample from a sperm donor, producing large numbers of genetically related children as featured in the recent Netflix documentary “Our Father” about a fertility clinician in the US state of Indiana. Aside from the shock and anguish this can create, it can also lead to health concerns, worries about incest and complex issues about consent.

At home DNA testing can also have a devasting impact if it uncovers instances of IVF mix-ups where the wrong gametes or embryos have been used, resulting in fertility patients giving birth to a child that is not genetically their own or looks very different to the donor conceived child they were expecting.  This can cause immense emotional distress, undermine parent-child bonds and give rise to difficult questions about whether to keep or return the baby to their rightful genetic parents.

Undermine donor anonymity

Direct-to-consumer DNA testing is also undermining donor anonymity around the world. It undermines the UK’s system of identity-release gamete donation whereby a donor conceived child can obtain non-identifying information about their donor from the HFEA as from age 16 and identifying donor information as from age 18. This can lead to donors being traced unexpectedly and lead donor conceived individuals, donor and families into uncharted territory.

Personal genomic information

A decision to undertake a direct-to-consumer DNA test also raises evolving issues concerning personal genomic information. How safe and protected is individual genomic information? Who has access to this genomic data? What about the commercial value and benefit derived from personal genomic data? What about the civil and human rights issues that can arise where genomic data is used to maintain law and order, aid criminal investigations and even result in population surveillance? What about the security risks associated with personal genomic data and potential impacts on certain career paths in the security sector? What happens when personal genomic data indicates serious health or genetic issues?

Specialist legal advice

Given the rapidly evolving landscape associated with DNA testing, it is important to obtain specialist legal advice to identify, manage and resolve the complex and far-reaching legal and practical issues and outcomes. It can:

  • Advise on options for opening and managing dialogue with biological parents and relatives.
  • Provide expert legal advice in respect of legal parentage claims.
  • Advise, represent or defend individuals in an application for a declaration of parentage.
  • Advise and assist in applications to rectify a birth certificate (add or remove a parent’s name).
  • Resolve a dispute about paternity/legal parentage and financial provision for a child or individual.
  • Create a bespoke legal action plan to proactively manage complex family situations and dynamics.

Do you need help dealing with a biological and legal parentage dispute or the results of a DNA test? If you would like to discuss your situation or you would like specialist legal parentage, fertility and family law advice contact Louisa Ghevaert by email louisa@louisaghevaertassociates.co.uk  or by telephone +44 (0)20 7965 8399.

 

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