Is it lawful to take DNA from a corpse?
The Family Court, in E & B v E & Others, issued a recent decision on this issue “given the public interest and possibility of future similar events”. The Respondent claimed she had been in a de facto relationship with the deceased. She brought a claim against the deceased estate. There was a significant age and socio-economic disparity between the two. The deceased’s adult children to an earlier marriage challenged the paternity of the Respondent’s baby, born soon before the date of death of the deceased. The deceased’s adult children did obtain a hair follicle DNA sample from the funeral home without the de facto partner’s consent.
The Court considered for the first occasion in New Zealand legal history, the relevance of the Human Tissue Act 2008. Section 3 of the Act provides that human tissue may be collected for specific purposes and respectfully. Section 4 of the Act renders it an offence, punishable by imprisonment or fine, to collect human tissue without informed consent which is required to be given. Obviously a deceased may not give consent. A “responsible person” under Section 12 of the Act may give consent but only if such consent is “informed consent”. De facto partners are named as a specific class of “immediate family” for the purposes of the Act and thus for the purposes of obtaining informed consent from a responsible person. The Court held that it is mandatory for a person wishing to collect tissue of a deceased person for lawful purposes to ascertain informed consent under the Act. A person entitled to give informed consent includes a member of that person’s immediately family but only if no consent was given when the person was alive and no informed objection has been raised by a person entitled to raise such an objection.
Furthermore, persons defined as entitled to raise an informed objection include de facto partners immediately prior to death. Clearly, an immediate family member can only give informed consent if he or she has taken all the prescribed steps under the Human Tissue Act. The Court found that the sample removed from the deceased after his death was taken without legitimate authority and unlawful. It is clear that, had the case proceeded, all evidence obtained from the DNA sample would have been struck out as objectionable.
Neville Woods of Rice Craig acted on behalf of the successful Respondent and says “This test case under the Human Tissues Act confirms that stringent controls are at law to be applied for collection and use of human tissue throughout New Zealand. Future implications for organisations as diverse as funeral directors and companies collecting DNA tests for ethnicity and genealogy are profound”. Obtaining informed consent from the responsible person(s) is no easy process. We recommend that you obtain legal advice on all issues involving DNA sampling.
It is clear that the only means by which we may defend ourselves as a society against the potential misuses of DNA collection is to maintain a vigilant approach to ensure we are kept safe. The Human Tissues Act is a significant step forward.